MEMORANDUM DECISION
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                                    FILED
estoppel, or the law of the case.                                     Jul 27 2017, 11:27 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Stephen Lehman                                            Curtis T. Hill, Jr.
Michigan City, Indiana                                    Attorney General of Indiana

                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Stephen Lehman,                                           July 27, 2017
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          35A05-1611-PC-2603
        v.                                                Appeal from the Huntington
                                                          Superior Court
State of Indiana,                                         The Honorable Jeffrey R.
Appellee-Respondent.                                      Heffelfinger, Judge
                                                          Trial Court Cause No.
                                                          35D01-1106-PC-13



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017           Page 1 of 19
                                             Case Summary
[1]   In April of 2009, Appellee-Respondent the State of Indiana (“the State”)

      charged Appellant-Petitioner Stephen M. Lehman with Class A felony dealing

      in cocaine and Class A felony dealing in a schedule I, II, or III controlled

      substance. The State also alleged that Lehman was a habitual offender.

      Lehman was found guilty of the two Class A felony counts following a jury

      trial. Lehman thereafter pled guilty to the habitual offender allegation. He was

      later sentenced to an aggregate term of forty-two years. On April 13, 2010, we

      affirmed Lehman’s convictions.1


[2]   Lehman subsequently filed a petition seeking post-conviction relief (“PCR”),

      arguing that he suffered ineffective assistance of trial counsel. Following a

      hearing on Lehman’s petition, the post-conviction court determined that

      Lehman had failed to establish that he had suffered ineffective assistance of trial

      counsel. On appeal, Lehman contends that he was denied a procedurally fair

      hearing on his PCR petition. Lehman also challenges the post-conviction

      court’s determination that he failed to establish that he suffered ineffective

      assistance of trial counsel. We affirm.



                              Facts and Procedural History




      1
          Lehman did not challenge his sentence on appeal.


      Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017   Page 2 of 19
[3]   Our opinion in Lehman’s direct appeal, which was handed down on April 13,

      2010, instructs us to the underlying facts and procedural history leading to this

      post-conviction appeal:


              In August of 2008, Huntington City Police Detective Michael
              Slagel (Detective Slagel) worked with Charles Howard
              (Howard), a confidential informant. On August 5, 2008,
              Howard contacted Detective Slagel to inform the detective that
              he had a deal set up. Detective Slagel contacted other officers to
              help with the transaction and they all met with Howard at a
              predetermined meeting place. At the meeting place, Detective
              Slagel searched Howard and his vehicle and placed an electronic
              device on him. He also handed Howard $200 to purchase drugs.

              Howard, followed by the officers, traveled to 626 Court Street in
              Huntington, Indiana. The officers saw Howard pull into the
              alley at the residence and then lost visual contact. However,
              Detective Slagel was able to hear the transaction on the audio
              device and recognized both Howard and Lehman’s voice.
              Detective Slagel heard Howard and Lehman talk about weighing
              out different amounts of cocaine, and discuss a “ball,” “powder,”
              and “doing a line.” (Transcript p. 263). Huntington City Police
              Detective Cory Boxell (Detective Boxell), who also monitored
              the transaction through the audio device, heard Lehman talk
              about his upcoming appointment with his probation officer.
              When the transaction was complete, Howard left the residence
              and drove to the meeting place while being followed by the
              officers. At the meeting place, Howard handed Detective Slagel
              a clear plastic bag containing a white powdery substance. This
              substance tested positive for cocaine.

              On August 20, 2008, Detective Slagel received another call from
              Howard about setting up another deal with Lehman. Again, a
              meeting was set up at a predetermined place where Howard was
              searched. He was fitted with an electronic listening device and

      Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017   Page 3 of 19
        given money to buy drugs. Howard and the officers drove to
        Lehman’s residence in separate vehicles. Howard pulled into the
        alley and Huntington City Police Detective Chad Hacker
        (Detective Hacker)[2] saw Lehman walk up to Howard’s vehicle.
        Detective Slagel and Officer Boxell, who were monitoring the
        audio device, heard Howard talk to Lehman about twenty
        milligram pills and thirty milligram pills. When the transaction
        was completed, Howard returned to the meeting place with the
        officers in tow and gave Detective Slagel a clear plastic bag with
        ten orange twenty-milligram Adderall capsules. In the fall of
        2008, Howard died of a drug overdose.

