      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                            Oct 14 2015, 8:40 am
      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.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      William W. Gooden                                        Gregory F. Zoeller
      Mt. Vernon, Indiana                                      Attorney General of Indiana
                                                               Chandra K. Hein
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Noah Shane Warren,                                       October 14, 2015
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               63A01-1503-PC-103
              v.                                               Appeal from the Pike Circuit Court
                                                               The Honorable Jeffrey L.
      State of Indiana,                                        Biesterveld, Judge
      Appellee-Respondent.                                     Trial Court Cause No.
                                                               63C01-1309-PC-395



      Kirsch, Judge.


[1]   Noah Shane Warren (“Warren”) appeals the post-conviction court’s denial of

      his petition for post-conviction relief contending that his trial counsel was



      Court of Appeals of Indiana | Memorandum Decision 63A01-1503-PC-103 | October 14, 2015   Page 1 of 13
      ineffective for failing to object at trial to evidence obtained pursuant to a search

      warrant.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts supporting Warren’s convictions as set forth by this court in an

      unpublished decision on his direct appeal are as follows:


              On October 16, 2010, Warren’s two daughters, ten-year-old
              K.W. and fourteen-year-old C.W., were staying at his home in
              Pike County. That day, two of Warren’s friends, Marty and
              Audrey, arrived at Warren’s house in their red Chevy Blazer.
              Marty and Audrey went into Warren’s bedroom with him and
              closed the door. Later, Marty, Audrey, Warren, and Warren’s
              two daughters left the house in the red Blazer. They first went to
              the home of Jerry, one of Warren and Marty’s friends. Only
              Warren and Marty went inside; when they came back outside,
              they were carrying a bag. They next went to Oakland City where
              they dropped Marty off at a hardware store while everyone else
              went to an automotive supply store. When Marty returned to the
              car from the hardware store, he was carrying a brown bag. The
              last stop made was at the home of someone named Clint. Only
              Marty went inside. After leaving Clint’s house, they all went
              back to Warren’s house.


              When they arrived at Warren’s house, Marty took all the items
              that they had obtained into the bathroom and Warren began
              heating a clear liquid in a container in the kitchen. C.W. was in
              the kitchen, and K.W. was going back and forth between the
              living room and kitchen, which were connected. C.W. heard
              Marty tell Warren, “don’t do that. It might blow up.” Tr. at 398.
              Warren responded, “I’ve done this before.” Id. at 408. After

      Court of Appeals of Indiana | Memorandum Decision 63A01-1503-PC-103 | October 14, 2015   Page 2 of 13
        hearing this, C.W. decided to leave the house, fearing that
        “something bad [was] going to happen.” Id. at 398. She went to
        the house of her grandparents, Terry and Phyllis Warren, who
        lived on the same property but across a field from Warren. C.W.
        tried to convince K.W. to come with her, but K.W. did not want
        to leave. As C.W. left, Warren told her that she better not tell
        her grandparents that Marty and Audrey were at the house; Terry
        and Marty “didn’t really get along.” Id. at 437.


        When C.W. got to her grandparents’ house, Phyllis asked if
        anyone was at Warren’s house. C.W. lied and said no. Terry
        then asked her the same question and C.W. lied again.
        Meanwhile, Terry’s nephew, Daniel Warren, had been setting up
        a tree stand in the woods with his cousin, Ben Harris. Jamie
        Warren, who also lived on the property with his father, Jerry,
        went to Daniel and told him that Terry needed help. Daniel
        went to the house to help, thinking that Terry was hurt. Instead,
        Jerry told Daniel that Terry wanted help “trying to run some
        people off [Warren’s property] that [Terry] didn’t want up there.”
        Id. at 289.


        Daniel drove his truck over to Warren’s house and noticed a
        strong chemical odor that smelled like ether. He was concerned
        that methamphetamine was being made and that the house might
        blow up. He was also concerned that his nieces might be in
        danger as a result of the chemicals. Ben also arrived at Warren’s
        house, and Daniel told Ben to back Daniel’s truck away from the
        house in case it blew up. Daniel then went up to the house and
        knocked on the door but no one answered. As Daniel started to
        walk away from the house, he saw Terry walking toward the
        house. Terry told Daniel he did not think anyone was home and
        that he thought he had run them off. Daniel noted that the red
        Blazer was still there.


