MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               May 29 2018, 8:51 am

court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Tracey A. Hardy                                         Curtis T. Hill, Jr.
Michigan City, Indiana                                  Attorney General of Indiana
                                                        Ian McLean
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tracey A. Hardy,                                        May 29, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A03-1708-PC-1992
        v.                                              Appeal from the Elkhart Circuit
                                                        Court
State of Indiana,                                       The Honorable Terry C.
Appellee-Plaintiff.                                     Shewmaker, Senior Judge
                                                        Trial Court Cause No.
                                                        20C01-1606-PC-30



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1708-PC-1992| May 29, 2018               Page 1 of 16
                                Case Summary and Issue
[1]   Following a jury trial, Tracey Hardy was convicted of two counts of dealing in

      cocaine within 1,000 feet of a public park, both Class A felonies, and one count

      of dealing in cocaine, a Class B felony. The trial court entered judgment of

      conviction and sentenced Hardy to forty-one years in the Indiana Department

      of Correction. On direct appeal, we affirmed Hardy’s conviction and sentence.

      Hardy v. State, No. 20A03-1506-CR-538 (Ind. Ct. App. Nov. 30, 2015), trans.

      denied. Thereafter, Hardy, pro se, filed a petition for post-conviction relief

      alleging ineffective assistance of trial counsel which was denied by the post-

      conviction court. Hardy now appeals the denial of post-conviction relief,

      raising seven issues for our review which we consolidate and restate as whether

      the post-conviction court erred in denying Hardy’s motion for post-conviction

      relief. Concluding the post-conviction court did not err, we affirm.



                            Facts and Procedural History
[2]   We summarized the facts and procedural history of this case in Hardy’s direct

      appeal:


              In 2012, the Elkhart County Interdiction and Covert
              Enforcement Unit (ICE Unit)—a joint drug task force comprised
              of various law enforcement agencies within Elkhart County,
              Indiana—began compensating a confidential informant,
              Cooperating Source 12009 (CS-12009), to provide information
              about individuals in Elkhart County whom the Source believed
              to be engaged in dealing drugs. Part of CS-12009’s role as a
              confidential informant entailed participating in controlled drug

      Court of Appeals of Indiana | Memorandum Decision 20A03-1708-PC-1992| May 29, 2018   Page 2 of 16
        purchases under the direction and supervision of his ICE Unit
        handlers. At some point, CS-12009 informed the ICE Unit that
        Hardy was dealing cocaine.


        On the afternoon of August 14, 2013, CS-12009 met with several
        ICE Unit officers, including Detective Andrew Whitmyer
        (Detective Whitmyer) and Detective Brian Schroth (Detective
        Schroth), for the purpose of arranging and carrying out a
        controlled drug purchase from Hardy. In the presence of the
        officers, CS-12009 placed a phone call to Hardy and set up the
        transaction. The officers searched CS-12009 to ensure that he
        was not in possession of any weapons, drugs, or large sums of
        money and equipped him with a concealed audio recording and
        transmitting device. The officers also provided CS-12009 with
        $80.00 in cash, which the officers had previously photocopied in
        order to keep track of the currency’s serial numbers. Then, as the
        police maintained visual and audio surveillance, CS-12009
        walked to a liquor store where he had agreed to meet with
        Hardy. A short time later, Hardy pulled up in a white Chevrolet
        Monte Carlo, and CS-12009 climbed into the passenger seat.
        The officers discretely [sic] followed the Monte Carlo as it
        traveled several blocks to a house located at 905 West Marion
        Street in Elkhart. There, CS-12009 waited as Hardy went inside
        the house, “got the drugs and brought them back out.” Detective
        Schroth followed as Hardy drove CS-12009 back to the liquor
        store. Once Hardy pulled away, CS-12009 reconvened with the
        officers and was again subjected to a thorough search. In
        addition to returning $20.00 of the buy money to Detective
        Whitmyer, CS-12009 handed Detective Schroth three plastic
        baggies appearing to contain crack cocaine, the total weight of
        which was .72 grams. The substance in one of the baggies tested
        positive for .22 grams of cocaine.


