MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Dec 06 2017, 9:36 am
regarded as precedent or cited before any
                                                                               CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ross G. Thomas                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Dennis Meadows,                                          December 6, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         61A01-1608-PC-1762
        v.                                               Appeal from the Parke Circuit
                                                         Court
State of Indiana,                                        The Honorable Sam A. Swaim,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         61C01-1510-PC-350



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017            Page 1 of 27
[1]   Dennis Meadows appeals the denial of his petition for post-conviction relief.

      He raises two issues which we revise and restate as whether he was deprived of

      effective assistance of counsel at his competency hearing and trial. We affirm.


                                      Facts and Procedural History

[2]   The relevant facts as discussed in Meadows’s direct appeal follow:


              Jeremy Hubble (“Hubble”) attended a classmate’s party at
              Raccoon Lake in Parke County. After attending the party,
              Hubble told his uncle, Meadows, that there was a golf cart at the
              house where the party was held. In the early morning hours of
              February 8, 2006, Meadows drove Hubble out to the house
              where the party had taken place. One of the two of them kicked
              in the door of Michael Fishero’s (“Fishero”) house once they
              arrived. They found a golf cart and a John Deere riding
              lawnmower in the garage.


              The two then walked to the pole barn located next door and
              broke into that building, which belonged to Edward Helms
              (“Helms”). They took several tools from the barn including a
              floor jack, air compressor, a DeWalt tool pack, a pressure
              washer, socket set, extension cords, and gas cans, among other
              things. Hubble and Meadows loaded these items into the bed of
              Meadows’s truck and drove to Meadows’s home to hitch up his
              trailer. Once at Meadows’s home they hooked up a red, tandem-
              axle, box trailer to his truck and returned to Fishero’s house.
              They passed Lana Bunting’s (“Lana”) house on their way to
              Fishero’s house. Lana, who is Meadows’s sister, called Detective
              Justin Cole (“Detective Cole”) of the Parke County Sheriff’s
              Department at approximately 7:30 a.m. and left a message for
              him that Meadows and her cousin, Hubble, had just driven past
              her house towing a red trailer.



      Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 2 of 27
        When Meadows and Hubble arrived at Fishero’s house, they
        loaded the golf cart and the lawnmower into the trailer. They
        walked to another neighbor’s house, broke the window, and went
        inside, but found nothing that they wanted to steal. They
        returned to Meadows’s house and unhooked the trailer. Hubble
        and Meadows then drove to Meadows’s rental house near Shades
        State Park.


        Detective Cole listened to the messages left on his voicemail at
        around 8:30 a.m. He spoke with Chief Deputy Bill Todd of the
        Parke County Sheriff’s Department, who had investigated the
        burglaries earlier that day. Detective Cole and Chief Deputy
        Eddie McHargue, also of the Parke County Sheriff’s Department,
        went to Meadows’s house. Meadows’s work truck and the red
        trailer were in the front of the house, but no one was at home.
        Detective Cole noticed Hubble’s brother, Seth, watching them
        from around the corner of the house and talking on a cordless
        telephone. Detective Cole asked Seth if he would let Meadows
        know that they were looking for him and that Detective Cole
        wanted to speak to him.


        Seth had been speaking with Meadows on the cordless telephone
        when the officers were looking for Meadows at his house. After
        Seth’s telephone call, Meadows and Hubble loaded all of the
        stolen tools in Meadows’s truck and began driving around, trying
        to decide what to do with the stolen items. Detective Cole and
        Deputy McHargue drove to Richard Brown’s house, because
        Meadows was known to spend time there. When they were
        about 200 yards from the house, they spotted Meadows’s white
        pickup truck traveling southbound toward Waveland, Indiana.
        The officers attempted to catch up to the pickup, but Meadows
        had seen them and “floored it.” Tr. at 64. Meadows was able to
        evade the officers and pulled his truck to the side of a road near a
        tree line. He and Hubble then threw the stolen items into the
        trees. While disposing of the stolen items, Hubble lost his cell
        phone and some cigars in a ditch. Meadows and Hubble then

Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 3 of 27
        drove to Parkersburg, Indiana. Detective Cole subsequently
        located the abandoned, stolen items on the side of the road and
        called the Montgomery County Sheriff’s Department to recover
        the evidence.


        When Hubble and Meadows arrived in Parkersburg, Indiana,
        they called Ronald Ruffner (“Ruffner”). Meadows asked Ruffner
        to go to Meadows’s house, retrieve the red box trailer, and take it
        somewhere out of his driveway. Hubble and Meadows left a ball
        hitch of the appropriate size behind a business in Parkersburg and
        told Ruffner where he could locate it. Meadows and Hubble
        then drove to Pittsboro, Indiana.


