                                                                      FILED
                                                                 Sep 14 2018, 10:08 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
James R. Recker                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Lee M. Stoy, Jr.
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Chad Thomas Burnell,                                      September 14, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          29A02-1710-CR-2374
        v.                                                Appeal from the Hamilton
                                                          Superior Court
State of Indiana,                                         The Honorable Gail Bardach,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          29D06-1612-F6-8964



Bailey, Judge.




Court of Appeals of Indiana | Opinion 29A02-1710-CR-2374 | September 14, 2018             Page 1 of 10
                                               Case Summary
[1]   Chad T. Burnell (“Burnell”) challenges his conviction, following a jury trial, of

      operating a vehicle while intoxicated, as a Level 6 felony, 1 and his status as a

      habitual vehicular substance offender.2 He raises eight issues on appeal, which

      we consolidate and restate as: whether Burnell’s trial counsel was ineffective.


[2]   We affirm.



                                Facts and Procedural History
[3]   At around 12:30 a.m. on November 24, 2016, Hamilton County Sheriff’s

      Deputy Jason Cramer (“Dep. Cramer”) saw a vehicle driven by Burnell weave

      abruptly within its lane and cross the center line. Dep. Cramer activated his in-

      car camera and his emergency lights to conduct a traffic stop. Soon after

      Burnell pulled over, Dep. Cramer approached the vehicle and explained to

      Burnell that he had been stopped because he “went left of center.” Tr. Vol. II at

      201. Dep. Cramer could smell the odor of an alcoholic beverage coming from

      inside the vehicle. Dep. Cramer asked Burnell if he had been drinking, and

      Burnell stated that he had consumed three alcoholic beverages. Dep. Cramer

      then asked Burnell if he had his driver’s license on him and if it was valid.




      1
          Ind. Code § 9-30-5-2 and I.C. § 9-30-5-3(a)(1).
      2
          I.C. § 9-30-15.5-2.


      Court of Appeals of Indiana | Opinion 29A02-1710-CR-2374 | September 14, 2018   Page 2 of 10
      Burnell told Dep. Cramer that he did not have his license with him and that, as

      far as he knew, his license was valid.


[4]   After noticing a knife in the back seat of Burnell’s vehicle, Dep. Cramer asked

      Burnell to step out of the vehicle. Dep. Cramer asked a backup officer to pull

      the passenger out of the vehicle and make sure he did not have any weapons.

      When Burnell stepped out of the vehicle, Dep. Cramer conducted a pat down

      search for other weapons and found a knife in Burnell’s pocket. After securing

      the knives, Dep. Cramer went back to his patrol car and discovered that

      Burnell’s driver’s license was suspended. Dep. Cramer came back to Burnell

      and asked if Burnell knew that his license was suspended. Burnell did not

      answer. Dep. Cramer then requested permission to search the car, and Burnell

      consented.


[5]   After searching the vehicle, Dep. Cramer performed a horizontal gaze

      nystagmus test on Burnell. Burnell exhibited six out of six clues and failed the

      test. Dep. Cramer did not conduct any more field sobriety tests on Burnell,

      because Burnell stated that he had nerve damage in his legs. Burnell

      subsequently agreed to take a breathalyzer; however, after three attempts,

      Burnell was unable to give a sufficient sample for the breathalyzer. Therefore,

      Dep. Cramer sought and obtained Burnell’s consent to conduct a blood test, the

      results of which showed that Burnell had a blood alcohol concentration of 0.119

      grams of alcohol per 100 milliliters of his blood.




      Court of Appeals of Indiana | Opinion 29A02-1710-CR-2374 | September 14, 2018   Page 3 of 10
[6]   On December 5, 2016, the State charged Burnell as follows: Count I, operating

      a vehicle while intoxicated, as a Class A misdemeanor;3 Count II, operating a

      vehicle with an alcohol concentration of .08 or more, as a Class C

      misdemeanor;4 Count III, operating a vehicle while intoxicated, as a Level 6

      felony; Count IV, operating a vehicle with an alcohol concentration of .08 or

      more, as a Level 6 felony;5 and Count V, driving while suspended, as a Class A

      misdemeanor.6 The State also alleged that Burnell was a habitual vehicular

      substance offender.


[7]   At Burnell’s September 19, 2017, jury trial, Dep. Cramer testified that when he

      approached Burnell he could smell the odor of an alcoholic beverage coming

      from the vehicle, that Burnell’s speech was slurred and thick, and that Burnell’s

      eyes were red, watery, and glassy. Dep. Cramer stated that he had to remind

      Burnell to place his vehicle in park when he asked Burnell to exit the vehicle

      and that Burnell failed the horizontal gaze nystagmus test. The toxicology

      results were also admitted into evidence. State’s Ex. 5.


[8]   The jury found Burnell guilty of operating a vehicle while intoxicated as a Class

      A misdemeanor and operating a vehicle with an alcohol concentration of .08 or

      more as a Class C misdemeanor. Burnell elected to forgo the enhancement




      3
          I.C. § 9-30-5-2.
      4
          I.C. § 9-30-5-1(a)(1).
      5
          I.C. § 9-30-5-1(a) and I.C. § 9-30-5-3(a)(1).
      6
          I.C. § 9-24-19-3(a).


