      MEMORANDUM DECISION
                                                                          Jun 18 2015, 5:27 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.



      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                          Gregory F. Zoeller
      Public Defender of Indiana                                Attorney General of Indiana

      Richard Denning                                           Angela N. Sanchez
      Deputy Public Defender                                    Deputy Attorney General
      Indianapolis, Indiana                                     Indianapolis, Indiana




                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Ryan M. Burton,                                           June 18, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                33A01-1501-PC-5
              v.                                                Appeal from the Henry Circuit Court

                                                                The Honorable Mary G. Willis,
      State of Indiana,                                         Judge
      Appellee-Plaintiff
                                                                Cause No. 33C01-1303-PC-002
                                                                formerly: 33D01-0908-FA-004




      Friedlander, Judge.

[1]   Ryan Burton appeals from the trial court’s denial of his petition for post-
      conviction relief. Burton presents the following restated issues for review:

      1. Did Burton receive ineffective assistance of trial counsel during sentencing?


      Court of Appeals of Indiana | Memorandum Decision 33A01-1501-PC-5 | June 18, 2015          Page 1 of 13
      2. Is the savings clause in the new criminal code vindictive, in violation of article 1,
      section 18 of the Indiana Constitution?

      3. Is Burton’s sentence disproportionate in violation of article 1, section 16 of the
      Indiana Constitution merely because the new criminal code and the prescribed
      penalties do not apply to him?

[2]   We affirm.

[3]   On March 24, 2009, Burton, then eighteen years old, delivered OxyContin1 pills

      belonging to his mother to an undercover Drug Task Force Officer. The

      transaction occurred within 1000 feet of Country Park Apartments, a family

      housing complex. On or about June 2, 2009, Burton again sold oxycodone to

      an undercover officer.

[4]   On August 24, 2009, the State charged Burton with Count I, dealing in a

      schedule II controlled substance2 as a class A felony and Count II, dealing in a

      controlled substance, a class B felony. On June 3, 2010, Burton entered into a

      plea agreement with the State in which he agreed to plead guilty to Count I and

      in exchange, the State agreed to dismiss Count II. With regard to sentencing,




      1
       OxyContin is a brand name for oxycodone, a schedule II controlled substance. See Ind. Code Ann. § 35-48-
      2-6(a), (b)(1)(O) (West, Westlaw 2009).
      2
        Ind. Code Ann. § 35-48-4-2(a)(1)(C), (b)(2)(B)(iii) (West, Westlaw 2009). Effective July 1, 2014, this
      specific offense was repealed. See I.C. § 35-48-4-2(a)(1)(C), (c-f) (West, Westlaw current with all 2015 First
      Regular Session of the 119th General Assembly legislation effective through June 28, 2015); I.C. § 35-48-1-
      16.5 (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation
      effective through June 28, 2015) (omitting “within one thousand (1,000) feet of . . . a family housing
      complex” as an enhancing circumstance).

      Court of Appeals of Indiana | Memorandum Decision 33A01-1501-PC-5 | June 18, 2015                   Page 2 of 13
      the plea agreement provided for a cap of twenty-five years and also provided

      that Burton waived his right to appellate review of the sentence imposed.3

[5]   The trial court held a sentencing hearing on August 10, 2010. In his statement

      to the court, Burton admitted that he had been helping his mother illegally sell

      prescription drugs since he was fourteen years old. In addition, the court noted

      that at the age of sixteen, Burton committed the offense of child molesting,

      which would be a class B felony if committed by an adult, and was

      subsequently adjudicated a delinquent. Prior to pronouncing the sentence, the

      trial court identified two aggravating factors: (1) Burton’s adjudication for class

      B felony child molesting and (2) Burton’s admission that during the time he was

      on probation, he participated in the conduct that led to the current offense. The

      court noted as mitigating that Burton had pleaded guilty and his young age.

      Finding that a mitigated sentence was warranted, the trial court sentenced

      Burton to twenty-two years with ten years suspended, five of which to be served

      on formal probation and two to be served on informal probation.