        Detective Cole then returned to Meadows’s house and set up
        surveillance. At approximately 5:30 p.m., Ruffner pulled into
        Meadows’s driveway, hooked up the box trailer, and drove
        away. Deputy Justin Salisbury, of the Parke County Sheriff’s
        Department, had been alerted to watch for the trailer, and saw
        Ruffner pulling the trailer. Deputy Salisbury noted that the
        trailer did not have functioning taillights. Deputy Salisbury
        initiated a traffic stop of Ruffner, who was unable to produce a
        registration certificate for the trailer. The license plate for the
        trailer was for a different trailer. More specifically, the license
        plate was registered to Meadows and his wife for a black 2005
        trailer, and Ruffner was towing a red box trailer. Ruffner told
        Deputy Salisbury that the trailer belonged to Meadows. Deputy
        Salisbury asked Ruffner to call Meadows, and Ruffner placed the
        call. Deputy Salisbury asked for the telephone number so that he
        could telephone Meadows himself. Meadows never returned the
        telephone call.


        The locks were cut off of the trailer and its contents were
        inventoried. The trailer contained the golf cart and lawnmower
        stolen from Fishero’s residence.



Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 4 of 27
      Meadows v. State, No. 61A01-1009-CR-483, slip op. at 2-5 (Ind. Ct. App. April

      14, 2011), trans. denied.


[3]   On October 9, 2008, the State charged Meadows with three counts of burglary

      as class B felonies. In February 2009, Attorney Don Darnell was appointed to

      represent Meadows. On July 27, 2009, Attorney Darnell filed a Motion for

      Psychiatric Examination to Determine Competence to Stand Trial, and on

      September 4, 2009, the court granted the motion and appointed Dr. Michael

      Murphy and Dr. David Hilton to conduct an examination of Meadows.


[4]   In his report dated October 22, 2009, Dr. Murphy wrote that Meadows did not

      have confidence in the capacity of his attorney to defend him and wrote the

      following under the heading Competency to Stand Trial:


              During the evaluation, Mr. Meadows displayed the capacity to
              understand the charges against him and had an appreciation of
              the range and nature of potential penalties. He evidenced an
              appropriate appraisal of the offenses he is charges [sic] with and
              the potential penalties. He has knowledge of the role of defense
              counsel, prosecuting attorney, judge, jury, defendant, and
              witnesses. He has the capacity to understand trial procedure.


              The primary difficulty in Mr. Meadows [sic] competence to stand
              trial arise as a consequence of his irritability, low mood,
              depression, and oppositionality that arise from major depressive
              disorder. The symptoms and disorder substantially impair his
              capacity to assist and cooperate with his attorney in planning
              legal strategy for his defense and he cannot disclose to his
              attorney available pertinent fact surrounding the offense in a
              helpful and accurate manner. His condition impairs his ability to
              testify accurately and relevantly and realistically challenge

      Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 5 of 27
              prosecution witnesses. He has not been taking medication that
              would effectively treat his symptoms and he is in need of
              psychiatric treatment.


      Direct Appeal Appellant’s Appendix Volume II at 119.


[5]   In Dr. Hilton’s report filed on December 30, 2009, he mentioned that Meadows

      had a “very poor relationship with his attorney” and that he did not trust

      Attorney Darnell. Id. at 131. The report stated:


              I can not specifically address this defendant’s capacity to disclose
              information to his attorney, but based on his ability to answer
              questions not specific to his cases today, I have no evidence to
              suggest he would have an impairment in this area.


              Mr. Meadows had the ability to realistically challenge
              prosecution’s witnesses. He believed that Jeremy Wilkinson-
              Hubble will testify falsely against him in court, stating that
              Hubble has given police false information. He stated that, if
              someone did testify falsely against him, he would try to get his
              attorney to make them tell the truth.


              There was no evidence based on today’s evaluation to suggest
              that Mr. Meadows does not have the ability to testify relevantly
              should he choose to do so.


      Id. at 132. Dr. Hilton’s report concluded:


              In conclusion, I can not render a definitive opinion regarding the
              issue of criminal responsibility. Mr. Meadows’ refusal to discuss
              the details of his case limits my ability to comment on his
              capability of appraising legal defenses. In addition he has a very
              adversarial relationship with his defense counselor. Otherwise, it

      Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 6 of 27
              is my opinion, within reasonable medical certainty, that Mr.
              Meadows does have sufficient present ability to consult with his
              attorney with a reasonable degree of rational understanding and
              rational, as well as factual understanding of the proceedings
              against him.


      Id. at 133.


