      MEMORANDUM DECISION                                              FILED
                                                                  Jun 27 2016, 6:33 am
      Pursuant to Ind. Appellate Rule 65(D),
                                                                       CLERK
      this Memorandum Decision shall not be                        Indiana Supreme Court
                                                                      Court of Appeals
      regarded as precedent or cited before any                         and Tax Court

      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                         Gregory F. Zoeller
      Public Defender of Indiana                               Attorney General of Indiana
      John Pinnow                                              Andrew A. Kobe
      Deputy Public Defender                                   Deputy Attorney General
      Indianapolis, Indiana                                    Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Michael L. Spencer,                                      June 27, 2016
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               35A02-1512-PC-2201
              v.                                               Appeal from the Huntington
                                                               Superior Court
      State of Indiana,                                        The Honorable Jeffrey R.
      Appellee-Respondent.                                     Heffelfinger, Judge
                                                               Trial Court Cause No.
                                                               35D01-1204-PC-006




      Mathias, Judge.


[1]   Michael L. Spencer (“Spencer”) was convicted in Huntington Superior Court of

      two counts of Class A felony dealing in a Schedule I, II, or III controlled

      Court of Appeals of Indiana | Memorandum Decision 35A02-1512-PC-2201 | June 27, 2016   Page 1 of 11
      substance and was sentenced to thirty-five years of incarceration. After

      Spencer’s convictions and sentence were confirmed on direct appeal, he filed a

      petition for post-conviction relief, which was denied. Spencer appeals and

      argues that the post-conviction court erred in rejecting Spencer’s claim that he

      was denied the effective assistance of trial counsel.


[2]   We affirm.

                                    Facts and Procedural History

[3]   The facts underlying Spencer’s convictions were set forth in our memorandum

      decision on Spencer’s direct appeal as follows:


              During eight months in 2009 and 2010, the Indiana State Police
              and Huntington County law enforcement officials investigated a
              local problem with the sale of prescription medications. In the
              course of their investigation, law enforcement officers put
              Spencer’s home, which is less than 400 feet from a city park,
              under surveillance.


              On November 12 and 18, 2009, a confidential informant
              purchased methadone from Spencer at Spencer’s home.
              Specifically, on both dates, Indiana State Police Detective Josh
              Haber picked up the informant and took him to a meeting with
              three Huntington Police Department officers. The officers
              searched the informant before he left the meeting. The officers
              also gave the informant an audio recording device to covertly
              record the drug transactions and $240 to purchase thirty
              methadone tablets. Detective Haber drove the informant to
              Spencer’s house in an undercover vehicle and watched him walk
              up to the front door and into the house. After being in the house
              for several minutes, the informant came out through the same
              door he went in and walked directly to Detective Haber’s car.

      Court of Appeals of Indiana | Memorandum Decision 35A02-1512-PC-2201 | June 27, 2016   Page 2 of 11
        The informant got into the car and handed the detective a
        cellophane wrapper containing the thirty methadone pills he had
        just purchased from Spencer. Detective Haber took a statement
        from the informant on the way to another meeting with the three
        Huntington Police Department officers. Before the meeting, the
        officers searched the informant for additional money and drugs,
        and the informant gave the officers the recording device. Spencer
        was not arrested at the time.


        On March 9, 2010, the State requested a search warrant for
        Spencer’s home. In the probable cause affidavit, Detective Haber
        asserted he had probable cause to believe that evidence of drug
        activity, including controlled substances, United States Currency,
        records of drug transactions and/or other financial information,
        were concealed at Spencer’s house because during a six-month
        period, an informant made numerous drug purchases from
        Spencer and others at Spencer’s house. The November 12 and 18
        transactions were the only transactions directly involving
        Spencer. In the affidavit, Detective Haber averred that based on
        his experience and training as a narcotics investigator, this type
        of evidence is commonly found in a drug trafficker’s residence.


