Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 Jul 02 2013, 8:52 am
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.


APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:

CHARLES HALL                                        GREGORY F. ZOELLER
Westville, Indiana                                  Attorney General of Indiana

                                                    JUSTIN F. ROEBEL
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

CHARLES HALL,                                       )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )      No. 75A03-1107-PC-331
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                      APPEAL FROM THE STARKE CIRCUIT COURT
                             The Honorable Kim Hall, Judge
                              Cause No. 75C01-1004-FD-71



                                           July 2, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
        Charles Hall (“Hall”) appeals the post-conviction court’s denial of his petition for

post-conviction relief. On appeal, Hall raises four issues, which we consolidate and

restate as whether the post-conviction court improperly denied Hall’s claim that he

received ineffective assistance of trial counsel.

        We affirm.

                            FACTS AND PROCEDURAL HISTORY

        On April 25, 2010, the State filed a criminal information charging Hall with Count

I, possession of precursors with intent to manufacture methamphetamine1 as a Class D

felony; and Count II, possession of marijuana2 as a Class A misdemeanor. Appellant’s

App. at 7. Pursuant to Hall’s request, the trial court appointed a public defender, Richard

Ballard (“Ballard”). Id. at 47. On August 16, 2010, the State filed an amended criminal

information and added Count III, Class B felony dealing in methamphetamine,3 on the

basis that Hall was manufacturing methamphetamine. Id. at 8. At the initial hearing on

the amended criminal information, the parties informed the court that they had reached a

plea agreement.4

        During his September 30, 2010 plea hearing,

        [Hall] was advised of his constitutional rights, including his right to appeal,
        and that by pleading guilty he would be waiving those rights. He informed
        the Court that he was satisfied with his attorney. He informed the Court
        1
            See Ind. Code § 35-48-4-14.5.
        2
            See Ind. Code § 35-48-4-11.
        3
            See Ind. Code § 35-48-4-1.1.
        4
          The record before us does not contain the plea agreement, the transcript of the plea hearing, or
the transcript of the sentencing hearing.


                                                    2
          that he was freely and voluntarily pleading guilty to the charge contained in
          the Plea Agreement in exchange for the specific sentence set out in the
          agreement.

Id. at 48. Prior to pleading guilty, Hall failed to raise any of the claims that he now

raises.       Hall then “freely and voluntarily pled guilty to Count III:                    Dealing in

Methamphetamine, a [C]lass B felony, admitted that he did in fact commit the crime to

which he had pled guilty, and provided the factual basis.” Id. The trial court accepted

the plea agreement, dismissed the remaining counts, and sentenced Hall to serve seven

years in the Indiana Department of Correction (“DOC”). Hall did not challenge his

sentence on direct appeal.

          On March 4, 2011, acting pro se, Hall filed a petition for post-conviction relief,

which he amended on June 7, 2011. In the amended pro se petition, Hall raised the

following restated claims: (1) Hall’s state and federal constitutional rights were violated

by his trial counsel’s conflict of interest because Ballard was concurrently representing

Hall and Gidget Jackson (“Jackson”), who was a potential witness against Hall; (2) Hall’s

right to effective assistance of trial counsel was violated when Ballard failed to make a

motion to suppress incriminating evidence that had been illegally obtained;5 and (3)

Hall’s guilty plea was not entered knowingly because he was not informed that he could

appeal his sentence after accepting his guilty plea. Appellant’s App. at 29-30.

          More specifically, Hall’s claim of ineffective assistance of counsel arose from Hall’s contention
          5

that the evidence should have been suppressed because: (1) Hall did not have constructive possession of
the drug evidence because it was found in a vehicle owned by McCurdy; (2) McCurdy’s car was pulled
over by police because of McCurdy’s erratic driving, therefore, there was no reason to detain Hall beyond
what was necessary to complete the traffic stop; (3) Hall was unreasonably detained for one and one-half
hours before the K-9 appeared; and (4) the K-9 search was illegally performed because there was no
reason to detain Hall to await the K-9. Appellant’s App. at 33-35. The post-conviction court correctly
notes that the latter three constitute just one claim—that Hall was illegally detained. Id. at 50