        On September 9, 2013, CS-12009 arranged a second controlled
        purchase involving Hardy. Once again, CS-12009 met with
        several ICE Unit officers, at which time he was searched,

Court of Appeals of Indiana | Memorandum Decision 20A03-1708-PC-1992| May 29, 2018   Page 3 of 16
        outfitted with a recording and transmitting device, and provided
        with $40.00 in buy money that had previously been photocopied.
        This time, Detective Whitmyer, Detective Schroth, and two
        other ICE Unit officers monitored CS-12009 as he walked to 318
        West Jefferson Street in Elkhart and went inside. A short time
        later, the officers observed as Hardy’s white Monte Carlo pulled
        up to the house and Hardy went inside. A few minutes later, CS-
        12009 emerged and walked back to the officers’ meeting location.
        After being searched, CS-12009 turned over two plastic baggies
        that appeared to contain crack cocaine and which had a total
        weight of .38 grams. The substance in one of the baggies tested
        positive for .17 grams of cocaine.


        On September 11, 2013, CS-12009 arranged for a final controlled
        cocaine purchase from Hardy. As before, the ICE Unit officers
        thoroughly searched CS-12009, equipped him with a recording
        and transmitting device, and supplied $90.00 in photocopied cash
        to complete the purchase. With the officers watching, CS-12009
        walked down the block to 318 West Jefferson—where the white
        Monte Carlo was already parked out front—and went inside for a
        few minutes. Upon his return to the ICE Unit meeting location,
        CS-12009 was searched, and he tendered four plastic baggies to
        the officers, which appeared to contain crack cocaine and
        weighed a total of .67 grams. The substance in one of the baggies
        tested positive for .13 grams of cocaine.


        For several hours following the third controlled drug purchase,
        ICE Unit officers maintained surveillance of 318 West Jefferson
        Street and Hardy’s Monte Carlo. At this point, Detective
        Whitmyer and Detective Schroth agreed that they had probable
        cause to arrest Hardy for dealing in cocaine, but they discussed
        the possibility that Hardy might be willing to provide information
        about his supplier or act as a confidential informant. When
        Hardy finally emerged and drove away from 318 West Jefferson,
        a uniformed patrol officer with the Elkhart Police Department
        initiated a traffic stop. Detective Whitmyer and Detective

Court of Appeals of Indiana | Memorandum Decision 20A03-1708-PC-1992| May 29, 2018   Page 4 of 16
        Schroth—who had followed the patrol officer as he initiated the
        stop—removed Hardy from his vehicle, informed him that he
        was under arrest, placed him in handcuffs, conducted a cursory
        pat-down search for weapons, and transferred him to an
        unmarked police vehicle. Detective Whitmyer and Detective
        Schroth drove Hardy to a nearby park while other officers
        relocated Hardy’s recognizable vehicle to a more inconspicuous
        location in order to avoid alerting any neighbors to the fact that
        Hardy was talking to the police.


        Once at the park, the officers conducted a more thorough search
        of Hardy’s person, seizing $975.00 from his pant pockets. The
        serial numbers on $55.00 of the recovered bills matched the
        photocopied money that CS-12009 had used to purchase cocaine
        earlier that day. Based on their conversation with Hardy,
        Detective Whitmyer and Detective Schroth decided to release
        Hardy rather than taking him to jail to be booked.
        Approximately one month later, on October 10, 2013, the State
        filed an Information, charging Hardy with Counts I and II,
        dealing in cocaine within 1,000 feet of a public park, Class A
        felonies, I.C. § 35-48-4-1(a)(1)(C),(b)(3)(B)(ii) (2013); and Count
        III, dealing in cocaine, a Class B felony, I.C. § 35-48-4-1(a)(1)(C)
        (2013).


        On April 20-21, 2015, the trial court conducted a jury trial.
        Before any evidence was presented, Hardy moved to suppress the
        buy money that was seized from his pockets following the
        September 11, 2013 controlled drug purchase, arguing that the
        warrantless search was unlawful. After a hearing outside the
        jury’s presence, the trial court denied Hardy’s suppression
        motion. At the close of the evidence, the jury returned a guilty
        verdict on all Counts, and the trial court entered a judgment of
        conviction on the same. On May 14, 2015, the trial court held a
        sentencing hearing. The trial court imposed a sentence of forty-
        one years each on Counts I and II and a sentence of ten years on
        Count III—all to be served concurrently for an aggregate

Court of Appeals of Indiana | Memorandum Decision 20A03-1708-PC-1992| May 29, 2018   Page 5 of 16
              sentence of forty-one years, fully executed in the Indiana
              Department of Correction (DOC).