        On April 2, 2009, the State charged Lehman with Count I,
        dealing in cocaine, a Class A felony, I.C. § 35-48-4-1; and Count
        II, dealing in a schedule I, II, or III controlled substance, a Class
        A felony, I.C. § 35-48-4-2. The next day, the State amended this
        charging information by adding an habitual substance offender
        Count, I.C. § 35-50-2-10. On July 9 and 10, 2009, a jury trial was
        conducted. At the close of the evidence, the jury returned a
        guilty verdict on Counts I and II. Thereafter, Lehman pled guilty
        to the habitual substance offender charge. On August 11, 2009,
        during the sentencing hearing, the trial court sentenced Lehman
        to concurrent sentences of thirty-six years each on Counts I and
        II, and enhanced the sentence on Count I by six years because of
        the habitual substance adjudication. Lehman’s aggregate
        sentence amounted to forty-two years.


Lehman v. State, 926 N.E.2d 35, 36-37 (Ind. Ct. App. 2010), trans. denied.

Lehman challenged his convictions on appeal, arguing that the trial court




2
  At some point between August 20, 2008, and the date of the post-conviction hearing, Detective Hacker was
promoted to Chief of Police. He will therefore be referred to as “Chief Hacker” throughout the remainder of
this memorandum decision.

Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017           Page 4 of 19
      abused its discretion by admitting certain evidence during trial. We affirmed

      Lehman’s convictions.


[4]   On June 15, 2011, Lehman filed a pro-se PCR petition. Lehman, by counsel,

      filed an amended PCR petition on May 15, 2015. In this amended petition,

      Lehman claimed that he received ineffective assistance from his trial counsel,

      Scott Harter (“Attorney Harter”). The post-conviction court held a three-day

      hearing June 21, June 23, and September 20, 2016, at which Lehman

      represented himself. On October 27, 2016, the post-conviction court issued an

      order denying Lehman’s PCR petition. This appeal follows.



                                 Discussion and Decision
[5]   Post-conviction procedures do not afford the petitioner with a super-appeal.

      Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a

      narrow remedy for subsequent collateral challenges to convictions, challenges

      which must be based on grounds enumerated in the post-conviction rules. Id.

      A petitioner who has been denied PCR appeals from a negative judgment and

      as a result, faces a rigorous standard of review on appeal. Dewitt v. State, 755

      N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942 (Ind. Ct. App.

      1999), trans. denied.


[6]   Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,

      745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his

      claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);


      Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017   Page 5 of 19
      Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,

      a petitioner must convince this court that the evidence, taken as a whole, “leads

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

      court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without

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

      reached the opposite conclusion, that its decision will be disturbed as contrary

      to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.

      The post-conviction court is the sole judge of the weight of the evidence and the

      credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

      We therefore accept the post-conviction court’s findings of fact unless they are

      clearly erroneous but give no deference to its conclusions of law. Id.


                I. Procedurally Fair Hearing on PCR Petition
[7]   In arguing that he was denied a procedurally fair hearing on his PCR petition,

      Lehman appears to claim that he was not permitted to present newly-discovered

      evidence which he believed would necessitate a new trial.


              “[N]ew evidence will mandate a new trial only when the
              defendant demonstrates that: (1) the evidence has been
              discovered since the trial; (2) it is material and relevant; (3) it is
              not cumulative; (4) it is not merely impeaching; (5) it is not
              privileged or incompetent; (6) due diligence was used to discover
              it in time for trial; (7) the evidence is worthy of credit; (8) it can
              be produced upon a retrial of the case; and (9) it will probably
              produce a different result at retrial.” Taylor v. State, 840 N.E.2d
              324, 329-30 (Ind. 2006) (quoting Carter v. State, 738 N.E.2d 665,
              671 (Ind. 2000)). “This Court analyzes these nine factors with
              care, as the basis for newly discovered evidence should be

      Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017   Page 6 of 19
              received with great caution and the alleged new evidence
              carefully scrutinized.” Id. at 330 (internal quotations omitted).
              The burden of showing that all nine requirements are met rests
              with the petitioner for post-conviction relief. Webster v. State, 699
              N.E.2d 266, 269 (Ind. 1998).