                                                    3
        During the evidentiary hearing in June 2011, Hall focused on two issues for post-

conviction relief.6     First, he claimed that his constitutional rights were violated by

Ballard’s conflict of interest, and second, that Ballard had provided ineffective assistance

of counsel when he failed to file a motion to suppress. Tr. at 4-5. In response to Hall’s

first claim, Ballard testified that had informed Hall of his concurrent representation of

Jackson in another criminal matter, and told Hall that “if he wanted to take [his] case to

trial that [Ballard] would ask the court to rescind [his] appointment [to represent] Miss

Jackson.” Id. at 11. Furthermore, Ballard testified that he did not believe there was “an

actual conflict of interest” because “the State probably had enough evidence to convict

[Hall] with or without Miss Jackson’s testimony.” Id. at 10, 13. It was Ballard’s opinion

that if Hall went to trial, he would “likely be convicted” of Class B felony dealing in

methamphetamine—a crime with a sentencing range of six to twenty years. Id. at 14.

The State had originally offered that in exchange for a guilty plea, Hall would be

sentenced to ten years, two of which would be suspended. Id. at 15. Ballard, however,

negotiated a lesser sentence. Hall decided to take the revised plea agreement and pleaded

guilty to the charge of dealing in methamphetamine and was sentenced to seven years in

the DOC. Id.

        Responding to Hall’s second argument, Ballard testified that he did not file a

motion to suppress because he “didn’t see any grounds to suppress any evidence.”7 Id. at


        6
        During the evidentiary hearing, Hall did not raise the claim that his guilty plea was not entered
knowingly. Tr. at 4-5. Likewise, Hall does not raise that issue in the instant appeal.
        7
           Because the record before us contains only the transcript of the post-conviction hearing, we
refer to that document as Tr.

                                                   4
9. Ballard was not aware that the stop was unconstitutional, i.e. he did not know of any

evidence indicating that Hall was held for a lengthy period at the scene of the traffic stop

waiting for the arrival of the K-9, as Hall alleged in his amended petition. Id. Deputy

Kelly Fisher (“Deputy Fisher”) of the Starke County Sheriff’s Department and other

officers had searched Jackson’s home earlier that evening, with Jackson’s consent, for

evidence that Hall was manufacturing methamphetamine. Id. at 10-11. Hall was not

found at Jackson’s home. Ballard testified that Deputy Fisher, while leaving Jackson’s

home, observed a vehicle drive by slowly. Id. at 11. As she followed the car, the deputy

determined that the vehicle was traveling about 35 miles per hour (“mph”) in a 55 mph.

zone, was weaving, and crossed the center line twice. Appellant’s App. at 10. Deputy

Fisher stopped the vehicle, “approached the driver[,] and noted that it was Chris

McCurdy and that the passenger was Charles Hall”—the latter having been the target in

the earlier search. Id. Deputy Fisher noted that McCurdy was slow to react in getting out

his identification, that his eyes were bloodshot, and that his speech was slurred. Id.

Deputy Fisher contacted the officers with whom she had executed the search earlier in the

evening. “‘[A] short time later,’ Detective Combs and another officer arrived at the car

with a K-9, which alerted to drugs in the vehicle.” Appellee’s Br. at 5 (citing Appellant’s

App. at 42).    Inside the vehicle, officers found two soda bottles containing active

methamphetamine labs as well as other items commonly used in the manufacture of

methamphetamine.” Id. at 5-6 (citing to Appellant’s App. at 42).

       Following the evidentiary hearing, the post-conviction court issued findings of fact

and conclusions thereon, and denied Hall’s petition for post-conviction relief on the basis

                                             5
that there was no evidence that Ballard was ineffective because of a conflict of interest or

because he failed to file a motion to suppress. Appellant’s App. at 52. Hall now appeals

the denial of his petition for post-conviction relief.