      Id. at *1-3 (footnotes and citations omitted).


[3]   On June 6, 2016, Hardy filed a pro se petition for post-conviction relief and the

      post-conviction court granted Hardy’s request to appoint a public defender. On

      August 18, 2016, the post-conviction court granted the public defender’s motion

      to withdraw from the case. Hardy then amended his petition, twice, and the

      post-conviction court held an evidentiary hearing on May 4, 2017, before

      denying Hardy’s motion with findings of fact and conclusions of law on August

      21, 2017. In so doing, the post-conviction court found the following:


              13.     The allegations raised by [Hardy] in his Petition are that:
                      the Elkhart Police Department did not have probable
                      cause to arrest [Hardy] after three (3) drug sales; that the
                      information the Elkhart Police Department provided in
                      their affidavit in support of warrantless arrest was
                      insufficient and/or misleading; and that [trial counsel] was
                      ineffective for not raising those issues to the trial court.
                      [Hardy’s] overall claim is, simply, that there was no
                      probable cause to support his arrest or the formal criminal
                      charges that followed, and that [trial counsel] should have
                      argued the same before the jury trial. [Hardy] additionally
                      avers in his overall argument that [trial counsel] should
                      have moved to suppress all of the evidence.


              14.     During the post-conviction relief hearing on May 4, 2017,
                      [trial counsel], who is now the Chief Public Defender for
                      Elkhart County, testified that he graduated from Ball State
                      University with a Bachelor of Science in mathematics,
                      then graduated from Valparaiso University School of Law

      Court of Appeals of Indiana | Memorandum Decision 20A03-1708-PC-1992| May 29, 2018   Page 6 of 16
                in 2000 with his law degree; that he has practiced criminal
                law for fifteen or sixteen years as both a deputy
                prosecuting attorney and a public defender; that he has
                focused on trial and appellate work; that he has conducted
                “dozens” of criminal jury trials; that he has both defended
                and prosecuted drug dealing cases; that he is familiar with
                “controlled buys” and how police utilize confidential
                informants; that he is familiar with the criminal discovery
                procedures in Elkhart County; and that he was provided
                with and reviewed discovery in this case. In addition,
                [trial counsel] acknowledged that he used his “skill,
                expertise, and knowledge” in defending [Hardy’s] case to
                the jury and that he explored all appropriate defenses
                while representing [Hardy].


        15.     The Record in this case establishes that during the jury
                trial in this case, [trial counsel] orally moved to suppress
                evidence and statements related to [Hardy]. After
                arguments, the Court denied the oral motion to suppress.
                Upon review of the record, the Court notes that [trial
                counsel] argued that the “buy money” seized by [sic]
                [Hardy] when he was temporarily “arrested” on
                September 11, 2013, as well as statements that he made to
                the police, should have been suppressed because the
                Elkhart Police Department did not formally arrest the
                [Hardy] and take him to the county jail the same day.
                Instead, as argued by [trial counsel], the police only
                momentarily detained [Hardy] and then released him, only
                to re-arrest him on October 8, 2013.


        16.     Based upon the testimony of [trial counsel] at the May 4,
                2017 post-conviction relief hearing, the transcript from the
                jury trial, and the arguments made by [trial counsel]
                during the trial and the motion to suppress, this Court
                finds that [trial counsel] did not provide ineffective
                assistance of counsel. Contrary to [Hardy’s] allegations,

Court of Appeals of Indiana | Memorandum Decision 20A03-1708-PC-1992| May 29, 2018   Page 7 of 16
                [trial counsel] did argue some of the issues raised by
                [Hardy]. The Court sat through and presided over the
                entire jury trial and witnessed [trial counsel] choose a jury
                of [Hardy’s] peers, cross examine witnesses, argue
                objections, argue the motion to suppress, and argue the
                evidence in his closing argument. [Hardy] has not
                demonstrated that [trial counsel’s] performance fell below
                an objective standard of reasonableness as determined by
                prevailing professional norms, or that the lack of
                reasonable representation prejudiced him, as is required by
                Strickland . . . . Additionally, [Hardy] has wholly failed to
                show that there is a reasonable probability that, but for
                [trial counsel’s] unprofessional errors, the result of the
                proceeding would be different. Based upon the foregoing,
                there is no basis to conclude or find that [trial counsel] was
                ineffective in representing [Hardy].


