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

ATTORNEYS FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                 GREGORY F. ZOELLER
Public Defender of Indiana                       Attorney General of Indiana

VICKIE YASER                                     MICHAEL GENE WORDEN
Deputy Public Defender                           Deputy Attorney General

                                                                               FILED
Indianapolis, Indiana                            Indianapolis, Indiana

                                                                           Jun 06 2012, 9:30 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                    CLERK
                                                                                 of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




JERMAINE YOUNG,                                  )
                                                 )
       Appellant-Petitioner,                     )
                                                 )
              vs.                                )     No. 49A02-1109-PC-881
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Respondent.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Michael Jensen, Magistrate
                           Cause No. 49G23-0703-PC-046314




                                        June 6, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                Case Summary and Issues

       Jermaine Young was convicted and sentenced for dealing in cocaine as a Class A

felony, possession of cocaine as a Class C felony, possession of a controlled substance as

a Class D felony, and possession of marijuana as a Class A misdemeanor. Young

contends he received ineffective assistance of counsel in three respects: 1) his trial

counsel’s performance in moving to suppress evidence; 2) his trial counsel’s failure to

investigate Young’s personal background and present mitigating evidence at sentencing;

and 3) the failure of both his trial and appellate counsel to raise a double jeopardy claim

regarding his dealing in and possession of cocaine charges. Concluding Young has failed

to establish that he received ineffective assistance of counsel due to his trial counsel’s

efforts, or lack thereof, in moving to suppress evidence or presenting mitigating

circumstances at sentencing, but that his attorneys’ failure to raise the issue of double

jeopardy constitutes ineffective assistance of counsel, we remand to the post-conviction

court with instructions to vacate Young’s conviction for possession of cocaine as a Class

C felony. In all other respects, we affirm.

                               Facts and Procedural History

       In March 2007, Sergeant Paul McDonald of the Indianapolis Metropolitan Police

Department was patrolling on the near-eastside of Indianapolis when he observed a

vehicle backed into a parking space at a Village Pantry. The vehicle’s engine was

running and its lights were on, and Sergeant McDonald observed the driver exit the

vehicle and enter the Village Pantry, while two other individuals remained inside the car.

Knowing that the area is a high-crime area where numerous murders and robberies have


                                              2
taken place, Sergeant McDonald continued to watch the vehicle, and he followed it after

it left the Village Pantry.

        Sergeant McDonald noted the vehicle’s out-of-town license plate. After departing

from the Village Pantry, the vehicle quickly made two turns, then changed lanes without

signaling and pulled over. As Sergeant McDonald drove past the vehicle, neither the

driver nor any passengers exited. Sergeant McDonald turned around, parked near the

parked vehicle, and approached the vehicle on foot, all without activating his emergency

lights or sirens. Once reaching the vehicle, Sergeant McDonald spoke with the driver,

later identified as Young. Sergeant McDonald testified at trial he “noticed immediately

that [Young] was under the influence of something because he couldn’t talk to me. He

was mumbling. His hands were shaking. He was looking straight forward. And so I

suspected that he was either intoxicated or under the influence of drugs.” 1 [Trial Court]

Transcript at 16. Sergeant McDonald testified he told Young that when he ran the

vehicle’s plate he discovered it was a rental car, and Sergeant McDonald asked Young if

he rented the vehicle and if he had his driver’s license. Sergeant McDonald testified

Young had difficulty answering him, but stated he did not have identification with him.

        Sergeant McDonald asked Young to exit the vehicle, and due to Young’s strange

behavior, Sergeant McDonald testified he decided to handcuff Young until backup could

arrive. In the process of doing so, Sergeant McDonald testified he saw a plastic baggie

sticking out of Young’s shirt pocket, containing what he immediately knew to be crack

cocaine. After Sergeant McDonald retrieved the bag, Young “was profusely sweating.