[6]   On January 5, 2010, the court held a hearing on Meadows’s competency to

      stand trial. Attorney Darnell noted the reports, stated that Dr. Hilton’s report

      indicated that Meadows stated that he did not have any confidence in him as

      his trial counsel, and asked that his appearance be withdrawn and that the court

      appoint a new attorney. The court stated that it was going to tell the parties

      what it was inclined to do and that appeared Meadows would benefit from

      placement at Logansport. The prosecutor stated that Meadows did not meet

      the legal standard for incompetency and that Meadows was just depressed

      because he was facing prison time. Attorney Darnell then stated that Meadows

      had something he wanted to say, and Meadows stated:


              Your Honor, I’m in the --- I’m fully competent to stand trial.
              Yeah, I’m depressed. I’m in a bad situation and I’d just done a
              year at the worst prison in the State of Indiana, and my wife just
              left me and I feel I’ve got a prosecutor for an attorney and, I
              mean there’s --- and I understand everything that’s going on and
              you know, I’m just --- it’s, you know, it’s right around the
              holidays. It’s a tough position and, you know, my family’s
              working on trying to hire me an attorney, and I feel that the
              client-attorney relationship between me and Mr. Darnell has
              deteriorated to the point where we can’t proceed in a professional
              manner. Every piece of advice he gives me, I decline it just
              because I feel I don’t trust him. Medication won’t --- and I was
      Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 7 of 27
              on medication whenever I was at the farm and I was just
              depressed and --- but I understand everything that’s going on and
              I understand that --- and I’ve asked for certain documents from
              Darnell and I haven’t got them and we just --- we just keep
              butting heads on things and he brought me a plea, didn’t explain
              everything to me and then the plea was rejected from the State,
              so I just feel that --- that the relationship between Darnell and I is
              just at the point where we can’t proceed and I --- so far I haven’t
              talked to my sister to find out whether she has got the money for
              an attorney, but she --- I feel very confident that she can, and then
              we’ll be able to proceed.


      Petitioner’s Exhibit 2 at 5-6.


[7]   The court then stated:


              [A]fter hearing what you’ve just said, and the way that you’re
              able to speak, you’re able to convey pretty clearly what your
              wishes are, and you show an understanding of what’s going on
              and what your attorney is --- what you expect your attorney to
              do. So I think I’m going to go ahead and find that you are
              competent to stand trial and ready to proceed, and I’ll give you
              one change of attorney. You understand that this delay in the
              trial is going to be attributable to you.


      Id. at 6-7. Meadows answered: “Yes, sir.” Id. at 7. In January 2010, the court

      withdrew the appointment of Attorney Darnell and appointed Attorney James

      Bruner to represent Meadows.


[8]   On July 9, 2010, the State amended Count I to burglary as a class C felony and

      that same month, the court conducted a jury trial. During trial, the following




      Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 8 of 27
exchange occurred between the prosecutor and Detective Cole regarding his

preliminary conversation with Meadows via cell phone:


        Q How did the conversation start out?


        A I told him who I was, informed him of my identity and my
        employment, asked him if he would open his trailer for us.


        Q And did he – what was his reply to that?


        A He said that I’d just as soon not until I talk to my attorney.


        Q What was the next thing that you asked Mr. Meadows?


        A I’d asked him why. He said he was not really sure what’s
        going on.


        Q What was the next thing that you guys talked about?


        A I then asked him what was in his trailer and his reply was, “I
        better talk to my attorney first.”


                                             *****


        Q Did he say anything else?


        A He denied seeing the gray unmarked police car that I had been
        in with Eddie McHargue. He also said that he’d been driving an
        S-10 pick-up, which is a smaller pick-up, around that day and not
        a red and white Ford truck. I asked him if anybody could verify
        his whereabouts just trying to get – see if there was anybody that
        could verify what he was telling me, and he said no, then he said

Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 9 of 27
               he needed to get with an attorney before he identified anybody
               that could verify his whereabouts.


       Trial Transcript at 180-181.


[9]    The court admitted a twenty-minute recording of relevant portions of a

       telephone call between Detective Cole and Meadows that occurred in March

       2008 after Hubble had been arrested. In the recording, Meadows stated that

       Meadows could call his attorney, asked Detective Cole if his attorney could call

       him, talked about his attempts at reaching his attorney, discussed turning

       himself in, and stated that a cleanup statement could be one small thing he

       could help out on and that he appreciated Detective Cole calling him back. The

       court also admitted an October 15, 2009 recording of an inmate phone call from

       Meadows in which Meadows stated he wanted to “get” certain houses, that his

       sister Lana wants to run her mouth, and that he was chased down the highway.

       State’s Exhibit 74 at 0:30-1:10.


[10]   During closing argument, the prosecutor stated in part: “While Detective Cole

       was talking to Mr. Meadows on the phone he refuses to tell him where he’s at.

