Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                Apr 18 2013, 9:17 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


APPELLANT PRO-SE:                               ATTORNEYS FOR APPELLEE:

SCOTT MILLER                                    GREGORY F. ZOELLER
Carlisle, Indiana                               Attorney General of Indiana

                                                J.T. WHITEHEAD
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

SCOTT MILLER,                                   )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )      No. 44A05-1207-PC-376
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE LAGRANGE SUPERIOR COURT
                          The Honorable George E. Brown, Judge
                              Cause No. 44D01-0702-PC-1



                                      April 18, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
       In this case, the appellant-petitioner Scott Miller is appealing the denial of his

petition for post-conviction relief, arguing that the post-conviction court’s order denying

his request for relief was inadequate, and that, therefore, the case must be remanded for

additional findings. Miller also claims that his appellate counsel was ineffective for

failing to raise several issues on direct appeal, including the alleged incompetence of trial

counsel because there was no objection to the admission of certain evidence at trial.

However, it is also apparent that Miller is raising several freestanding claims of error.

       To the extent that Miller is presenting freestanding claims, they are waived.

Moreover, although the post-conviction court’s order denying Miller’s request for relief

is somewhat cursory, it adequately addresses the issues that Miller presented on post-

conviction relief. Hence, we need not remand for additional findings. Finally, we

conclude that Miller failed to demonstrate that his appellate counsel was ineffective.

Thus, we affirm the denial of Miller’s petition for post-conviction relief.

                                          FACTS

       The relevant facts, as reported in Miller’s direct appeal to this court, are as

follows:

       On February 26, 2003, a confidential informant (“CI-399”) working for the
       Indiana Multi-Agency Group Enforcement Drug Taskforce (“Image”)
       purchased 0.64 grams of methamphetamine from Miller. On March 10,
       2003, a second confidential informant (“CI-387”) working for IMAGE
       purchased more than 3.62 grams of methamphetamine from Miller. Each
       CI had been searched for contraband, provided with buy money, and
       equipped with a transmitter and a recording device before his buy. In each
       case, officers observed the CI enter Miller’s residence, listened to the
       conversations that took place, and observed the CI exit Miller’s residence.

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       After each buy, the CI gave the drugs to the police and was searched for
       contraband. The police also retrieved the audio recordings.

       On July 28, 2004, the State charged Miller with dealing in
       methamphetamine as a Class A felony and dealing in a schedule II
       controlled substance as a Class B felony. A jury convicted Miller of both
       charges. He was sentenced to fifty years for the Class A felony and twenty
       years for the Class B felony, with the sentences to run concurrently.

Miller v. State, No. 44A03-0506-CR-259, slip op. at 2-3 (Ind. Ct. App. Mar. 16, 2006).

       On direct appeal, Miller argued, among other things, that 1) the trial court abused

its discretion in admitting audio recordings of drug sales into evidence because part of the

tapes were unintelligible; 2) trial counsel was ineffective for failing to object to testimony

regarding the weight of the drugs; and 3) the deputy prosecutor committed misconduct

during voir dire. Slip op. at 3-10. We affirmed Miller’s convictions.

       On February 7, 2007, Miller filed a petition for post-conviction relief, arguing that

the probable cause affidavit was defective, claiming that appellate counsel was

ineffective because he did not challenge the validity of the probable cause affidavit and

the admissibility of two exhibits from the Indiana State Police labs, and failed to

challenge the sufficiency of the evidence regarding the weight of the drugs. Miller also

claimed that his appellate counsel was ineffective because he did not argue that his trial

counsel’s performance was deficient for not objecting to the admissibility of the drugs

and for not challenging the validity of the probable cause affidavit.

       Following a hearing, the post-conviction court denied Miller’s request for relief on

July 3, 2012. The post-conviction court entered the following order:


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       After considering the evidence presented at the hearing . . . and reviewing
       the Defendant’s filings, including his extensive and detailed proposed
       findings of fact and conclusions of law, the Court finds that the rulings of
       which the Defendant complains were, in fact, proper and that the evidence
       of which he complains was properly admitted. The Court further finds that,
       as was addressed in the opinion of the Court of Appeals, trial counsel was
       not ineffective in objecting to and addressing the evidence issues raised.
       The Court further finds that, while the Defendant may disagree with
       appellate counsel’s performance and tactics in handling his appeal,
       appellate counsel appears to have adequately addressed the issues which the
       Defendant claims were not properly handled. Therefore, appellate counsel
       was not ineffective as alleged.

Appellant’s Br. p. 16-17. Miller now appeals.

                             DISCUSSION AND DECISION

                                  I. Standard of Review

       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. If an issue was known and

available, but not raised on direct appeal, it is waived. Timberlake v. State, 753 N.E.2d

591, 597 (Ind. 2001). A petitioner who has been denied post-conviction relief appeals

from a negative judgment and, as a result, faces a rigorous standard of review. Dewitt v.

State, 755 N.E.2d 167, 169 (Ind. 2001).

       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). When appealing from


                                             4
the denial of post-conviction relief, the 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.

       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.

                                     II. Miller’s Claims

                A. Adequacy of Findings of Fact and Conclusions of Law

       Miller first contends that the order denying his petition for post-conviction relief

must be set aside because the findings of fact and conclusions of law are inadequate.

Specifically, Miller maintains that the trial court’s order is too cursory and it violated the

requirements of Post-Conviction Rule 1(6), which provides that the post-conviction court

must make “specific findings of fact and conclusions of law on all issues presented.”

       In addressing this contention, we note that although the order that the post-

conviction court entered is, indeed, cursory, it does address the issues that Miller

presented on post-conviction. The order also declares that the court found against Miller

as to those issues. See Reed v. State, 508 N.E.2d 4, 6 (Ind. 1987) (observing that even

though the findings of fact and conclusions of law were not lengthy and did not contain

much detail, they adequately dealt with both of the questions that the petitioner raised and

found against him).

