MEMORANDUM DECISION
                                                                        Jun 24 2015, 5:48 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Joshua Brazzel                                            Gregory F. Zoeller
Carlisle, Indiana                                         Attorney General of Indiana
                                                          Karl M. Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Joshua Brazzel,                                           June 24, 2015

Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          47A05-1411-PC-524
        v.                                                Appeal from the Lawrence Superior
                                                          Court.
                                                          The Honorable William G. Sleva,
State of Indiana,                                         Judge.
Appellee-Respondent                                       Cause No. 47D02-1109-PC-1117




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 47A05-1411-PC-524 | June 24, 2015            Page 1 of 12
[1]   Joshua Brazzel appeals the post-conviction relief court’s denial of his petition

      for post-conviction relief. He argues that the post-conviction court erred in

      finding that one of his claims was barred by res judicata and quashing

      subpoenas for certain witnesses. In addition he argues that he received

      ineffective assistance of post-conviction counsel, as well as ineffective assistance

      of appellate counsel. Finding no error, we affirm.


                                                     Facts
[2]   The facts underlying this case are as follows: On January 31, 2008, officers from

      the Lawrence County Sheriff’s Department and the Bedford Police Department

      executed search warrants on Brazzel’s home and storage unit. They found two

      large trash bags filled with marijuana weighing a total of 3394.9 grams. In the

      storage unit, they discovered several firearms and 666.6 grams of

      methamphetamine. A search of a second storage unit revealed two trash bags

      containing 52.5 pounds and 38.5 pounds of marijuana respectively. Brazzel was

      charged with dealing in methamphetamine, a class A felony; dealing in

      marijuana, a class C felony; and receiving stolen property, a class D felony. He

      was convicted as charged. Brazzel v. State, No. 47A04-0907-CR-426, slip op. at

      p. 1-2 (Ind. Ct. App. April 26, 2010) (Brazzel I). Brazzel was sentenced to fifty

      years for the Class A felony conviction, but the trial court did not impose

      sentences on the two remaining convictions.


[3]   Brazzel appealed his convictions, arguing that: 1) the search warrant for his

      home and storage unit were not supported by probable cause; 2) the officers


      Court of Appeals of Indiana | Memorandum Decision 47A05-1411-PC-524 | June 24, 2015   Page 2 of 12
      who conducted the search exceeded the scope of the warrant; 3) the trial court

      erred in instructing the jury that intent to deliver may be inferred from the

      amount of drugs found; and 4) the trial court erred in its sentencing. See id. A

      panel of this Court found that the post-conviction court had erred in failing to

      sentence Brazzel for his convictions for possession of marijuana and receiving

      stolen property; we affirmed in all other respects.


[4]   On September 9, 2011, Brazzel, pro se, filed his petition for post-conviction

      relief. On March 4, 2014, the State filed an answer to Brazzel’s petition, along

      with a motion for summary disposition asserting the affirmative defenses of

      latches, waiver, and res judicata with regard to his claims regarding ineffective

      assistance of trial counsel.


[5]   On May 16, 2014, Brazzel submitted a potential witness list, along with a

      request for subpoenas. On May 21, 2014, the State filed an objection to the

      issuance of the subpoena, renewing its motion for summary disposition. On

      May 28, 2014, the post-conviction court granted Brazzel’s requests for

      subpoenas for Eric Hackney, Keygan Matheny, Donny Matheny, Sophia

      Keller, Andrew Phillips, and Michael Murphy.


[6]   However, on August 6, 2014, the post-conviction court quashed the subpoenas

      for Hackney, Keygan Matheny, Donny Matheny, Keller, and Phillips, finding

      that Brazzel’s purpose in calling them was to attempt to attack the sufficiency of

      the probable cause supporting the search warrants for his home and storage

      unit, an issue that had been litigated and determined by this court in Brazzel I.


      Court of Appeals of Indiana | Memorandum Decision 47A05-1411-PC-524 | June 24, 2015   Page 3 of 12
      The post-conviction court found against Brazzel on this issue and did not allow

      him to present evidence regarding the search warrant.