[6]   Burton, pro se, filed a petition for post-conviction relief on March 14, 2013. On

      September 15, 2014, Burton, this time by counsel, filed an amended petition for

      post-conviction relief. The post-conviction court held a hearing on November

      12, 2014. The post-conviction court entered its findings of fact and conclusions




      3
        At the time of the offense, the sentencing statute for class A felonies provided for an advisory sentence of
      thirty years. See Ind. Code Ann. § 35-50-2-4 (West, Westlaw 2009). The plea agreement therefore called for
      a mitigated sentence by setting a sentencing cap at twenty-five years.

      Court of Appeals of Indiana | Memorandum Decision 33A01-1501-PC-5 | June 18, 2015                 Page 3 of 13
      of law denying Burton post-conviction relief on December 15, 2015. Burton

      now appeals.

[7]   In a post-conviction proceeding, the petitioner bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Bethea v. State, 983

      N.E.2d 1134 (Ind. 2013). “When appealing the denial of post-conviction relief,

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

      judgment.” Id. at 1138 (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)).

      In order to prevail, the petitioner must demonstrate that the evidence as a whole

      leads unerringly and unmistakably to a conclusion opposite the post-conviction

      court’s conclusion. Bethea v. State, 983 N.E.2d 1134. Although we do not defer

      to a post-conviction court’s legal conclusions, we will reverse its findings and

      judgment upon a showing of clear error, i.e., “that which leaves us with a

      definite and firm conviction that a mistake has been made.” Id. at 1138 (quoting

      Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000)).


                                                           1.

[8]   Burton first argues that he received ineffective assistance of counsel because his

      counsel failed to present mitigating evidence at sentencing. Specifically, Burton

      argues that his counsel failed to investigate and explain the circumstances

      surrounding his prior juvenile adjudication for child molesting4 and did not




      4
       During the post-conviction hearing, Burton’s trial counsel admitted that he did not look at any
      documentation concerning Burton’s prior adjudication for child molesting.

      Court of Appeals of Indiana | Memorandum Decision 33A01-1501-PC-5 | June 18, 2015                  Page 4 of 13
       explain that he failed to attend counseling mandated during his prior probation

       because his mother refused to provide transportation. Burton maintains that

       had the trial court been made aware of these circumstances, it likely would have

       imposed a lesser sentence.

[9]    Indiana’s standard for evaluating claims of ineffective assistance of counsel is

       well-settled. A petitioner will prevail on a claim of ineffective assistance of

       counsel only upon a showing that counsel’s performance fell below an objective

       standard of reasonableness and that the deficient performance prejudiced the

       petitioner. Bethea v. State, 983 N.E.2d 1134. To satisfy the first element, the

       petitioner must demonstrate deficient performance, which is “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 1138 (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind.

       2002)). To satisfy the second element, the petitioner must show prejudice,

       which is “a reasonable probability that, but for counsel’s errors, the result of the

       proceeding would have been different.” Id. at 1139. There is a “strong

       presumption” that counsel rendered adequate service. Id. Because a petitioner

       must prove both elements in order to succeed, the failure to prove either

       element defeats the claim. See Young v. State, 746 N.E.2d 920 (Ind. 2001).

       Isolated poor strategy, inexperience, or bad tactics do not necessarily amount to

       ineffectiveness of counsel. State v. Hollin, 970 N.E.2d 147 (Ind. 2001).


[10]   As noted above, the trial court identified two aggravating circumstances: (1)

       that Burton had a prior adjudication for child molesting and (2) that Burton was

       Court of Appeals of Indiana | Memorandum Decision 33A01-1501-PC-5 | June 18, 2015   Page 5 of 13
       dealing drugs while on probation. Although Burton’s failure to attend

       mandated counseling was noted in the pre-sentence investigation report (PSI),

       the trial court did not indicate that it considered such as an aggravating

       circumstance. Thus, any explanation for such failure would likely have had no

       impact on the court’s sentencing determination.

[11]   To the extent Burton claims his counsel failed to investigate his reasons for

       failing to attend counseling or inquire about the circumstances of Burton’s prior

       adjudication, we note that Burton’s counsel testified that he reviewed the PSI

       and asked Burton if there was any information he wished to contest in the PSI

       or present at the hearing, as was his usual procedure. Burton does not explain

       what further investigation, aside from asking Burton himself, his counsel could

       have undertaken to discover why Burton did not attend counseling or to

       uncover the circumstances surrounding his adjudication for child molesting.

