MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   Oct 30 2015, 9:40 am
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

Kevin R. Hewlate                                         Chandra K. Hein
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donald Snover,                                           October 30, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1505-PC-320
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Terry C.
Appellee-Plaintiff.                                      Shewmaker, Judge
                                                         Trial Court Cause No.
                                                         20C01-0611-PC-28



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015   Page 1 of 22
[1]   Donald Snover appeals the denial of his petition for post-conviction relief.

      Snover raises one issue which we revise and restate as whether Snover was

      denied the effective assistance of appellate counsel. We affirm.


                                      Facts and Procedural History

[2]   The relevant facts as discussed in Snover’s direct appeal from his convictions of

      dealing in methamphetamine as a class A felony and possession of marijuana as

      a class D felony follow:


              On November 12, 2003, a routine traffic stop in Elkhart, Indiana,
              led to the arrest of the driver, Kelly Hammond, who had
              outstanding warrants for his arrest. Upon his arrest, Hammond
              admitted he had methamphetamine in the car, and a police
              search recovered four grams of methamphetamine. After
              Miranda warnings, Hammond gave a written and signed
              confession. Thereafter, without the police making any promises
              regarding his prosecution, Hammond told the police his source
              for the drugs was Donald Snover. Hammond reported Snover
              had additional drugs in his second floor bedroom at his house on
              Laurel Street in Elkhart.


              That same day, police prepared a search warrant affidavit that
              provided:


                       The undersigned Affiant swears upon his oath that
                       he believes and has good cause to believe that:


                       Certain evidence involved in the commission of the
                       crime of possession of and/or use of and/or dealing
                       in methamphetamine, cocaine, marijuana, or other
                       controlled substances, or drug paraphernalia in
                       violation of I.C. 35-48-4 et seq. is concealed in, on, or

      Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015   Page 2 of 22
                 about a residence situate[d] at 821 Laurel St., City of
                 Elkhart, Elkhart County, State of Indiana, said
                 premises being more particularly described as
                 follows: 821 Laurel St. is believed to be the residence
                 of Donald W. Snover and is a two-story single family
                 dwelling. The house has gray vinyl siding with white
                 trim around the windows and doors and is on the
                 southeast corner of Laurel and Plum. There are
                 landscape timbers and bushes on the north side of the
                 house, which surround a wooden porch. The
                 numbers “821” are black and affixed vertically to the
                 right of the front door. There is a black metal
                 mailbox to the right side of the door and underneath
                 the numbers. There is a wooden deck on the south
                 side of the house. There is an attached garage on the
                 east side of the house.


                 This Affiant bases his belief and cause for belief on
                 the fact that:


                 1. The affiant is [a] police officer with the Elkhart
                 Police Department and has been employed in that
                 capacity for six (6) years. The affiant has participated
                 in approximately twenty (20) drug investigations and
                 arrests during his tenure. These investigations have
                 led to the seizure of methamphetamine, crack
                 cocaine and marijuana.


                 2. The affiant attended a gang conference and
                 seminar in Chicago, Illinois. The gang school
                 included training on numerous types of narcotics and
                 hidden compartments. The affiant has also attended
                 a seminar for drug investigations for the patrol
                 officer.



Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015   Page 3 of 22
                 3. On July 31, 2003, Investigator William Wargo
                 from the Elkhart County Prosecutor’s Office received
                 drug intelligence in reference to 821 Laurel St. The
                 intelligence was provided by a confidential source
                 who had provided information in the past which was
                 determined to be credible and reliable. The CS stated
                 that Don Snover of 821 Laurel St. was dealing
                 ounces of methamphetamine from his residence,
                 indicating that this was an ongoing long-term
                 operation.


                 4. On November 12, 2003, the affiant executed a
                 traffic stop at the intersection of Nappanee St. and
                 W. Beardsley in Elkhart County, Indiana. The
                 affiant arrested the driver, Kelly Hammond, with a
                 date of birth of July 8, 1960, on an outstanding
                 Elkhart County warrant. During the search incident
                 to lawful arrest, the affiant located a lunch box on the
                 passenger’s side floorboard. The lunch box
                 contained a plastic bag containing approximately 4.0
                 grams of suspected methamphetamine. The
                 methamphetamine later tested positive with the
                 MDMA/methamphetamine test kit. Thereafter, after
                 being advised of his statutory and constitutional
                 rights, Kelly Hammond gave a statement against his
                 own penal interests to Cpl. Ballard and Cpl.
                 Buchmann. This statement was made after his arrest
                 and without any promises or consideration being
                 given to him by any law enforcement officer. In the
                 statement, Kelly Hammond stated that the
                 methamphetamine was his and it was one-eighth of
                 an ounce. Kelly Hammond stated that he purchased
                 the methamphetamine from Donald Snover for
                 $125.00 just prior to the traffic stop. Kelly
                 Hammond stated that he purchased the
                 methamphetamine in an upstairs bedroom at

Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015   Page 4 of 22
                 Snover’s residence at 821 Laurel Street. Kelly
                 Hammond further stated that at the same time of the
                 purchase, he observed Donald Snover in possession
                 of an additional quantity of controlled substances
                 which he estimated to be approximately three-
                 quarters of a pound of methamphetamine and one
                 pound of marijuana.


                 5. The affiant researched the Elkhart Police
                 Department RMS and located Donald Snover.
                 Donald Snover is described as a white male with a
                 date of birth of December 13, 1959. Donald Snover
                 is also described as being 5’6”, 135 lbs., with brown
                 hair and green eyes. Donald Snover listed 821 Laurel
                 St., Elkhart, Indiana as his address. The affiant also
                 ran an Interstate identification Index/Criminal
                 History on Donald Snover. The Criminal History
                 stated that Donald Snover was arrested for Felony
                 Possession of Marijuana on October 4th, 1999.


                 6. All of the aforesaid facts are within the personal
                 knowledge of the Affiant and/or have been
                 corroborated by the information and investigation
                 specified above for the offenses of dealing in and/or
                 possession of and/or use of methamphetamine and
                 other controlled substances and that evidence of same
                 is concealed in or about the above described premises
                 which is within the County of Elkhart, State of
                 Indiana. Further, the affiant has probable cause to
                 believe that the information provided by Kelly
                 Hammond is truthful and accurate based upon (1) the
                 corroboration from the prior CS whose information
                 indicated the presence of long-term drug trafficking
                 by Donald Snover at his residence on Laurel Street
                 and (2) the fact that the information was provided by
                 Hammond without any consideration, included

Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015   Page 5 of 22
                       statements made which were against his penal
                       interests, and were provided by him with the
                       knowledge that his identity would be disclosed.


                       7. Based upon the foregoing the affiant verily believes
                       that a search of the residence identified in the
                       paragraphs above will disclose the existence of:
                       methamphetamine, cocaine, marijuana, narcotic
                       drugs or other controlled substances, drug
                       paraphernalia, drug ledgers or records of dealing in
                       such controlled substances, money, scales used for
                       weighing controlled substances, packaging materials
                       for such substances, documents of residency, and/or
                       other physical evidence indicative of possession of
                       and/or use and/or dealing of cocaine,
                       methamphetamine, marijuana, or controlled
                       substances and paraphernalia.


              (App. at 23-24.)


              Based on that affidavit, a judge issued the search warrant. Police
              executed the warrant the night of November 12th and the early
              morning of November 13th. In Snover’s bedroom, they found
              280.70 grams of marijuana, 46.07 grams of methamphetamine,
              464.42 grams of amphetamine, a triple-beam scale, an electronic
              scale, baggies, a tile with a line of drugs and a straw, $1,400 in
              cash, and a notebook resembling a drug ledger. Snover had $350
              on his person.


      Snover v. State, 837 N.E.2d 1042, 1045-1047 (Ind. Ct. App. 2005).


[3]   On November 17, 2003, the State charged Snover with dealing in

      methamphetamine as a class A felony and possession of marijuana as a class D

      felony. Id. at 1047. On December 28, 2004, Snover filed a motion to suppress

      Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015   Page 6 of 22
      evidence and argued that the search warrant was not based upon reliable and

      credible information, was based upon stale information, and violated his rights.


[4]   On January 3, 2005, the court held a hearing on the motion to suppress, and

      Snover’s trial counsel argued as set forth in the motion, and stated that the issue

      was whether “the officers exercised bad faith in obtaining the search warrant.”

      Trial Transcript at 182. The court asked what evidence of bad faith existed, and

      defense counsel responded that part of the information in the affidavit for the

      search warrant was stale and was used to “bootstrap the argument that a person

      who’s reliability is unknown is sufficient . . . .” Id. at 183.


