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                             Jun 07 2013, 8:17 am
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

VICKIE YASER                                         MARJORIE LAWYER-SMITH
Deputy Public Defender                               Deputy Attorney General
Indianapolis, Indiana                                Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JEROME K. JACKSON, JR.,                              )
                                                     )
        Appellant-Petitioner,                        )
                                                     )
               vs.                                   )     No. 34A04-1210-PC-535
                                                     )
STATE OF INDIANA,                                    )
                                                     )
        Appellee-Respondent.                         )


                     APPEAL FROM THE HOWARD SUPERIOR COURT
                          The Honorable Douglas A. Tate, Judge
                             Cause No. 34D01-0904-PC-403


                                            June 7, 2013

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                    Case Summary

      Jerome Jackson appeals the denial of his petition for post-conviction relief. We

reverse in part and remand.

                                           Issues

      Jackson raises two issues, which we reorder and restate as:

             I.     whether trial counsel’s failure to present evidence
                    regarding the validity of the license plate of a vehicle
                    searched by police amounted to ineffective assistance
                    of counsel; and

             II.    whether trial counsel’s failure to present evidence that
                    children were not present at the school at the time of
                    Jackson’s arrest amounted to ineffective assistance of
                    counsel.

                                           Facts

      The relevant facts are as follows:

                    On January 3, 2007, Kokomo Police Officer Jason
             Burton (“Officer Burton”) was on patrol when he observed
             the car in front of him run a red light. Officer Burton
             activated his lights and eventually his siren to get the car to
             pull over. The car did not immediately stop but traveled two
             to three blocks before pulling into the parking lot of an
             apartment complex, where it stopped in a parking space. The
             parking lot is located within 1,000 feet of a school. After the
             car had parked, the driver of the car, David Haulcy
             (“Haulcy”), started to get out of the car. Officer Burton
             ordered him to stay in the car and approached the driver’s
             side door. As he did, Officer Burton noticed that the license
             plate on the car had expired. Officer Burton contacted the
             police dispatch, which confirmed that the plate was expired
             and further informed him that the car was registered to a
             Zearlan Whitfield. There was no indication that the car had
             been stolen. Officer Burton asked for consent to search the
             car, but Haulcy indicated that he should ask the owner of the


                                             2
car for such consent. Because the car had expired plates,
Officer Burton requested a truck to tow the vehicle away.

       As Officer Burton spoke with Haulcy, Kokomo Police
Officer Brian Hunt (“Officer Hunt”) arrived and began to
question defendant Jackson, who was in the passenger seat.
Officer Hunt asked Jackson for identification, which Jackson
claimed not to have on him. Officer Hunt then asked Jackson
to step outside the car and asked him what his name was.
Jackson then provided Officer Hunt with false information
about his identity.

        Because the car was being towed, Officer Burton
conducted an onsite inventory of the vehicle and found in the
open center console a plastic baggie containing what was later
confirmed to be over seven grams of cocaine. Officer Burton
then informed Jackson that he was being arrested because of
the contraband in the car. Officer Hunt then placed Jackson
in handcuffs and searched him. This search revealed a
driver’s license with Jackson’s true identity. After a field test
indicated that the substance in the car was cocaine, Officer
Hunt took Jackson to the jail. While being booked into the
jail, another officer found another baggie containing over four
grams of cocaine hidden on Jackson’s person.

        On January 5, 2007, the State charged Jackson with
Class A felony dealing in cocaine, Class B felony possession
of cocaine, and Class B misdemeanor false informing. On
April 11, 2007, Jackson filed a motion to suppress the
evidence seized as a result of the stop. Following a hearing,
the trial court denied the motion to suppress on June 22, 2007.
A jury trial was held on October 26, 29, and 30. At the trial,
Jackson tendered two proposed final jury instructions
regarding statutory defenses to the charges of possession of
cocaine within 1,000 feet of a school. The trial court refused
to give these instructions to the jury. The jury found Jackson
not guilty of Class A felony dealing in cocaine, but guilty of
the remaining two charges.




                               3
Jackson v. State, 890 N.E.2d 11, 14-15 (Ind. Ct. App. 2008). On direct appeal, Jackson

challenged the inventory search and the denial of his tendered jury instructions. We

affirmed his convictions. See Jackson, 890 N.E.2d at 21.

