MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Aug 24 2016, 10:30 am
regarded as precedent or cited before any                              CLERK
court except for the purpose of establishing                       Indiana Supreme Court
                                                                      Court of Appeals
the defense of res judicata, collateral                                 and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
John L. Tompkins                                        Gregory F. Zoeller
Brown Tompkins Lory & Mastrian                          Attorney General of Indiana
Indianapolis, Indiana
                                                        George P. Sherman
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Terry Austin,                                           August 24, 2016
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        30A01-1511-PC-1998
        v.                                              Appeal from the Hancock Superior
                                                        Court
State of Indiana,                                       The Honorable Terry K. Snow,
Appellee-Respondent.                                    Judge
                                                        Trial Court Cause No.
                                                        30D01-1507-PC-1134



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A01-1511-PC-1998 | August 24, 2016     Page 1 of 7
                                      Statement of the Case
[1]   Terry Austin appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Austin raises a single issue for our review, namely, whether

      the post-conviction court erred when it concluded that Austin had not received

      ineffective assistance of trial counsel. We affirm.


                                 Facts and Procedural History
[2]   We discussed the facts underlying Austin’s conviction in our memorandum

      decision following his direct appeal:

              Austin was employed as a lieutenant and shift supervisor for the
              Greenfield Police Department in 2013 and 2014. In September
              2013, Austin’s brief marriage to Koleki Wright was dissolved
              finalizing the contentious legal battle between the two. Wright’s
              driver’s license had been suspended since January of 2013.


              In December 2013, Austin used Facebook to contact
              McCordsville Police Officer Shawn Brady, whose patrol area
              included Wright’s residence, about Wright. Austin sent him
              information about Wright’s license status, which he had obtained
              through the IDACS database, her address, and her driver’s
              license number. He did so even though officers are not permitted
              to send IDACS information through messaging systems such as
              Facebook. In that message, Austin also informed Brady that
              Wright’s driver's license was suspended and offered Brady a $200
              gift card for a steak dinner if Brady would initiate a traffic stop
              and impound Wright’s vehicle for driving with a suspended
              license. Brady did not act on Austin’s offer.


              On February 18, 2014, at approximately 5:30 a.m., Wright,
              whose contact information was saved on Austin’s cell phone

      Court of Appeals of Indiana | Memorandum Decision 30A01-1511-PC-1998 | August 24, 2016   Page 2 of 7
        under the moniker “Bitch,” sent a text message to Austin
        informing him that she was traveling for work and could not
        attend a hearing that the two were to attend that was scheduled
        for later that day. At approximately 6:00 a.m. that same day
        Austin sent a text message to his friend, Fortville Police Officer
        Matt Fox, asking Fox for the cell phone number of McCordsville
        Police Officer Nathan Garner, whose normal patrol route
        included Wright’s residence. Austin again offered a gift card for
        a $200 steak dinner to the first one to “nail her” in his message to
        Fox. Tr. p. 156. After Fox replied that he loved steak, Austin
        texted, “Nail her ass and it’s yours!!!!!” Appellant’s App. p. 22.
        Austin then asked Fox if Garner would “hook [him] up” to
        which Fox replied “Should.” Id. Austin sent Wright’s IDACS
        information to Fox from his computer.


        Minutes after receiving Garner’s cell phone number, Austin sent
        Wright’s IDACS information to Garner, including her suspended
        license status, in a text message. Austin identified himself by
        name and as “GPD” in a subsequent text message and asked
        Garner to call him. Id. Garner, who was on active patrol, called
        Austin, who offered Garner a gift card for a $200 steak dinner if
        Garner would initiate a traffic stop on Wright for driving with a
        suspended license. Austin told Garner the make and model of
        Wright’s vehicle and at what time he expected Wright to leave
        for work. After the phone call was completed, Austin sent the
        offer to Garner by text message. Garner did not act on the
        information supplied by Austin, and at some point later filed a
        report about the incident.


        On February 26, 2014, Austin entered the Hancock County
        Emergency Operations Center to obtain a print-out of the
        Computer Aided Dispatch of all officer activity from the previous
        night. While there, Austin spoke with IDACS coordinator Keri
        Brady, Officer Shawn Brady's ex-wife. In a loud voice, Austin
        told Brady that he had offered a gift card for a $200 steak dinner
        to Brady’s ex-husband if he would arrest Wright and “tow her

Court of Appeals of Indiana | Memorandum Decision 30A01-1511-PC-1998 | August 24, 2016   Page 3 of 7
              shit.” Tr. p. 91. Austin said that he had made the same offer to
              other officers. Austin spoke loudly enough that other people in
              the dispatch center overheard Austin’s comments.


              After that conversation ended, Brady reported Austin’s conduct
              as a possible IDACS violation. Brady spoke to someone with the
              Indiana State Police and determined that Wright’s information
              had been run through IDACS seventeen times between July 20,
              2013[,] and February of 2014. Brady also contacted Greenfield
              Police Detective Randy Ratliff, who was in charge of all internal
              investigations for that department. Ratliff then informed his
              chain of command about Austin’s actions and contacted the
              Indiana State Police.


              In March 2014, Indiana State Police Detective Amy Johnson was
              assigned to investigate Austin’s actions. Detective Johnson
              obtained records from Ratliff and the report that Garner had filed
              after the incident. She interviewed Austin on March 24, 2014,
              and[,] after he was advised of his rights and signed a waiver, he
              admitted that he offered a $200 gift card to the first officer to
              arrest Wright. Austin maintained that he had not done anything
              wrong by making the offer. The State charged Austin with
              bribery and official misconduct and the jury found him guilty of
              both felony offenses.


