      MEMORANDUM DECISION
                                                                     Aug 28 2015, 8:52 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Brendan K. Lahey                                          Gregory F. Zoeller
      South Bend, Indiana                                       Attorney General of Indiana

                                                                J.T. Whitehead
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Phil L. Honer,                                           August 28, 2015

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               71A03-1503-PC-103
              v.                                               Appeal from the St. Joseph Superior
                                                               Court.

      State of Indiana,
                                                               The Honorable Jerome Frese, Judge.
      Appellee-Respondent.                                     Cause No. 71D03-0912-PC-58




      Darden, Senior Judge


                                       Statement of the Case
[1]   Phil L. Honer appeals from the trial court’s order denying his petition for post-

      conviction relief without holding a hearing. We affirm in part, reverse in part

      and remand.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015   Page 1 of 16
                                                    Issues
[2]   Honer presents the following issue on appeal, which we restate as: whether his

      petition for post-conviction relief conclusively showed that he is entitled to no

      relief.


[3]   The State cross-appeals, arguing that we should dismiss Honer’s appeal because

      Honer’s notice of appeal was not timely filed, thereby resulting in the forfeiture

      of his right to appeal, and there are no extraordinarily compelling reasons why

      Honer’s forfeited right should be restored.


                               Facts and Procedural History
[4]   The facts related to Honer’s underlying conviction were set forth in our prior

      memorandum decision as follows:

                On September 6, 2006, around midnight, Officers Aaron Brick
                (Officer Brick) and Randall Goering (Officer Goering) of the
                South Bend Police Department, were traveling westbound on
                Western Street in South Bend, Indiana. As the Officers
                approached the intersection of Western and Walnut Streets, they
                pulled up behind an automobile stopped at a red light. While
                Officers Goering and Brick waited for the traffic signal to change,
                they observed the driver of the car, later identified as Honer,
                repeatedly looking back at them. When the light turned green,
                Honer tossed several clear plastic bags from his vehicle. The
                plastic bags landed to the left of the median separating the street.
                The Officers initiated a traffic stop. Officer Goering discovered
                that Honer was the only occupant of the vehicle and began to
                question him. As Officer Brick retrieved the discarded plastic
                bags, he observed no other trash in the immediate area. A field
                test concluded that the discarded plastic bags contained cocaine

      Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015   Page 2 of 16
                 and marijuana. Both parties stipulated that the drugs found were
                 12.86 grams of cocaine and marijuana. Officer Brick determined
                 that the distance between where the cocaine and marijuana were
                 recovered and Pulaski Park, a public park, was 111 feet.
      Honer v. State, 71A05-0806-CR-364, slip op. at 1 (Ind. Ct. App. Nov. 5, 2008),

      trans. denied (2009).

                                                                                              1
[5]   The State charged Honer with one count of possession of marijuana as a Class

      A misdemeanor; one count of possession of three or more grams of cocaine
                                                                  2
      within one thousand feet of a public park as a Class A felony; and, one count
                                                                      3
      of possession of an automatic opening knife as a Class B misdemeanor. After

      his jury trial, Honer was found guilty as charged and received an aggregate

      sentence of thirty years executed.


[6]   On his direct appeal, Honer challenged the sufficiency of the evidence. More

      specifically, he argued that the evidence was insufficient to overcome his

      defense that children were not present during the commission of the crime. See

      Ind. Code § 35-48-4-16(b) (2001) (defense that person was briefly within 1,000

      feet of public park and no person under eighteen years old at least three years

      junior to person was present there at time of offense). The majority of a panel




      1
          Ind. Code § 35-48-4-11 (1983).
      2
          Ind. Code § 35-48-4-6(a) (2006); Ind. Code § 35-38-4-6(b)(3)(B)(ii) (2006).
      3
          Ind. Code § 35-47-5-2 (2000).


      Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015       Page 3 of 16
      of this court affirmed Honer’s convictions. Honer v. State, 71A05-0806-CR-364

      (Ind. Ct. App. Nov. 5, 2008), trans. denied (2009).