        1
          The State points to nothing in the record confirming Sergeant McDonald’s initial conclusion that Young
was intoxicated or under the influence of drugs, nor do we find such confirmation.
                                                       3
And his eyes started rolling back in his head. And he fainted.” Id. at 20. Young was

thereafter arrested.

       After Young waived his right to a jury trial, the trial court found Young guilty of

dealing in cocaine as a Class A felony, possession of cocaine as a Class C felony,

possession of a controlled substance as a Class D felony, and possession of marijuana as

a Class A misdemeanor. Young was sentenced to forty years for dealing in cocaine, four

years for possession of cocaine, 545 days for possession of a controlled substance, and

one year for possession of marijuana, and the trial court ordered his sentence to be

concurrent.

       Young appealed to this court, raising the sole issue of whether the trial court

“erred in finding that he was the same person as the Jermaine Young who had an

extensive criminal history in Michigan” and enhancing his conviction for dealing in

cocaine based on such criminal history. Young v. State, 894 N.E.2d 602, *1 (Ind. Ct.

App. 2008) (table). We affirmed the enhancement of Young’s conviction, concluding

“there was abundant evidence from which the trial court concluded that the defendant

was the same Jermaine Young as the Jermaine Young reported by the Michigan

authorities and [the National Crime Information Center].” Id. at *2.

       Young then filed a petition for post-conviction relief, contending, among other

things, he received ineffective assistance of trial counsel due to his trial attorney’s

deficiency in handling his motion to suppress evidence and failure to assert mitigating

circumstances during sentencing. The post-conviction court denied Young’s petition.

Young now appeals.

                                Discussion and Decision
                                            4
                                  I. Standard of Review

      “When appealing the denial of post-conviction relief, the petitioner stands in the

position of one appealing from a negative judgment. To prevail from the denial of post-

conviction relief, a petitioner must show that the evidence as a whole leads unerringly

and unmistakably to a conclusion opposite that reached by the post-conviction court.”

Overstreet v. State, 877 N.E.2d 144, 151 (Ind. 2007) (citations omitted), cert. denied, 555

U.S. 972 (2008). We “examine[] only the probative evidence and reasonable inferences

that support the post-conviction court’s determination and do[] not reweigh the evidence

or judge the credibility of the witnesses.” State v. Holmes, 728 N.E.2d 164, 169 (Ind.

2000), cert. denied, 532 U.S. 1067 (2001).       We accept the post-conviction court’s

findings of fact unless they are clearly erroneous, but we do not defer to the post-

conviction court’s conclusions of law. Id.

                          II. Ineffective Assistance of Counsel

      Young argues the post-conviction court erred in denying his claims of ineffective

assistance of counsel.    To succeed in contending ineffective assistance of trial or

appellate counsel, a petitioner must satisfy a two-part test. Kubsch v. State, 934 N.E.2d

1138, 1147 (Ind. 2010) (citing Strickland v. Washington, 466 U.S. 668 (1984)).

      First, a defendant must show that counsel’s performance was deficient.
      This requires a showing 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. Second, a defendant must show that
      the deficient performance prejudiced the defense. This requires showing
      that counsel’s errors were so serious as to deprive the defendant of a fair
      trial, meaning a trial where the result is reliable. To establish prejudice, a
      defendant must show that there is a reasonable probability that, but for
      counsel’s unprofessional errors, the result of the proceeding would have
      been different. A reasonable probability is one that is sufficient to
                                             5
        undermine confidence in the outcome. Further, counsel’s performance is
        presumed effective, and a defendant must offer strong and convincing
        evidence to overcome this presumption.

Id. (quotations and citations omitted).