        Daniel called Warren and found out that K.W. was still inside
        the house. Daniel told Warren to let her out, but Warren
Court of Appeals of Indiana | Memorandum Decision 63A01-1503-PC-103 | October 14, 2015   Page 3 of 13
        responded that “there was nothing going on and [Daniel] was
        effing crazy.” Id. at 296. K.W. heard Daniel yelling for her from
        outside, but since she had not seen him for a long time, she did
        not recognize him and did not leave the house.


        Daniel walked closer to the house and pretended like he was
        calling the police, but he did not call immediately because he did
        not want to get Warren in trouble. From inside the house,
        Warren told Daniel, “if I go to jail, I’m going to kick your ass.”
        Id. at 297. Warren then came out of the house and got in
        Daniel’s face. The two started fighting and Daniel hit Warren
        several times.


        Meanwhile, Terry and Phyllis arrived at Warren’s house. When
        Warren went back inside, Phyllis followed him in and they began
        to argue, too. Phyllis tried to get into the bathroom where Marty
        and Audrey were. Marty and Audrey “said they were having sex
        in there,” id. at 301, but Phyllis could hear the toilet flushing
        “quite a few times.” Id. Phyllis went back outside, and Warren
        followed, carrying a butcher block of knives. Warren began to
        throw the knives at Daniel, telling Daniel to get away from his
        house. Ben then told Daniel if Daniel was not going to call the
        police, he would. Daniel called the police and his 911 call was
        recorded. He told the dispatcher that he was trying to “get the
        kid out of the house.” Id. at 308. He said that a Chevy Blazer
        had just left the house, and then went on to say, “I just don’t
        want that little girl to get hurt. The house could blow up.” Id. at
        311. Daniel then handed the phone to Phyllis, who had the
        following conversation with the dispatcher:


        Dispatcher: Has he made any threats?


        Phyllis: Excuse me?


        D: Has he threatened?
Court of Appeals of Indiana | Memorandum Decision 63A01-1503-PC-103 | October 14, 2015   Page 4 of 13
        P: He has just, he has just yelled a lot.


        D: Okay. He hasn’t, he hasn’t made, he hasn’t made any threats
        on his own life or his daughter’s life?


        P: No. No. No. Not, not so ever.


        Id. at 313. While Daniel and Phyllis were on the 911 call, Marty
        and Audrey left Warren’s house carrying a bag of items.


        About the same time, Terry also called the police. He told the
        dispatcher, “I want to report a radical driver. I think they’re on
        dope and stuff. And they’re driving crazy.” Id. at 315. He also
        told the dispatcher that the red Blazer “just went down Oatsville
        Road toward 57.” Id. Warren then started removing items from
        the house, throwing some into the tree line next to the house. He
        also brought out a trash bag full of items, dumped them into the
        burn pile, and tried to light them on fire, but they would not
        light. Police officers also began to arrive, and as all of the officers
        approached the house, they smelled the strong smell of ether,
        which appeared to be coming from inside the house. Id. at 510,
        591, 646.


        Pike County Sheriff’s Department Deputy Brad Jenkins was the
        lead investigator at the scene. Conservation Officer Duane
        Englert walked around the house and saw K.W. inside. Officer
        Englert went to the door and Warren met him there. Officer
        Englert told Warren that he needed to come outside so that they
        could talk. When Warren came outside, Officer Englert
        handcuffed him and escorted him away from the house. Officer
        Englert stayed with Warren while the other officers on the scene
        cleared the house, obtained a search warrant, and searched the
        house and the tree line. Warren told Officer Englert that he had
        been cleaning up and getting rid of some things in the house and
        had taken a shoe box to the tree line to get rid of it. Id. at 518.
Court of Appeals of Indiana | Memorandum Decision 63A01-1503-PC-103 | October 14, 2015   Page 5 of 13
        Warren said that one of the items inside the shoe box was a
        bloody sock because he had cut himself while he was cleaning
        up. Id. Warren also said that he had started cleaning up when he
        found out that the police were coming to his house. Id. at 521-
        22. During the conversation, Officer Englert noticed that Warren
        was “somewhat over excited,” so he asked Warren about his
        methamphetamine use. Id. at 544-45. Warren said that he had
        used methamphetamine two days ago, but he had purchased it
        and not made it himself. Officer Jenkins asked Officer Englert to
        conduct a taped interview with Warren. Officer Englert advised
        Warren of his Miranda rights and asked him to give a taped
        statement. Warren then began recanting his story and gave a
        different statement than he had a few minutes before when he
        was speaking to Officer Englert and not being taped. Id. at 522.
        Officer Englert stopped the recording.