[7]   On August 11, 2014, the post-conviction court held an evidentiary hearing. At

      the hearing, the post-conviction court noted on the record that it had denied

      Brazzel’s request for subpoenas for Aaron Shouls, Phil Wigley, Dave Flynn,

      and Michael Branham because Brazzel had failed to comply with post-

      conviction rules by failing to submit an affidavit with his request. Brazzel

      acknowledged that he had not attached affidavits and did not ask for a

      continuance or an opportunity to provide affidavits. Brazzel was then allowed

      to present evidence on his claims that his trial counsel and appellate counsel

      were ineffective.


[8]   At the post-conviction hearing, Alicia Cooper, Brazzel’s girlfriend, testified that

      a juror spoke to her during Brazzel’s trial. She testified that she and the juror

      discussed Brazzel and that the juror seemed to disapprove of Brazzel. Trial

      counsel testified that he did not remember this exchange with a juror. He also

      testified that if he had knowledge of any such exchange, he would have

      informed the trial court to protect his client from a juror who could not be

      impartial.


[9]   On October 17, 2014, the post-conviction court denied Brazzel’s petition for

      post-conviction relief. Brazzel now appeals.




      Court of Appeals of Indiana | Memorandum Decision 47A05-1411-PC-524 | June 24, 2015   Page 4 of 12
                                    Discussion and Decision
[10]   Brazzel argues that the post-conviction court erred when it found that his claim

       regarding the probable cause underlying the search warrant for his home and

       storage space was barred by res judicata. He also argues that he received

       ineffective assistance of post-conviction counsel and appellate counsel.


                                       I. Standard of Review
[11]   Post-conviction proceedings are not “super appeals” through which convicted

       persons can raise issues they failed to raise at post-conviction or on direct

       appeal. Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012). Rather, post-

       conviction proceedings afford petitioners a limited opportunity to raise issues

       that were unavailable or unknown at post-conviction and on direct appeal.

       Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). A 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). 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.


[12]   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

       cannot affirm the judgment on any legal basis, but rather, 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). We will not reweigh the evidence or

       Court of Appeals of Indiana | Memorandum Decision 47A05-1411-PC-524 | June 24, 2015   Page 5 of 12
       judge the credibility of witnesses, and will consider only the probative evidence

       and reasonable inferences flowing therefrom that support the post-conviction

       court’s decision. Id.


                              II. Subpoenas and Res Judicata
[13]   Brazzel first argues that the post-conviction court erred in denying his request

       for certain subpoenas and limiting his claims to ineffective assistance of

       counsel. Whether to deny or grant a party’s request for a subpoena is within

       the discretion of the post-conviction court. Allen v. State, 791 N.E.2d 748, 757

       (Ind. Ct. App. 2003). We review the post-conviction court’s decision to grant

       or deny that request for an abuse of discretion; an abuse of discretion occurres if

       the court’s decision is against the logic and effect of the facts and circumstances

       before the court. Id.


[14]   As noted above, the post-conviction court, on its own motion, quashed

       subpoenas it had issued at Brazzel’s request, because it found that Brazzel was

       attempting to retry certain issues—whether there was probable cause supporting

       the search warrant for his home and storage unit and whether officers exceeded

       the scope of the warrant—that were determined in Brazzel I. The post-

       conviction court found that, although Brazzel was attempting to frame the issue




       Court of Appeals of Indiana | Memorandum Decision 47A05-1411-PC-524 | June 24, 2015   Page 6 of 12
       as one of ineffective assistance of counsel, he was, in fact, attempting to re-

       litigate the issue at the post-conviction level. PCR. App. p. 32-34.1 2


[15]   In his affidavits requesting subpoenas for Hackney, Keygan Matheny, Donny

       Matheny, Keller, and Phillips, Brazzel clearly indicated that his underlying

       purpose for calling these witnesses was to re-litigate his claims regarding the

       search warrant and re-try his case. In his request for subpoenas, Brazzel stated

       that:

                1.       Eric Hackney was a necessary witness because he could “testify
                         that all the information he supplied to the police [regarding the
                         warrant] was second-hand, hearsay information . . . this
                         testimony strikes at the heart of the probable cause provided to
                         the court[.]” PCR. App. p. 57.
                2.       Keygan Matheny likewise had only second-hand knowledge.
                         Id. at 59.
                3.       Donny Matheny would testify that he told his son that Brazzel
                         was selling drugs, and this testimony would support Keygan
                         Matheny’s testimony that his knowledge was second-hand. Id.
                         at 61.
                4.       Sophia Keller’s testimony was also necessary to support
                         Keygan Matheny’s testimony that his knowledge was second-
                         hand. Id. at 63.