                               DISCUSSION AND DECISION

                                 I.     Standard of Review

       Hall appeals the denial of his petition for post-conviction relief. Our standard of

review in post-conviction proceedings is well established:

               In post-conviction proceedings, the petitioner bears the burden of
       proof by a preponderance of the evidence. Henley v. State, 881 N.E.2d 639,
       643 (Ind. 2008). “When appealing from the denial of post-conviction
       relief, the petitioner stands in the position of one appealing from a negative
       judgment.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). “To prevail
       on appeal 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.” Kubsch v.
       State, 934 N.E.2d 1138, 1144 (Ind. 2010).

              In addition, we observe that the post-conviction court made findings
       of fact and conclusions of law in accordance with Indiana Post-Conviction
       Rule 1(6). “A postconviction 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.” Ben–Yisrayl v.
       State, 729 N.E.2d 102, 106 (Ind. 2000) (citation and quotation marks
       omitted). 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. Wilson v. State, 799 N.E.2d 51, 53 (Ind. Ct. App.
       2003). “The post-conviction court is the sole judge of the weight of the
       evidence and the credibility of witnesses.” Woods v. State, 701 N.E.2d
       1208, 1210 (Ind. 1998).

Benefield v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011).

                         II.     Ineffective Assistance of Counsel

       On appeal, Hall contends that the trial court abused its discretion in denying his


                                               6
petition for post-conviction relief because: (1) he was illegally detained when the police

stopped McCurdy’s car; (2) he was forced to undergo an illegal search and seizure; (3) he

had ineffective assistance of trial counsel because Ballard failed to file a motion to

suppress; and (4) Ballard had a conflict of interest in also representing Jackson.

Arguments (1) and (2), and (3) comprise the same claim; that is, that Ballard’s failure to

suppress evidence obtained during an illegal stop was ineffective assistance of counsel.

In Claim (4), Hall essentially maintains that Ballard’s conflict of interest resulted in

ineffective assistance of counsel because the State amended his charges to add a Class B

felony dealing count only after Ballard had “started representing Miss Jackson.” Tr. at

14. Like the post-conviction court, we assume without deciding that the conflict of

interest claim is more than a free-standing claim of error; therefore, we include that claim

within our ineffective assistance of counsel analysis. See Timberlake, 753 N.E.2d at 597-

98 (free-standing claims of error are not available in post-conviction proceedings,

however, “[s]ome of the same contentions, to varying degrees, may be properly presented

in support of a claim of ineffective assistance of trial or appellate counsel.”).

       When evaluating a claim of ineffective assistance of counsel in the context of a

guilty plea, we apply the two-part test articulated in Strickland v. Washington, 466 U.S.

668 (1984). Harris v. State, 762 N.E.2d 163, 169 n.2 (Ind. Ct. App. 2002) (citing Danks

v. State, 733 N.E.2d 474, 486 (Ind. Ct. App. 2000), trans. denied), trans. denied. To

prevail on a claim of ineffective assistance of counsel, “the petitioner must establish both

that counsel’s performance was deficient and a reasonable probability that, but for

counsel’s errors, petitioner would not have pled guilty and would have insisted on going

                                               7
to trial.” Oliver v. State, 843 N.E.2d 581, 591 (Ind. Ct. App. 2006) (citing Von Hagel v.

State, 568 N.E.2d 549, 550 (Ind. Ct. App. 1990), trans. denied), trans. denied.

“Moreover, if a petitioner is convicted pursuant to a guilty plea, and later claims that his

counsel rendered ineffective assistance because counsel overlooked or impaired a

defense, the petitioner must show that a defense was indeed overlooked or impaired and

that the defense would have likely changed the outcome of the proceeding. Id. (citing

Richardson v. State, 800 N.E.2d 639, 646 (Ind. Ct. App. 2003)).