        Meanwhile, the other officers who had obtained a search warrant
        were searching Warren’s home. They found lithium batteries,
        two pairs of scissors, an empty prescription bottle that had
        previously held 90 pills and was prescribed only four days earlier,
        a manipulated light bulb and foil that could be used to smoke
        methamphetamine, and a plate with a white residue on it. Id. at
        570, 619-24, 631, 678-81.


        Officer Englert searched outside and found the burn pile and a
        white trash bag that was partially open. Inside the trash bag were
        burned aerosol cans. Id. at 532. In the burn pile were the outer
        cases of batteries. Id. at 665. Terry and Daniel directed officers
        to the tree line where Warren had thrown some items, and
        officers found the box containing Warren’s bloody sock, along
        with a cold pack, a plastic ketchup bottle with white residue
        inside, and burnt cans with holes in the bottom. Id. at 369, 650.


        William Bowles, a forensic scientist, examined some of the items
        that were found at Warren’s house. The white residue inside the

Court of Appeals of Indiana | Memorandum Decision 63A01-1503-PC-103 | October 14, 2015   Page 6 of 13
        ketchup bottle was not methamphetamine, ephedrine, or
        pseudoephedrine. Id. at 569-70. The plate with white residue on
        it was washed with chloroform, and Bowles determined that it
        contained either ephedrine or pseudoephedrine, precursors for
        manufacturing methamphetamine. Id. at 570-71. At trial,
        Bowles testified that simply putting pills that contained ephedrine
        or pseudoephedrine on the plate would most likely not leave that
        type of residue, but it was not impossible; it was much more
        likely for the residue to be left if the pills were crushed up. Id. at
        581.


        The State charged Warren with Class B felony dealing in
        methamphetamine, Class D felony maintaining a common
        nuisance, Class D felony possession of two or more precursors,
        Class D felony neglect of a dependent, Class D felony possession
        of methamphetamine, and Class A misdemeanor possession of
        paraphernalia. The State later moved to amend the charging
        information and add a habitual substance offender enhancement.
        The trial court granted the motion. The State then moved to
        dismiss the Class D felony possession of methamphetamine
        charge.


        A jury trial was held in February 2012. At trial, the trial court
        admitted a cold pack that listed ammonium nitrate as an
        ingredient on its labeling information into evidence over
        Warren’s hearsay objection. The trial court also admitted the
        audio recording of Terry’s 911 call into evidence over Warren’s
        objection, finding that the State had laid a proper foundation.
        The jury found Warren guilty on all counts, and Warren pled
        guilty to the habitual-offender enhancement. At the sentencing
        hearing, the trial court imposed a sentence of twelve years for
        dealing in methamphetamine, two years for maintaining a
        common nuisance, two years for possession of two or more
        precursors, one year for possession of paraphernalia, and two
        years for neglect of a dependent, all to be served concurrently.
        This twelve-year sentence was enhanced by four years based

Court of Appeals of Indiana | Memorandum Decision 63A01-1503-PC-103 | October 14, 2015   Page 7 of 13
              upon the habitual-offender enhancement, for an aggregate
              sentence of sixteen years.


      Warren v. State, No. 63A01-1204-CR-165, at *1-4 (Ind. Ct. App. Jan. 30,
      2013) trans. denied.