       He gives a lot of cock and bull stories about when he was driving that white and

       red Ford F-150 and when he wasn’t.” Id. at 220-221. Meadows’s trial counsel

       commented on Meadows’s discussions with his counsel and Detective Cole in

       his closing argument. Specifically, he stated:


               So Jeremy Hubble is arrested and he’s at the Parke County Jail
               February 28th of 2008. Mr. Meadows has already been talking to
               an attorney. Mr. Meadows calls and has this conversation

       Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 10 of 27
        regarding a cleanup statement with Detective Cole in which he
        talks about his involvement, and they talk about what will
        happen and Cole explains to him what a cleanup statement is
        and [Meadows] talks about the difficulty that he was having
        getting in touch with Brett Gibson, who was his attorney at the
        time. He tells Mr. Cole why don’t you try to call Mr. Gibson
        too. Why don’t you give the Prosecutor Mr. Gibson’s name and
        perhaps they can get in touch with him if they want to. The
        conversation ends with I’ll try to call him and you try to call him
        too. What did [Meadows] think was going to happen? Well
        during that conversation there was also discussion about whether
        or not [Meadows] and his attorney needed to talk to the Parke
        County Prosecutor or the Montgomery County Prosecutor.
        There was discussion between Cole and – Detective Sergeant
        Cole and [Meadows] regarding a jail time and/or in home
        detention. [Meadows] did not believe that he was going to be
        charged with these burglaries and there’s a very simple reason
        why. He didn’t commit the burglaries. It’s part of the reason
        why there’s such this wide timeline before they ever go ahead
        and try to take their shot at let’s charge him and see what
        happens.


Id. at 226-227. Meadows’s trial counsel also argued to the jury:


        Discuss very carefully the evidence of the conversation between
        [Meadows] and Officer Cole about the cleanup statement. When
        poor old naive [Meadows] he’s getting nervous because he had
        an attorney representing him on this, but when he – when he’d
        been waiting and it’s been, by the time that Mr. Hubble is picked
        up, it’s been two years and 20 days of waiting, not knowing
        whether they’re going to try to blame him for the burglary or
        whether he’s going to be charged with possession of the stolen
        property in Parke County or whether he’s going to be charged
        with possession of stolen property in Putnam County. He’s got
        lawyers. He’s tried to call the lawyer. He’s particularly trying to
        call a lawyer when he sees there’s finally some movement in the

Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 11 of 27
               case, that Mr. Hubble’s been picked up, he can’t get in touch
               with him so he gets in touch with Cole and asks him what about
               a cleanup statement, what am I looking at, tells him about the
               people that he has been involved with who are threatening. And
               he’s expecting that he’s looking at possession of stolen property.


                                                    *****


               Those burglaries were committed by Hubble. Mr. Meadows has
               some culpability. (Indiscernible.) It’s why he had a lawyer to
               negotiate for him. (Indiscernible) it’s expected to be charged with
               the right thing.


       Id. at 239-242.


[11]   During rebuttal, the prosecutor stated:


               The conversations with Mr. Meadows on that particular day
               when they are getting a search warrant for his actual house,
               Detective Cole, when he got a hold of him that night, said would
               you mind opening your trailer for me. He said I’d just as soon
               not until I talk to my attorney. When asked why he said he’s
               really not sure what was going on. When asked what was in his
               trailer [Meadows] said I better talk to my attorney first.
               Meadows said that he’d been involved with Jeremy – or had seen
               Jeremy Hubble earlier that day, but wasn’t hanging out with him
               at the current time that he talked to Cole that night shortly before
               12:00. Meadows confirmed that he was still in the same pick-up
               truck, but wouldn’t disclose his whereabouts.


       Id. at 246.




       Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 12 of 27
[12]   The jury found Meadows guilty as charged. The court sentenced him to six

       years for Count I, twelve years each for Counts II and III, and ordered the

       sentences to be served consecutively for an aggregate sentence of thirty years.


[13]   On direct appeal, Meadows claimed that the warrantless search of his trailer

       violated the protections provided by the Fourth Amendment to the United

       States Constitution and Article 1, Section 11 of the Indiana Constitution.

       Meadows, slip op. at 5. This Court affirmed, held that Deputy Salisbury was

       required to take the trailer into his custody and that a search warrant was not

       required to conduct an inventory of the impounded vehicle, and noted that

       “[e]ven if the evidence had been erroneously admitted, Hubble testified to the

       events in question and the evidence found in the trailer was cumulative and

       corroborative of that testimony.” Id. at 10.


[14]   On October 23, 2015, Meadows filed a petition for post-conviction relief

       alleging that he received ineffective assistance of counsel for multiple reasons

       including that his counsel sought to withdraw during the competency hearing

       “essentially allowing [him] to represent himself at the hearing.” Post-

       Conviction Appendix Volume II at 7.