[7]   Honer filed a petition for post-conviction relief on December 23, 2009, in which

      he raised five claims pertaining to ineffective assistance of counsel. Those

      claims are as follows: (1) trial counsel failed to challenge the method used to

      test the cocaine; (2) trial counsel failed to object to the testimony of the police

      officers about the authenticity of cocaine, thereby violating Honer’s right to

      confrontation; (3) trial counsel failed to hold the State to its burden of proving

      beyond a reasonable doubt that he was within 1,000 feet of a public park by

      personally measuring the distance; (4) trial counsel failed to present during trial

      or closing argument the statutory defense that children were not present during

      the commission of the crime; and (5) trial counsel failed to present evidence on

      Honer’s behalf to allow the jury to determine if children were present during the

      commission of the crime. Honer also filed an affidavit of indigency and

      requested the assistance of the State Public Defender.


[8]   The State filed its response to Honer’s petition on January 22, 2010. In that

      response, the State asserted the affirmative defenses of waiver, res judicata, and

      laches. The State also denied that Honer was entitled to post-conviction relief

      on any of his claims.


[9]   On May 5, 2010, the trial court appointed the State Public Defender’s Office to

      represent Honer. The State Public Defender’s Office filed an appearance by

      counsel of May 24, 2010, in which counsel expressed a present inability to


      Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015   Page 4 of 16
       investigate Honer’s claims. On May 25, 2010, the trial court granted the

       motion to stay all proceedings until the State Public Defender notified the trial

       court of its ability to proceed with Honer’s representation.


[10]   On January 10, 2012, substitute counsel with the State Public Defender’s Office

       filed a notice of substitution as counsel of record for Honer with the trial court.

       On February 16, 2012, counsel filed a notice of withdrawal of appearance and a

       certification with the trial court in which counsel noted that he had investigated

       Honer’s claims, expressed his opinion of those claims to Honer, and that Honer

       wished to proceed with his petition nonetheless.


[11]   On March 7, 2012, the trial court entered an order in response to the

       withdrawal of the State Public Defender. In the order, the trial court

       acknowledged the procedural history of Honer’s petition, granted the State

       Public Defender’s request to withdraw, and gave Honer forty-five days in which

       to notify the trial court whether he was hiring private counsel or proceeding pro

       se, and if he wished to amend his petition. The trial court also declined to

       appoint successor counsel for Honer.


[12]   On February 19, 2015, the trial court entered its findings and order denying

       Honer’s petition for post-conviction relief. In the order, the trial court noted

       that it had the option of dismissing the petition pursuant to Indiana Trial Rule

       41(E) for Honer’s failure to comply with the trial court’s March 7, 2012 order.

       However, instead of issuing an order dismissing Honer’s petition for failure to

       prosecute, the trial court chose to enter findings on the merits of Honer’s


       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015   Page 5 of 16
       petition, noting in support of that decision that the State had submitted a

       response to Honer’s petition. Honer now appeals.


                                    Discussion and Decision
                                   I. The State’s Cross-Appeal
[13]   The State argues that we should dismiss Honer’s appeal because Honer’s notice

       of appeal was not timely filed, thereby resulting in the forfeiture of his right to

       appeal. The State also claimed that there are no extraordinarily compelling

       reasons why Honer’s forfeited right to appeal should be restored. We disagree.


[14]   The Supreme Court, in In Re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014),

       clarified that “although a party forfeits its right to appeal based on an untimely

       filing of the Notice of Appeal, this untimely filing is not a jurisdictional defect

       depriving the appellate courts of authority to entertain the appeal.” Rather,

       when a notice of appeal is untimely filed such that the right to appeal has been

       forfeited, “the question is whether there are extraordinarily compelling reasons

       why this forfeited right should be restored.” Id.


[15]   The State claims that there are no extraordinarily compelling reasons why

       Honer’s forfeited right to appeal should be restored, in part because Honer has

       already had a direct appeal from his convictions. Before that question can be

       answered, however, we must determine if Honer’s notice of appeal was in fact

       untimely.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015   Page 6 of 16
[16]   The trial court entered its order denying Honer’s petition for post-conviction

       relief on Thursday, February 19, 2015, and the chronological case summary

       notes the trial court’s order on that date. Honer’s notice of appeal was filed on

       Monday, March 23, 2015. Indiana Appellate Rule 9(A)(1) provides that a party

       initiates an appeal by filing a notice of appeal within thirty days after the entry

       of a final judgment is noted in the chronological case summary. Therefore, the

       deadline for filing Honer’s notice of appeal was Saturday, March 21, 2015.