        Jackson then filed a petition for post-conviction relief arguing in part that the

failure to present certain evidence related to the motion to suppress and the failure to

present evidence regarding the lack of children at the school amounted to ineffective

assistance of trial counsel. On September 11, 2012, following a hearing, the post-

conviction court1 entered findings and conclusions, which provided in part:

                       The defendant argues that evidence that the license
                plate had not expired was wrongfully excluded and, if
                admitted, there would have been a reasonable probability that
                the trial court would have granted Jackson’s Motion to
                Suppress. To support this assertion the Defendant references
                a tow slip prepared by Officer Ty [sic] Darlin of the Kokomo
                Police department documenting the impoundment and
                inventory of the vehicle in which Jackson was a passenger on
                the night of his arrest. This form shows 2006 as the year
                issued. The Defendant suggests that the tow slip indicates the
                license plate was current.

                        On appeal the Defendant raised the issue of
                contradictory evidence being presented at trial as it pertained
                to the vehicle registration. Since evidence that the plate may
                not have been expired was known to the Defendant at trial
                and raised on appeal it cannot be grounds for post conviction
                relief.

                                               *****



1
   A hearing was conducted on November 4, 2011, and February 10, 2012. On June 27, 2012, Jackson
filed a motion requesting a ruling on his post-conviction relief petition. On July 17, 2012, Jackson filed
praecipe for determination of whether a ruling has been delayed beyond the time limit set forth in Indiana
Trial Rule 53.2. On August 9, 2012, our supreme court issued an order appointing a special judge. The
special judge issued findings and conclusions on September 11, 2012.
                                                    4
       The purpose of the stop was not an expired plate. It
was only after the driver was stopped for allegedly
disregarding a stop sign that the arresting officer was
provided with information that the license plate had expired.
The driver was not the legal owner of the vehicle. Even if the
plate had a sticker indicating that the plate was current, it
does not negate the fact that a records check of the plate
indicated it had expired. This statute provides for just such a
scenario. The officer was required to take the vehicle into his
custody until the legal owner could be located or the proper
registration could be found. This is precisely what the officer
did. The appellate court has already determined that the stop
was not “pretextual.” The stop was valid and Jackson was
not unreasonably detained. As such, Jackson’s argument on
this point must fail.

       Jackson also argues that his counsel was ineffective for
failing to present a defense under I.C. 35-48-4-16(b) which
could have reduced Jackson’s conviction of possession of
cocaine from a class B felony to a class D felony. In order to
assert a defense under this statute there must be evidence the
defendant was in the area briefly and that no children under
eighteen (18) years were present within one thousand feet of a
school. On appeal Jackson argued that the trial court erred in
failing to allow a jury instruction referencing the defenses
pursuant to this statute.

        Jackson’s Petition for Post Conviction Relief relies
upon the testimony of Jonathan Shuck [sic], the assistant
principal at Maple Crest Schools and Officer Jason Burton of
the Kokomo Police Department. Mr. Shuck [sic] testified that
on the date in question; January 3, 2007, the school was on
winter break. Winter break ended January 4, 2007. Mr.
Shuck [sic] had no knowledge as to whether there were
children present at the school at the time of the arrest.
Further, at the PCR hearing Officer Burton testified that he
did not see any children at the school. However, he also
testified that he did not go upon school property.

         Jackson argues that if Officer Burton had been asked at
trial if he saw children at the school that the instruction would
have been allowed. However, Officer Burton could not say
with any reasonable certainty that no children were located at

                               5
               the school, let alone in the area in the vicinity of the school, at
               the time of the arrest. It is highly unlikely that Officer
               Burton’s testimony alone would have been enough for the
               court to have allowed the instruction.

                      The statute requires that the Defendant present
               sufficient evidence to place into question the issue of whether
               children were present within one thousand feet of the school.
               The fact that Jackson’s counsel offered an instruction
               referencing these defenses indicates that he at least
               considered raising that issue. Counsel was unable to provide
               any proof to support this defense at trial. The evidence
               submitted by Jackson for purposes of post conviction relief
               would not be sufficient to support such a defense, either. A
               failure to provide evidence which does not appear to exist is
               not grounds to argue that Jackson’s counsel was ineffective.

App. pp. 122-24.2 The post-conviction court denied Jackson’s petition. On October 2,

2012, Jackson filed a motion to correct error, which the post-conviction court denied. He

now appeals.