        On March 11, 2010, Huntington Police Department Officers
        executed the warrant and arrested Spencer. During the search,
        the officers found a pill crusher and several empty prescription
        pill bottles with Spencer’s name and his wife’s name. Some of the
        prescriptions were for methadone. The officers also
        photographed the contents of a safe in Spencer’s room. The safe
        contained several empty prescription pill bottles with Spencer’s
        name, his wife’s name, and his father’s name. The prescriptions
        were for methadone and other drugs. The officers also found a
        prescription pill bottle with methadone tablets in between the
        mattress and box springs in Spencer’s bedroom.


        Trial began on August 19, 2010. The informant testified about
        the November 12 and 18 drug transactions. He also testified
Court of Appeals of Indiana | Memorandum Decision 35A02-1512-PC-2201 | June 27, 2016   Page 3 of 11
              without objection that he saw a safe in Spencer’s room that
              contained pill bottles and pistols. The jury heard the audiotapes
              of the drug transactions, and the State introduced into evidence
              prescription records from five different pharmacies, which
              showed that Spencer filled monthly prescriptions for 180
              methadone tablets, 120 hydrocodone tablets, and 90 xanax
              tablets, all from the same physician, at Walgreens. In addition,
              he filled another monthly prescription for 448 methadone tablets
              from another physician at CVS. A summary of Spencer’s
              prescriptions revealed that Spencer purchased 6526 methadone
              tablets in eleven months in 2009. The tablets had a street value of
              over $50,000.


              Also, at trial, over Spencer’s objection, the trial court admitted
              the evidence found during the search of his home, which
              included the pill crusher, the prescription pill bottle with
              methadone tablets, empty prescription pill bottles, and the
              photographs of the contents of the safe. The jury convicted
              Spencer as charged, and the trial court sentenced him to thirty-
              five years on each count, sentences to run concurrently.


      Spencer v. State, No. 35A04-1009-CR-601, 2011 WL 1233558 at *2 (Ind. Ct.

      App. 2011), trans. denied.


[4]   On appeal, Spencer claimed that the search of his home was unconstitutional

      because the information contained in the affidavit supporting the search

      warrant was stale. We rejected this claim and affirmed Spencer’s conviction. Id.

      at *3. Our supreme court denied Spencer’s petition to transfer. 950 N.E.2d 1213

      (Ind. 2011).

[5]   Spencer then began his effort to seek post-conviction relief by filing a pro se

      petition on April 18, 2012. After the State’s response, Spencer, now represented

      Court of Appeals of Indiana | Memorandum Decision 35A02-1512-PC-2201 | June 27, 2016   Page 4 of 11
by the State Public Defender’s office, filed an amended petition for post-

conviction relief. In his petition, Spencer claimed inter alia that his trial counsel

was ineffective for failing to call certain witnesses who would have testified that

the confidential informant who testified against Spencer was also dealing drugs.

The trial court held an evidentiary hearing on Spencer’s petition on October 13,

2015, and on November 25, 2015, the trial court entered specific findings and

conclusions denying Spencer’s petition, which provides in relevant part:


        22. Petitioner has failed to demonstrate that he received
        ineffective assistance of trial counsel. Petitioner argues that his
        trial counsel, Matthew Grantham, was ineffective for uncovering
        evidence that C.I. was a drug dealer and for not then using this
        evidence at trial. The only evidence Petitioner has presented to
        prove that C.I. was a dealer was the testimony of Kenneth
        Duckworth, Tyler Tackett, and Zachery Martin. First, none of
        these witnesses are particularly credible. They all have prior
        convictions that could be used to impeach them at trial under
        IRE 608. Second, they are all currently serving time in prison
        because of drug deals set up by C.I., which gives them a motive
        to lie about the character of C.I. When cross examined on the
        details of these transactions, they were hesitant to give the names
        of other people involved, in some instances claiming to not
        remember those details, but they did not hesitate to detail the
        wrongs committed by C.I. Mr. Grantham also testified at his
        deposition that, based on Duckworth having a prior impeachable
        offense and the circumstances of his pending charges, he did not
        find him to be a credible witness. Even if Mr. Grantham had
        interviewed these individuals in preparation for the jury trial,
        putting them on the witness stand would not have guaranteed an
        acquittal for his client.