       Indiana Appellate Rule 25(B), which explains the computation of time,

       provides that the day of the act or event from which a period of time begins to

       run is not included in the computation. The rule further provides that the last

       day of the period is included in the computation unless it is a non-business day,

       which is defined as a Saturday, a Sunday, a legal holiday, or a day the Office of

       the Clerk is closed during regular business hours. Ind. Appellate Rule 25(A).

       Here, the last day of the period fell on a Saturday, a non-business day. In such

       a case, the rule further provides that the period runs until the end of the next

       business day. Ind. Appellate Rule 25(B). A business day is defined as all other

       days. Ind. Appellate Rule 25(A).


[17]   Therefore, Honer’s notice of appeal was timely filed. We need not address the

       State’s additional argument concerning the existence of extraordinarily

       compelling reasons to restore a forfeited right to appeal, and turn now to the

       merits of the Honer’s appeal.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015   Page 7 of 16
                        II. Entitlement to Post-Conviction Relief
[18]   Honer contends that the trial court erred by denying his petition for post-

       conviction relief on the basis that his petition conclusively showed he is entitled

       to no relief.


[19]   “The petitioner in a post-conviction proceeding bears the burden of establishing

       grounds for relief by a preponderance of the evidence.” Campbell v. State, 19

       N.E.3d 271, 273-74 (Ind. 2014). “When appealing the denial of post-conviction

       relief, the petitioner stands in the position of one appealing from a negative

       judgment.” Id. at 274. “To prevail on appeal from the denial of post-conviction

       relief, a petitioner must show that the evidence as a whole leads unerringly and

       unmistakably to a conclusion opposite that reached by the post-conviction

       court.” Id. Further, the post-conviction court in this case made findings of fact

       and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6).

       Id. “Although we do not defer to the post-conviction court’s legal conclusions,

       ‘[a] post-conviction court’s findings and judgment will be reversed only upon a

       showing of clear error—that which leaves us with a definite and firm conviction

       that a mistake has been made.”’ Id. (quoting Ben-Yisrayl v. State, 729 N.E.2d

       102, 106 (Ind. 2000) (internal quotation omitted)).


[20]   In this case, the trial court denied Honer’s petition for post-conviction relief

       without holding a hearing. Additionally, neither party requested summary

       disposition. Turning to the Rules of Post-Conviction Relief, we have noted that

       there are two subsections under Post-Conviction Rule 1, section 4, that address


       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015   Page 8 of 16
       such situations where the court enters judgment without holding a hearing, and

       each subsection leads to a different standard of review on appeal. Allen v. State,

       791 N.E.2d 748, 752 (Ind. Ct. App. 2003). Of those two subsections, Post-

       Conviction Rule 1, section 4(f) is applicable here, and provides as follows:


               If the State Public Defender has filed an appearance, the State
               Public Defender shall have sixty (60) days to respond to the
               State’s answer to the petition filed pursuant to Rule PC 1(4)(a).
               If the pleadings conclusively show that petitioner is entitled to no
               relief, the court may deny the petition without further
               proceedings.
[21]   Honer frames his argument in terms of whether there is a genuine issue of

       material fact precluding denial of his petition as a matter of law, invoking a

       standard of review more appropriate under Post-Conviction Rule 1, section

       4(g), where either party has moved for summary disposition. However, we will

       review the claim under subsection 4(f).


[22]   “[W]hen a court disposes of a petition under subsection f, we essentially review

       the lower court’s decision as we would a motion for judgment on the

       pleadings.” Allen, 791 N.E.2d at 752. A court errs in disposing of the petition

       without a hearing unless the pleadings conclusively show that the petitioner is

       entitled to no relief as to his claims. Id. at 752-53. If a petition alleges only

       errors of law, then the court may make the determination without a hearing

       whether the petitioner is entitled to relief on those questions of law. Id. at 753. If,

       on the other hand, the facts pleaded raise an issue of possible merit, then the

       petition should not be disposed of under section 4(f). Id. Such is the case even if



       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015   Page 9 of 16
       the petitioner has only a remote chance of establishing his claim in such a hearing.

       Id.


[23]   The first two of Honer’s claims involve challenges concerning the cocaine

       evidence. He argued that counsel was ineffective for failing to challenge the

       method the officers used to test the cocaine and by failing to object to the

       officers’ testimony about the authenticity of the cocaine. The State responded

       by noting that Honer and the State entered into a stipulation agreement that the

       substances found were cocaine and marijuana. Prior to trial, a laboratory

       technician had already verified that the substances were cocaine and marijuana.