                                             Analysis

       Generally, the completion of the direct appeal process closes the door to a criminal

defendant’s claims of error in conviction or sentencing. Pruitt v. State, 903 N.E.2d 899,

905 (Ind. 2009). However, defendants whose appeals have been rejected are allowed to

raise a narrow set of claims through a petition for post-conviction relief. Id. (citing Ind.

Post-Conviction Rule 1(1)). A post-conviction court must make findings of fact and

conclusions of law on all issues presented in the petition. Id. (citing P-C.R. 1(6)). The

findings must be supported by the facts, and the conclusions must be supported by the

law. Id. “Our review on appeal is limited to these findings and conclusions.” Id.

2
   Instead of including a copy of the post-conviction court’s order in the back of his brief, Jackson
included a copy of his proposed findings and conclusions.
                                                 6
       The petitioner bears the burden of proof, and an unsuccessful petitioner appeals

from a negative judgment. Id. A petitioner appealing from a negative judgment must

show that the evidence as a whole leads unerringly and unmistakably to a conclusion

opposite to that reached by the post-conviction court. Id. We will disturb a post-

conviction court’s decision as being contrary to law only where the evidence is without

conflict and leads to but one conclusion and the post-conviction court has reached the

opposite conclusion. Id.

       Jackson argues that trial counsel was ineffective for failing to present conflicting

testimony regarding the validity of the license plate and for failing to present evidence

that children were not present at the school at the time of the arrest. “To establish a post-

conviction claim alleging the violation of the Sixth Amendment right to effective

assistance of counsel, a defendant must establish before the post-conviction court the two

components set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80

L.Ed.2d 674 (1984).” Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010), cert. denied.

First, a defendant must show that counsel’s performance was deficient by establishing

that counsel’s representation fell below an objective standard of reasonableness and that

“‘counsel made errors so serious that counsel was not functioning as ‘counsel’ guaranteed

to the defendant by the Sixth Amendment.’” Id. (quoting Strickland, 466 U.S. at 687,

104 S. Ct. at 2064).       A defendant must also show that the deficient performance

prejudiced the defense by establishing there is a reasonable probability that, but for

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



                                             7
Id. “Further, counsel’s performance is presumed effective, and a defendant must offer

strong and convincing evidence to overcome this presumption.” Id.

                                   I. Officer Darlin’s Testimony

        In support of his motion to suppress, Jackson claimed that the car’s license plate

and registration were valid and, therefore, the towing of the car was not authorized under

Indiana Code Section 9-18-2-43(a), which provides in part:

                Notwithstanding any law to the contrary but except as
                provided in subsection (b), a law enforcement officer
                authorized to enforce motor vehicle laws who discovers a
                vehicle required to be registered under this article that does
                not have the proper certificate of registration or license plate:

                         (1) shall take the vehicle into the officer’s custody; and

                         (2) may cause the vehicle to be taken to and stored in a
                         suitable place until:

                                 (A) the legal owner of the vehicle can be found;
                                 or

                                 (B) the proper certificate of registration and
                                 license plates have been procured.

Jackson asserts that, if the tow was improper, so was the inventory search.

        In support of this argument, Haulcy testified at the suppression hearing that the

registration and license plate were valid. A copy of a valid registration for the vehicle

was also admitted into evidence.3 Officer Hunt and Officer Burton both testified that they

observed the expired license plate. Officer Burton also testified that dispatch informed

3
  At the suppression hearing, the trial court noted that the registration was not relevant to the validity of
the license plate. The registration was not admitted into evidence at trial because it was not a certified
document and was not relevant to the validity of the license plate.


                                                     8
him the license plate had expired on October 15, 2006. During the hearing, the tow slip

was admitted into evidence, and Officer Tye Darlin, who filled out the tow slip, testified

about it generally. The trial court ruled that the inventory search was proper because,

after the police determined that the license plate was expired, it was appropriate to tow

the car.

       Jackson argues that trial counsel4 should have questioned Officer Darlin about the

entry on the tow slip indicating the license plate was issued in 2006 and, therefore, still

valid in January 2007. Officer Darlin testified at the post-conviction relief hearing that, if

the license plate said it expired in 2007, then he would have written that it was issued in

2006 on the tow slip.