      Kubsch v. State, 934 N.E.2d 1138, 1145 (Ind. 2010).


[8]   Review of the record reveals that Lehman’s purpose for calling Chief Hacker to

      testify during the post-conviction hearing was to impeach Chief Hacker’s trial

      testimony. During the post-conviction hearing, Lehman called his brother,

      Scott Thornsberry, as a witness. Lehman sought to elicit testimony from

      Thornsberry indicating that he had conducted his own investigation and had

      concluded that Chief Hacker’s trial testimony indicating that he was able to

      identify Lehman from a distance on the date of the second controlled buy could

      not have been truthful. Chief Hacker testified in detail at trial about his

      involvement in the controlled buys and was thoroughly cross-examined by

      Attorney Harter. During the post-conviction hearing, Lehman merely

      attempted to impeach Chief Hacker’s trial testimony by re-asking Chief Hacker

      some of the same questions as he was asked during trial. The post-conviction

      court granted Lehman significant leeway in questioning Chief Hacker before

      concluding Lehman’s line of questioning. Upon review, we conclude that

      Lehman has failed to establish that all nine requirements set forth in Kubsch

      were met or that he was denied a procedurally fair hearing.




      Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017   Page 7 of 19
                     II. Ineffective Assistance of Trial Counsel
[9]    The right to effective counsel is rooted in the Sixth Amendment to the United

       States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The

       Sixth Amendment recognizes the right to the assistance of counsel because it

       envisions counsel’s playing a role that is critical to the ability of the adversarial

       system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S.

       668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness

       must be whether counsel’s conduct so undermined the proper function of the

       adversarial process that the trial court cannot be relied on as having produced a

       just result.” Strickland, 466 U.S. at 686.


[10]   A successful claim for ineffective assistance of counsel must satisfy two

       components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first

       prong, the petitioner must establish that counsel’s performance was deficient by

       demonstrating that counsel’s representation “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. We recognize that

       even the finest, most experienced criminal defense attorneys may not agree on

       the ideal strategy or most effective way to represent a client, and therefore,

       under this prong, we will assume that counsel performed adequately and defer

       to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585

       (Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of

       bad judgment do not necessarily render representation ineffective. Id.



       Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017   Page 8 of 19
[11]   Under the second prong, the petitioner must show that the deficient

       performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner

       may show prejudice by demonstrating that there is “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.

       A petitioner’s failure to satisfy either prong will cause the ineffective assistance

       of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently,

       “[a]lthough the two parts of the Strickland test are separate inquires, a claim

       may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031

       (Ind. 2006) (citing Williams, 706 N.E.2d at 154).


[12]   Lehman complains that Attorney Harter provided ineffective assistance by: (A)

       depriving him of representation free from conflict, (B) failing to conduct an

       investigation into the sufficiency of the State’s evidence, (C) failing to challenge

       the sufficiency of the probable cause affidavit or arrest warrant, (D) failing to

       investigate a potential alibi defense, and (E) failing to call certain potential

       witnesses at trial. We will discuss each in turn.


        A. Whether Attorney Harter Provided Ineffective Assistance
        by Failing to Provide Lehman with Representation Free from
                                  Conflict
[13]   Lehman asserts that Attorney Harter provided ineffective assistance by failing

       to provide him with representation free from conflict. In support of this

       argument, Lehman asserts that prior to trial, he and Attorney Harter

       experienced a breakdown of the attorney-client relationship. The breakdown

       Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017   Page 9 of 19
       stemmed from Lehman’s belief that Attorney Harter had failed to inform him

       of Howard’s death in a timely fashion. However, Attorney Harter testified

       during the post-conviction hearing that although there was a temporary

       breakdown of the attorney-client relationship, the relationship was subsequently

       mended to the point where Attorney Harter was able to work with Lehman to

       effectively prepare for trial.


[14]   Lehman points to nothing in the trial record which would even suggest that

       Attorney Harter did not zealously represent Lehman at trial. Likewise,

       Lehman has failed to establish that there is a reasonable probability that, but for

       this temporary pre-trial breakdown of the attorney-client relationship, the result

       of Lehman’s trial would have been different. As such, Lehman has failed to

       prove that he was prejudiced by the temporary pre-trial breakdown of his

       relationship with Attorney Harter. See Reed, 866 N.E.2d at 769.