                                    A. Motion to Suppress Evidence

        Young argues he was denied effective assistance of counsel due to his trial

counsel’s failure to adequately argue for the suppression of evidence related to Young’s

arrest. Although Young’s brief does not specifically articulate an argument that his trial

counsel performed deficiently in relation to a motion to suppress evidence, he stated:

        [t]here was a reasonable likelihood that, had trial counsel moved to
        suppress the evidence on the basis of the unreasonableness of [Sergeant]
        McDonald’s actions under the Indiana Constitution or the lack of
        reasonable suspicion under the Fourth Amendment, the trial or appellate
        courts would have ordered all evidence seized [sic] as a result of Young’s
        seizure.

Brief of Petitioner-Appellant at 14-15. Thus, although he does not expressly address the

first part of our two-part test for ineffective assistance of counsel claims, Young

indirectly argues his counsel performed deficiently in that he did not move to suppress

evidence arising from Young’s arrest or did not assert the correct constitutional

arguments in support of a motion to suppress.2

        However, we need not determine which argument Young asserts in support of his

counsel’s deficiency or whether either constitutes a deficiency sufficient to meet the first


        2
           In reviewing the record, it appears Young’s trial counsel indirectly moved to suppress the evidence from
Young’s arrest at trial. Although his counsel did not formally state he was moving to suppress evidence, he asked
for a directed verdict and proceeded to argue for various reasons that he did not “think there was a reason to pull
them over. And certainly not to be searched.” [Trial Court] Tr. at 46. In response, the prosecutor argued that the
Sergeant McDonald’s actions were proper and in conclusion stated, “for those reasons we would ask that the Motion
to Suppress be denied.” Id. at 47. The implicit argument made by Young’s trial counsel appears to be that the
evidence should have been suppressed because it was improperly obtained by Sergeant McDonald, and without the
evidence obtained by Sergeant McDonald, a directed verdict would have been appropriate because no further
evidence existed supporting Young’s charges.
                                                        6
part of our ineffective assistance of counsel test because the second part of the two-part

ineffective assistance of counsel test is determinative. The second part of our ineffective

assistance of counsel test which Young must establish is that he was prejudiced by the

purported deficiency in his counsel’s performance. Young must show that, but for his

counsel’s allegedly deficient efforts, the outcome of his proceeding would have been

different. Here, Young must establish that had his trial counsel performed reasonably, a

motion to suppress evidence would have been granted and his convictions therefore

would not stand.

        Young argues the evidence arising from his encounter with Sergeant McDonald

and subsequent arrest were improperly obtained under both the Indiana Constitution and

the Fourth Amendment to the United States Constitution.3 Both constitutions protect the

privacy and possessory interests of individuals by prohibiting unreasonable searches and

seizures.    Haynes v. State, 937 N.E.2d 1248, 1251 (Ind. Ct. App. 2010) (quotation

omitted), trans. denied.

                                       1. The Fourth Amendment

        Under Fourth Amendment jurisprudence, a lawful search generally requires a

judicially issued search warrant, except in a few well-delineated exceptions. Fair v.

State, 627 N.E.2d 427, 430 (Ind. 1993); Haynes, 937 N.E.2d at 1251. “However, a police

officer may briefly detain a person for investigatory purposes without a warrant or

probable cause if, based upon specific and articulable facts together with rational

inferences from those facts, the official intrusion is reasonably warranted and the officer


        3
           Young does not cite the particular provision of the Indiana Constitution he uses in support of his
argument, Article 1, section 11; however, he does cite to Indiana case law articulating the balancing test to be
applied in determining if the provision has been violated.
                                                       7
has a reasonable suspicion that criminal activity may be afoot.” L.W. v. State, 926

N.E.2d 52, 55 (Ind. Ct. App. 2010) (quotation and citations omitted). Such investigation

to determine if criminal activity is afoot is termed a “Terry stop,” as it arose from the case

Terry v. Ohio, 392 U.S. 1, 30 (1968). During a Terry stop, if an officer has a reasonable

fear of danger, he or she may conduct a limited search of the outer clothing of a suspect

to determine whether the suspect has any form of weapon. Johnson v. State, 710 N.E.2d

925, 928 (Ind. Ct. App. 1999). If contraband is discovered during a pat down for officer

safety because it is either in plain view or upon a plain feel, seizure of such contraband is

permissible. Id.