[5]   After some discussion, the prosecutor asserted that paragraph 3 of the affidavit

      was not included to “bootstrap or to anything else as it relates to reliability of

      the information provided by Kelly Hammond other than to simply report to the

      magistrate that there had been other intelligence.” Id. at 187. The prosecutor

      also argued that “it’s not in any way used to attempt to mislead the magistrate

      or attempt to indicate that the reliability of the information provided by

      Hammond should be enhanced because of the information from July 31, 2003.”

      Id. at 188. The prosecutor also noted that paragraph 4 of the affidavit included

      Hammond’s identity and referred to a statement against his penal interest. The

      following day, the court denied the motion to suppress.


[6]   A jury found Snover guilty of both counts. 837 N.E.2d at 1047. The court

      imposed concurrent sentences of thirty-five years for dealing methamphetamine

      and one-and-a-half years for possession of marijuana. Id.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015   Page 7 of 22
[7]   On direct appeal, Snover’s appellate counsel filed a brief on June 6, 2005, and

      argued that the trial court should have suppressed the evidence found in

      Snover’s home because the judge issuing the search warrant did not have a

      substantial basis to believe the statements in the affidavit in support of the

      application for the warrant established probable cause. Appellate counsel also

      argued that the good faith exception to the exclusion doctrine did not apply

      because the warrant was based on an affidavit so lacking in indicia or probable

      cause as to render belief in its existence unreasonable. The State argued that

      the warrant was either supported by probable cause or the evidence seized was

      admissible under the good faith exception in United States v. Leon, 468 U.S. 897,

      104 S. Ct. 3405 (1984).


[8]   This court observed that the credibility of an informant could be established by

      declarations against penal interest. 837 N.E.2d at 1048-1049. The court agreed

      with Snover that Hammond’s statement was not against his penal interest and

      thus did not demonstrate he was a credible source of information, and that no

      other information in the affidavit demonstrated Hammond’s credibility. Id. at

      1049. The court observed that Corporal Ballard learned Snover had been

      arrested four years earlier for possession of marijuana but noted that an arrest

      without a conviction is not proof of prior possession. Id. The court then

      observed that the only remaining evidence was the four-month-old report from

      an unnamed confidential source indicating Snover was selling

      methamphetamine from his residence and that while stale information alone

      may not support a finding of probable cause, it may be considered as part of the


      Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015   Page 8 of 22
       totality of the circumstances creating probable cause. Id. at 1049-1050. The

       court held that Corporal Ballard provided no evidence by which the issuing

       judge could have determined the confidential informant had credibility. Id. at

       1050. The court further held that “[b]ecause the affidavit did not demonstrate

       the credibility of either Hammond or the confidential informant, and did not

       contain other information corroborating their reports, probable cause did not

       exist to support issuing a search warrant for Snover’s house.” Id.


[9]    The court then addressed the good faith exception, concluding that “[w]hile we

       find the warrant on which police relied to search Snover’s residence was not

       supported by probable cause, we cannot characterize it as so facially deficient

       that the executing officers could not reasonably presume it to be valid.” Id. at

       1050-1051. The court affirmed the admission of the evidence found at Snover’s

       house. Id.


[10]   Judge Kirsch concurred in result and concluded that Hammond’s statements to

       police qualified as statements against penal interest. Id. at 1052. He also stated

       that even if neither “the statements made by the confidential informant nor by

       Hammond individually provide a sufficient basis for the determination of

       probable cause, taken together they are sufficient for a reasonably prudent

       person to conclude that a search of Snover’s residence would produce evidence

       of a crime as, indeed, it did.” Id.


[11]   In 2014, Snover filed an amended petition for post-conviction relief and argued

       that his appellate counsel was ineffective for failing to argue that the State


       Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015   Page 9 of 22
       waived the issue of whether the good faith exception applied because it did not

       assert the argument prior to appeal.


[12]   On January 8, 2015, the post-conviction court held a hearing. At the hearing,

       Snover’s appellate counsel testified that he did not know whether he was aware

       of the case of Merritt v. State at the time he was working on the appeal and that

       he did not recall if he considered citing Merritt.


[13]   On April 28, 2015, the post-conviction court denied Snover’s petition for relief.