        23. The record shows that Matthew Grantham provided
        effective representation before and during the jury trial. He stated
Court of Appeals of Indiana | Memorandum Decision 35A02-1512-PC-2201 | June 27, 2016   Page 5 of 11
              during the deposition that his trial strategy was to show that C.I.
              was not credible. He indicated he reviewed discovery with his
              client, and spoke with his client on numerous occasions in
              preparation for trial. He obtained a copy of C.I.’s deposition in
              Kenneth Duckworth’s case. A review of the trial transcript shows
              he vigorously cross-examined witnesses, tried to suppress
              evidence obtained after a search of his client’s home, and
              frequently objected during the testimony of witnesses when it
              would be most damaging to his client. He did cross examine C.I.
              on his drug use and financial gain from being a confidential
              informant, and suggested during closing arguments that C.I. was
              not credible for these reasons. Given the strength of the State’s
              case, Mr. Grantham’s strategy seems appropriate.


              24. Petitioner has not shown that he was prejudiced by Mr.
              Grantham not uncovering this evidence or producing this
              evidence at trial. As the Court has already noted, none of these
              witnesses are particularly reliable and they only have each other
              to corroborate their testimony. Petitioner has also not shown that
              this evidence would even be admissible at trial if it had been
              uncovered, let alone that it could have resulted in a not guilty
              verdict. Evidence that C.I. dealt drugs on occasion would be
              inadmissible under IRE 404(b) as character evidence and
              Petitioner has not provided any evidence that this would be
              relevant to whether Petitioner dealt drugs on November 12 and
              18, 2009.


      Appellant’s App. pp. 95-96. Spencer now appeals.


                               Post-Conviction Standard of Review

[6]   Post-conviction proceedings are not “super appeals” through which convicted

      persons can raise issues they failed to raise at trial or on direct appeal. McCary v.

      State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings instead


      Court of Appeals of Indiana | Memorandum Decision 35A02-1512-PC-2201 | June 27, 2016   Page 6 of 11
      afford petitioners a limited opportunity to raise issues that were unavailable or

      unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443

      (Ind. 2002). The post-conviction petitioner bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Henley v. State, 881

      N.E.2d 639, 643 (Ind. 2008). Thus, on appeal from the denial of a petition for

      post-conviction relief, the petitioner stands in the position of one appealing

      from a negative judgment. Id. To prevail on appeal from the denial of post-

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

      unerringly and unmistakably to a conclusion opposite that reached by the post-

      conviction court. Id. at 643-44.


[7]   Where, as here, the post-conviction court makes findings of fact and

      conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

      must determine if the court’s findings are sufficient to support its judgment.

      Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947

      N.E.2d 962. Although we do not defer to the post-conviction court’s legal

      conclusions, we review the post-conviction court’s factual findings under a

      clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or

      judge the credibility of witnesses, and we will consider only the probative

      evidence and reasonable inferences flowing therefrom that support the post-

      conviction court’s decision. Id.




      Court of Appeals of Indiana | Memorandum Decision 35A02-1512-PC-2201 | June 27, 2016   Page 7 of 11
                             Ineffective Assistance of Trial Counsel

[8]   Spencer claims that his trial counsel was ineffective. Our supreme court has

      summarized the law regarding claims of ineffective assistance of trial counsel as

      follows:


              A defendant claiming a violation of the right to effective
              assistance of counsel must establish the two components set forth
              in Strickland v. Washington, 466 U.S. 668 (1984). First, the
              defendant must show that counsel’s performance was deficient.
              This requires a showing that counsel’s representation fell below
              an objective standard of reasonableness, and that the errors were
              so serious that they resulted in a denial of the right to counsel
              guaranteed the defendant by the Sixth Amendment. Second, the
              defendant must show that the deficient performance prejudiced
              the defense. To establish prejudice, a defendant must show that
              there is a reasonable probability that, but for counsel’s
              unprofessional errors, the result of the proceeding would have
              been different. A reasonable probability is a probability sufficient
              to undermine confidence in the outcome.