       The State contends, however, that Fourth Amendment protections are not

implicated here because, it argues, Sergeant McDonald’s investigation resulted in a

consensual encounter with Young insufficient to constitute a seizure for Fourth

Amendment purposes. See Clarke v. State, 868 N.E.2d 1114, 1118 (Ind. 2007) (“Only

when the officer, by means of physical force or show of authority, has in some way

restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred. It is

clear that mere police questioning does not constitute a seizure. The Fourth Amendment

is not triggered unless an encounter between a law enforcement officer and a citizen loses

its consensual nature.” (quotations and citations omitted)).

       Here, once Sergeant McDonald’s initial questioning ensued and he gathered

additional information, reasonable suspicion arose for him to continue his investigation to

determine whether criminal activity was afoot because the evidence reveals Young

appeared under the influence of drugs or alcohol, was mumbling and shaking, would not

look at Sergeant McDonald, and would not fully answer his questions. Once Young
                                              8
stepped out of the vehicle, his contraband was in plain view and properly seized. Thus,

the determinative issue for Fourth Amendment purposes is whether Sergeant McDonald’s

initial investigation triggered the application of the Fourth Amendment.

      In Clarke, an officer investigated an anonymous report that drugs were being sold

out of a parked car in front of an apartment building. The officer arrived, found a car

matching the report’s description in front of the building, activated her flashing lights,

placed the spotlight on the vehicle so she could see inside, and approached on foot. The

driver of the vehicle, Clarke, already had his license and registration extended for the

officer when she made it to the side of the vehicle, and the officer asked what they were

doing and how long they had been parked in front of the apartment. After observing

nothing suspicious and discovering no outstanding warrants for either person in the

vehicle, the officer asked Clarke if she could search the vehicle and Clarke consented. In

searching the vehicle, officers found marijuana and cocaine. Id. at 1117.

      Our supreme court addressed the issue of “whether a seizure occurred before [the

officer] gained additional information sufficient to establish reasonable suspicion.” The

supreme court stated “[u]nder [Florida v. Bostick, 501 U.S. 429, 434-35 (1991)], the

Fourth Amendment permits consensual interrogation ‘as long as the police do not convey

a message that compliance with the requests is required.’” Id. at 1119. The court then

concluded, “[t]here is no evidence that Eastwood conveyed that message. Her mere

presence as a uniformed law enforcement officer does not convert her questions into

commands. Accordingly, there was no seizure before Clarke gave consent to the search,

and the search established probable cause to arrest Clarke. This process did not violate

the Fourth Amendment.” Id. (citation omitted).
                                            9
      We find Clarke applicable here. Although Young argues Sergeant McDonald’s

initial investigation was not a consensual encounter, importantly, he points to no facts

supported by the evidence demonstrating Sergeant McDonald’s actions conveyed a

message that compliance was required. Here, Sergeant McDonald was present and asked

general questions about whether Young had rented the vehicle and if he had

identification, but, similar to Clarke, no evidence supports Young’s contention that

Sergeant McDonald’s actions escalated the investigation beyond a consensual encounter.

      Young seems to argue that Sergeant McDonald’s surveillance, which began at the

gas station and continued for several moments after Young left the gas station, conveyed

a message to Young that compliance with Sergeant McDonald was required. However,

Young does not argue that he observed Sergeant McDonald’s surveillance, and, thus,

such surveillance is irrelevant to the question of whether Young felt required to comply

with Sergeant McDonald.       For these reasons, we conclude no Fourth Amendment

violation occurred.   Sergeant McDonald’s initial investigative actions amounted to

nothing more than a consensual encounter, once Young began acting nervously and

avoiding communication with Sergeant McDonald reasonable suspicion arose to continue

the investigation, and the discovery of contraband was not improper because it was in

plain view.