       Burton has provided no evidence suggesting that the trial court would have

       imposed a different sentence if trial counsel would have presented Burton’s

       desired evidence during sentencing. Burton has not established that the post-

       conviction court erred in finding that his counsel rendered effective assistance

       during sentencing.

[12]   Aside from the fact that there is no evidence to support a finding of deficient

       representation by Burton’s counsel, Burton has not established that he was

       prejudiced. Burton’s counsel negotiated a plea agreement providing for a cap

       on the sentence that was five years below the advisory sentence for a class A

       felony. The trial court evaluated the aggravating and mitigating factors and

       Court of Appeals of Indiana | Memorandum Decision 33A01-1501-PC-5 | June 18, 2015   Page 6 of 13
       concluded that an even greater mitigated sentence than was permissible under

       the plea agreement was warranted. The trial court ultimately sentenced Burton

       to twenty-two years with ten years suspended. The trial court was very

       thorough in its sentencing statement and in explaining the sentence it imposed.

       Burton has not shown that counsel’s failure to explain why Burton did not

       attend mandated counseling or explain the circumstances of his underlying

       juvenile adjudication had any impact on the trial court’s sentencing decision.

       Accordingly, Burton has not established prejudice.

                                                          2.


[13]   Burton argues that enforcement of the savings clause in the new criminal code

       violates article 1, section 18 of the Indiana Constitution.                  Article 1, section 18

       of the Indiana Constitution provides, “The penal code shall be founded on the

       principles of reformation, and not of vindictive justice.” It is well settled that

       this section applies only to the penal code as a whole, not to individual

       sentences. Hazelwood v. State, 3 N.E.3d 39 (Ind. Ct. App. 2014).


[14]   The Indiana reformed criminal code went into effect on July 1, 2014. Under

       the new code, felonies are delineated by levels rather than classes. Under the

       old code, there were five classes of felonies, A through D, and murder. The

       new code contains seven levels of felonies, 1 through 6, and murder. Pertinent

       to the case at hand is that the code no longer contains the enhancement

       provision to increase the severity of a felony for dealing in a controlled

       substance due to the crime being committed within 1000 feet of a public


       Court of Appeals of Indiana | Memorandum Decision 33A01-1501-PC-5 | June 18, 2015        Page 7 of 13
       housing complex. Burton’s crime under the prior code was classified as a class

       A felony that carried a fixed term of imprisonment of between twenty and fifty

       years with the advisory sentence being thirty years. Under the new code,

       because there is no longer an applicable enhancement provision, Burton’s crime

       would be classified as a level 5 felony, carrying a fixed sentencing range of

       between one and six years and an advisory sentence of two years.

[15]   In addition to redefining crimes and the applicable sentencing scheme, our

       legislature included specific savings clauses that clearly and unambiguously

       demonstrate the legislature’s intent that the 2014 penal code not be applied

       retroactively, and that it is not intended as amerliorative legislation.

       Specifically, the savings clauses explicitly state that the enactment of the 2014

       penal code “does not affect . . . (1) penalties incurred; (2) crimes committed; or

       (3) proceedings begun” before July 1, 2014. See Ind. Code Ann. § 1-1-5.5-21

       (West, Westlaw current with all 2015 First Regular Session of the 119th

       General Assembly legislation effective through June 28, 2015); I.C. § 1-1-5.5-22

       (West, Westlaw current with all 2015 First Regular Session of the 119th

       General Assembly legislation effective through June 28, 2015). The savings

       clauses further state that the penalties, crimes, and proceedings continue and

       shall be imposed and enforced under the prior law as if the new code had not

       been enacted. Id.


[16]   Our Supreme Court has before held that “‘the application of a prior law to

       those who committed crimes and were convicted and sentenced under that

       prior law does not constitute vindictive justice.’” Gee v. State, 508 N.E.2d 787,

       Court of Appeals of Indiana | Memorandum Decision 33A01-1501-PC-5 | June 18, 2015   Page 8 of 13
       788 (Ind. 1987) (quoting Vicory v. State, 400 N.E.2d 1380, 1383 (Ind. 1980)).

