MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Jan 10 2017, 8:08 am

court except for the purpose of establishing                           CLERK
                                                                   Indiana Supreme Court
the defense of res judicata, collateral                               Court of Appeals
                                                                        and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Christopher A. Bryant                                    Curtis T. Hill
Michigan City, Indiana                                   Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher Bryant,                                      January 10, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A04-1602-PC-434
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Samuel L. Cappas,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G04-1211-PC-17



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017     Page 1 of 10
                               Case Summary and Issues
[1]   Following a jury trial in 2010, Christopher Bryant was found guilty of resisting

      law enforcement, possession of marijuana, and two counts of dealing in a

      narcotic drug. Bryant also admitted to being an habitual substance offender.

      The trial court sentenced Bryant to an aggregate sentence of forty-five years to

      be executed in the Indiana Department of Correction. On direct appeal, we

      affirmed his convictions and sentence. Bryant v. State, 959 N.E.2d 315, 317

      (Ind. Ct. App. 2011). Thereafter, Bryant filed a petition for post-conviction

      relief wherein he alleged prosecutorial misconduct and ineffective assistance of

      trial and appellate counsel, which the post-conviction court denied. Bryant, pro

      se, now appeals the denial of post-conviction relief, raising two issues for our

      review: (1) whether the post-conviction court erred in concluding Bryant’s trial

      counsel was not ineffective, and (2) whether the post-conviction court erred in

      concluding Bryant’s appellate counsel was not ineffective. Concluding trial and

      appellate counsel were not ineffective, we affirm.



                            Facts and Procedural History
[2]   We summarized the facts and procedural history of this case in Bryant’s direct

      appeal:


              On September 1, 2010, Hammond Police outfitted a confidential
              informant (“CI”) with an audio-visual recorder, provided him
              with $150 of “buy” money, and directed him to arrange a drug
              deal with a person known only to the police and the CI as
              “Prophet,” but who later turned out to be Bryant. The CI

      Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017   Page 2 of 10
        telephoned Bryant, who arrived at the CI’s residence
        approximately thirty minutes later. The CI approached Bryant’s
        vehicle and purchased $130 worth of heroin, leaving him with
        $20 of buy money left. The CI returned to his residence and gave
        0.54 grams of heroin and the remaining buy money to police.


        Hammond Police Detective Marc Ferry followed Bryant’s
        vehicle when it pulled away. Eventually, Bryant failed to signal a
        turn, and Detective Ferry activated his lights and siren to initiate
        a stop. Detective Ferry approached the vehicle, and, after
        knocking on the driver’s side window with his flashlight, asked
        twice for Bryant’s identification and vehicle registration. When
        Bryant asked why he had been stopped, Detective Ferry said,
        “Well, for starters because of the loud music.” At this point,
        Bryant drove off slowly.


        Detective Ferry returned to his vehicle and pursued Bryant, who
        leaned “hard to the right” momentarily before stopping in an
        empty lot after approximately two blocks. Detective Ferry had
        witnessed others lean and pull away as Bryant had done and
        believed that “people when they pull away like that, they are
        buying time, they're trying to hide something.” Detective Ferry
        testified that “[a]t that time, [Bryant was being arrested] for
        resisting law enforcement.” When Bryant was taken into
        custody, Detective Ferry received permission from his supervisor
        to conduct a strip search. When two officers forcibly bent Bryant
        over, Detective Ferry recovered a “clear plastic bag which was
        slightly torn opened [sic], containing a green, leafy substance”
        that was determined to be 2.14 grams of marijuana from between
        Bryant’s buttocks. Bryant then told Detective Ferry that he “got
        it from the patrol car that transported him into the station.”
        Bryant had not been read his Miranda rights at the time of the
        search. Detective Ferry also recovered the $130 of buy money
        from Bryant’s pants. Police identified “Prophet” as Bryant, and
        he was eventually released.


Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017   Page 3 of 10
        On September 7, 2010, police again fitted the CI with an audio-
        visual recorder, provided him with $200 in buy money, and again
        instructed him to arrange a drug deal with Bryant. The CI
        telephoned Bryant and told him that he wanted to purchase one
        gram of heroin. When Bryant arrived at the CI’s residence, the
        CI approached the vehicle and purchased $230 worth of heroin
        for $200 from Bryant. The CI returned to his residence and gave
        police officers the 0.93 grams of heroin he had just purchased.
        Police followed Bryant’s vehicle as he drove away and arrested
        him inside a store in Hammond. The next day, the CI selected
        Bryant from a photo array and identified him as the person from
        whom he had purchased heroin on September 1 and 7, 2010.
        Eventually, the State charged Bryant with two counts of Class A
        felony dealing in a narcotic drug, Class A misdemeanor resisting
        law enforcement, Class A misdemeanor marijuana possession,
        and with being a habitual substance offender.