                                 2. Article 1, Section 11

      Article 1, section 11 of the Indiana Constitution, although textually similar to the

Fourth Amendment, is interpreted separately and independently. State v. Washington,

898 N.E.2d 1200, 1205-06 (Ind. 2008). “The determination of the reasonableness of a

search and seizure under the Indiana Constitution turns ‘on a balance of: 1) the degree of
                                           10
concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion

the method of search or seizure imposes on the citizen’s ordinary activities, and 3) the

extent of law enforcement needs.’” Id. at 1206 (quoting Litchfield v. State, 824 N.E.2d

356, 361 (Ind. 2005)).

      Young’s argument focuses on the initial surveillance and investigation by Sergeant

McDonald. His argument does not include any contention that Sergeant McDonald acted

unreasonably by continuing the investigation after Young appeared intoxicated and shaky

and failed to answer his questions or look at him, nor does he argue the discovery and

seizure of contraband after the initial investigation went beyond what was reasonable for

an officer in the circumstances. Thus, we will again narrow our constitutional analysis to

Sergeant McDonald’s initial investigation and questioning.

      Here, none of these three factors garner significant weight. As Young points out,

Sergeant McDonald did not receive a tip or report that the inhabitants of the vehicle were

participating in criminal activity, nor did he discover any reason to be suspicious when

observing the vehicle at the gas station. However, due to the high level of criminal

activity in the area, Sergeant McDonald did have a general concern that the occupants of

the vehicle could be involved in criminal activity. Further, once the vehicle left the gas

station, Young’s actions could have reasonably been interpreted as evading Sergeant

McDonald’s surveillance, which would give rise to suspicion that Young had reason to

evade law enforcement.

      Second, the degree of intrusion upon Young’s activities was almost non-existent.

His vehicle was already pulled over to the side of the road when Sergeant McDonald

parked nearby and approached. The initial intrusion included nothing more than general
                                           11
questions. Last, the extent of law enforcement needs was also minimal. If any need

existed, it was the need to survey an area with a high level of criminal activity.

Balancing these three factors, we cannot conclude Sergeant McDonald acted

unreasonably and in violation of Article 1, section 11 of the Indiana Constitution.

       Thus, Young did not receive ineffective assistance of counsel due to his trial

counsel’s purportedly deficient effort in moving to suppress evidence based on either the

Fourth Amendment or Article 1, section 11. Even if such effort was deficient, the

outcome of his proceeding would not have been any different without such deficiency.

Young has failed to establish both parts of our two-part test for reviewing claims of

ineffective assistance of counsel.

                                      B. Sentencing

       Young argues he received ineffective assistance of trial counsel because his trial

counsel made “unreasonable strategic decisions and fail[ed] to present mitigating

evidence” at sentencing. Br. of Petitioner-Appellant at 15. During Young’s sentencing,

his attorney did not present any mitigating evidence. He did, however, argue that the

State’s aggravating evidence – evidence showing Young had several prior convictions –

did not apply because the State failed to sufficiently demonstrate that the criminal history

submitted as evidence was for the same Jermaine Young as the defendant. Young

contends his attorney’s argument was futile and he should have conducted an in-depth

investigation into Young’s personal background in order to discover mitigating

circumstances. Young points to the testimony of his brother, Edward, presented in his

post-conviction relief hearing stating that Young was kidnapped and assaulted at age five,

“began exhibiting behavioral problems, entered the juvenile justice and foster care
                                            12
systems, and received medication and out-patient treatment through a mental hospital.”

Id. at 17. He further points out medical reports indicating he is cognitively impaired.