                                A.      Conflict of Interest

       Hall first contends that he received ineffective assistance of trial counsel because

Ballard had a conflict of interest. After noting that a vehicle was being driven in an

erratic manner, Deputy Fisher made a traffic stop and discovered that McCurdy was the

driver and Hall was the passenger of the vehicle. Appellant’s App. at 49. A subsequent

search of the vehicle revealed two soda bottles containing active methamphetamine

labs—evidence that led to the charges against Hall. While Jackson was listed as a

potential witness for trial, there is nothing in the record to suggest that Jackson witnessed

the traffic stop, the search of the vehicle, or the seizure of the evidence. Ballard testified

at the hearing that he was representing Hall and Jackson in two distinct and separate

criminal matters, which were based upon separate events. Ballard did not anticipate that

either Hall or Jackson would be called upon to testify at the trial of the other. Like the

post-conviction court, we find no evidence in the record before us that Ballard had a

conflict of interest in his simultaneous representation of Hall and Jackson.

       It is also important to note, however, that Ballard informed Hall of his

                                              8
representation of Jackson, and even told Hall that he would drop his representation of

Jackson if Hall chose to take his case to trial. It was Ballard’s opinion that Hall would

lose at trial. The State offered a plea agreement that, in exchange for Hall’s guilty plea,

he would be sentenced to ten years, two of which would be suspended.                           Ballard

negotiated a lesser sentence so that Hall received a sentence of seven years for a crime

that carried a range of sentencing of six to twenty years. The post-conviction court found

no basis for ineffective assistance of counsel on this claim. Hall has failed to show that

the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that

reached by the post-conviction court.8

                          B.      Failure to File Motion to Suppress

        Hall also contends that he received ineffective assistance of trial counsel because

Ballard failed to file a motion to suppress the incriminating evidence found in McCurdy’s

car. After observing a car weaving in the roadway, traveling about 35 mph in a 55 mph

zone, and crossing the center line twice, Deputy Fisher made a valid stop of the vehicle

that was owned and operated by McCurdy. See Jackson v. State, 785 N.E.2d 615, 619

(Ind. Ct. App. 2003) (police officers may stop vehicle upon observing minor traffic

violations). McCurdy’s impaired condition led Deputy Fisher to contact other officers.

Detective Combs appeared a short time later with a K-9, which indicated the presence of

drugs in the vehicle. On the floor of the vehicle where Hall had been sitting, officers

found two soda bottles containing active methamphetamine labs. This was the evidence
        8
           We think it is also worthy of note that Hall filed a disciplinary complaint with the State
concerning Ballard’s alleged conflict of interest with Jackson. After Ballard filed the required written
response, the Indiana Supreme Court Disciplinary Commission dismissed Hall’s complaint without
further action. Tr. at 12.

                                                   9
on which Hall’s Class B felony was based.

       Hall contends that because he was illegally detained and forced to undergo an

illegal search, Ballard was ineffective in failing to file a motion to suppress.        We

disagree. While Hall could have challenged the discovery of evidence found on his

person, as the post-conviction court correctly found, Hall had no standing to file a motion

to suppress evidence found during the search of McCurdy’s car. Appellant’s App. at 52.

Our Supreme Court recently noted:

       To challenge a search “a defendant must establish ownership, control,
       possession, or interest” in the premises searched. The defendant must show
       a subjective and objective expectation of privacy in the premises.
       Passengers in a car driven by the owner do not have standing to challenge
       a search of the car. Correspondingly, a driver who is not the owner has no
       standing if the owner is also in the car. In sum, we agree that “[w]here the
       defendant offers sufficient evidence indicating that he has permission of the
       owner to use the vehicle, the defendant plainly has a reasonable expectation
       of privacy in the vehicle and standing to challenge the search of the vehicle.

Campos v. State, 885 N.E.2d 590, 598-99 (Ind. 2008) (emphasis added) (citations and

parentheticals omitted). Lacking standing, all other arguments regarding the legality of

the search would have failed.      Accordingly, even if Ballard had filed a motion to

suppress, the results of the proceeding would have likely been the same. The post-

conviction court found no basis for ineffective assistance of counsel on this claim.

Again, Hall has failed to show that the evidence as a whole leads unerringly and

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

       Affirmed.

VAIDIK, J., and PYLE, J., concur.




                                            10
