                                                                       Feb 25 2015, 9:31 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      David M. Payne                                             Gregory F. Zoeller
      Ryan & Payne                                               Attorney General of Indiana
      Marion, Indiana
                                                                 George P. Sherman
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Gordon L. Peak, Jr.,                                      February 25, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                27A04-1406-CR-260
              v.                                                Appeal from the Grant Circuit Court.
                                                                The Honorable Mark E. Spitzer,
                                                                Judge.
      State of Indiana,                                         Cause No. 27C01-1201-FD-12
      Appellee-Plaintiff.




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   Gordon L. Peak, Jr., was arrested after police stopped his car and found

      marijuana on his person. He appeals his conviction of possession of marijuana

      in excess of thirty grams, a Class D felony. Ind. Code § 35-48-4-11 (2011). We

      affirm.


      Court of Appeals of Indiana | Opinion 27A04-1406-CR-260 | February 25, 2015              Page 1 of 11
                                                      Issue
[2]   Peak raises one issue, which we restate as: whether Peak received ineffective

      assistance of trial counsel.


                                Facts and Procedural History
[3]   On January 22, 2012, Sergeant Shawn Sizemore of the Marion Police

      Department was sitting in an unmarked car watching a house that was

      suspected of being used for illegal drug transactions. He saw someone in a

      silver Buick drive away from the residence and followed it. As Sergeant

      Sizemore followed the Buick, he saw the driver of the Buick stop at a red light,

      activate its right turn signal, and then turn right. He concluded that the driver

      of the Buick had committed an infraction by failing to use a turn signal for 200

      feet prior to the turn. Sergeant Sizemore radioed Sergeant John Kauffman,

      identified the infraction he had observed, and asked him to stop the Buick.


[4]   Sergeant Kauffman, who was in uniform and driving a marked car, stopped the

      Buick and walked up to it. Peak was driving, and he had no passengers. Before

      he began speaking with Peak, Sergeant Kauffman noticed “an overwhelming

      smell of raw, green marijuana.” Tr. p. 108. Peak handed Sergeant Kauffman

      an identification card and conceded that his license was suspended. Sergeant

      Sizemore walked up to the car while Sergeant Kauffman spoke with Peak.

      Sergeant Kauffman told Sergeant Sizemore he smelled an odor of marijuana.


[5]   Peak appeared to be nervous, would not make eye contact with Sergeant

      Kauffman, and kept his left hand between his seat and the car door. Sergeant

      Court of Appeals of Indiana | Opinion 27A04-1406-CR-260 | February 25, 2015   Page 2 of 11
      Kauffman asked Peak to get out of the car to make sure “he didn’t have a

      weapon.” Id. When Peak stepped out of the Buick, Sergeant Kauffman again

      smelled an odor of marijuana. Sergeant Sizemore also smelled an odor of

      marijuana, which he concluded was coming from Peak’s person.


[6]   Sergeant Kauffman had Peak walk to the rear of his car and put his hands on

      the car to facilitate a pat down. During the pat down, Peak kept his groin

      pressed up against the car so that Sergeant Kauffman could not reach it.

      Sergeant Kauffman turned Peak away from the car and patted Peak’s groin

      area. He felt a substance which had “the same feel and consistency of packaged

      marijuana.” Id. at 109. When he asked Peak what it was, Peak “admitted that

      he had marijuana on his possession.” Id. at 110.


[7]   The officers arrested him and took him to the police station, where they

      searched him and found a bag containing a green leafy substance in his

      underwear. They also advised Peak of his Miranda rights, and he signed a

      waiver of those rights. During a subsequent interview, he again admitted that

      the green leafy substance was marijuana. The officers performed a field test on

      the green leafy substance, and testing indicated that it was marijuana. They

      weighed the marijuana, and the scale indicated that the marijuana, plus the

      plastic bags it was packaged in, weighed thirty-nine point six grams. A

      subsequent weighing revealed that even without the plastic bags the marijuana

      still exceeded thirty grams in weight.