                                              5
       We also note that even if a post-conviction court does not make specific findings,

there is no reversible error or need to remand, as long as the issues are sufficiently

presented for review and the parties address them on appeal. Herman v. State, 526

N.E.2d 1183, 1184 (Ind. 1988). Indeed, Miller amply briefed the issues, and the merits of

his claims can be decided in this appeal without a need for more detailed findings by the

post-conviction court. As a result, we decline Miller’s request to set aside the denial of

his petition for post-conviction relief on this basis.

                              B. Free-Standing Claims of Error

       Although Miller presents most of his arguments in the context of ineffective

assistance of appellate counsel, Miller impliedly attacks the validity of the probable cause

affidavit and the admission of evidence as freestanding claims of error. Therefore, Miller

has waived the errors that he presents as freestanding claims. See Bunch v. State, 778

N.E.2d 1285, 1289 (Ind. 2002) (observing that issues known and available but not raised

on direct appeal are waived or procedurally defaulted and may not be raised on post-

conviction relief).

                      C. Ineffective Assistance of Appellate Counsel

       Miller argues that his petition for post-conviction relief should have been granted

because his appellate counsel was ineffective. Miller appears to argue that appellate

counsel was ineffective for not attacking the sufficiency of the evidence, and for not

arguing that his trial counsel was ineffective for failing to object to evidence with respect

to the weight of the methamphetamine.

                                               6
       To prevail on an ineffective assistance of counsel claim, the petitioner must

demonstrate that counsel’s performance fell below an objective standard of

reasonableness and that the deficient performance resulted in prejudice. Bethea v. State,

No. 18S05-1206-PC-304 (Ind. Mar. 12, 2013) (citing Strickland v. Washington, 466 U.S.

668 (1984)).     To satisfy the first prong, the defendant must establish 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.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)

(quoting Strickland, 466 U.S. at 687-88)). To satisfy the second prong, the defendant

must show prejudice, in that there is a reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been different. Id. There is a strong

presumption that counsel rendered adequate representation.         Coleman v. State, 694

N.E.2d 269, 272 (Ind. 1998).

       There are three categories of ineffective assistance of appellate counsel: 1) denial

of access to appeal; 2) failure to raise issues that should have been raised; and 3) failure

to present issues well. Wrinkles v. State, 749 N.E.2d 1179, 1203 (Ind. 2001). Our

Supreme Court has observed that

       [w]hen a petitioner claims the denial of effective assistance of appellate
       counsel because counsel did not raise issues the petitioner argues should
       have been raised, reviewing courts should be particularly deferential to
       counsel’s strategic decision to exclude certain issues in favor of others,
       unless such a decision was unquestionably unreasonable. But this does not
       end our analysis. Even if we determine that counsel’s choice of issues was
       not reasonable, a petitioner must demonstrate a reasonable probability that

                                             7
       the outcome of the direct appeal would have been different in order to
       prevail.

Taylor v. State, 840 N.E.2d 324, 338 (Ind. 2006) (internal citations omitted). We must

determine “1) whether the unraised issues are significant and obvious from the face of the

record; and 2) whether the unraised issues are clearly stronger than the raised issues.”

Gray v. State, 841 N.E.2d 1210, 1214 (Ind. Ct. App. 2006).

       We also note that a petitioner must show both that appellate counsel’s

performance was deficient and that, but for the deficiency of appellate counsel’s

performance, trial counsel’s performance would have been found both deficient and

prejudicial. Timberlake v. State, 753 N.E.2d 591, 604 (Ind. 2001). A petitioner must

establish the two elements of ineffective assistance of counsel with respect to both trial

and appellate counsel. Id.

       Here, Miller contends that his counsel on direct appeal should have argued that the

probable cause affidavit was defective, or that trial counsel was ineffective for failing to

object to its validity at trial. Notwithstanding these claims, Miller did not present any

evidence at the post-conviction hearing establishing that the affidavit was defective.

Hence, Miller cannot establish that appellate counsel was ineffective by giving priority to

other claims that were actually raised on appeal. Similarly, Miller has failed to show that

trial counsel was deficient for not objecting to the validity of the probable cause affidavit.

Thus, Miller’s claims fail with regard to this issue.




                                              8
       As for Miller’s contention regarding appellate counsel’s failure to challenge the

sufficiency of the evidence as to the weight of the drugs, the evidence established that the

methamphetamine was weighed on two occasions, the drug sales were recorded, and a

chemist with an Indiana State Police Laboratory testified about the weight of the drugs at

trial. Slip op. at 4, 7-9. The evidence was more than sufficient to support Miller’s

conviction. As a result, Miller’s appellate counsel would not have prevailed had he

challenged the sufficiency of the evidence with respect to the weight of the drugs.

       Miller also claims that his appellate counsel was ineffective for failing to argue

that the drugs were improperly admitted into evidence. Notwithstanding this claim, this

Court established in Miller’s direct appeal that he was not prejudiced by his trial

counsel’s failure to object to an Indiana State Police chemist’s testimony regarding the

admissibility of the methamphetamine. Indeed, other evidence established the weight of

the drugs, including testimony from law enforcement officials, the confidential

informant, and the lab results. Slip op. at 7; Ex. 2; Tr. p. 89, 124. As a result, Miller’s

claims fail.

       In conclusion, Miller has not established that his appellate counsel was ineffective

for failing to raise certain issues on appeal, including the alleged ineffective assistance of

trial counsel. As a result, Miller’s petition for post-conviction relief was properly denied.

       The judgment of the post-conviction court is affirmed.

MAY, J., and MATHIAS, J., concur.



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