[4]   After his conviction, Warren filed a direct appeal, and a panel of this court

      affirmed in part and reversed in part, reversing his conviction of maintaining a

      common nuisance. Id. Appellate counsel, in the direct appeal, did not raise an

      issue regarding Warren’s motion to suppress or allege that trial counsel, Marcus

      M. Burgher (“trial counsel”), was ineffective.


[5]   On September 5, 2006, Warren filed a pro se petition for post-conviction relief.

      Prior to any rulings on that petition, on October 4, 2013, appellate counsel filed

      his appearance on Warren’s behalf. On April 8, 2014, Warren’s counsel filed

      an amended petition for post-conviction relief claiming ineffective assistance of

      trial counsel. In lieu of a hearing, Warren requested that the trial court take

      judicial notice of the search warrant, affidavit of probable cause, and the trial

      record. Following the submission of findings of fact and conclusions thereon

      by the parties, the court denied Warren’s petition for relief on February 17,

      2015. Warren now appeals.


                                     Discussion and Decision
[6]   Post-conviction proceedings do not afford the petitioner an opportunity for a

      super appeal, but rather, provide the opportunity to raise issues that were

      unknown or unavailable at the time of the original trial or the direct appeal.


      Court of Appeals of Indiana | Memorandum Decision 63A01-1503-PC-103 | October 14, 2015   Page 8 of 13
      Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164

      (2002); Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied,

      cert. denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct

      appeal and provide only a narrow remedy for subsequent collateral challenges

      to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for post-

      conviction relief bears the burden of proving the grounds by a preponderance of

      the evidence. Ind. Post–Conviction Rule 1(5).


[7]   When a petitioner appeals a denial of post-conviction relief, he appeals a

      negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),

      trans. denied. The petitioner must establish that the evidence as a whole

      unmistakably and unerringly leads to a conclusion contrary to that of the post-

      conviction court. Id. We will disturb a post-conviction court’s decision as

      being contrary to law only where the evidence is without conflict and leads to

      but one conclusion, and the post-conviction court has reached the opposite

      conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.

      denied. The post-conviction court is the sole judge of the weight of the evidence

      and the credibility of witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct.

      App. 2008), trans. denied. We accept the post-conviction court’s findings of fact

      unless they are clearly erroneous, and no deference is given to its conclusions of

      law. Fisher, 878 N.E.2d at 463.


[8]   When evaluating a claim of ineffective assistance of counsel, we apply the two-

      part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Perry v.

      State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Pinkins v. State, 799
      Court of Appeals of Indiana | Memorandum Decision 63A01-1503-PC-103 | October 14, 2015   Page 9 of 13
      N.E.2d 1079, 1093 (Ind. Ct. App. 2003), trans. denied ), trans. denied. First, the

      defendant must show that counsel’s performance was deficient. Id. 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 to the defendant by the Sixth and

      Fourteenth Amendments. Id. Second, the defendant must show that the

      deficient performance resulted in prejudice. Id. 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.

      Id. A reasonable probability is a probability sufficient to undermine confidence

      in the outcome. Id. In order to prove ineffective assistance of counsel due to

      the failure to object, a defendant must prove that an objection would have been

      sustained if made and that he was prejudiced by the failure. Kubsch v. State, 934

      N.E.2d 1138, 1150 (Ind. 2010).


[9]   Further, counsel’s performance is presumed effective, and a defendant must

      offer strong and convincing evidence to overcome this presumption. Williams v.

      State, 711 N.E.2d 70, 73 (Ind. 2002). We will not lightly speculate as to what

      may or may not have been an advantageous trial strategy, as counsel should be

      given deference in choosing a trial strategy that, at the time and under the

      circumstances, seems best. Perry, 904 N.E.2d at 308 (citing Whitener v. State,

      696 N.E.2d 40, 42 (Ind. 1998)). Isolated omissions or errors, poor strategy, or

      bad tactics do not necessarily render representation ineffective. Shanabarger v.