       According to Jackson, Officer Darlin’s testimony would have corroborated

Haulcy’s testimony that the license plate was valid and impeached Officer Burton’s and

Officer Hunt’s testimony that the license plate was expired. Jackson claims that Officer

Darlin’s testimony would have “tipped the balance in the courts’ [sic] consideration of

the reasonableness of the inventory search and resulted in suppression of subsequently

seized evidence.” Appellant’s Br. p. 18.

       In reviewing the post-conviction court’s order, it appears that the post-conviction

court did not address this issue as a claim of ineffective assistance of counsel. Instead,

the post-conviction court framed the issues as “[w]hether the court erred in denying the




4
   The hearing on the motion to suppress was conducted on three different days, and Jackson was
represented by Haulcy’s attorney at the second and third hearings.


                                              9
admissibility of a tow slip prepared by Officer Ty [sic] Darlin.”5 App. p. 121. As such,

the post-conviction court incorrectly held that this issue was not available as a basis for

post-conviction relief because it was known and raised on direct appeal. To the contrary,

because Jackson framed the issue as ineffective assistance of trial counsel, it was

available as a basis for post-conviction relief. See McCann v. State, 854 N.E.2d 905, 909

n.1 (Ind. Ct. App. 2006) (“While it is true that McCann waived any freestanding claim of

error by failing to raise the issue on direct appeal, he may nevertheless challenge the

propriety of the instruction in the context of an ineffective assistance of counsel claim.”).

Further, the post-conviction court’s additional findings based on the assumption that the

tow slip was admissible do not provide an adequate basis for reviewing the issue as a

claim of ineffective assistance of counsel. Thus, we remand for the trial court to make

findings and conclusions regarding whether trial counsel’s failure to elicit testimony from

Officer Darlin regarding the validity of the license plate amounted to ineffective

assistance of counsel.

                                        II. Jury Instruction

       Jackson argues that trial counsel was ineffective for not presenting any evidence

showing that no children were at the school at the time of his arrest. Jackson was charged

with and convicted of Class B felony possession of cocaine based on his proximity to a

school. See Ind. Code § 35-48-4-6(b)(2)(B)(i). Without the school enhancement, the

offense would have been a Class D felony. See I.C. § 35-48-4-6(a).


5
  Although the tow slip was excluded at trial, it was admitted into evidence at the suppression hearing.
See Trial Tr. p. 63.
                                                  10
        In its opening statement, the State indicated that it was going to call a

representative from the school to testify about school activities at the time of Jackson’s

arrest. The State did not call this witness, and the only evidence regarding the presence

of children was from Officer Burton, who testified that he did not go to the school after

the arrest and that he was not aware if anyone went to the school to see if school events

were taking place. Jackson tendered an instruction based on Indiana Code Section 35-48-

4-16(b), which explains:

                (b) It is a defense for a person charged under this chapter with
                an offense that contains an element listed in subsection (a)
                that:

                        (1) a person was briefly in, on, or within one thousand
                        (1,000) feet of school property, a public park, a family
                        housing complex, or a youth program center; and

                        (2) no person under eighteen (18) years of age at least
                        three (3) years junior to the person was in, on, or
                        within one thousand (1,000) feet of the school
                        property, public park, family housing complex, or
                        youth program center at the time of the offense.

The trial court declined to give the instruction because there was “absolutely no evidence

whatsoever about someone under the age of 18 . . . .”6 Trial Tr. p. 257. The trial court

further explained, “If there was some evidence to show that there was nobody there, then

we’d have to give this instruction, I don’t think there’s any question about that, but there

is no evidence . . . .” Id. at 258-59.



6
  Although the parties do not elaborate on whether Jackson was briefly within 1,000 feet of the school,
the trial court appeared to reject the State’s argument that Jackson was not there briefly when it stated,
“Well, he parked the car because there’s red lights and sirens encouraging him to do so.” Trial Tr. p. 255.


                                                    11
       At the post-conviction relief hearing, Jackson’s attorney asked Officer Burton if he

saw any children at or near the school and he replied, “No, I cannot say that I saw any

children at the school.” PCR Tr. p. 6. Officer Burton also testified that this would have

been his answer in 2007. Jackson also presented the testimony of Johnathan Schuck, who

was the assistant principal at the school in 2007 and who was responsible for scheduling

the building. Schuck explained that he had reviewed his calendar, and January 3, 2007,

was winter break. When asked if he was aware of any activities involving children that

would have been scheduled at the school after 7:00 p.m. on January 3, 2007, Schuck

responded, “I can’t say, based on the information that I have, that I’m aware of

anything.” Id. at 43.