        17.     During the post-conviction relief hearing on May 4, 2017,
                [Hardy] continually argued that there was no probable
                cause to support his arrest or the charges that followed.
                The Court, on more than one occasion during the hearing,
                referenced the memorandum decision from the Indiana
                Court of Appeals that affirmed [Hardy’s] convictions and
                sentence. The Court of Appeals specifically found that
                there was probable cause to arrest and search [Hardy] after
                the Elkhart Police Department supervised and directed
                three (3) controlled buys of cocaine from [Hardy] See,
                Hardy v. State, No. 20A03-1506-CR-538, 2015 WL
                7710249 (Ind. Ct. App. November 30, 2015) (unpublished
                memorandum decision).


        18.     In Indiana, if an issue is raised on appeal but decided
                adversely, it is res judicata and cannot be re-litigated.
                Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999). This
                Court repeated the same during the post-conviction relief
                hearing and instructed [Hardy] that his arguments

Court of Appeals of Indiana | Memorandum Decision 20A03-1708-PC-1992| May 29, 2018   Page 8 of 16
                      concerning probable cause, or lack thereof, were res
                      judicata and already decided by the Indiana Court of
                      Appeals. This Court is bound by the principles of res
                      judicata and cannot, as a matter of law, render any opinion
                      regarding whether there was sufficient probable cause to
                      arrest and/or charge [Hardy] because the Court of Appeals
                      already determined that there was sufficient probable
                      cause.


      Appellant’s Brief at 24-27. This appeal ensued.



                                Discussion and Decision
                                     I. Standard of Review
[4]   Post-conviction proceedings are civil in nature and the petitioner must establish

      his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).

      These procedures create a narrow remedy for subsequent collateral challenges

      to convictions and these challenges must therefore be based on the grounds

      enumerated in post-conviction rules. Turner v. State, 974 N.E.2d 575, 581 (Ind.

      Ct. App. 2012), trans. denied. And, as we often emphasize, “[p]ost-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.” Id.


[5]   On appeal, a petitioner who has been denied post-conviction relief faces a

      “rigorous standard of review.” Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

      We may not reweigh the evidence or reassess the credibility of the witnesses


      Court of Appeals of Indiana | Memorandum Decision 20A03-1708-PC-1992| May 29, 2018   Page 9 of 16
      and we consider only the evidence and reasonable inferences supporting the

      judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind. 2006). To prevail on a claim

      of post-conviction relief, the petitioner must show that the evidence is without

      conflict and leads “unerringly and unmistakably to a conclusion opposite that

      reached by the post-conviction court.” Strowmatt v. State, 779 N.E.2d 971, 975

      (Ind. Ct. App. 2002).


[6]   The post-conviction court made findings of fact and conclusions of law as

      required by Indiana Post-Conviction Rule 1(6). Therefore, we cannot affirm

      the judgment on any legal basis, but rather, we must determine if the court’s

      findings are sufficient to support its judgment. Graham v. State, 941 N.E.2d

      1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947 N.E.2d 962. We conduct

      this review under a clearly erroneous standard. Id.


[7]   Where, as here, the judge who presided over the original trial is also the judge

      presiding on post-conviction relief, the court’s findings and judgment are

      entitled to “greater than usual deference.” McCullough v. State, 973 N.E.2d 62,

      75 (Ind. Ct. App. 2012), trans. denied. In such a case, the judge is uniquely

      situated to assess whether trial counsel’s performance fell below an objective

      standard of reasonableness and whether, but for counsel’s unprofessional

      conduct, there was a reasonable probability that a different verdict would have

      been reached. Id.


[8]   Before proceeding to the merits of Hardy’s appeal, however, we pause briefly to

      emphasize that pro se litigants without legal training are held to the same legal


      Court of Appeals of Indiana | Memorandum Decision 20A03-1708-PC-1992| May 29, 2018   Page 10 of 16
      standards as licensed attorneys. Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct.