        B. Whether Attorney Harter Provided Ineffective Assistance
        by Failing to Conduct an Investigation into the Sufficiency of
                            the State’s Evidence
[15]   Lehman asserts that Attorney Harter provided ineffective assistance by failing

       to conduct an adequate investigation into the sufficiency of the State’s evidence.

       Specifically, Lehman asserts that Attorney Harter failed to adequately

       investigate whether the State’s evidence sufficiently outlined the procedures

       utilized by police during the controlled buys. Lehman also asserts that

       Attorney Harter failed to adequately investigate the sufficiency of the State’s

       evidence to prove that he committed his acts within 1000 feet of a public park

       Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017   Page 10 of 19
       or that each of the controlled buys involved the sale of more than three grams of

       drugs.


       1. Evidence Relating to the Procedures Followed in Conducting the Controlled
                                           Buys

[16]   We have long outlined the proper procedures for conducting a controlled buy as

       follows:

                A controlled buy consists of searching the person who is to act as
                the buyer, removing all personal effects, giving him money with
                which to make the purchase, and then sending him into the
                residence in question. Upon his return he is again searched for
                contraband. Except for what actually transpires within the
                residence, the entire transaction takes place under the direct
                observation of the police. They ascertain that the buyer goes
                directly to the residence and returns directly, and they closely
                watch all entrances to the residence throughout the transaction.


       Mills v. State, 177 Ind. App. 432, 434, 379 N.E.2d 1023, 1026 (1978).


[17]   The facts of this case demonstrate that despite Lehman’s assertion to the

       contrary, the police officers followed the procedure set forth in Mills when

       conducting the controlled buys. After being searched, Howard was under either

       direct visual or audio supervision by the officers involved. Attorney Harter

       thoroughly cross-examined the officers about their observations and the

       procedures employed. Lehman does not explain what more Attorney Harter

       could have reasonably done to challenge the State’s evidence. As such,

       Lehman has failed to establish either that Attorney Harter’s actions in this



       Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017   Page 11 of 19
       regard fell below an objective standard of reasonableness or that he was

       prejudiced by Attorney Harter’s actions.


                         2. Evidence Relating to Distance from Public Park

[18]   Lehman asserts that Attorney Harter provided ineffective assistance by failing

       to complete an independent investigation into whether Lehman’s criminal acts

       occurred within 1000 feet of a public park. At trial, the parties stipulated that

       Lehman’s residence was within 1000 feet of Yeoman Park. A map created by

       the Huntington County Surveyor’s Office prior to trial clearly demonstrated

       that both the entire residence located at 626 Court Street and the alley behind

       the residence are located within 1000 feet of Yeoman Park.


[19]   Lehman seems to base his assertion that Attorney Harter provided ineffective

       assistance on the fact that it was never revealed in which room in the residence

       that the first controlled buy occurred in. However, it is important to note that

       what room of the residence that the controlled buy actually occurred in is

       irrelevant as the entire residence is located within 1000 feet of the park. The

       second controlled buy occurred in the alley behind the residence, which is also

       located within 1000 feet of the park.


[20]   Lehman has failed to show what more Attorney Harter could have done, short

       of hiring an independent surveyor to measure the distance, to investigate the

       distance from the residence to the park. Such approach, however, hardly seems

       reasonable given the fact that the survey was completed by an uninterested

       entity and the record is completely devoid of any suggestion that the survey is


       Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017   Page 12 of 19
       inaccurate. Because Lehman has failed to point to any evidence suggesting that

       the survey stipulated to by the parties was inaccurate or that there is any

       question as to whether the residence in question is located within 1000 feet of

       Yeoman Park, Lehman has failed to prove that he suffered any prejudice in this

       regard.3


[21]   Furthermore, despite Lehman’s assertion to the contrary, we are unpersuaded

       that Attorney Harter provided ineffective assistance by failing to raise certain

       unmeritorious defenses which related to the distance between the residence and

       the park. We disagree.