       The State asserts “no evidence was presented during the post-conviction

proceedings that conclusively established no minors were present in the thousand foot

area.” Appellee’s Br. p. 10. The State relies on Stringer v. State, 853 N.E.2d 543, 549

(Ind. Ct. App. 2006), in which we affirmed a trial court’s refusal to give a similar

instruction because “Stringer only evoked testimony during cross-examination of one of

the State’s witnesses that it is unknown whether anyone under the age of eighteen was in

the park at the time Stringer was arrested.”

       The State, however, cites no authority for proposition that a defendant must

conclusively establish that no minors were present before he or she is entitled to an

instruction based on Indiana Code Section 35-48-4-16(b). To the contrary, in Griffin v.

State, 925 N.E.2d 344, 347 (Ind. 2010), our supreme court agreed with the analysis of

Indiana Code Section 35-48-4-16(b) in Harrison v. State, 901 N.E.2d 635 (Ind. Ct. App.

                                               12
2009), trans. denied. In Harrison, we concluded, “Indiana Code Section 35-48-4-16(b)

constitutes a mitigating factor that reduces culpability, and therefore the defendant does

not have the burden of proof but ‘only the burden of placing the issue in question where

the State’s evidence has not done so.’” Harrison, 901 N.E.2d at 642 (quoting Adkins v.

State, 887 N.E.2d 934, 938 (Ind. 2008)). Once the defendant places the issue into

question, the State has the burden of rebutting the defense “by proving beyond a

reasonable doubt either that the defendant was within 1000 feet of a public park more

than ‘briefly’ or persons under the age of eighteen at least three years junior to the

defendant were within 1000 feet of the public park . . . .” Id. (quoting I.C. § 35-48-4-

16(b)).

          Thus, at trial, Jackson did not have the burden of proving the defense; he was only

required to present evidence placing the issue into question. Although Officer Burton’s

trial testimony that he did not go to the school and was not aware if anyone else went to

the school may not have been sufficient to place the issue in question, we believe that

Schuck’s and Officer Burton’s post-conviction hearing testimony would have been

sufficient to place the issue in question. See Griffin, 925 N.E.2d at 348 (contrasting

Stringer and Jackson’s direct appeal in which the evidence was inconclusive regarding

the presence of children and concluding the officer’s testimony affirmatively representing

that he saw no children at or near the school property was sufficient to raise an issue as to

the absence of children and to require the State to rebut the defense). To the extent the

post-conviction court characterized Schuck as having testified that he had no knowledge

as to whether children were present at the time of the arrest, we do not believe this is an

                                              13
accurate assessment of Schuck’s testimony. Instead, Schuck testified that the arrest

occurred during winter break and that he was not aware of any scheduled activities

involving children at the time of the arrest. This is consistent with Officer Burton’s

testimony that he did not see any children at the school.

       Based on the trial court’s explanation for its ruling, it is clear that, had this

evidence been presented, the trial court would have instructed the jury on the defense.

Thus, trial counsel’s failure to introduce such evidence fell below an objective standard

of reasonableness. Further, we believe that, had the jury been instructed on the defense,

there is a reasonable probability that he would have been convicted of Class D felony

possession or cocaine instead of Class B felony possession of cocaine. As such, the post-

conviction court erroneously denied this claim of ineffective assistance of counsel.

                                        Conclusion

       Because the post-conviction court did not address the failure to present Officer

Darlin’s testimony regarding the validity of license plate as a claim of ineffective

assistance of counsel, we remand for findings and conclusions on that issue. Further, trial

counsel’s failure to present evidence on the issue of whether children were present at the

school at the time of Jackson’s arrest was ineffective assistance of counsel, requiring

reversal on that issue. If the post-conviction court determines that the failure to present




                                            14
Officer Darlin’s testimony was not ineffective assistance of counsel, we direct that

Jackson receive a new trial on the issue of the statutory defense if the State so chooses.7

       Reversed and remanded.

NAJAM, J., and BAILEY, J., concur.




7
  Although Jackson requests that his Class B felony conviction be reduced to a Class D felony and that a
three-year sentence be imposed, we believe that request is premature. If the State elects not to retry
Jackson, however, we direct that the conviction be reduced.
                                                  15