      Court of Appeals of Indiana | Opinion 27A04-1406-CR-260 | February 25, 2015   Page 3 of 11
[8]    Sergeant Kauffman issued a written warning for failure to properly signal before

       a turn and issued a citation for driving with a suspended license. The State

       charged Peak with possession of marijuana in an amount greater than thirty

       grams.


[9]    Peak’s counsel did not file a motion to suppress prior to trial. Instead, Peak

       filed a pro se motion for discovery and a pro se motion for hearing, asserting

       that the officers lacked probable cause to stop his car. Peak also filed a “Pro Se

       Motion to Compel Counsel to Investigate Criminal Case.” Appellant’s App. p.

       42. Next, he and his counsel both signed a motion to continue the trial,

       asserting that Peak wanted additional discovery and wanted a new lawyer.


[10]   The trial court held a hearing on May 14, 2014, on the pending motions. At the

       hearing, Peak’s counsel identified several differences of opinion between him

       and Peak regarding defense strategy. With respect to suppression of the

       marijuana, Peak’s counsel told the court:

               The Defendant wants me to file a motion to suppress the alleged
               marijuana that was found on his person and we have discussed this on
               multiple occasions at some length, I am not aware of any legal theory
               that would require suppression of the evidence. He disagrees with me
               in regard to a number of my interpretations of the statute and case law.
               So he is of the opinion that he is entitled to suppress the marijuana
               because he believes that, uh, the stop was not justified. . . . Now I
               have discussed with the Defendant my unwillingness to do these
               things, which he wants me to do because I do not believe that they are
               justified under the law or the facts of this case.
       Tr. p. 21.




       Court of Appeals of Indiana | Opinion 27A04-1406-CR-260 | February 25, 2015    Page 4 of 11
[11]   Counsel repeated, later in the hearing, that he had “explained [the suppression

       issue] to him in some detail.” Id. at 25. The trial court and the parties

       discussed the discovery issues, but the court declined to appoint a new lawyer

       for Peak.


[12]   The case was tried by jury. During the trial, Peak, by counsel, moved to

       suppress the marijuana, asserting that the officers should have obtained a search

       warrant after they smelled marijuana and Sergeant Kauffman felt it on Peak’s

       person during the pat down. The trial court denied his motion. The jury

       determined that Peak was guilty, and the trial court sentenced him accordingly.

       This appeal followed.


                                     Discussion and Decision
[13]   Peak argues that his trial counsel should have (1) filed a motion to suppress the

       marijuana prior to trial and (2) objected at trial to the admission of the

       marijuana, based on a challenge to the validity of the traffic stop. He further

       argues that the traffic stop that led to the discovery of the marijuana violated his

       federal and state constitutional protections against illegal search and seizure,

       and if his attorney had raised those constitutional claims, he would have

       prevailed.


[14]   Claims of ineffective assistance of counsel are evaluated using the Strickland

       standard articulated by the United States Supreme Court. Wilkes v. State, 984

       N.E.2d 1236, 1240 (Ind. 2013). To establish ineffective assistance of counsel, a

       defendant must demonstrate two elements. Id.

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[15]   First, a defendant must demonstrate that counsel performed deficiently based

       on prevailing professional norms. Id. We evaluate prevailing professional

       norms based on an objective standard of reasonableness. Pruitt v. State, 903

       N.E.2d 899, 905 (Ind. 2009). Counsel is afforded considerable discretion in

       choosing strategy and tactics, and we will accord that decision deference. Id. at

       906. A strong presumption arises that counsel rendered adequate assistance

       and made all significant decisions in the exercise of reasonable professional

       judgment. Id. A defendant must offer strong and convincing evidence to

       overcome this presumption. Ritchie v. State, 875 N.E.2d 706, 714 (Ind. 2007).