[22]   Lehman claims that Attorney Harter should have argued that he was only

       temporarily within the 1000-foot radius of the park. He also claims that

       Attorney Harter should have argued that there was no evidence that any

       children were present at the time the controlled buys occurred. The evidence at

       trial demonstrated that Lehman lived in the residence in question. The

       evidence at trial also demonstrated that Lehman’s residence, which again was

       within 1000 feet of the park, is surrounded by other residential buildings. As

       the State correctly notes, the likelihood of children being present in a residential

       area during the night hours is very high. Lehman has therefore failed to prove

       either that Attorney Harter performed below the accepted professional norm or




       3
         We note that Lehman’s reliance on Doty v. State, 730 N.E.2d 175 (Ind. Ct. App. 2000), is unavailing
       because, unlike the instant matter, in Doty the State failed to prove that the entire home in which the criminal
       activity occurred was within 1000 feet of the school property.

       Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017              Page 13 of 19
       that he suffered any prejudice as a result of Attorney Harter’s representation.

       Additionally, because the parties stipulated that Lehman’s residence was within

       1000 feet of the park, Attorney Harter cannot be found to have provided

       ineffective assistance for failing to request that the trial court instruct the jury

       about how to determine whether Lehman’s residence was within 1000 feet of

       the park.


                            3. Evidence Relating to Amount of Drugs Sold

[23]   At trial, Attorney Harter stipulated to the admissibility of the certificates of

       analysis which showed the weight of the drugs Howard received from Lehman

       during the controlled buys. The certificates demonstrated that the weight of the

       drugs from the first controlled buy was 3.47 grams and the weight of the drugs

       from the second controlled buy was 3.12 grams. The decision to stipulate to the

       admissibility of the certificates was a tactical decision which we will not second

       guess. See Smith, 765 N.E.2d at 585. Further, nothing in the record even

       suggests that Attorney Harter’s decision in this regard fell below an objective

       standard of reasonableness. In addition, Lehman has presented no evidence

       indicating that the findings documented in the certificates were inaccurate or

       that an independent investigation would have generated different results.

       Lehman, therefore, has failed to prove that he suffered prejudice by Attorney

       Harter’s stipulation to the admissibility of the certificates.




       Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017   Page 14 of 19
        C. Whether Attorney Harter Provided Ineffective Assistance
        by Failing to Challenge the Sufficiency of the Probable Cause
                        Affidavit and Arrest Warrant
[24]   Lehman also asserts that Attorney Harter provided ineffective assistance by

       failing to challenge the sufficiency of the probable cause affidavit and arrest

       warrant. In making this assertion, Lehman claims that the affidavit for

       probable cause “lacked the sufficiency of evidence required to determine

       whether the magistrate had a ‘substantial basis’ for concluding that probable

       cause existed and [trial] counsel failed to investigate the minimum information

       necessary to establish probable cause.” Appellant’s Br. p. 42. Specifically,

       Lehman argues that Attorney Harter erred by relying on the facts set forth by

       the State and failing to conduct an independent investigation into whether (1)

       Howard was a reliable witness and (2) the controlled buys actually occurred. In

       support, Lehman relies on this court’s opinion in Helton v. State, 886 N.E.2d 107

       (Ind. 2008), in which the court concluded that trial counsel provided ineffective

       assistance by failing to file a pre-trial motion to suppress evidence which was

       obtained pursuant to an allegedly inadequate search warrant. Lehman’s

       reliance on this opinion is misplaced, however, because the Indiana Supreme

       Court subsequently vacated and overruled the opinion. See Helton v. State, 907

       N.E.2d 1020 (Ind. 2009).


[25]   Furthermore, it is important to note that unlike in Helton, the State did not

       discover any additional evidence as a result of the allegedly inadequate probable

       cause affidavit or arrest warrant.


       Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017   Page 15 of 19
         The illegality of the arrest, if in fact it was illegal, is of
         consequence at this stage of the proceedings, only if it is
         determined that evidence was obtained in consequence thereof
         and admitted at the trial. Layton v. State (1968), 251 Ind. 205,
         209, 240 N.E.2d 489, 491; Farmer v. State (1971), Ind., 275
         N.E.2d 783, 785. An illegal arrest does not destroy [a] valid
         conviction. Wells v. State (1971), 256 Ind. 161, 267 N.E.2d 371,
         373; and does not amount to a denial of due process. Dickens v.
         State (1970), 254 Ind. 388, 260 N.E.2d 578, 579.