       Indeed, a savings clause is an enactment of the legislature and, as such, is

       cloaked with the presumption of constitutionality, which continues until

       rebutted. Gee v. State, 508 N.E.2d 787. It is the prerogative of the legislature

       when enacting changes to the penal code to decide to whom such changes

       apply. Id. When faced with a nearly identical argument years ago, our

       Supreme Court explained thus:

               When the Legislature decided in enacting the new criminal code that
               the penalties for some crimes should be modified or reduced, it chose
               to decide the question of when and under what circumstances the new
               penalties shall be given. Its decision to meet this issue must be
               regarded as highly appropriate. Appellant is, of course, correct in
               asserting that in doing so, the Legislature relied heavily upon the
               broad, general and long-standing rule of law that the law in effect at
               the time a crime is committed should be controlling. The time of a
               crime is selected as an act of the free will by the offender. Penal
               consequences are frozen as of that event. Alteration of them through
               subsequent events, both the uncontrollable and the manipulable, by the
               offender or the State, is foreclosed. The rule has decided marks of
               neutrality and fairness. Its use by the Legislature for this purpose
               cannot be fairly characterized as rendering the penal code without
               reformative purpose.
       Gee v. State, 508 N.E.2d at 789 (quoting Parsley v. State, 401 N.E.2d 1360, 1361-

       62 (Ind. 1980)).

[17]   Burton asserts that unlike prior revisions of the penal code, the 2014 reforms

       “were made because our prisons had become too full and some penalties had

       become disproportionate.” Appellant’s Brief at 13. Contrary to Burton’s claim,

       we find no express statement by the legislature that the prior penalties had

       become “too severe and that lighter punishment is appropriate.” Id. We agree
       Court of Appeals of Indiana | Memorandum Decision 33A01-1501-PC-5 | June 18, 2015   Page 9 of 13
       with the State that Burton’s attempt to engraft a legislative declaration that prior

       penalties were too severe from the many purposes to be served by the penal

       code grossly oversimplifies the reforms undertaken.


[18]   There is no doubt that the new penal code lowers the term of years imposed for

       some crimes. This is not, however, a clear expression by the legislature that the

       penalties were too harsh. To the contrary, the legislature indicated the

       continued appropriateness of the penalties imposed under the prior penal code

       as punishments when it clearly stated in the savings clauses that those penalties

       would continue to be imposed and enforced and that the doctrine of

       amelioration did not apply. Moreover, we note that similar savings clauses

       have been upheld against similar challenges when the 1977 penal code was

       enacted. See e.g., Gee v. State, 508 N.E.2d 787 (holding that savings clause

       prohibiting the defendant from receiving a sentence under the 1977 penal code

       when he committed the crime prior to its effective date even when he was

       sentenced after the effective date of the new code did not result in vindictive

       justice); Vicory v. State, 400 N.E.2d 1380 (Ind. 1980) (holding that savings clause

       did not violate the equal privileges clause of the Indiana Constitution). The

       post-conviction court properly rejected Burton’s claim that the savings clauses

       constitute vindictive justice in violation of article 1, section 18.

                                                          3.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1501-PC-5 | June 18, 2015   Page 10 of 13
[19]   Burton argues that his sentence is disproportionate in violation of article 1,

       section 16 of the Indiana Constitution.5 Article 1, section 16 of the Indiana

       Constitution provides that “[a]ll penalties shall be proportioned to the nature of

       the offense.” Generally, we are not at liberty to set aside a legislatively

       sanctioned penalty merely because it seems too severe. Conner v. State, 626

       N.E.2d 803 (Ind. 1993). A criminal penalty violates the proportionality clause

       “only when a criminal penalty is not graduated and proportioned to the nature

       of the offense. Conner v. State, 626 N.E.2d at 806. Stated differently, “a

       legislatively determined penalty will be deemed unconstitutional by reason of

       its length only if it is ‘so severe and entirely out of proportion to the gravity of

       the offense committed as to shock public sentiment and violate the judgment of

       reasonable people.” Foreman v. State, 865 N.E.2d 652, 655 (Ind. Ct. App. 2007)

       (quoting Teer v. State, 738 N.E.2d 283, 290 (Ind. Ct. App. 2000), trans. denied),

       trans. denied.