[15]   On March 24, 2016, the court held a hearing. Attorney Darnell testified that he

       received a copy of the transcript of the January 5, 2010 hearing, but that he did

       not recall that particular hearing. When asked if he recalled when Meadows

       asked him if he could speak, Attorney Darnell answered in part: “[P]robably

       Mr. Meadows was talking in my ear at the time I’m talking to the Judge, and


       Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 13 of 27
that’s probably when he said I want to talk to the Judge, or something. That’s

my best guess of how that came about.” Post-Conviction Transcript at 14.

Meadows’s trial counsel, Attorney Bruner, testified that he had practiced law

for thirty-three years, that Meadows had several cases pending, and that he had

extensive conversations with Meadows that would have included “both his

right to and strategy discussions in determination as to whether or not it was in

his best interest to testify at his trials.” Id. at 23. Meadows’s post-conviction

counsel showed Attorney Bruner page 180 of the trial transcript regarding

Meadows’s statement about talking to his attorney, and Attorney Bruner stated

that he had no independent recollection of it. When asked if his testimony

would be that he did not feel that there was a valid objection or that he had a

strategic reason for not objecting, Attorney Bruner answered:


        To the --- to the question related to him indicating that maybe he
        should talk to an attorney first. Mr. Meadows had had
        conversations with the police officers where he had maintained
        his innocence in these matters. I felt that with --- that at some
        point in time, a jury would expect that a reasonably prudent
        person is going to cooperate with the police to some extent, but
        then say maybe I need to talk to a lawyer.


Id. at 28. He testified that he did not recall a strategic reason for not objecting

to the prosecutor’s closing argument. When asked if he had done any research

about the admissibility of pre-arrest silence prior to trial, Attorney Bruner

answered affirmatively. On cross-examination, Attorney Bruner testified that

Meadows understood the charges and that there were not any issues as to

Meadows’s ability to participate in the trial. Meadows testified that he wanted

Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 14 of 27
       to speak at the competency hearing but he did not want to represent himself and

       never indicated to Attorney Darnell that he wanted to represent himself.


[16]   On July 8, 2016, the court denied Meadows’s petition for post-conviction relief.

       The court’s order states:


                                          FINDINGS OF FACT


               1. In regards to the ineffective assistance of counsel at the
               Petitioner’s Competency Hearing, this Court would note that the
               report of Michael Murphy, Ph.D. stated that:


               “Mr. Meadows displayed the capacity to understand the charges
               against him and had an appreciation of the range and nature of
               potential penalties. He evidenced an appropriate appraisal of the
               offenses [he is charged] with and the potential penalties. He has
               knowledge of the role of defense counsel, prosecuting attorney,
               judge, jury, defendant, and witness. He has the capacity to
               understand trial procedure.”


               2. In addition, the report of David K. Hilton, MD stated:


               “Otherwise, it is my opinion, within reasonable medical
               certainty, that Mr. Meadows does have sufficient present ability
               to consult with his attorney with a reasonable degree of rational
               understanding and rational, as well as factual understanding of
               the proceedings against him”.


               3. Additionally, the Court itself spoke at length with [Meadows]
               at the competency hearing before making its determination.


               4. Finally, the Court would note that [Meadows] was tried and
               found guilty under an unrelated cause number with a completely

       Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 15 of 27
        different attorney in the time period following the Competency
        Hearing and the trial that is the basis for the instant Post
        Conviction Relief. During this intervening period, neither
        Defense Counsel nor [Meadows] voiced any continuing concerns
        about [Meadows’s] competency.


        5. The alleged improper testimony claimed by [Meadows]
        referred to statements made by [Meadows] before he was either
        arrested or in custody. . . .


                                             *****


        6. The entire exchange between Detective Cole and [Meadows]
        is encompassed on pages 179 to 183 of the Transcript. During
        this testimony, it is apparent that [Meadows] was more than
        willing to answer some questions posed by Detective Cole.
        Furthermore, as noted above, if a person is not in custody, police
        are not required to honor a request for counsel and cease
        questioning. Bean v. State, 973 N.E.2d 35, 40 (Ind. Ct. App.
        2012)[, trans. denied.]


        7. When reviewed in the full context, it is apparent that there is
        no direct or indirect implication to be drawn from this line of
        questioning. Neither the deputy prosecutor nor the witness dwell
        on this exchange and no follow up questions are asked as to what
        conclusions the witness (or the jury) should draw. The testimony
        is merely a sequence of questions regarding the conversation
        between Detective Cole and [Meadows].


        8. Likewise, during the rebuttal closing, the Deputy Prosecutor
        merely summarizes this exchange within the context of the full
        interview but does not imply or ask the jury to draw any
        conclusions as to such statements being evidence of guilt on the
        part of [Meadows]. The State made no comment on
        [Meadows’s] pre-arrest silence, refusal to answer specific

Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 16 of 27
               questions, and never implied that requesting an attorney when
               being questioned about a crime was evidence of guilt.