       The order states in part:

               30. In the instant case, [appellate counsel] testified that he did
               not recall being aware of the case of Merritt v. State, 803 N.E.2d
               257 (Ind. Ct. App. 2004), and could not recall whether he
               considered it when filing the appeal . . . . There was, however,
               no additional questioning or testimony as to whether [appellate
               counsel] was unaware of the proposition of law that [Snover]
               claims Merritt stands for; to-wit: the good faith exception
               argument is waived if it is not raised by the State at the
               suppression hearing.


               31. It is [Snover’s] position that Merritt would have led to a
               winning argument on appeal had [appellate counsel] cited the
               case. This is not necessarily true. When reviewing a trial court’s
               ruling on the validity of a search and seizure, the reviewing court
               considers the evidence most favorable to the ruling and any
               uncontradicted evidence to the contrary to determine whether
               there is sufficient evidence to support the ruling. Melton v. State,
               705 N.E.2d 564, 566 (Ind. Ct. App. 1999). A trial court’s ruling
               on a motion to suppress may be affirmed if it is sustainable on
               any legal grounds apparent in the record. (Emphasis added).
               Robinson v. State, 730 N.E.2d 185, 192 (Ind. Ct. App. 2000),
               citing Alford v. State, 699 N.E.2d 247, 250 (Ind. 1998).
       Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015   Page 10 of 22
        32. Similarly, in the instant case, this court found that probable
        cause existed in the search warrant affidavit; the Indiana Court of
        Appeals disagreed; however, determined that the evidence was
        admissible under another legal ground apparent in the record.
        Two [judges] found it admissible under the good faith exception,
        and C.J. Kirsch, writing separately, agreed with the trial court’s
        determination that probable cause existed owing to statements in
        [sic] penal interests. Snover, 837 N.E.2d 1051-52. Essentially,
        the Court found that the search warrant in [Snover’s] case was
        not so facially deficient that the executing officers could not
        reasonably presume it to be valid. Snover at 1051.


        33. While the post conviction record establishes that [appellate
        counsel] was not aware of the Merritt decision, he did address a
        legal theory on appeal that was apparent in the trial record. The
        circumstances in the instant case are somewhat distinguishable
        from those in Merritt as the need to raise the good faith exception
        was not so obvious that the State or counsel would have
        reasonably raised it at the suppression hearing. This is
        particularly true since the trial judge and the three Indiana Court
        of Appeals [judges] who reviewed this case did not agree on the
        appropriate legal theory of admissibility, although all agreed the
        evidence was admissible. Therefore, it cannot be said that
        [appellate counsel] was ineffective for not challenging the
        admissibility of the evidence on every legal theory available. For
        these reasons, the court concludes that [Snover] has not met his
        burden of proving that there was a reasonable likelihood of a
        different outcome had [appellate counsel] done so. Accordingly,
        [Snover] has failed to prove that he received ineffective assistance
        of appellate counsel.


Appellant’s Appendix at 115-116.




Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015   Page 11 of 22
                                                    Discussion

[14]   Before discussing Snover’s allegations of error, we observe that the purpose of a

       petition for post-conviction relief is to raise issues unknown or unavailable to a

       defendant at the time of the original trial and appeal. Reed v. State, 856 N.E.2d

       1189, 1194 (Ind. 2006). A post-conviction petition is not a substitute for an

       appeal. Id. Further, post-conviction proceedings do not afford a petitioner a

       “super-appeal.” Id. The post-conviction rules contemplate a narrow remedy

       for subsequent collateral challenges to convictions. Id. If an issue was known

       and available but not raised on appeal, it is waived. Id.


[15]   We also 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. Fisher, 810 N.E.2d at 679. On review, we will not reverse

       the judgment unless the evidence as a whole 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). “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

       Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015   Page 12 of 22
       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.


[16]   Snover argues that his appellate counsel was ineffective because he failed to

       argue that the good faith exception was waived, noting that his appellate

       counsel failed to cite Merritt v. State, 803 N.E.2d 257 (Ind. Ct. App. 2004),

       which held that the State’s argument on appeal that seized evidence was

       admissible under the good faith exception to the warrant requirement was

       waived because the State did not advance the argument in its memorandum in

       opposition to the motion to suppress or at the suppression hearing. Snover

       points out that Merritt was decided on February 13, 2004, well before his

       appellate counsel filed a brief on June 6, 2005. He asserts that no other case

       contradicts the holding in Merritt and that the State did not raise the good faith

       exception to the trial court. He contends that his appellate counsel should have

       cited Merritt and argued that the issue was waived, that his appellate counsel’s

       failure to raise Merritt was not strategic, and that he was prejudiced.


