MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             May 11 2016, 8:31 am

regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana
Jonathan O. Chenoweth                                    George P. Sherman
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James “Jamar” Mason                                      May 11, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         71A03-1512-PC-2099
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Respondent.                                     Marnocha, Judge
                                                         Trial Court Cause No.
                                                         71D02-1207-PC-37



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 71A03-1512-PC-2099 | May 11, 2016        Page 1 of 8
[1]   In 2009, Appellant-Petitioner James Mason was arrested after selling crack

      cocaine to an undercover police officer and a police informant. Mason’s

      conviction for dealing in cocaine was enhanced because the deal took place

      within 1,000 feet of a school. Mason’s conviction was sustained on direct

      appeal. Mason filed a petition for post-conviction relief (“PCR”) arguing that

      his trial counsel was ineffective for failing to argue that Indiana Code section

      35-48-4-16 (2009) precluded the enhancement. Mason now appeals the post-

      conviction court’s denial of his PCR petition. We affirm.



                            Facts and Procedural History
[2]   We set out the facts of this case in Mason’s 2011 direct appeal.

              On September 24, 2009, South Bend Police Officer Paul Moring,
              an undercover police officer with the South Bend Police
              Department’s Metro Special Operations Section, was conducting
              a “bust-buy operation, for open air drug dealing” by “people that
              are either on foot or standing [on] the street corner, riding
              bicycles, sitting in vehicles” and “selling narcotics to individuals
              that flag them down or walk up to them.” (Tr. 108). As part of
              the operation, Officer Moring was driving an unmarked vehicle
              in an area known for drug dealing. Other officers were posted
              outside the vehicle and monitoring the vehicle with video and
              audio recording devices. Minnie Franklin, an informant, was in
              the passenger seat.
              As he drove around the area, Officer Moring observed Mason
              standing in an alley. Officer Moring had not seen Mason before,
              and it appeared as if he were loading items from a garage into a
              van. As Officer Moring drove toward Mason, Franklin asked “if
              he had a 2–0,” which is “street slang for twenty dollars of crack


      Court of Appeals of Indiana | Memorandum Decision 71A03-1512-PC-2099 | May 11, 2016   Page 2 of 8
        cocaine.” (Tr. 112). Mason nodded, indicating they were to drive
        down the alley.
        Officer Moring slowly drove down the alley while Mason
        followed on foot. Once Officer Moring parked on the nearest
        cross-street, Mason approached the front passenger side of the
        vehicle and began talking with Franklin, who again told him that
        she was “looking for a twenty.” (Tr. 114). Mason then walked
        over to the driver’s side of the vehicle and asked for a ride to a
        place where he could get some cocaine. Mason “was persistent in
        needing a ride to Indiana Street to obtain the drugs.” (Tr. 117).
        Officer Moring declined and told Mason that he needed to pick
        up his child. Mason therefore gave Officer Moring his cell phone
        number, and Officer Moring told him that he would be back “in
        a few minutes.” (Tr. 117).
        Shortly thereafter, Officer Moring returned to the alley. Mason
        got in his van and told Officer Moring to follow him. Officer
        Moring followed Mason to East Dubail Street, where Mason
        parked less than 100 feet from Studebaker School. Following
        Mason’s directions, Officer Moring parked behind the van.
        Officer Moring watched as Mason walked northbound. Other
        officers conducting surveillance reported that Mason appeared to
        be obtaining cocaine.
        Mason then returned to Officer Moring’s vehicle and “asked for
        the money.” (Tr. 127). Officer Moring gave Mason twenty
        dollars, in return for which Mason gave Officer Moring .16
        grams of “loose crack cocaine.” (Tr. 127). Officers arrested
        Mason after Officer Moring left the scene.
        On September 28, 2009, the State charged Mason with class A
        felony dealing in cocaine. The trial court commenced a two-day
        jury trial on November 16, 2010, after which the jury found
        Mason guilty as charged. Following a sentencing hearing on
        January 5, 2011, the trial court sentenced Mason to twenty years.




Court of Appeals of Indiana | Memorandum Decision 71A03-1512-PC-2099 | May 11, 2016   Page 3 of 8
      Mason v. State, 953 N.E.2d 681, slip op. *1 (Ind. Ct. App., Sept. 9, 2011). On

      direct appeal, Mason argued that there was insufficient evidence to rebut his

      entrapment defense, and this court affirmed his conviction. Id. at 2.


[3]   On July 26, 2012, Mason filed a pro se PCR petition which was amended by

      counsel on May 15, 2015. The post-conviction court held an evidentiary

      hearing before ultimately denying Mason’s petition.



                                Discussion and Decision
[4]   “Post-conviction proceedings are not ‘super appeals’ through which convicted

      persons can raise issues they failed to raise at trial or on direct appeal. Rather,

      post-conviction proceedings afford petitioners a limited opportunity to raise

      issues that were unavailable or unknown at trial and on direct appeal.” Bahm v.

      State, 789 N.E.2d 50, 57 (Ind. Ct. App. 2003) decision clarified on reh’g, 794

      N.E.2d 444 (Ind. Ct. App. 2003).