      App. 2016). Pro se litigants must adhere to the rules of procedure and must be

      prepared to accept the consequences of their failure to do so, including waiver

      for failure to present cogent argument on appeal. Id. at 983-84. An appellate

      brief should be prepared in a manner so that each judge, considering the brief

      alone and independent of the transcript, can intelligently consider each question

      presented. Pluard ex rel. Pluard v. Patients Comp. Fund, 705 N.E.2d 1035, 1038

      (Ind. Ct. App. 1999), trans. denied. We will not “search the record to find a basis

      for a party’s argument” nor will this court “search the authorities cited by a

      party in order to find legal support for its position.” Thomas v. State, 965 N.E.2d

      70, 77 n.2 (Ind. Ct. App. 2012), trans. denied. We must not become an

      “advocate for a party, or address arguments that are inappropriate or too poorly

      developed or expressed to be understood.” Basic, 58 N.E.3d at 984.


[9]   In the course of his twenty-page Appellant’s Brief, Hardy raises numerous

      issues for our review, seven of which are formally framed as questions

      presented. Almost all of these issues, however, are “too poorly developed or

      expressed to be understood.” Id. Therefore, we address only the issues we view

      to have adequate foundation and deem any and all remaining issues waived.

      See id.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1708-PC-1992| May 29, 2018   Page 11 of 16
                    II. Ineffective Assistance of Trial Counsel
[10]   Although often unclear as to the why and the how, the thrust of Hardy’s appeal

       is his contention that the post-conviction court erred in concluding his trial

       counsel was not ineffective. We disagree.


[11]   We review claims of ineffective assistance of counsel under the two-prong test

       set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail on a

       claim of ineffective assistance of counsel, the petitioner must show: (1) his

       counsel’s performance was deficient; and, (2) the lack of effective representation

       prejudiced him. Id. at 687. These prongs are separate and independent

       inquiries. Manzano v. State, 12 N.E.3d 321, 326 (Ind. Ct. App. 2014), trans.

       denied, cert. denied, 135 S.Ct. 2376 (2015). Thus, “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).


[12]   To satisfy the first prong, the petitioner must show counsel’s representation fell

       below an objective standard of reasonableness and counsel committed errors so

       serious petitioner did not have the “counsel” as guaranteed by the Sixth

       Amendment of the United States Constitution. Garrett v. State, 992 N.E.2d 710,

       719 (Ind. 2013). To satisfy the second prong, the petitioner must show a

       reasonable probability that, but for counsel’s errors, the result of the proceeding

       would have been different. Id. “A reasonable probability is a probability

       sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at

       694.


       Court of Appeals of Indiana | Memorandum Decision 20A03-1708-PC-1992| May 29, 2018   Page 12 of 16
[13]   “Counsel is afforded considerable discretion in choosing strategy and tactics,

       and we will accord those decisions deference.” Timberlake v. State, 753 N.E.2d

       591, 603 (Ind. 2001), cert. denied, 537 U.S. 839 (2002). We recognize a strong

       presumption counsel rendered adequate legal assistance. Id. The petitioner

       must offer “strong and convincing evidence to overcome this presumption.”

       Smith v. State, 822 N.E.2d 193, 202 (Ind. Ct. App. 2005), trans. denied.


                                      A. Probable Cause Affidavit1
[14]   Hardy first claims that “the probable cause affidavit was defective because it

       contained false and misleading information and did not include any of the

       necessary elements of a controlled buy.” Appellant’s Brief at 7. Therefore,

       Hardy argues, his trial counsel was ineffective for failing to request a Franks

       hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).


[15]   In Franks, the Supreme Court held that that “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 [the false statement was] necessary to the

       finding of probable cause, the Fourth Amendment requires that a hearing be

       held . . . .” Id. at 155-56. If an allegation of perjury or reckless disregard is




       1
         To the extent Hardy appears to argue that probable cause did not exist for his arrest, such argument is res
       judicata. We concluded probable cause existed for Hardy’s arrest on direct appeal. Hardy, No. 20A03-1506-
       CR-538 at *4. If an issue was raised on appeal, but decided adversely, it is res judicata. Reed v. State, 856
       N.E.2d 1189, 1194 (Ind. 2006).



       Court of Appeals of Indiana | Memorandum Decision 20A03-1708-PC-1992| May 29, 2018              Page 13 of 16
       established by the defendant, and the rest of the affidavit is insufficient to

       establish probable cause, “the search warrant must be voided” and any evidence

       obtained from its fruits excluded. Id. at 156.