Williams v. State, 261 Ind. 385, 386-87, 304 N.E.2d 311, 313 (1973). In this

case, Lehman’s guilt was not established by the probable cause affidavit or

arrest warrant alone. Rather, he was convicted following a jury trial during

which Attorney Harter thoroughly cross-examined the witnesses. The jury,

acting in its position as the trier-of-fact, had the opportunity to assess the

credibility of the State’s witnesses and the weight of the State’s evidence. Upon

review, we conclude that Lehman has failed to establish either that Attorney

Harter’s actions in this regard fell below an objective standard of reasonableness

or that he was prejudiced by Attorney Harter’s actions.4




4
  To the extent that Lehman’s challenge can be interpreted as a challenge to the sufficiency of the evidence to
sustain his convictions, we note that any such challenge has been waived because it was known and available
but not raised on direct appeal. See Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001) (providing that “[i]f
an issue was known and available, but not raised on direct appeal, it is waived”).

Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017             Page 16 of 19
        D. Whether Attorney Harter Provided Ineffective Assistance
            by Failing to Investigate a Potential Alibi Defense
[26]   Lehman asserts that Attorney Harter provided ineffective assistance by failing

       to investigate a potential alibi defense. Specifically, Lehman argues that

       Attorney Harter should have presented the alibi defense that he was working at

       the time of the August 5, 2008 controlled buy. Attorney Harter testified during

       the post-conviction hearing, however, that he contacted Lehman’s then-

       employer prior to trial and was unable to confirm that Lehman was working at

       the time of the August 5, 2008 controlled buy. Attorney Harter indicated that

       he could not “think of anything else that [he] could have done to investigate

       [the potential] alibi” because he “just could not place him there at the time.”

       PCR Tr. Vol. III, p. 110. Attorney Harter’s testimony indicates that he did, in

       fact, investigate the potential alibi defense presented by Lehman. As such,

       Attorney Harter cannot be found to have provided ineffective assistance for

       allegedly failing to do so.


        E. Whether Attorney Harter Provided Ineffective Assistance
           by Failing to Call Certain Potential Witnesses at Trial
[27]   Lehman last asserts that Attorney Harter provided ineffective assistance by

       failing to call certain potential witnesses at trial. Specifically, Lehman claims

       that these potential witnesses could have called his identity as the individual

       who sold drugs to Howard into question.


[28]   Lehman claims that had Attorney Harter called his brother, i.e., Thornburg, as

       a witness at trial, Thornburg would have testified that he did not believe Chief
       Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017   Page 17 of 19
       Hacker could have identified Lehman during the second controlled buy.

       Lehman also claims that had Attorney Harter called his then-roommate, Dustin

       Johnson, as a witness at trial, Johnson would have testified that he and Lehman

       had agreed that there were to be no drugs in their residence because they were

       both on probation and that he never saw Lehman in possession of drugs.

       Lehman’s mother, Sue, would have testified as to her familiarity with Lehman’s

       voice and whether she believed the voice on the recordings belonged to

       Lehman. Lehman’s ex-girlfriend, Jessica Lautzenhiser, would have testified

       that she saw Howard speak to an individual named Joshua Karst on August 5,

       2008. However, it is worth noting that Lehman does not present any evidence

       indicating that Lautzenhiser would have testified that Howard did not also

       meet with Lehman on that date.


[29]   As Lehman’s trial counsel, it was appropriate for Attorney Harter to make the

       tactical decision whether to call each of the above-mentioned individuals to

       testify during trial. It seems reasonable that Attorney Harter could have

       determined that, given the strength of the State’s case, these individuals would

       not have made credible witnesses or would only have been able to speculate,

       rather than testify to any specific facts. As we stated above, we will defer to

       Attorney Harter’s strategic and tactical decisions. See Smith, 765 N.E.2d at 585.

       Lehman, therefore, has failed to establish that Attorney Harter provided

       deficient performance in this regard.



                                               Conclusion
       Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017   Page 18 of 19
[30]   In sum, we conclude that Lehman has failed to prove that the post-conviction

       court erroneously denied his PCR petition. Accordingly, we affirm the

       judgment of the post-conviction court.


[31]   The judgment of the post-conviction court is affirmed.


       May, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017   Page 19 of 19