       Young is correct that a counsel’s failure to investigate and present to the trial court

potentially mitigating factors can constitute deficient performance. See McCarty v. State,

802 N.E.2d 959 (Ind. Ct. App. 2004), trans. denied. However, as Young acknowledges,

his counsel did attempt to investigate his background. His counsel testified that he

always asks clients for names of family members, but that Young did not give him any

information concerning any of his family members. He also inquired into Young’s

mental health, and Young indicated he suffered from no mental health issues. Similarly,

although Young contends an investigation by his trial counsel would have uncovered the

medical reports presented at the post-conviction hearing indicating his impaired cognitive

ability, Young does not establish that such evidence would have been discoverable at the

time his trial counsel was preparing for sentencing.        For these reasons, we cannot

conclude Young’s trial counsel performed deficiently during sentencing, and thus, he did

not receive ineffective assistance of counsel in relation to sentencing.

                                    C. Double Jeopardy

       Young argues he received ineffective assistance of counsel both at trial and on

direct appeal to this court due to his counsels’ failure to argue that convicting Young for

both of his first two charges violated double jeopardy principles. Young’s first two

convictions were for dealing in cocaine as a Class A felony and possession of cocaine as

a Class C felony. To convict Young of dealing in cocaine, the State had to prove beyond

a reasonable doubt that Young knowingly or intentionally manufactured, financed the

manufacture of, delivered, or financed the delivery of cocaine or a narcotic drug, or that
                                             13
he possessed cocaine or a narcotic drug with the intent to do one of those things. Ind.

Code § 35-48-4-1(a). Further, for the conviction to be a Class A felony, the State was

required to establish that the amount of cocaine or narcotics involved weighed three

grams or more. Ind. Code § 35-48-4-1(b)(1). To convict Young of possession of

cocaine, the State had to prove beyond a reasonable doubt that Young knowingly or

intentionally possessed cocaine or a narcotic drug. Ind. Code § 35-48-4-6(a). For the

conviction to be a Class C felony, the State was required to establish that the amount

Young possessed weighed three grams or more. Ind. Code § 35-48-4-6(b).

         When Young was arrested, police officers confiscated approximately eighteen and

a half grams of cocaine from Young’s person and one and eight-tenths grams of cocaine

from the vehicle. The State concedes that “where the same controlled substance is used

to support both a dealing conviction and sentence and a possession conviction and

sentence [sic] double jeopardy principles are implicated and the possession conviction

and sentence are barred because possession of a substance is an inherently lesser-included

offense to the dealing offense,” Brief of the Appellee at 19 (citing Harrison v. State, 901

N.E.2d 635, 643-44 (Ind. Ct. App. 2009), trans. denied), and that at trial it failed to

distinguish the cocaine found on Young’s person and in the vehicle. Consequently, we

conclude that, in regards to the dealing in and possession of cocaine convictions, both

trial and appellate counsel performed deficiently by failing to raise a double jeopardy

claim.

         The State argues, however, that Young was not prejudiced by this double jeopardy

violation because his sentences for his first two convictions were ordered served

concurrently, and therefore the second prong of our ineffective assistance of counsel test
                                            14
cannot be met. We disagree. Even though Young’s effective sentence is no lengthier due

to his conviction for possession of cocaine, the conviction remains on his record. That, in

itself, constitutes the prejudice necessary for us to conclude Young received ineffective

assistance of counsel. We therefore conclude Young was denied effective assistance of

counsel due to the failure to raise a double jeopardy claim by both his trial and appellate

counsel, and we remand to the trial court with instructions to vacate Young’s conviction

for possession of cocaine as a Class C felony.

                                       Conclusion

       Young has failed to establish he received ineffective assistance of counsel based

on his trial counsel’s performance in moving to suppress evidence and at sentencing.

However, the failure of his trial and appellate counsel to raise a double jeopardy claim

does establish ineffective assistance of counsel, and we therefore remand to the post-

conviction court with instructions to vacate Young’s possession of cocaine conviction. In

all other respects, we affirm.

       Affirmed in part and remanded in part with instructions.

BAILEY, J., and MATHIAS, J., concur.




                                            15