[16]   Applied here, Hardy alleges that had trial counsel requested a Franks hearing,

       “all the fruits of the poisonous tree (the alleged buy money and drugs involved

       in all three alleged buy dates) should have been suppressed at trial.”

       Appellant’s Br. at 10. Even assuming Hardy could satisfy his burden of

       demonstrating that a false statement was included in the affidavit of probable

       cause, Hardy’s reliance on Franks for the suppression of evidence

       misunderstands the law. The evidence in question was seized as the result of a

       search incident to arrest—not as the result of a search warrant. Hardy, No.

       20A03-1506-CR-538 at *4. Thus, even if trial counsel had requested a Franks

       hearing, counsel would not have prevailed. “Counsel’s performance is not

       deficient for failing to present a claim that would have been meritless.” Peak v.

       State, 26 N.E.3d 1010, 1016 (Ind. Ct. App. 2015). Accordingly, Hardy fails to

       show clear error in the post-conviction court’s finding.


                                       B. Adequate Investigation
[17]   Next, Hardy alleges that trial counsel was ineffective for failing to conduct

       adequate investigation.


[18]   Counsel “has a duty to make reasonable investigations or to make a reasonable

       decision that makes particular investigations unnecessary.” Strickland, 466 U.S.

       at 691. However, it is well settled that we should resist judging an attorney’s

       Court of Appeals of Indiana | Memorandum Decision 20A03-1708-PC-1992| May 29, 2018   Page 14 of 16
       performance with the benefit of hindsight. McKnight v. State, 1 N.E.3d 193, 200

       (Ind. Ct. App. 2013). Our supreme court has cautioned:


               With the benefit of hindsight, a defendant can always point to
               some rock left unturned to argue counsel should have
               investigated further. The benchmark for judging any claim of
               ineffectiveness must be whether counsel’s conduct so
               undermined the proper functioning of the adversarial process that
               it deprived the defendant of a fair trial.


       Ritchie v. State, 875 N.E.2d 706, 719 (Ind. 2007). Thus, when deciding a claim

       of ineffective assistance for failure to investigate, we apply a great deal of

       deference to counsel’s judgments. McKnight, 1 N.E.3d at 201.


[19]   Here, Hardy alleges that trial counsel “was ineffective for failing to conduct a

       professional interview of Hardy and other residents of the 318 West Jefferson

       Street apartment complex. Had [trial counsel] acted professionally he would

       have learned that Hardy rented one of the apartments on the second floor.”

       Appellant’s Br. at 10. Hardy further claims the interviews would have revealed

       “crucial facts showing” that the confidential informant “did not know [Hardy’s]

       last name or if [Hardy] was his actual real name at any time before his first

       arrest.” Id. at 11. Not only does Hardy fail to provide a factual basis for these

       allegations in the record, he also fails to advance cogent argument regarding

       why trial counsel’s performance was ineffective or how he was prejudiced by

       these failures. Therefore, Hardy failed to meet his burden and we must

       conclude trial counsel’s investigation was not inadequate.



       Court of Appeals of Indiana | Memorandum Decision 20A03-1708-PC-1992| May 29, 2018   Page 15 of 16
                                            C. Trial Arguments
[20]   In his final argument which we find sufficiently developed to address on appeal,

       Hardy alleges trial counsel’s performance was ineffective at the trial itself.

       Specifically, Hardy contends that trial counsel should have advanced arguments

       regarding the fact that the rear entrances of the buildings where the controlled

       buys occurred were not under surveillance, that officers did not actually witness

       an exchange of drugs, and that alternative sources of the drugs existed other

       than Hardy. These allegations are contradicted by the record, however, as trial

       counsel thoroughly cross-examined officers and repeatedly emphasized these

       facts in front of the jury. See Appellant Appendix Brief at 19-33. Moreover,

       trial counsel argued that the confidential informant was paid for his information

       and highlighted the informant’s financial incentive to falsely accuse Hardy. Id.

       at 22. As such, Hardy has failed to show that the post-conviction court erred in

       rejecting his claims below.



                                              Conclusion
[21]   The post-conviction court did not err in denying Hardy’s petition for post-

       conviction relief. Accordingly, we affirm.


[22]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1708-PC-1992| May 29, 2018   Page 16 of 16