              Counsel is afforded considerable discretion in choosing strategy
              and tactics, and we will accord those decisions deference. A
              strong presumption arises that counsel rendered adequate
              assistance and made all significant decisions in the exercise of
              reasonable professional judgment. The Strickland Court
              recognized that even the finest, most experienced criminal
              defense attorneys may not agree on the ideal strategy or the most
              effective way to represent a client. Isolated mistakes, poor
              strategy, inexperience, and instances of bad judgment do not
              necessarily render representation ineffective. The two prongs of
              the Strickland test are separate and independent inquiries. Thus, if
              it is easier to dispose of an ineffectiveness claim on the ground of
              lack of sufficient prejudice . . . that course should be followed.


      Court of Appeals of Indiana | Memorandum Decision 35A02-1512-PC-2201 | June 27, 2016   Page 8 of 11
       Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations

       omitted).

[9]    On appeal, Spencer claims that the trial court erred in determining that his trial

       counsel was not ineffective for failing to call witnesses who would have testified

       that the confidential informant who testified against Spencer was also dealing

       drugs. Spencer claims that this evidence would have impeached the informant’s

       credibility and rebutted the notion that the informant was acting simply to help

       the community. Spencer argues that the credibility of the informant was vital to

       his case because no one else was present during the controlled buys. We

       disagree.


[10]   Even if we assume arguendo that Spencer’s trial counsel’s failure to present these

       witnesses was deficient performance, Spencer has not shown that this deficient

       performance prejudiced him. In other words, Spencer has failed to show a

       reasonable probability that, but for his trial counsel’s alleged deficiency, the

       result of the proceeding would have been different.

[11]   The evidence against Spencer was exceptionally strong. Although Spencer

       claims that no other witnesses saw the controlled buys, the audio recordings of

       the transactions were admitted into evidence. More importantly, the State

       introduced into evidence prescription records from five different pharmacies

       showing that Spencer filled monthly prescriptions for 180 methadone tablets,

       120 hydrocodone tablets, and 90 Xanax tablets at one pharmacy and another

       monthly prescription for 448 methadone tablets from another physician at


       Court of Appeals of Indiana | Memorandum Decision 35A02-1512-PC-2201 | June 27, 2016   Page 9 of 11
       another pharmacy. As we noted in our direct appeal, Spencer purchased over

       6500 methadone tables — with a street value of over $50,000 — in eleven

       months. Moreover, the search of Spencer’s home revealed overwhelming

       evidence of Spencer’s involvement with selling methadone, including a pill

       crusher and empty prescription bottles with the names of both Spencer and his

       wife. Also, the safe in Spencer’s bedroom contained other empty prescription

       bottles in the name of Spencer, his wife, and his father.


[12]   Furthermore, as noted by the trial court, the witnesses Spencer now claims his

       trial counsel should have called to impeach the confidential informant’s

       testimony were themselves of questionable reliability; they were all incarcerated

       on drug charges resulting from transactions set up by the informant and had

       every reason to impugn the informant’s character. Indeed, the testimony of

       these witnesses might have been more harmful than helpful to Spencer’s case.

       All of them admitted that they had participated in controlled buys involving the

       informant, and two of the witnesses stated that they had sold drugs from

       Spencer’s house — a fact that corroborated the informant’s testimony that these

       two witnesses sold methadone for Spencer, even though these two witnesses

       denied obtaining the methadone from Spencer.


[13]   Assuming Spencer’s allegations are true, his uncalled witnesses would have

       stated that the informant was also selling drugs at the time. Spencer has not

       shown that this unsurprising testimony would have created a reasonable

       probability that the result of the proceeding would have been any different.

       Accordingly, we cannot say that his trial counsel was ineffective for failing to

       Court of Appeals of Indiana | Memorandum Decision 35A02-1512-PC-2201 | June 27, 2016   Page 10 of 11
       call these witnesses to impeach the informant’s credibility, and we affirm the

       post-conviction court’s denial of Spencer’s petition for post-conviction relief.

[14]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 35A02-1512-PC-2201 | June 27, 2016   Page 11 of 11