      Court of Appeals of Indiana | Opinion 29A02-1710-CR-2374 | September 14, 2018   Page 4 of 10
      phase of trial and admit his prior convictions alleged in count III for the

      purposes of elevating the Class A misdemeanor to a Level 6 felony and the

      habitual vehicular substance offender enhancement. The trial court merged

      counts I and II with count III. On October 6, 2017, the trial court sentenced

      Burnell to two and a half years for operating a vehicle while intoxicated as a

      Level 6 felony, enhanced by an additional three years for being a habitual

      vehicular substance offender. Burnell now appeals.



                                 Discussion and Decision
[9]   Burnell contends that his trial counsel was ineffective. As our Supreme Court

      has noted:


              [t]his Court reviews claims of ineffective assistance of counsel
              under the two components set forth in Strickland v. Washington,
              466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the
              defendant must show that counsel’s performance was deficient.
              Id. at 687, 104 S.Ct. 2052. This requires a showing that counsel’s
              representation fell below an objective standard of reasonableness,
              id. at 688, 104 S.Ct. 2052, and that the errors were so serious that
              they resulted in a denial of the right to counsel guaranteed the
              defendant by the Sixth Amendment, id. at 687, 104 S.Ct. 2052.
              Second, the defendant must show that the deficient performance
              prejudiced the defendant. Id. To establish prejudice, a defendant
              must show that there is a reasonable probability that, but for
              counsel’s unprofessional errors, the result of the proceeding
              would have been different. Id. at 694, 104 S.Ct. 2052. A
              reasonable probability is a probability sufficient to undermine
              confidence in the outcome. Id.




      Court of Appeals of Indiana | Opinion 29A02-1710-CR-2374 | September 14, 2018   Page 5 of 10
       Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002). We will not second-guess trial

       counsel’s strategy and tactics unless they are so unreasonable that they fall

       outside objective standards. See, e.g., Benefield v. State, 945 N.E.2d 791, 797

       (Ind. Ct. App. 2011). Isolated mistakes, poor strategy, inexperience, and

       instances of bad judgment do not necessarily render representation ineffective.

       Wentz, 766 N.E.2d at 361. And if we can dispose of a claim of ineffective

       assistance of counsel by analyzing the prejudice prong alone, we will do so.

       Benefield, 935 N.E.2d at 797 (citing Wentz, 766 N.E.2d at 360).


[10]   However, we do not reach the merits of seven of Burnell’s eight ineffective

       assistance of counsel contentions7 because he has waived them by failing to

       make cogent argument and citation to legal authority as required by Indiana

       Appellate Rule 46(A)(8). That rule requires that each contention made in the

       argument section of an appellant’s brief “must be supported by citations to the

       authorities, statutes, and the Appendix or parts of the Record on Appeal relied

       on.” Ind. Appellate Rule 46(A)(8). This means that an appellant’s argument

       section must contain


                a clear presentation of appellant’s contentions with respect to the
                issues presented, the reasons in support of the contentions with




       7
         His assertions on appeal are that his trial counsel was ineffective by: (1) failing to object to the admission of
       the video of Dep. Cramer’s in-car camera; (2) failure to interview or depose the passenger in Burnell’s car; (3)
       failure to interview or depose a different police officer with whom Burnell had interacted earlier that same
       evening; (4) failure to challenge the blood draw report; (5) failure to raise a challenge under Pirtle v. State, 323
       N.E.2d 634 (Ind. 1975); (6) failure to raise the failure to give Miranda warnings; (7) failure to challenge the
       results of the breath test; and (8) failure to investigate the underlying convictions that were the basis for his
       elevated sentence and habitual substance offender enhancement. Appellant’s Br. at 9-11.

       Court of Appeals of Indiana | Opinion 29A02-1710-CR-2374 | September 14, 2018                          Page 6 of 10
                any applicable citation to authorities, statutes, and parts of the
                record relied upon, and a clear showing of how the issues and
                contentions relate to particular facts of the case under review.


       Dortch v. Lugar, 266 N.E.2d 25, 44 (Ind. 1971) (explaining former Appellate

       Rule 8.3, the precursor to current Rule 46), abrogated on other grounds by Collins v.

       Day, 644 N.E.2d 72 (Ind. 1994). We will not review undeveloped arguments,

       for “a court which must search the record and make up its own arguments

       because a party has presented them in perfunctory form runs the risk of being

       an advocate rather than an adjudicator.” Keller v. State, 549 N.E.2d 372, 373

       (Ind. 1990). Thus, “[i]t is not sufficient for the argument section that an

       appellant simply recites facts and makes conclusory statements without analysis

       or authoritative support.” Kishpaugh v. Odegard, 17 N.E.3d 363, 373 n.3 (Ind.

       Ct. App. 2014).