       The technician did not testify at trial, but the State could have called the

       technician as a witness, except for the stipulation agreement between the

       parties.


[24]   Also, the field test conducted by the officers indicated that the substances were

       cocaine and marijuana. We have held that the opinion testimony of someone

       sufficiently experienced with a drug may establish its identity, as may other

       evidence. Boggs v. State, 928 N.E.2d 855, 865 (Ind. Ct. App. 2010), trans. denied.

       Additionally, stipulations are looked upon with favor as a method by which

       litigation may be simplified and expedited. Corbin v. State, 713 N.E.2d 906, 908

       (Ind. Ct. App. 1999), trans. denied.


[25]   Honer’s counsel’s decision to stipulate to the identification of the substances

       involves a matter of trial strategy. Trial counsel is given significant deference in

       the choice of a trial strategy, which at the time and under the circumstances he


       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015   Page 10 of 16
       deems is best. Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011). On

       review, we will not second-guess trial counsel’s choice of trial tactics. Id.

       Moreover, trial strategy is not subject to attack via an ineffective assistance of

       counsel claim unless the trial strategy is so deficient or unreasonable that it falls

       outside an objective standard of reasonableness. Id.


[26]   There is nothing improper with stipulating to expected testimony. Corbin, 713

       N.E.2d at 908. The pleadings conclusively show that Honer is entitled to no

       relief as to his first two claims, and the facts do not raise an issue of possible

       merit.


[27]   Honer also argued that trial counsel was ineffective by failing to personally

       measure the distance between the location of the traffic stop and Pulaski Park to

       verify whether he possessed cocaine within 1,000 feet of the park. He also

       argues that trial counsel was ineffective by failing to challenge the method used

       to measure the distance. One of the officers testified at Honer’s trial that the

       location of the stop was 111 feet from the park. Based upon the pleadings, the

       facts do not raise an issue of possible merit. The testimony at trial established

       that Honer was stopped well within 1,000 feet of the park. Under the

       circumstances herein, trial counsel’s decision not to personally measure the

       distance or challenge the method used to measure the distance, was reasonable

       trial strategy. The court did not err by denying relief as to this claim without

       holding an evidentiary hearing.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015   Page 11 of 16
[28]   Next, Honer raised two claims regarding whether there were children present

       within 1,000 feet of where he committed the offense. He claimed that he

       received ineffective assistance of counsel because counsel did not present during

       trial or closing argument the statutory defense that children were not present

       during the commission of the crime. He also alleged that trial counsel failed to

       present evidence on Honer’s behalf to allow the jury to determine if children

       were present during the commission of the crime.


[29]   In denying relief to Honer, the court found that those claims were barred by res

       judicata as they had been resolved in this Court’s decision on Honer’s direct

       appeal. We conclude that the trial court erred by failing to have an evidentiary

       hearing on these issues. The pleadings do not conclusively show that Honer is

       entitled to no relief on the issue of whether he was denied effective assistance of

       counsel and the facts raise an issue of possible merit.


[30]   In Honer’s direct appeal he argued that the evidence was insufficient to rebut

       the affirmative defense that children were not present during the commission of

       the crime. Indiana Code section 35-48-4-6(a) provides that a person possessing

       cocaine who does not have a valid prescription for the drug commits the offense

       of possession of cocaine, a Class D felony offense. The offense is enhanced in

       pertinent part to a Class C felony if the defendant engages in such conduct and

       the amount of the cocaine weighs three grams or more. Here, the parties

       stipulated that the cocaine weighed 12.86 grams. Therefore, we need not

       discuss the Class B felony enhancement which applies to the possession of less

       than three grams of cocaine within 1,000 feet of a public park. Ind. Code § 35-

       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015   Page 12 of 16
       48-4-6(b)(2)(B)(ii). The offense is further enhanced to a Class A felony in

       pertinent part if the defendant engages in such conduct if he possesses more

       than three grams of cocaine within 1,000 feet of a public park. Ind. Code § 35-

       48-4-6(b)(3)(B)(ii).