[16]   Second, a defendant must establish that counsel’s deficient performance

       resulted in prejudice to the defendant. Wilkes, 984 N.E.2d at 1240. A

       defendant establishes prejudice by demonstrating a reasonable probability that,

       but for counsel’s deficient performance, the result of the proceeding would have

       been different. Pruitt, 903 N.E.2d at 906. A reasonable probability is a

       probability sufficient to undermine confidence in the outcome. Id.


[17]   We note that Peak brings his claim of ineffective assistance of trial counsel on

       direct appeal. Post-conviction proceedings are usually the preferred forum for

       adjudicating claims of ineffective assistance because presenting such claims

       often requires the development of new facts not present in the trial record.

       Rogers v. State, 897 N.E.2d 955, 964-65 (Ind. Ct. App. 2008), trans. denied.

       When a defendant presents a claim of ineffective assistance of trial counsel on

       direct appeal, the issue is foreclosed from collateral review. Id. at 965.



       Court of Appeals of Indiana | Opinion 27A04-1406-CR-260 | February 25, 2015   Page 6 of 11
[18]   Peak’s claim of ineffective assistance of counsel is premised on his conclusion

       that the officers seized him in violation of the Fourth Amendment to the United

       States Constitution.1 The Fourth Amendment provides:

                The right of the people to be secure in their persons, houses, papers,
                and effects, against unreasonable searches and seizures, shall not be
                violated, and no Warrants shall issue, but upon probable cause,
                supported by Oath or affirmation, and particularly describing the place
                to be searched, and the persons or things to be seized.
[19]   A traffic stop is a “seizure” within the meaning of the Fourth Amendment.

       Croom v. State, 996 N.E.2d 436, 440 (Ind. Ct. App. 2013), trans. denied.


[20]   The Fourth Amendment generally prohibits a warrantless search or seizure

       unless a valid exception to the warrant requirement exists. Sanders v. State, 989

       N.E.2d 332, 335 (Ind. 2013). A warrantless traffic stop and limited search is

       permissible where an officer has at least a reasonable suspicion that a traffic law

       has been violated. Id. The existence of reasonable suspicion is determined by

       looking at the totality of the circumstances to see whether the detaining officer

       has a particularized and objective basis for suspecting wrongdoing. State v.

       Bulington, 802 N.E.2d 435, 438 (Ind. 2004). Reasonable suspicion must be

       more substantial than an officer’s unparticularized suspicion or hunches.

       Croom, 996 N.E.2d at 440.




       1
         Peak also claims that the traffic stop violated article I, section 11 of the Indiana Constitution, but he does
       not address that claim separately from his Fourth Amendment claim. His state constitutional claim is
       therefore waived. See Klein v. State, 698 N.E.2d 296, 299 (Ind. 1998).

       Court of Appeals of Indiana | Opinion 27A04-1406-CR-260 | February 25, 2015                           Page 7 of 11
[21]   Here, the officers stopped Peak because he failed to display his turn signal for

       the required distance before making a right turn. Indiana Code section 9-21-8-

       25 (1991) provides:

               A signal of intention to turn right or left shall be given continuously
               during not less than the last two hundred (200) feet traveled by a
               vehicle before turning or changing lanes. A vehicle traveling in a
               speed zone of at least fifty (50) miles per hour shall give a signal
               continuously for not less than the last three hundred (300) feet traveled
               by the vehicle before turning or changing lanes.
[22]   There is no dispute that Peak failed to signal for the required 200 feet before

       turning right. Instead, Peak argues that the statute does not apply here because

       he did not intend to turn right until he came to a stop at a red light and made

       the decision.