[17]   The State argues the post-conviction court appropriately observed that appellate

       counsel’s lack of familiarity with Merritt does not equate with ignorance about

       when a waiver argument is available, and that it did not waive its good faith

       claim because it asserted it at the suppression hearing. The State also argues




       Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015   Page 13 of 22
that Merritt appears to be inconsistent with Ind. Code § 35-37-4-51 and that the

statute places an obligation on the trial court, in its discretion, to exclude

evidence if it finds that officers did not act in good faith, concluding that

appellate counsel was not deficient for not arguing waiver because it was

unclear whether the State was required to affirmatively assert good faith. It also

posits that Snover was not prejudiced because a trial court’s decision to admit

or exclude evidence is sustainable on any basis in the record and that this court

was free to affirm Snover’s convictions based on good faith regardless of

whether the State affirmatively asserted it.




1
 Ind. Code § 35-37-4-5 is titled “Evidence unlawfully obtained by officer in good faith; exclusion” and
provides:
      (a) In a prosecution for a crime or a proceeding to enforce an ordinance or a statute defining an
      infraction, the court may not grant a motion to exclude evidence on the grounds that the search
      or seizure by which the evidence was obtained was unlawful if the evidence was obtained by a
      law enforcement officer in good faith.
      (b) For purposes of this section, evidence is obtained by a law enforcement officer in good faith
      if:
         (1) it is obtained pursuant to:
                  (A) a search warrant that was properly issued upon a determination of probable
                  cause by a neutral and detached magistrate, that is free from obvious defects other
                  than nondeliberate errors made in its preparation, and that was reasonably believed
                  by the law enforcement officer to be valid; or
                  (B) a state statute, judicial precedent, or court rule that is later declared
                  unconstitutional or otherwise invalidated; and
         (2) the law enforcement officer, at the time he obtains the evidence, has satisfied applicable
         minimum basic training requirements established by rules adopted by the law enforcement
         training board under IC 5-2-1-9.
      (c) This section does not affect the right of a person to bring a civil action against a law
      enforcement officer or a governmental entity to recover damages for the violation of his rights
      by an unlawful search and seizure.



Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015             Page 14 of 22
[18]   In his reply brief, Snover states that any argument by the prosecutor focused on

       the actions of police in obtaining the search warrant and that this argument was

       based on Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978), which is an

       entirely separate argument from the good faith exception based on United States

       v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984), and which focuses on the action

       of the police after the search warrant is issued.


[19]   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. To meet the appropriate test for prejudice, the petitioner must show

       that there is a reasonable probability that, but for counsel’s unprofessional

       errors, the result of the proceeding would have been different. Id. 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.

       We apply the same standard of review to claims of ineffective assistance of

       appellate counsel as we apply to claims of ineffective assistance of trial counsel.

       Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied,

       531 U.S. 1128, 121 S. Ct. 886 (2001).

       Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015   Page 15 of 22
[20]   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).


[21]   Ineffective assistance of appellate counsel claims fall into three categories: (1)

       denial of access to an appeal; (2) waiver of issues; and (3) failure to present

       issues well. Bieghler v. State, 690 N.E.2d 188, 193-195 (Ind. 1997), reh’g denied,

       cert. denied, 525 U.S. 1021, 119 S. Ct. 550 (1998). Snover asserts that his

       appellate counsel was ineffective because he did not “competently present the

       issue of whether the evidence seized as part of the execution of the search

       warrant was properly admitted.” Appellant’s Brief at 6. He states that his

       appellate counsel properly raised the suppression issue and “just failed to argue

       that the good faith exception was waived.” Id. at 7. He concedes that “[c]laims

       of inadequate presentation of certain issues, when such were not deemed

       waived in the direct appeal, are the most difficult to advance.” Id. (citing

       Bieghler, 690 N.E.2d at 195).

       Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015   Page 16 of 22
[22]   Indeed, in Bieghler, the Indiana Supreme Court held that “[c]laims of

       inadequate presentation of certain issues, when such were not deemed waived

       in the direct appeal, are the most difficult for convicts to advance and reviewing

       tribunals to support.” Bieghler, 690 N.E.2d at 195. The Court expressed two

       reasons for this proposition. First, “these claims essentially require the

       reviewing tribunal to re-view specific issues it has already adjudicated to

       determine whether the new record citations, case references, or arguments

       would have had any marginal effect on their previous decision,” and “this kind

       of ineffectiveness claim, as compared to the others mentioned, most implicates

       concerns of finality, judicial economy, and repose while least affecting

       assurance of a valid conviction.” Id. “Second, an Indiana appellate court is not

       limited in its review of issues to the facts and cases cited and arguments made

       by the appellant’s counsel.” Id. The Court expanded on the second reason by

       stating:


               We commonly review relevant portions of the record, perform
               separate legal research, and often decide cases based on legal
               arguments and reasoning not advanced by either party. While
               impressive appellate advocacy can influence the decisions
               appellate judges make and does make our task easier, a less than
               top notch performance does not necessarily prevent us from
               appreciating the full measure of an appellant’s claim, or amount
               to a “breakdown in the adversarial process that our system
               counts on to produce just results,” Strickland, 466 U.S. at 696,
               104 S.Ct. at 2069.


       Id. at 195-196 (some internal citations omitted). “For these reasons, an

       ineffectiveness challenge resting on counsel’s presentation of a claim must

       Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015   Page 17 of 22
       overcome the strongest presumption of adequate assistance.” Id. at 196.

       “Judicial scrutiny of counsel’s performance, already ‘highly deferential,’

       Spranger v. State, 650 N.E.2d 1117, 1121 (Ind. 1995), is properly at its highest.”

       Id. “Relief is only appropriate when the appellate court is confident it would

       have ruled differently.” Id.


[23]   In Merritt, this court addressed whether a trial court erred in denying the

       defendant’s motion to suppress. 803 N.E.2d at 258. We observed that the State

       argued on appeal that even if probable cause was lacking, the evidence seized

       was admissible under the good faith exception to the warrant requirement. Id.

       at 261. We also observed that the State did not advance this argument in its

       memorandum in opposition to the motion to suppress or at the suppression

       hearing and that, “[a]ccordingly, the issue is waived.” Id. (citing Taylor v. State,

       710 N.E.2d 921, 923 (Ind. 1999) (finding that a party is limited to the specific

       grounds argued to the trial court and cannot assert new bases for admissibility

       for the first time on appeal)).


[24]   Even assuming that appellate counsel was deficient in failing to cite Merritt, we

       cannot say that the prosecutor failed to argue good faith or waived the

       argument. The good faith exception was enunciated in United States v. Leon, 468

       U.S. 897, 104 S. Ct. 3405 (1984). Generally, the exclusionary rule “does not

       require the suppression of evidence obtained in reliance on a defective search

       warrant if the police relied on the warrant in objective good faith.” Jackson v.

       State, 908 N.E.2d 1140, 1143 (Ind. 2009) (citing United States v. Leon, 468 U.S.

       897, 104 S. Ct. 3405 (1984)). The good faith exception is not available in some

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       situations, including where (1) the magistrate is “misled by information in an

       affidavit that the affiant knew was false or would have known was false except

       for his reckless disregard of the truth,” or (2) the warrant was based on an

       affidavit “so lacking in indicia of probable cause as to render official belief in its

       existence entirely unreasonable.” Id. (quoting Leon, 468 U.S. at 923, 104 S. Ct.

       3405).


[25]   To the extent Snover asserts that the argument made by the prosecutor focused

       on the actions of the police in obtaining the search warrant and Franks v.

       Delaware, and not the good faith exception which focuses on the police actions

       after the search warrant is issued and is based upon United States v. Leon, we will

       discuss these cases.


[26]   In Franks, the United States Supreme Court addressed whether a defendant in a

       criminal proceeding ever has the right under the Fourth and Fourteenth

       Amendments, subsequent to the ex parte issuance of a search warrant, to

       challenge the truthfulness of factual statements made in an affidavit supporting

       the warrant. 438 U.S. at 155, 98 S. Ct. at 2676. The Court held:

                where the defendant makes a substantial preliminary showing
                that a false statement knowingly and intentionally, or with
                reckless disregard for the truth, was included by the affiant in the
                warrant affidavit, and if the allegedly false statement is necessary
                to the finding of probable cause, the Fourth Amendment requires
                that a hearing be held at the defendant’s request. In the event
                that at that hearing the allegation of perjury or reckless disregard
                is established by the defendant by a preponderance of the
                evidence, and, with the affidavit’s false material set to one side,
                the affidavit’s remaining content is insufficient to establish
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               probable cause, the search warrant must be voided and the fruits
               of the search excluded to the same extent as if probable cause
               was lacking on the face of the affidavit.