       1
        Brazzel first argues that the post-conviction court erred by determining that these issues were res judicata
       because the State did not assert res judicata. This is simply not true. The State asserted that these issues were
       barred by res judicata when it moved for summary disposition. See PCR App. p. 86.
       2
         Brazzel also argues that he was denied due process when the post-conviction court issued an order quashing
       the subpoenas a week before his hearing. He points to no legal authority, and we find none, that suggests the
       post-conviction court was not within its authority in doing so.

       Court of Appeals of Indiana | Memorandum Decision 47A05-1411-PC-524 | June 24, 2015                 Page 7 of 12
               5.       Andrew Phillips’s testimony was necessary to show that the
                        confidential informant information supporting the search
                        warrant was “subterfuge.” Id. at 65.
       Brazzel maintains that the post-conviction court’s failure to allow him to

       subpoena the above witnesses was an abuse of discretion.


[16]   It is well established that, if an issue was raised and determined on direct

       appeal, it is res judicata and not subject to consideration for post-conviction

       relief. Holt v. State, 656 N.E.2d 495, 496 (Ind. Ct. App. 1995). Here, it could

       not be clearer that this Court resolved Brazzel’s claims regarding the probable

       cause supporting the search warrant in Brazzel I. No. 47A04-0907-CR-426, slip

       op. at p. 6. Therefore, to the extent that Brazzel was attempting to re-litigate the

       issue of whether probable cause supported the search warrant for his home and

       storage unit, the post-conviction court did not err in determining that this issue

       was res judicata.


[17]   To the extent that Brazzel was attempting to argue that his trial counsel was

       ineffective for failing to call or depose witnesses at the suppression hearing prior

       to his trial, Brazzel has failed to make an adequate record to allow us to address

       this issue. Brazzel’s affidavits provide us with nothing more than his statement

       regarding what he hoped each witness might say. Furthermore, he failed to

       preserve the issue by making an offer of proof regarding what each of these




       Court of Appeals of Indiana | Memorandum Decision 47A05-1411-PC-524 | June 24, 2015   Page 8 of 12
       witnesses might testify to and has therefore waived it. Dowdell v. State, 720

       N.E.2d 1146, 1150 (Ind. 1999). 3 4 5


                      II. Ineffective Assistance of Trial Counsel
[18]   Brazzel next argues that he received ineffective assistance of trial counsel. He

       maintains that trial counsel was ineffective: 1) for failing to inform the post-

       conviction court about communications between a juror and his girlfriend,

       Alicia Cooper; and 2) for failing to request that the prosecutor in the case be

       disqualified due to a conflict of interest.6 Our Supreme Court has instructed:

                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




       3
         Although Brazzel did make an offer to prove at the post-conviction hearing that was refused by the post-
       conviction court, nothing kept him from filing an offer in writing after the hearing or requesting a hearing on
       the matter. However, we do opine the best practice would have been for the post-conviction court to allow
       Brazzel to make an offer to prove at the post-conviction hearing.
       4
        Brazzel acknowledged that he did not submit affidavits with his request for subpoenas for Shouls, Wigley,
       Flynn, and Branham and had failed to comply with post-conviction rules. He did not ask for a continuance
       or an opportunity to provide affidavits.
       5
         Brazzel also argues that he was denied due process of law under the Fifth and Fourteenth Amendments to
       the United States Constitution. This argument centers around the post-conviction court’s refusal to hear his
       offer of proof at the hearing or to allow him to present evidence regarding the witnesses mentioned above.
       Again, we note that nothing prevented Brazzel from filing an offer in writing after the hearing or requesting a
       hearing on the matter. Therefore, Brazzel did not exhaust his remedies in this matter and we do not find that
       he was denied due process.
       6
         As noted above, Brazzel also argues that trial counsel was ineffective for failing to properly litigate the
       suppression hearing prior to his trial because he failed to call certain witnesses. Again, we note that Brazzel
       failed to provide us with an adequate record to consider his claim.