        Following trial, a jury found Bryant guilty of two counts of Class
        A felony dealing in a narcotic drug, Class A misdemeanor
        resisting law enforcement, and Class A misdemeanor marijuana
        possession. Bryant admitted that he was a habitual substance
        offender. The trial court sentenced Bryant to forty-two years for
        each of his two dealing in a narcotic drug convictions, one year
        for resisting law enforcement, and one year for marijuana
        possession, and with being a habitual substance offender, all
        sentences to be served concurrently. The trial court
        enhanced Bryant’s sentence three years by virtue of his habitual
        substance offender status.


Id. at 317-19 (alteration in original) (citations omitted). Bryant appealed his

convictions and sentence, arguing inter alia that trial counsel rendered

ineffective assistance in failing to challenge the constitutionality of the strip

search. Specifically, Bryant contended the search was unreasonable under the


Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017   Page 4 of 10
      Indiana Constitution. We disagreed and affirmed his convictions and sentence.

      Id. at 317.


[3]   On November 15, 2012, Bryant filed a petition for post-conviction relief and the

      post-conviction court appointed a State Public Defender to represent him. The

      State Public Defender later withdrew as counsel after consulting with Bryant

      and conducting an appropriate investigation into Bryant’s claims. Nearly a

      year later, Bryant sought to withdraw his petition without prejudice, which the

      post-conviction court allowed.


[4]   On May 7, 2014, Bryant filed a second petition for post-conviction relief, which

      the post-conviction court deemed an amendment and reactivation of Bryant’s

      first petition. Bryant raised seventeen claims of ineffective assistance of trial

      counsel and seven claims of ineffective assistance of appellate counsel.

      Following a six-part evidentiary hearing conducted over a span of six months,

      the post-conviction court issued its findings of fact and conclusions thereon

      denying Bryant post-conviction relief. Bryant, pro se, now appeals.



                                 Discussion and Decision
                                     I. Standard of Review
[5]   Post-conviction proceedings are not an opportunity for a super-appeal.

      Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839

      (2002). Rather, they create a narrow remedy for subsequent collateral

      challenges to convictions that must be based on grounds enumerated in the

      Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017   Page 5 of 10
      post-conviction rules. Id. If not raised on direct appeal, a claim of ineffective

      assistance of counsel is properly presented in a post-conviction

      proceeding. Id. A claim of ineffective assistance of appellate counsel is also an

      appropriate issue for post-conviction review. Id. The petitioner must establish

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


[6]   A petitioner who has been denied post-conviction relief faces a “rigorous

      standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

      In reviewing the judgment of a post-conviction court, we may not reweigh the

      evidence nor reassess witness credibility; rather we consider only the evidence

      and reasonable inferences supporting the judgment. Hall v. State, 849 N.E.2d

      466, 468-69 (Ind. 2006). We will affirm the post-conviction court’s denial of

      post-conviction relief unless the evidence leads “unerringly and unmistakably to

      a decision opposite that reached by the post-conviction court.” McCary v.

      State, 761 N.E.2d 389, 391 (Ind. 2002). Finally, we do not defer to the post-

      conviction court’s legal conclusions, but do accept its factual findings unless

      they are clearly erroneous. Stevens v. State, 770 N.E.2d 739, 746 (Ind.

      2002), cert. denied, 540 U.S. 830 (2003).


                    II. Ineffective Assistance of Trial Counsel
[7]   Bryant contends the post-conviction court erred in concluding his trial counsel

      was not ineffective. The State counters Bryant raised an ineffective assistance

      of trial counsel claim on direct appeal and is therefore barred from re-litigating

      the claim. We agree with the State.


      Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017   Page 6 of 10
[8]    “Although a defendant may present a claim of ineffective assistance of counsel

       on direct appeal, if he so chooses, the issue will be foreclosed from collateral

       review.” Rogers v. State, 897 N.E.2d 955, 965 (Ind. Ct. App. 2008) (citing Woods

       v. State, 701 N.E.2d 1208, 1220 (Ind. 1998)), trans. denied. On direct appeal,

       Bryant raised a claim of ineffective assistance of trial counsel. We therefore

       conclude Bryant is barred from re-litigating his claim of ineffective assistance of

       trial counsel in this post-conviction proceeding.


                III. Ineffective Assistance of Appellate Counsel
[9]    Bryant also argues the post-conviction court erred in concluding his appellate

       counsel was not ineffective. Specifically, Bryant contends appellate counsel

       rendered ineffective assistance by failing to challenge the reasonableness of the

       strip search under the Fourth Amendment to the United States Constitution. 1

       We disagree.


[10]   The standard for ineffective assistance of appellate counsel is the same standard

       as for trial counsel. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013).