       Id. at 155-156, 98 S. Ct. at 2676.


[27]   In Leon, the United States Supreme Court addressed “whether the Fourth

       Amendment exclusionary rule should be modified so as not to bar the use in the

       prosecution’s case in chief of evidence obtained by officers acting in reasonable

       reliance on a search warrant issued by a detached and neutral magistrate but

       ultimately found to be unsupported by probable cause.” 468 U.S. at 900, 104 S.

       Ct. at 3409. The Court cited Franks multiple times and discussed the good faith

       of the officers applying for the warrant as well as the officers executing the

       warrant. The Court held that the suppression of evidence obtained pursuant to

       a warrant should be ordered only on a case-by-case basis and only in those

       unusual cases in which exclusion will further the purposes of the exclusionary

       rule. Id. at 918, 98 S. Ct. at 3418. The Court observed that where the official

       action was pursued in complete good faith, the deterrence rationale behind the

       exclusionary rule loses much of its force. Id. at 919, 98 S. Ct. at 3418-3419.

       The Court held that once the warrant issues, there is literally nothing more the

       policeman can do in seeking to comply with the law. Id. at 921, 98 S. Ct. at

       3419. The Court also observed that penalizing the officer for the magistrate’s

       error, rather than his own, could not logically contribute to the deterrence of

       Fourth Amendment violations. Id. The Court noted:




       Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015   Page 20 of 22
               References to “officer” throughout this opinion should not be
               read too narrowly. It is necessary to consider the objective
               reasonableness, not only of the officers who eventually executed
               a warrant, but also of the officers who originally obtained it or
               who provided information material to the probable-cause
               determination. Nothing in our opinion suggests, for example,
               that an officer could obtain a warrant on the basis of a “bare
               bones” affidavit and then rely on colleagues who are ignorant of
               the circumstances under which the warrant was obtained to
               conduct the search.


       Id. at 923 n.24, 98 S. Ct. at 3420 n.24. The Court cited Franks and held:

       “Suppression therefore remains an appropriate remedy if the magistrate or

       judge in issuing a warrant was misled by information in an affidavit that the

       affiant knew was false or would have known was false except for his reckless

       disregard of the truth.” Id. at 923, 98 S. Ct. at 3421 (citing Franks, 438 U.S.

       154, 98 S. Ct. 2674). The Court concluded: “In the absence of an allegation

       that the magistrate abandoned his detached and neutral role, suppression is

       appropriate only if the officers were dishonest or reckless in preparing their

       affidavit or could not have harbored an objectively reasonable belief in the

       existence of probable cause.” Id. at 926, 98 S. Ct. at 3422.


[28]   At the hearing on Snover’s motion to suppress, the prosecutor responded to the

       argument of Snover’s trial counsel that the officers exercised “bad faith” in

       obtaining the search warrant. Trial Transcript at 182. Specifically, the

       prosecutor argued that paragraph 3 of the affidavit was not included to

       “bootstrap or to anything else as it relates to reliability of the information

       provided by Kelly Hammond other than to simply report to the magistrate that

       Court of Appeals of Indiana | Memorandum Decision 20A03-1505-PC-320 | October 30, 2015   Page 21 of 22
       there had been other intelligence.” Id. at 187. The prosecutor also argued that

       “it’s not in any way used to attempt to mislead the magistrate or attempt to

       indicate that the reliability of the information provided by Hammond should be

       enhanced because of the information from July 31, 2003.” Id. at 188. The

       prosecutor also maintained that paragraph 4 of the affidavit included

       Hammond’s identity and referred to a statement against his penal interest.

       Given the discussion in Leon, we cannot say that the prosecutor failed to raise

       the good faith exception. Accordingly, we cannot say that Snover

       demonstrated a reasonable probability that, but for appellate counsel’s failure to

       cite Merritt, the result of the proceeding would have been different.


                                                   Conclusion

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

       Snover’s petition for post-conviction relief.


[30]   Affirmed.


       Riley, J., and Altice, J., concur.




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