[11]   Burnell contends that his trial counsel was ineffective in eight separate ways,

       but he fails to provide cogent reasoning or authority to support any contention

       except his third. His second and seventh contentions are each only one

       sentence long—and incomplete sentences8 at that—with no citation to legal

       authority or the record. Where Burnell does cite to the record for the seven

       contentions, his citations are either irrelevant or support the opposite of what he




       8
         In fact, much of Burnell’s brief consists of incomplete sentences and other grammatical errors, making it
       difficult to even ascertain what his contentions are.

       Court of Appeals of Indiana | Opinion 29A02-1710-CR-2374 | September 14, 2018                     Page 7 of 10
       contends.9 Burnell only cites legal authority for contentions five and six and,

       even then, fails to state how the case law applies to the facts of this case. 10

       Although Burnell summarizes the Strickland analysis, he fails to state how that

       analysis applies to any of the seven alleged errors of his trial counsel or how he

       was prejudiced in any way by those alleged errors. Instead, Burnell makes only

       conclusory and/or speculative statements. Because Burnell has failed to meet

       the requirements of Indiana Appellate Rule 46(A)(8) as to seven of his eight

       contentions, he has waived our review of them.


[12]   Burnell does provide very brief argument and citation to the record for his

       contention number three—his assertion that his trial counsel was ineffective for

       failing to interview a police officer from another agency who had an interaction

       with Burnell approximately half an hour before Dep. Cramer pulled Burnell

       over. In support of this assertion, Burnell cites to his statement to the court at

       his August 31, 2017 final pre-trial conference. At that time, Burnell informed

       the court, in the presence of his counsel, of his prior interaction that night with

       a Sheridan police officer. Burnell contends that his trial counsel should have

       deposed the Sheridan officer about his observations of Burnell that night

       because “the logical conclusion [is] that [Burnell] was not intoxicated to the



       9
         For example, Burnell maintains that his trial counsel was ineffective for “[f]ailure to note the blood draw
       report with a footnote that box containing the sample had been opened…,” but then he cites to portions of
       the record showing that the box containing the blood samples were, in fact, sealed when received by the lab.
       Appellant’s Br. at 10; App. Vol. III at 21-22.
       10
          For example, Burnell claims his counsel was ineffective for failing “to raise a challenge pursuant to Pirtle v.
       State, [323 N.E.2d 634 (Ind. 1975)],” but he fails to state how Pirtle is applicable to his case or how the lack of
       a Pirtle challenge prejudiced him. Appellant’s Br. at 10.

       Court of Appeals of Indiana | Opinion 29A02-1710-CR-2374 | September 14, 2018                         Page 8 of 10
       point that it gave that officer any concern shortly before the subsequent later

       stop [by Dep. Cramer].” Appellant’s Br. at 9-10.


[13]   Even assuming—without deciding—that Burnell’s trial counsel’s failure to

       interview or depose the Sheridan police officer was so unreasonable that it fell

       outside objective standards,11 Burnell has failed to show the prejudice prong of

       the Strickland analysis. That is, Burnell has failed to show a reasonable

       probability that, but for his counsel’s error, the result of his trial would have

       been different. Wentz, 766 N.E.2d at 360. Rather, even if the Sheridan police

       officer had testified that Burnell did not seem to him to be intoxicated earlier

       that evening, there was overwhelming other evidence that Burnell was, in fact,

       intoxicated. The evidence showed that his blood alcohol concentration was

       0.119 grams of alcohol per 100 milliliters of his blood, which was well above

       the legal limit. I.C. § 9-30-5-1(a)(1) (providing the legal limit is 0.07 grams).

       Dep. Cramer testified that when he approached Burnell he could smell the odor

       of an alcoholic beverage coming from the vehicle, that Burnell’s speech was

       slurred and thick, and that Burnell’s eyes were red, watery, and glassy. In

       addition, Dep. Cramer testified that he had to remind Burnell to place his

       vehicle in park when he asked Burnell to exit the vehicle and that Burnell failed

       the horizontal gaze nystagmus test. Thus, we cannot say that, but for trial




       11
          We note that contention number three is also based on speculation—i.e., that the Sheridan police officer
       would have testified that he observed Burnell closely enough that evening to form an impression and that he
       did not believe Burnell was intoxicated.

       Court of Appeals of Indiana | Opinion 29A02-1710-CR-2374 | September 14, 2018                   Page 9 of 10
       counsel’s failure to interview or depose the Sheridan police officer, the result of

       Burnell’s trial would have been different.



                                                 Conclusion
[14]   Burnell has waived seven of the eight contentions he raises on appeal by failing

       to provide cogent argument and citation to legal authority in compliance with

       Indiana Appellate Rule 46(A)(8). And, while Burnell may have provided the

       minimum amount of reasoning and citation to authority required as to his

       contention that his trial counsel was ineffective for failing to depose the

       Sheridan police officer, he failed to show how his trial counsel’s error

       prejudiced him, given the overwhelming evidence of his intoxication.


[15]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 29A02-1710-CR-2374 | September 14, 2018   Page 10 of 10