      Austin v. State, No. 30A04-1412-CR-589, 2015 WL 3965688 at *1-*2 (Ind. Ct.

      App. June 26, 2015). We affirmed Austin’s convictions on appeal.


[3]   Thereafter, Austin filed his petition for post-conviction relief. In his petition,

      Austin alleged that he had received ineffective assistance of trial counsel. In

      particular, Austin argued that his trial counsel’s failure to file a motion to

      suppress the text messages obtained from his cell phone pursuant to a search


      Court of Appeals of Indiana | Memorandum Decision 30A01-1511-PC-1998 | August 24, 2016   Page 4 of 7
      warrant was ineffective assistance. After an evidentiary hearing, the post-

      conviction court denied Austin’s petition, finding in part that Austin’s counsel

      had a reasonable strategy for not filing a motion to suppress that evidence. This

      appeal ensued.


                                    Discussion and Decision
[4]   Austin appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Our standard of review in such appeals is clear:

              [The petitioner] bore the burden of establishing the grounds for
              post[-]conviction relief by a preponderance of the evidence. See
              Ind. Post-Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d
              591, 597 (Ind. 2001). Post-conviction procedures do not afford a
              petitioner with a super-appeal, and not all issues are available.
              Timberlake, 753 N.E.2d at 597. Rather, subsequent collateral
              challenges to convictions must be based on grounds enumerated
              in the post-conviction rules. Id. If an issue was known and
              available, but not raised on direct appeal, it is waived. Id. If it
              was raised on appeal, but decided adversely, it is res judicata. Id.

              In reviewing the judgment of a post-conviction court, appellate
              courts consider only the evidence and reasonable inferences
              supporting the post-conviction court’s judgment. Hall v. State,
              849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is
              the sole judge of the evidence and the credibility of the witnesses.
              Id. at 468-69. Because he is now appealing from a negative
              judgment, to the extent his appeal turns on factual issues [the
              petitioner] must convince this court that the evidence as a whole
              leads unerringly and unmistakably to a decision opposite that
              reached by the post-conviction court. See Timberlake, 753 N.E.2d
              at 597. We will disturb the decision only if the evidence is
              without conflict and leads only to a conclusion contrary to the
              result of the post-conviction court. Id.

      Court of Appeals of Indiana | Memorandum Decision 30A01-1511-PC-1998 | August 24, 2016   Page 5 of 7
      Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.


[5]   On appeal, Austin argues that his trial counsel rendered ineffective assistance

      when he did not file a motion to suppress the text messages the State had

      obtained from his cell phone pursuant to a search warrant. Generally, a claim

      of ineffective assistance of counsel must satisfy two components. Strickland v.

      Washington, 466 U.S. 668 (1984). First, the criminal defendant must show

      deficient performance: representation that fell below an objective standard of

      reasonableness, committing errors so serious that the defendant did not have

      the “counsel” guaranteed by the Sixth Amendment. Id. at 687-88. Second, the

      criminal defendant must show prejudice: a reasonable probability (i.e., a

      probability sufficient to undermine confidence in the outcome) that, but for

      counsel’s errors, the result of the proceeding would have been different. Id. at

      694. Notably, “[r]easonable strategy” of trial counsel “is not subject to judicial

      second guesses.” Pryor v. State, 973 N.E.2d 629, 632 (Ind. Ct. App. 2012).


[6]   Austin’s trial counsel made a reasonably strategic decision not to file a motion

      to suppress the text messages obtained from Austin’s cell phone. At the

      evidentiary hearing on Austin’s petition for post-conviction relief, Robert Elsea,

      Austin’s trial counsel, testified that he consciously did not seek to suppress the

      text messages because


              the vast majority of the evidence in regards to . . . what Terry had
              alleged[ly] . . . said to other officers . . . was discovered prior to
              getting the actual text messages off of his phone. [S]o as far as
              the search warrant, as it pertained to this case, I didn’t think quite
              honestly that it was particularly critical to keep the actual texts of

      Court of Appeals of Indiana | Memorandum Decision 30A01-1511-PC-1998 | August 24, 2016   Page 6 of 7
              what he set out in light of the amount of direct evidence that was
              go[ing] to come from several different people that those
              communications were made.


      P-C Tr. at 29. Indeed, much of the State’s evidence against Austin were

      Austin’s own statements to investigating officers after Austin waived his

      Miranda rights. The post-conviction court expressly credited Elsea’s testimony

      when it found that Elsea had a reasonable trial strategy for not filing a motion

      to suppress.


[7]   Accordingly, the court’s finding that Elsea had a reasonable trial strategy not to

      file the motion to suppress is supported by the evidence. We will not second

      guess a trial counsel’s reasonable trial strategy. Pryor, 973 N.E.2d at 632.

      Austin cannot demonstrate that his trial counsel’s performance fell below an

      objective standard of reasonableness. And, given Austin’s statements heard by

      witnesses at the dispatch center, as well as his own admission, Austin cannot

      show prejudice. Under either and both prongs of Strickland, Austin cannot

      demonstrate ineffective assistance of counsel. The judgment of the post-

      conviction court is affirmed.


[8]   Affirmed.


      Vaidik, C.J., and Baker, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 30A01-1511-PC-1998 | August 24, 2016   Page 7 of 7