[31]   However, Indiana Code section § 35-48-4-16(b) provides certain defenses to

       qualifying offenses, of which Honer’s conviction of possession of cocaine is

       one. Subsection (b) provides in pertinent part that it is a defense to the charge:

       (1) if the person was briefly in, on, or within 1,000 feet of a public park; and (2)

       that no person under eighteen years of age at least three years junior to the

       defendant was in, on, or within 1,000 feet of the public park at the time of the

       offense. There is no dispute regarding the brevity of Honer’s presence within

       1,000 feet of Pulaski Park. Instead, the dispute centers on the presence of

       children in the protected zone at the time of the offense.


[32]   In our decision on Honer’s direct appeal we acknowledged cases which set forth

       the requirement that the defendant bears an initial burden of proof by a

       preponderance of the evidence on any affirmative defense. See, e.g., Adkins v.

       State, 887 N.E.2d 934, 938 (Ind. 2008). We went on to hold that “the State’s

       evidence is sufficient to rebut Honer’s defense.” Honer v. State, 71A05-0806-CR-

       364, slip op. at 2 (Ind. Ct. App. Nov. 5, 2008), trans. denied (2009).


[33]   In support of his contention that there was insufficient evidence, Honer pointed

       to the lack of testimony during cross-examination that there were children

       present within the park or surrounding protected zone at the time of the offense.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015   Page 13 of 16
       The majority affirmed the conviction citing to testimony provided by the

       officers that they had seen children present at various times other than the time

       of the offense in what they characterized as a mixed neighborhood of businesses

       and residences. We concluded that the State had sufficiently rebutted Honer’s

       affirmative defense.


[34]   In his petition for post-conviction relief, however, he alleges that no such

       defense was asserted or argued and that no evidence was presented in support

       of the affirmative defense. He claims that trial counsel was ineffective for

       failing to present evidence in support of that affirmative defense.


[35]   The State, in its response to Honer’s petition, presented an argument similar to

       the one made by Judge Bailey in his dissenting opinion in Honer’s direct

       appeal. The State argued that because the offense happened a little after

       midnight, “the park was closed and curfews would have prevented children

       from being present. Thus, there appeared to be no question that children were

       not present in the park.” Appellant’s App. at 50. The State further argued that

       trial counsel’s cross-examination at trial convinced at least one judge on the

       panel deciding Honer’s direct appeal that the State had not rebutted the

       affirmative defense and thus, trial counsel was not ineffective.


[36]   The State has the burden of proving all elements of a charged crime beyond a

       reasonable doubt. Moore v. State, 673 N.E.2d 776, 779 (Ind. Ct. App. 1996),

       trans. denied. However, the burden of proving an affirmative defense may be

       placed on the defendant, provided that proving the defense does not require the


       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015   Page 14 of 16
       defendant to negate an element of the crime. Id. The absence of children

       within 1,000 feet of a public park at the time of the offense is not an element of

       the crime. Ind. Code § 35-48-4-6(b)(3)(B)(ii). Rather, the affirmative defense

       “establishes separate and distinct facts in mitigation of culpability.” See Geljack

       v. State, 671 N.E.2d 163, 165 (Ind. Ct. App. 1996) (discussing burdens in

       context of emergency defense to operating motor vehicle while license

       suspended). The defendant must raise the affirmative defense and bears the

       initial burden of proof by a preponderance of the evidence. Wilson v. State, 4

       N.E.3d 670, 676 (Ind. Ct. App. 2014). The State bears the burden of negating

       beyond a reasonable doubt any defense sufficiently raised by the defendant. Id.


[37]   The pleadings show that Honer argues that he received ineffective assistance of

       counsel because the defense was not sufficiently raised by counsel, while the

       State argues that it was. The consequences to Honer of the failure to present

       the evidence of the affirmative defense meant the difference between being

       convicted of a Class A felony, if children were found to be present at the time of

       the offense, and a Class C felony if children were not found to be present.

       Without deciding the issue, we conclude that Honer has raised an issue of

       possible merit warranting an evidentiary hearing as opposed to a decision on

       the pleadings.


                                                Conclusion
[38]   Honer’s notice of appeal was timely filed, so we find that his appeal should not

       be dismissed as forfeited. Reaching the merits of this appeal, we conclude that


       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015   Page 15 of 16
       the court properly found three of Honer’s claims could be disposed of without a

       hearing. However, the pleadings with respect to the last two of Honer’s claims

       present facts that raise an issue of possible merit.


[39]   Affirmed in part, reversed in part and remanded.


       Robb, J., and Pyle, J., concur.




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