       1
         In his petition for post-conviction relief, Bryant alleges several instances of ineffective assistance by his
       appellate counsel. In his ninety-two-page handwritten brief on appeal, he lists most, if not all, of those
       instances in the Table of Contents, the Statement of the Case, and the Summary of Argument. However, the
       only instance Bryant addresses in the Argument section of his brief is his contention appellate counsel failed
       to challenge the reasonableness of the strip search under the Fourth Amendment. Thus, to the extent Bryant
       intended to raise additional instances of alleged ineffective assistance by appellate counsel, we will not
       develop an argument on Bryant’s behalf, see Thomas v. State, 965 N.E.2d 70, 77 n.2 (Ind. Ct. App. 2012),
       trans. denied, and conclude those arguments are waived for failure to present a cogent argument, see Ind.
       Appellate Rule 46(A)(8).

       Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017             Page 7 of 10
        To establish a claim of ineffective assistance of counsel, a
        defendant must demonstrate to the post-conviction court that
        counsel performed deficiently and the deficiency resulted in
        prejudice. This standard asks whether, considering all the
        circumstances, counsel’s actions were reasonable under
        prevailing professional norms. Judicial scrutiny of counsel’s
        performance must be highly deferential. And even if appellate
        counsel’s performance is deficient, to prevail, petitioner must
        demonstrate a reasonable probability that the outcome of the
        direct appeal would have been different. When evaluating a
        claimed deficiency in appellate representation due to an omission
        of an issue, a post-conviction court is properly deferential to
        appellate counsel’s choice of issues for appeal unless such a
        decision was unquestionably unreasonable. Such deference is
        appropriate because the selection of issues for direct appeal is one
        of the most important strategic decisions of appellate
        counsel. Appellate counsel’s performance, as to the selection and
        presentation of issues, will thus be presumed adequate unless
        found unquestionably unreasonable considering the information
        available in the trial record or otherwise known to the appellate
        counsel. In crafting an appeal, counsel must choose those issues
        which appear from the face of the record to be most availing.
        Experienced advocates since time beyond memory have
        emphasized the importance of winnowing out weaker arguments
        on appeal and focusing on one central issue if possible, or at most
        on a few key issues. Thus, to prevail in such claim in post-
        conviction proceedings, it is not enough to show that appellate
        counsel did not raise some potential issue; instead, the defendant
        must show that the issue was one which a reasonable attorney
        would have thought availing.


Hampton v. State, 961 N.E.2d 480, 491-92 (Ind. 2012) (citations, alterations, and

internal quotation marks omitted).




Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017   Page 8 of 10
[11]   At the outset, we acknowledge Bryant’s appellate counsel only challenged the

       reasonableness of the strip search under the Indiana Constitution, not under the

       Fourth Amendment to the United States Constitution. However, in 2001, our

       supreme court in Edwards v. State held


               that routine, warrantless strip searches of misdemeanor arrestees,
               even when incident to lawful arrests, are impermissible under the
               Indiana Constitution and the United States Constitution, and that
               before jail officials may conduct warrantless strip searches of
               misdemeanor arrestees detained awaiting the posting of bond,
               those officials must have a reasonable suspicion that the arrestee
               is concealing weapons or contraband.


       759 N.E.2d 626, 627-28 (Ind. 2001) (emphasis added). Thus, at the time of

       Bryant’s direct appeal in 2011, our supreme court made clear both the state and

       federal analysis in determining the reasonableness of a warrantless strip search

       of a misdemeanor arrestee is the same and each requires law enforcement to

       have reasonable suspicion the arrestee is concealing weapons or contraband.

       See id. In light of the fact both analyses were the same and Bryant’s appellate

       counsel challenged the search under the Indiana Constitution, we cannot say

       appellate counsel’s decision to not challenge the search under the Fourth

       Amendment was “unquestionably unreasonable” nor can we see how Bryant

       suffered any prejudice. See Hampton, 961 N.E.2d at 491.


[12]   In any event, we further emphasize Detective Ferry had knowledge of, and was

       investigating, Bryant’s participation in dealing narcotics. When Detective Ferry

       initiated a traffic stop of Bryant shortly following a controlled buy, he observed


       Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017   Page 9 of 10
       Bryant drive away slowly and veer to the right, an action Detective Ferry

       believed based on his experience indicated Bryant was attempting to conceal

       something. As we held in Bryant’s direct appeal, such facts give rise to

       reasonable suspicion to justify a warrantless strip search under the Indiana

       Constitution. See Bryant, 959 N.E.2d at 320. Therefore, Bryant’s claim would

       have also failed under the Fourth Amendment. We conclude appellate counsel

       did not render ineffective assistance by failing to challenge the search under the

       Fourth Amendment. See Singleton v. State, 889 N.E.2d 35, 41 (Ind. Ct. App.

       2008) (noting appellate counsel does not render ineffective assistance for failing

       to raise issues that are unlikely to succeed), trans. denied.



                                               Conclusion
[13]   The post-conviction court did not err in concluding Bryant is not entitled to

       post-conviction relief on his claims he received ineffective assistance of trial and

       appellate counsel. Accordingly, we affirm.


[14]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017   Page 10 of 10