                                       CONCLUSIONS OF LAW


                                                    *****


               7. The Court finds that no prosecutorial misconduct was
               committed by the line of questioning and that trial counsel was
               not ineffective for his failure to object thereto.


               8. Alternatively, even if such testimony could be deemed
               inappropriate, [Meadows] has not proven that the minimal
               testimony and brief statement in closing satisfies the prejudice
               prong of an ineffective assistance of counsel claim. A review of
               the full transcript clearly displays that the outcome of the trial
               would not have been different. The evidence, including
               testimony by the co-defendant, was overwhelming.


       Post-Conviction Appendix Volume II at 50-53.


                                                   Discussion

[17]   Before discussing Meadows’s allegations of error, we note the general standard

       under which we review a post-conviction court’s denial of a petition for post-

       conviction relief. The petitioner in a post-conviction proceeding bears the

       burden of establishing grounds for relief by a preponderance of the evidence.

       Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5).

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

       in the position of one appealing from a negative judgment. 810 N.E.2d at 679.

       On review, we will not reverse the judgment unless the evidence as a whole

       Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 17 of 27
       unerringly and unmistakably leads to a conclusion opposite that reached by the

       post-conviction court. Id. Further, the post-conviction court in this case

       entered findings of fact and conclusions thereon in accordance with Indiana

       Post-Conviction Rule 1(6). Id. “A post-conviction court’s findings and

       judgment will be reversed only upon a showing of clear error—that which

       leaves us with a definite and firm conviction that a mistake has been made.” Id.

       In this review, we accept findings of fact unless clearly erroneous, but we

       accord no deference to conclusions of law. Id. The post-conviction court is the

       sole judge of the weight of the evidence and the credibility of witnesses. Id.


[18]   The issue is whether Meadows was denied effective assistance of counsel.

       Meadows argues that he received ineffective assistance at his competency

       hearing and at trial. Generally, to prevail on a claim of ineffective assistance of

       counsel, a petitioner must demonstrate both that his counsel’s performance was

       deficient and that the petitioner was prejudiced by the deficient performance.

       French v. State, 778 N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington,

       466 U.S. 668, 104 S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is

       deficient if it falls below an objective standard of reasonableness based on

       prevailing professional norms. Id. “A fair assessment of attorney performance

       requires that every effort be made to eliminate the distorting effects of hindsight,

       to reconstruct the circumstances of counsel’s challenged conduct, and to

       evaluate the conduct from counsel’s perspective at the time.” Strickland, 466

       U.S. at 689, 104 S. Ct. at 2065. To meet the appropriate test for prejudice, the

       petitioner must show that there is a reasonable probability that, but for

       Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 18 of 27
       counsel’s unprofessional errors, the result of the proceeding would have been

       different. French, 778 N.E.2d at 824. A reasonable probability is a probability

       sufficient to undermine confidence in the outcome. Perez v. State, 748 N.E.2d

       853, 854 (Ind. 2001). Failure to satisfy either prong will cause the claim to fail.

       French, 778 N.E.2d at 824. Most ineffective assistance of counsel claims can be

       resolved by a prejudice inquiry alone. Id.


[19]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

       is presumed effective, and a defendant must offer strong and convincing

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Clark v. State, 668

       N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

       Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

       guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly

       speculate as to what may or may not have been an advantageous trial strategy

       as counsel should be given deference in choosing a trial strategy which, at the

       time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d

       40, 42 (Ind. 1998). In order to prevail on a claim of ineffective assistance due to

       the failure to object, the defendant must show a reasonable probability that the

       objection would have been sustained if made. Passwater v. State, 989 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 19 of 27
       766, 772 (Ind. 2013) (citing Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001),

       cert. denied, 535 U.S. 1019, 122 S. Ct. 1610 (2002)).


       A. Competency Hearing


[20]   Meadows argues that he received ineffective assistance of counsel at his

       competency hearing because his counsel failed to object to the hearing

       proceeding after counsel had moved to withdraw, and that counsel failed to

       protect his client by not continuing to represent Meadows’s interests at the

       hearing.1 The State argues that neither of the doctors that evaluated Meadows

       before the competency hearing definitively concluded that he was incompetent

       to stand trial and that trial counsel appointed after Attorney Darnell’s

       withdrawal had extensive discussions with Meadows before trial and did not

       observe any indications that Meadows was incompetent.


[21]   Generally, the test for determining competency is whether the defendant has

       sufficient present ability to consult with defense counsel with a reasonable

       degree of rational understanding, and whether the defendant has a rational as

       well as a factual understanding of the proceedings against him. State v. Davis,

       898 N.E.2d 281, 284 (Ind. 2008).




       1
         Meadows also asserts that his counsel was deficient by not objecting to the State’s misstatement of the
       standard for competency at the hearing, but he does not develop this argument. Accordingly, this argument
       is waived. See Shane v. State, 716 N.E.2d 391, 398 n.3 (Ind. 1999) (holding that the defendant waived
       argument on appeal by failing to develop a cogent argument).

       Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017      Page 20 of 27
[22]   We observe that Attorney Darnell filed a Motion for Psychiatric Examination

       to Determine Competence to Stand Trial and that Meadows acknowledges that

       Attorney Darnell was correct in moving to withdraw based upon the

       information in Dr. Hilton’s report. Dr. Murphy’s report stated that Meadows

       displayed the capacity to understand the charges against him, had an

       appreciation of the range and nature of potential penalties, evidenced an

       appropriate appraisal of the offenses and potential penalties, had knowledge of

       the role of defense counsel, prosecuting attorney, judge, jury, defendant, and

       witnesses, and had the capacity to understand trial procedure. While Dr.

       Murphy’s report stated that Meadows’s symptoms and major depressive

       disorder impaired his capacity to assist and cooperate with his attorney and to

       testify accurately, it also stated that Meadows had not been taking medication

       that would effectively treat his symptoms, and Meadows does not point to

       evidence suggesting he was not on medication following his examination and

       prior to trial. We also observe that Dr. Hilton’s report stated that he had no

       evidence to suggest Meadows would have an impairment in his capacity to

       disclose information to his attorney or to suggest that Meadows did not have

       the ability to testify. Dr. Hilton also stated that Meadows had the ability to

       challenge the prosecution’s witnesses and concluded that he did have sufficient

       ability to consult with his attorney with a reasonable degree of rational

       understanding.


[23]   The record also reveals that, while the trial court initially indicated that it was

       going to tell the parties what it was inclined to do and that it appeared that


       Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 21 of 27
Meadows would benefit from placement at Logansport, after further discussion

Meadows stated in part that he was “fully competent to stand trial,” and the

court engaged in an exchange with him. Petitioner’s Exhibit 2 at 5. Moreover,

at the post-conviction hearing, the prosecutor asked Meadows’s trial counsel if

he ever had any concerns regarding Meadows’s competency after he began his

representation, and trial counsel answered:


        No. It appeared that Mr. Meadows understood the charges
        against him, understood law, understood the possible penalties,
        was able to participate in reviewing and preparing evidence and
        making --- having discussions regarding potential strategies and
        all that. There were not any issues on my part as to his ability to
        participate in the trial of his case --- cases.


Post-Conviction Transcript at 35. Further, during cross-examination of

Meadows at the post-conviction hearing, the following exchange occurred:


        Q Now, during all that time period, once Mr. Bruner was
        appointed and you went through essentially two jury trials, did
        you ever have any concerns about your competency thereafter?


        A Not that I felt.


        Q Okay, so you were pretty much good to go after, as far as you
        know? You didn’t raise any concerns.


        A Yes. Yeah.


        Q So you went through two jury trials and in your current state,
        as you recollect today, you’ve had no problems, as far as your
        competency, in assisting your counsel?

Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 22 of 27
                A No.


       Id. at 44.


[24]   Under the circumstances, we cannot say that we are left with a definite and firm

       conviction that a mistake has been made or that reversal is warranted on this

       basis.


       B. Trial


[25]   Meadows points to United States ex. rel. Savory v. Lane, 832 F.2d 1011 (7th Cir.

       1987), for the proposition that the State’s use in its case-in-chief and in closing

       argument of a defendant’s pre-custody statement to police that he did not want

       to talk about the case and did not want to make any statements violated the

       Fifth Amendment. Meadows acknowledges that Indiana courts had not

       squarely addressed the issue at the time of his trial. He asserts that trial counsel

       had ample basis to object to the State’s use of his refusal to answer questions as

       substantive evidence against him given the rulings in Clancy v. State, 829 N.E.2d

       203 (Ind. Ct. App. 2005), trans. denied, and Akard v. State, 924 N.E.2d 202 (Ind.

       Ct. App. 2010), clarified on reh’g, 928 N.E.2d 623, summarily affirmed in relevant

       part by, 937 N.E.2d 811 (Ind. 2010), as well as the Seventh Circuit holding in

       Lane.


[26]   The State contends that trial counsel was not deficient because there was no

       binding authority in Indiana holding that evidence concerning a defendant’s

       pre-arrest, pre-Miranda silence was inadmissible at the time of Meadows’s trial


       Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 23 of 27
       and that several courts in other jurisdictions had indicated that such evidence

       was admissible. It also asserts, even assuming trial counsel was deficient,

       Meadows failed to show he was prejudiced given the substantial evidence of his

       guilt.