[23]   When a statute is unambiguous, we must apply the plain and ordinary meaning

       of the language and not resort to other rules of construction. Adams v. State, 960

       N.E.2d 793, 798 (Ind. 2012). The plain language of Indiana Code section 9-21-

       8-25 provides that the requirement to signal is contingent upon an intention to

       turn. However, although Peak may have formed the intent to turn while

       stopped at the traffic light, that does not affect the result here. Peak might have

       raised a defense at trial that he lacked the intent to turn during the 200 feet, but

       the reasonable suspicion analysis looks at the totality of the circumstances

       leading up to a traffic stop to determine whether the officer had a particularized

       and objective basis for the stop. Failure to signal within the required distance is

       objective evidence of failure to comply with the statute. Thus, Peak’s alleged



       Court of Appeals of Indiana | Opinion 27A04-1406-CR-260 | February 25, 2015     Page 8 of 11
       subjective lack of an intent would not preclude the officers from having an

       objective, reasonable suspicion that the turn signal law had been violated.


[24]   Peak cites to State v. Rhodes, 950 N.E.2d 1261 (Ind. Ct. App. 2011), in support

       of his argument that he did not violate Indiana Code section 9-21-8-25. That

       case is factually distinguishable. There, the defendant turned left without

       activating his turn signal for 200 feet before turning. However, he argued, and

       a panel of this Court agreed, that compliance with the statute was not possible

       because the defendant had to pass a cross street before arriving at his turn, and

       the State failed to prove that there was at least 200 feet of street between where

       he entered the street and the place where he turned. Id. at 1265. In this case,

       Peak does not argue that compliance with the signaling requirement was

       impossible.


[25]   Peak further claims that he did not violate the statute because he came to a stop

       at the red light, thus failing to travel continuously for the last 200 feet before

       turning. “The plain language of the statute requires that a vehicle must use a

       signal whenever it intends to turn or change lanes. There are no restrictions

       that it only applies in certain situations or on certain roadways.” Datzek v. State,

       838 N.E.2d 1149, 1155 (Ind. Ct. App. 2005), trans. denied. Thus, the duty to

       signal not less than 200 feet before turning applies regardless of whether a

       stoplight or other traffic signal requires a complete stop before turning.


[26]   Peak’s arguments are without merit, and his violation of Indiana Code section

       9-21-8-25 provided reasonable suspicion for the officers to detain Peak without


       Court of Appeals of Indiana | Opinion 27A04-1406-CR-260 | February 25, 2015   Page 9 of 11
       a warrant. See Santana v. State, 10 N.E.3d 76, 78 (Ind. Ct. App. 2014) (violation

       of signaling requirement provided reasonable suspicion). The officers did not

       violate the Fourth Amendment.


[27]   If trial counsel had filed a motion to suppress the marijuana or had objected at

       trial to the admission of the marijuana on grounds that the traffic stop was

       illegal, counsel would not have prevailed. Counsel’s performance is not

       deficient for failing to present a claim that would have been meritless. Stowers v.

       State, 657 N.E.2d 194, 200 (Ind. Ct. App. 1995), trans. denied. Peak has failed to

       carry his burden of demonstrating ineffective assistance of counsel.


[28]   Peak also argues in passing that the admission of the marijuana at trial was

       fundamentally erroneous because the officers had no basis to conduct a traffic

       stop. Our Supreme Court has stated:

               A failure to object when the evidence is introduced at trial waives the
               issue for appeal. But a claim waived by a defendant’s failure to raise a
               contemporaneous objection can be reviewed on appeal if the reviewing
               court determines that a fundamental error occurred. The fundamental
               error exception is extremely narrow, and applies only when the error
               constitutes a blatant violation of basic principles, the harm or potential
               for harm is substantial, and the resulting error denies the defendant
               fundamental due process.
       Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010) (citations and quotation

       omitted).


[29]   In this case, we have already determined that the officers’ seizure of Peak did

       not violate the Fourth Amendment. There was thus no error, let alone

       fundamental error, in the admission of the marijuana at trial.

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                                                 Conclusion
[30]   For the reasons stated above, we affirm the judgment of the trial court.


[31]   Affirmed.


[32]   Najam, J., and Bradford, J., concur.




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