       Court of Appeals of Indiana | Memorandum Decision 47A05-1411-PC-524 | June 24, 2015                 Page 9 of 12
               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, [i]f it
               is easier to dispose of an ineffectiveness claim on the ground of lack of
               sufficient prejudice ... that course should be followed.
       Timberlake v. State, 753 N.E.2d at 603.


[19]   Brazzel first argues that trial counsel was ineffective for failing to inform the

       post-conviction court about improper communications that occurred between

       Cooper and a juror. Cooper testified at the post-conviction hearing that an

       impaneled female juror approached her and asked her to lunch. PCR Tr. p. 22.

       Cooper testified that, although she refused the juror’s invitation, the juror

       discussed Cooper’s relationship with Brazzel and seemed to have a negative

       opinion of him. Id. Brazzel argues that trial counsel knew about this

       interaction and should have reported it to the trial court.


[20]   However, at the evidentiary hearing, trial counsel testified that, if he had been

       told about such a communication, he would have reported it to the trial court.

       Id. at 92. Indeed, during Brazzel’s trial, a similar allegation was brought to the

       Court of Appeals of Indiana | Memorandum Decision 47A05-1411-PC-524 | June 24, 2015   Page 10 of 12
       trial court’s attention and trial counsel expressed concern about the impartiality

       of the juror, who was excused. PCR. App. 6. The post-conviction court clearly

       noted that he did not find Cooper’s testimony to be credible, and that he did

       find trial counsel to be credible. Brazzel’s argument is merely a request to judge

       the credibility of the witnesses and reweigh the evidence, which we will not do.

       Therefore, this argument fails.


[21]   Brazzel next argues that trial counsel was ineffective for failing to request that

       the prosecutor in the case be disqualified due to a conflict of interest. 7 He points

       out that the prosecutor, at one time, was a “juvenile referee” in a custody battle

       between Cooper and Donny Matheny. Appellant’s Br. p. 38. Brazzel argues

       that the prosecutor knew the “key players” in the instant case and could have

       obtained information from them. Id. However, Brazzel has not explained what

       kind of information the prosecutor could have gleaned from the custody case

       that would have been relevant to his trial. This argument also fails.8




       7
        Brazzel also argues that trial counsel was ineffective for representing both himself and Cooper. Trial
       counsel’s representation of Cooper is entirely irrelevant as trial counsel did not begin representation of
       Cooper until after Brazzel’s first sentencing hearing.
       8
         Brazzel also contends that he was denied due process when the post-conviction court did not allow him to
       present evidence regarding this alleged conflict of interest. However, the court found that Brazzel was not
       attempting to elicit evidence in questioning the prosecutor, but to discover evidence. The post-conviction
       court gave Brazzel the opportunity to present evidence by asking what information he wished to elicit from
       the prosecutor, and only stopped the questioning when Brazzel stated that he did not know what information
       he was seeking. PCR Tr. p. 32-35.

       Court of Appeals of Indiana | Memorandum Decision 47A05-1411-PC-524 | June 24, 2015                Page 11 of 12
                 II. Ineffective Assistance of Appellate Counsel
[22]   Brazzel also contends that he received ineffective assistance of appellate

       counsel. He maintains that appellate counsel was ineffective when he

       submitted to this Court an appendix in which the pagination ran off the page.

       Ineffective assistance of appellate counsel claims generally fall into three

       categories: 1) denial of access to an appeal; 2) waiver of issues; and 3) failing to

       prevent issues well. Henley v. State, 881 N.E.2d 639, 644 (Ind. 2008). The

       standard for evaluating claims of ineffective assistance of counsel at the

       appellate level is the same two-prong Strickland standard used for trial counsel.

       466 U.S. at 668; Allen v. State, 749 N.E.2d 1158, 1166–67 (Ind. 2001).

       Therefore, Brazzel must prove that appellate counsel performed deficiently and

       that he was prejudiced as a result. Id.


[23]   Brazzel has failed to show that appellate counsel’s actions prejudiced him. This

       Court decided to hear the merits of his direct appeal, despite any mistakes in the

       pagination of this appendix. Therefore, this argument fails.


[24]   The judgment of the post-conviction court is affirmed.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 47A05-1411-PC-524 | June 24, 2015   Page 12 of 12