[27]   In Clancy, the court addressed the defendant’s argument that the State violated

       his Fifth Amendment right to silence when, during its case-in-chief, it

       questioned a police officer regarding his failure to contact the officer to provide

       his version of the accident while the investigation was ongoing but before

       Clancy was charged. 829 N.E.2d at 211. At trial, Clancy moved for a mistrial

       on this basis, which was denied. Id. We stated that “[i]t would appear that the

       State was treading on thin ice” and that “[r]eference to Clancy’s pre-arrest

       silence during the State’s case-in-chief was, at best, highly dubious, and the

       State proceeds at its peril in such situations.” Id. We observed that the trial

       court admonished the jury and presumed that the trial court’s timely and

       accurate admonishment cured any error in the State’s elicitation of Clancy’s

       pre-arrest silence during its case-in-chief. Id. at 211-212.


[28]   In November 2010, months after Meadows’s July 2010 trial, this Court

       commented on Clancy in Owens v. State, 937 N.E.2d 880 (Ind. Ct. App. 2010),

       reh’g denied, trans. denied. In Owens, we addressed the defendant’s argument that

       the State impermissibly used evidence of his right against self-incrimination

       guaranteed by the Fifth Amendment as substantive evidence of his guilt. 937

       N.E.2d at 885. We observed that the Supreme Court of the United States had

       not addressed whether a defendant’s pre-arrest silence may be used as

       Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 24 of 27
       substantive evidence and that the federal circuit courts were split on the issue.

       Id. at 886-887. We cited the Seventh Circuit’s decision in Lane, which is cited

       by Meadows on appeal, as an example of a federal circuit court that had held

       that the State’s substantive use of a defendant’s pre-arrest silence violates the

       Fifth Amendment privilege against self-incrimination. Id. at 887-888. We also

       stated that “Indiana courts have not squarely addressed the issue” and that the

       Clancy court was not required to make a definitive ruling on the

       constitutionality of the State’s use of the silence. Id. at 890. We ultimately held

       that the very threat that the State may use a person’s silence as self-

       incriminating evidence of guilt at trial places one on the horns of a dilemma

       during even investigatory proceedings, i.e., whether to make statements that

       could later be used to incriminate oneself or to remain silent. Id. at 891. We

       emphasized that we did not determine that all pre-arrest, pre-Miranda silences

       were unprotected by the Fifth Amendment and that the holding was strictly

       limited to the particular facts of that case. Id. at 892.


[29]   With respect to Akard, which is cited by Meadows, the State used the

       defendant’s post-arrest, pre-Miranda silence as substantive evidence in its case-

       in-chief. 924 N.E.2d at 209. The Court observed that the Seventh Circuit had

       concluded that, even if the defendant testifies at trial, it is a violation of the

       Fifth Amendment for the State to introduce evidence of the defendant’s post-

       arrest, pre-Miranda silence in its case-in-chief. Id. (citing United States v.

       Hernandez, 948 F.2d 316, 323 (7th Cir. 1991), reh’g denied). The Court

       concluded that the brevity of the references in comparison to the other

       Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 25 of 27
       substantial evidence presented to prove the defendant’s guilt led to the

       conclusion that the brief mention of his pre-Miranda silence did not rise to the

       level of fundamental error. Id. Akard addressed post-arrest silence.


[30]   Given that the Supreme Court of the United States had not addressed the issue,

       the federal circuits were split, Clancy did not squarely address or make a

       definitive ruling on the constitutionality of the State’s use of pre-arrest silence,

       and Akard is distinguishable, we cannot say that Meadows has demonstrated a

       reasonable probability that an objection would have been sustained if made.


[31]   We also observe that at the post-conviction hearing, Meadows’s trial counsel

       stated:


                 Mr. Meadows had had conversations with the police officers
                 where he had maintained his innocence in these matters. I felt
                 that with --- that at some point in time, a jury would expect that a
                 reasonably prudent person is going to cooperate with the police
                 to some extent, but then say maybe I need to talk to a lawyer.


       Post-Conviction Transcript at 28. Further, Meadows’s trial counsel argued at

       trial that Meadows was guilty of lesser offenses and appeared to argue that

       Meadows was actually being forthcoming by referring the authorities to his

       attorney. Accordingly, and particularly in light of the defense’s approach, we

       cannot say that trial counsel’s performance was deficient. Further, assuming

       that his trial counsel was deficient, we cannot say that Meadows was prejudiced

       in light of the strength of the evidence which included the testimony of multiple




       Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 26 of 27
       officers, Meadows’s sister, and Hubble, as well as recordings of Meadows and

       the discovery of the stolen property in Meadows’s trailer.


                                                   Conclusion

[32]   For the foregoing reasons, we affirm the post-conviction court’s denial of

       Meadows’s petition for post-conviction relief.


[33]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 61A01-1608-PC-1762 | December 6, 2017   Page 27 of 27