              In reviewing the judgment of a post-conviction court, appellate
              courts consider only the evidence and reasonable inferences
              supporting its judgment. The post-conviction court is the sole
              judge of the evidence and the credibility of the witnesses. To
              prevail on appeal from denial of post-conviction relief, the
              petitioner must show that the evidence as a whole leads
              unerringly and unmistakably to a conclusion opposite to that
              reached by the post-conviction court.… Only where the evidence
              is without conflict and leads to but one conclusion, and the post-
              conviction court has reached the opposite conclusion, will its
              findings or conclusions be disturbed as being contrary to law.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1512-PC-2099 | May 11, 2016   Page 4 of 8
      Hall v. State, 849 N.E.2d 466, 468-469 (Ind. 2006) (internal citations and

      quotations omitted).


[5]   Mason claims that he received ineffective assistance of trial counsel. We review

      claims of ineffective assistance of counsel based upon the principles enunciated

      in Strickland v. Washington, 466 U.S. 668 (1984):


              [A] claimant must demonstrate that counsel’s performance fell
              below an objective standard of reasonableness based on
              prevailing professional norms, and that the deficient performance
              resulted in prejudice. Prejudice occurs when the defendant
              demonstrates that “there is a reasonable probability that, but for
              counsel’s unprofessional errors, the result of the proceeding
              would have been different.” A reasonable probability arises
              when there is a “probability sufficient to undermine confidence in
              the outcome.”


      Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466

      U.S. at 694). “‘A strong presumption arises that counsel rendered adequate

      assistance and made all significant decisions in the exercise of reasonable

      professional judgment.’” Pruitt v. State, 903 N.E.2d 899, 906 (Ind. 2009)

      (quoting Lambert v. State, 743 N.E.2d 719, 730 (Ind. 2001)).


[6]   At the time of Mason’s offense, dealing in cocaine was a Class B felony which

      was enhanced to a Class A felony in this case because the deal took place

      within 1,000 feet of a school. Ind. Code § 35-48-4-1 (2009). Mason argues that

      his trial counsel was ineffective for failing to argue that the statutory defense

      provided by Indiana Code section 35-48-4-16(c) precluded the enhancement.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1512-PC-2099 | May 11, 2016   Page 5 of 8
              It is a defense for a person charged under this chapter with an
              offense that contains an element listed in subsection (a) that a
              person was in, on, or within one thousand (1,000) feet of school
              property, a public park, a family housing complex, or a youth
              program center at the request or suggestion of a law enforcement
              officer or an agent of a law enforcement officer.


      Ind. Code § 35-48-4-16(c) (2009).


[7]   At the post-conviction hearing, trial counsel testified that there was no evidence

      that Officer Moring or the informant suggested the deal location and, in fact, it

      was Mason who chose the location.

              [I]t is readily apparent from [the] trial transcript, that Officer
              Moring actually followed the defendant to the area where the
              transaction was to take place. And it wasn’t Officer Moring who
              told the defendant or any agent of Officer Moring, who told the
              defendant where to meet him, it was the defendant who chose
              the location. And from the photographs introduced into evidence
              at trial it was apparently clear to anybody that that location was
              right across from the Studebaker School. And so because it was
              Mr. Mason who chose the location and not the police, the
              entrapment defense under Ind. Code 35-48-4-[1]6(c), simply does
              not apply. I can’t find at all any evidence which would indicate
              that anybody, including Mr. Moring, that that location was
              chosen by the police or an agent of the police, but it was in fact
              chosen by Mr. Mason for the transaction and the dealing then
              took place.


      PCR Tr. p. 25.


[8]   Mason seems to concede that neither Officer Moring nor the informant

      suggested a specific location to complete the deal. Instead, Mason argues that

      Court of Appeals of Indiana | Memorandum Decision 71A03-1512-PC-2099 | May 11, 2016   Page 6 of 8
       he would not have been at the location at all had Moring and the informant not

       requested to buy crack cocaine in the first place. This argument is no more than

       an attempt by Mason to rehash his entrapment defense, which failed at trial.

       Officer Moring and the informant were ready and willing to purchase the

       contraband at the original location but Mason voluntarily led Officer Moring to

       another location near the school to complete the deal.


[9]    To successfully invoke the defense provided by Indiana Code section 35-48-4-

       16(c), the evidence must show that police, or an informant being directed by

       police, was the active party in determining the location of the activity in

       question, and that the defendant was passive and only acquiesced to the officer

       or informant’s request. See Bell v. State, 881 N.E.2d 1080, 1086 (Ind. Ct. App.

       2008) (finding that police suggested location within 1,000 feet of a public park

       where defendant was summoned to informant’s apartment by the informant at

       the behest of police to complete sale of crack-cocaine); see also Abbott v. State,

       961 N.E.2d 1016, 1018 (Ind. 2012) (revising sentence for possession of cocaine

       enhanced for being within 1,000 feet of a school where police pulled over

       vehicle in which defendant was riding near a school and “[n[othing in the

       record suggest[ed] that the driver of the car had anything to do with the location

       of the stop.”). Because the evidence does not support Mason’s proposed

       statutory defense, Mason’s trial counsel was not ineffective for declining to raise

       the issue.


[10]   The judgment of the post-conviction court is affirmed.



       Court of Appeals of Indiana | Memorandum Decision 71A03-1512-PC-2099 | May 11, 2016   Page 7 of 8
Bailey, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 71A03-1512-PC-2099 | May 11, 2016   Page 8 of 8