      State, 846 N.E.2d 702, 708 (Ind. Ct. App. 2006), trans. denied. The two prongs

      Court of Appeals of Indiana | Memorandum Decision 63A01-1503-PC-103 | October 14, 2015   Page 10 of 13
       of the Strickland test are separate and independent inquiries. Manzano v. State,

       12 N.E.3d 321, 325 (Ind. Ct. App. 2014), trans. denied, cert. denied, 135 S. Ct.

       2376 (2015). Therefore, “if it is easier to dispose of an ineffectiveness claim on

       one of the grounds instead of the other, that course should be followed.” Talley

       v. State, 736 N.E.2d 766, 769 (Ind. Ct. App. 2000).


[10]   Warren claims that his trial counsel was ineffective for failing to make

       contemporaneous objections to the State’s exhibits that were obtained pursuant

       to search warrant when they were offered for admission at trial. Warren further

       contends that trial counsel’s performance was deficient because he failed to

       specifically ask for a continuing objection. Warren believes that he was

       prejudiced because there is a “reasonable probability that such [objections]

       would have been sustained either at trial or on appeal which would have, in

       turn, resulted in the lack of sufficient evidence to convict [him].” Appellant’s Br.

       at 6. As a result of these alleged deficiencies, Warren argues that trial counsel

       “waived both a ruling by the trial court on admissibility and an appeal of that

       issue.” Appellant’s Br. at 9. We do not agree.


[11]   At the post-conviction hearing, the following evidence was presented: Warren’s

       trial counsel filed a motion to suppress evidence, for which an evidentiary

       hearing was held on September 27, 2011. The court denied the motion to

       suppress after testimony was taken, and the parties briefed the issues. On the

       first day of trial, February 1, 2012, before any evidence was presented, trial

       counsel prompted a discussion with the trial court and the State as to when the

       best time would be to allow Warren’s counsel to preserve his objection to the

       Court of Appeals of Indiana | Memorandum Decision 63A01-1503-PC-103 | October 14, 2015   Page 11 of 13
       disputed evidence. The following morning before Deputy Jenkins testified, trial

       counsel renewed his motion to suppress, incorporating his prior arguments in

       addition to making new arguments. Warren’s counsel was given the

       opportunity to make an offer of proof, and the trial court acknowledged that

       counsel was doing so to “protect [his] record.” Trial Tr. at 255. After reviewing

       the file, the trial court, once again, denied Warren’s motion to suppress.


[12]   Before and during trial, trial counsel questioned the admissibility of the

       evidence seized pursuant to the search warrant, challenged the validity of the

       search warrant itself, and alleged that the seizure of the items found near the

       tree line was unreasonable. Warren did not present any evidence to the PCR

       court to demonstrate that subsequent objections to the same evidence,

       supported by the similar reasoning would have been successful. Counsel is not

       rendered inadequate for failing to make a futile objection. Curtis v. State, 905

       N.E.2d 410, 418 (Ind. Ct. App. 2009). Moreover, “[c]ounsel cannot be faulted

       for failing to make an objection which had no hope of success and which might

       have the adverse effect before the jury of emphasizing the admissibility of [the

       evidence].” Id. (quoting Garrett v. State, 602 N.E.2d 139, 141 (Ind. 1992)).


[13]   Furthermore, trial counsel proceeded through trial with a reasonable strategy

       that took advantage of the State’s evidence. Trial counsel attempted to blame

       Marty and Audrey for the methamphetamine evidence and show that Warren

       was simply an innocent bystander. Additionally, trial counsel stressed the fact

       that the State had no evidence of a methamphetamine lab or any actual

       methamphetamine. “There are countless ways to provide effective assistance in

       Court of Appeals of Indiana | Memorandum Decision 63A01-1503-PC-103 | October 14, 2015   Page 12 of 13
       any given case. Even the best criminal defense attorneys would not defend a

       particular client in the same way.” Strickland, 466 U.S. at 689. Explaining,

       rather than continuing to object to, the State’s evidence was a strategy which

       was within trial counsel’s professional judgment. We, therefore, conclude that

       Warren has failed to show deficient performance of trial counsel.


[14]   Affirmed.


[15]   Najam, J., and Barnes, J., concur.




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