[20]   To the extent Burton alleges the statutory punishment for the crime to which he

       pleaded guilty is constitutionally disproportionate, we note that penal sanctions




       5
         In two short sentences, Burton argues that his sentence is “grossly disproportionate” upon comparison with
       the fact that his mother, who he claims was more culpable, “served only one year in prison.” Appellant’s Brief
       at 16. Burton’s statement is a little misleading. From the transcript of the post-conviction hearing, it appears
       as though Burton’s mother was sentenced to an aggregate twenty-year sentence, with twelve years suspended.
       Burton’s mother was ordered to serve one year in jail and the rest was to be served on home-detention. In
       Petitioner’s Exhibit 2, a transcript of the guilty plea and sentencing hearing for Burton’s mother, the relevant
       pages of the transcript in which the sentence is pronounced are missing. We can glean from the record of
       those hearings, however, that there were other considerations presented to the court, including that Burton’s
       mother had several health issues, which were relevant to the court’s sentencing decision in that case. When
       looking at the entire picture, we do not agree with Burton’s characterization that the sentence he received and
       the one imposed on his mother are “grossly disproportionate.”

       Court of Appeals of Indiana | Memorandum Decision 33A01-1501-PC-5 | June 18, 2015                 Page 11 of 13
       are primarily legislative concerns and hence, our view is highly restrained by

       virtue of the separation of powers doctrine. Person v, State, 661 N.E.2d 587

       (Ind. Ct. App. 1996), trans. denied. “We will not disturb the legislative

       determination of the appropriate penalty for criminal behavior except upon a

       showing of clear constitutional infirmity. State v. Moss-Dwyer, 6896 N.E.2d 109,

       111-12 (Ind. 1997). When considering the constitutionality of a statute, we

       begin with the presumption of constitutional validity, and therefore, the party

       challenging the statute labors under a heavy burden to show that the statute is

       unconstitutional. Id. at 112. Burton does not meet this burden.


[21]   In support of his argument, Burton points to the fact that a less severe penalty

       would apply if he had committed the instant offense after July 1, 2014, when

       the reformed penal code went into effect. Burton specifically notes that his

       twenty-two-year sentence is over three times greater than the maximum

       sentence that could have been imposed had he committed the offense on or

       after July 1, 2014, the effective date of the reformed penal code. Merely

       because the new penal code altered the penalty imposed for similar offenses

       committed after it became effective does not make Burton’s sentence

       disproportionate. The prospective application of the new penal code does not

       violate article 1, section 16 of the Indiana Constitution.

[22]   This court has recently addressed and rejected a nearly identical claim and our

       Supreme Court summarily affirmed that decision. See Cross v. State, 997 N.E.2d

       1125 (Ind. Ct. App. 2103), summarily aff’d in relevant part, reversed on other

       grounds, 15 N.E.3d 569 (Ind. 2014). In Cross, the defendant claimed that his

       Court of Appeals of Indiana | Memorandum Decision 33A01-1501-PC-5 | June 18, 2015   Page 12 of 13
       conviction and sentence for dealing in cocaine as a class A felony, because the

       offense was committed within 1000 feet of a youth program center, was

       disproportionate in light of, at that time, the upcoming changes to the penal

       code. This court rejected the defendant’s claims that because his crime would

       no longer be punished as the highest level of felony under the new code, the

       legislature had shown that it found the sentence to be disproportionate to the

       nature of the offense. This court reasoned that because the overhaul of the

       penal code affected all crimes and not just drug crimes, the overhaul

       represented a broad revamp of Indiana’s criminal system and was “not a

       statement regarding the proportionality of one singular criminal offense.” Id. at

       1131. The Cross court concluded that the defendant’s sentence was not

       unconstitutional. Our Supreme Court summarily affirmed this court’s

       conclusion in that regard.

[23]   Burton’s claim is indistinguishable from the claim presented and rejected in

       Cross. We therefore conclude that the post-conviction court properly relied

       upon the decision in Cross and rejected Burton’s claim for post-conviction relief.


[24]   Judgment affirmed.

       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1501-PC-5 | June 18, 2015   Page 13 of 13
