      MEMORANDUM DECISION
                                                                        Nov 05 2015, 8:30 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Eqwan Garrett                                            Gregory F. Zoeller
      Pendleton, Indiana                                       Attorney General of Indiana
                                                               Ian McLean
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Eqwan Garrett,                                          November 5, 2015

      Appellant-Petitioner,                                   Court of Appeals Case No.
                                                              49A02-1408-PC-589
              v.                                              Appeal from the Marion Superior
                                                              Court.
                                                              The Honorable Steven Eichholtz,
      State of Indiana,                                       Judge.
      Appellee-Respondent.                                    The Honorable David Seiter,
                                                              Commissioner.
                                                              Cause No. 49G20-0908-PC-74802




      Friedlander, Senior Judge

[1]   Eqwan Garrett, pro se, appeals the denial of his petition for post-conviction

      relief presenting the following consolidated and restated issues:

              1.       Did the post-conviction court err in rejecting Garrett’s
                       claim of ineffective assistance of trial counsel.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 1 of 25
              2.      Did the post-conviction court err in rejecting Garrett’s
                      claim of ineffective assistance of appellate counsel.
              3.      Did the post-conviction court err in rejecting Garrett’s
                      claim of ineffective assistance of post-conviction counsel.
      We affirm.


[2]   The facts, as set forth by this Court in Garrett’s direct appeal, are as follows:

              In 2007, after a year-long surveillance operation of a residence on
              North Pershing Avenue in Marion County, the Indianapolis
              Metropolitan Police Department (IMPD) suspected that the
              residence was used as a facility for the manufacture of cocaine.
              IMPD observed Garrett, along with several other individuals,
              frequent the residence approximately eight to ten times over the
              course of the surveillance. While conducting surveillance on July
              24, 2007, Detective Jake Hart observed Garrett and two others
              park near the residence and carry a large duffle bag full of rifles.
              On August 14, 2007, officers with IMPD’s narcotic[s] division
              executed a ‘no-knock’ search warrant on the residence. SWAT
              team members Detective Garry Riggs, Sergeant Robert Stradling,
              and Officer Baker breached the residence through the front door
              using a battering ram. During this time, police officers loudly
              announced, ‘[P]olice, search warrant. Everybody get down on
              the ground!’
              Upon entering the house, Detective Riggs and Sergeant Stradling
              noticed Garrett repeatedly popping out of the second bedroom,
              approximately ten to twelve feet away from them. Garrett again
              and again pointed a semi-automatic handgun at Detective Riggs
              and Sergeant Stradling. Each time, he attempted to fire the
              handgun, but it misfired. A second SWAT team entered the
              residence from the rear and secured Garrett in the second
              bedroom. Three other individuals were also in the house and
              arrested during the execution of the search warrant.
              The police then searched the residence for evidence. In the
              kitchen, police recovered cocaine, digital scales, over $8,000, and

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 2 of 25
              an assault rifle. In the second bedroom, where police
              apprehended Garrett, they found a silver and black Smith &
              Wesson .40 caliber semi-automatic handgun within arm’s length
              of Garrett. No other suspects were in the second bedroom. In
              the living room, police recovered an additional assault rifle, two
              handguns, and a magazine for the handgun found near Garrett.
              The weapons in the living room were within ten feet of where
              Garrett had stood in the second bedroom.

      Garrett v. State, No. 49A05-1101-CR-2, slip op. at 1-2 (Ind. Ct. App. Aug. 31,

      2011) (internal citations to the record omitted), trans. denied.


[3]   On August 15, 2007, the State charged Garrett under Cause Number 49G20-

      0708-FA-167078 (FA-167078) with: conspiracy to commit dealing in cocaine, a

      Class A felony; dealing in cocaine, a Class A felony; possession of cocaine, a

      Class C felony; possession of a firearm by a serious violent felon (possession of

      a firearm by a SVF), a Class B felony; and pointing a firearm, a Class D felony.

      On January 22, 2009, the State moved to dismiss the charges, and the trial court

      granted the motion.


[4]   On August 25, 2009, the State charged Garrett under Cause Number 49G20-

      0908-FA-74802 (FA-74802) with: Count I, conspiracy to commit dealing in

      cocaine, a class A felony; Count II, dealing in cocaine, a class A felony; Count

      III, possession of cocaine, a class C felony; Count IV, possession of a firearm by

      a SVF, a class B felony; Count V, pointing a firearm, a class D felony; and

      Count VI, possession of cocaine and a firearm, a class C felony. On November

      3 and 4, 2010, a two-day jury trial was held on Counts I, II, III, V, and VI. The

      jury found Garrett guilty on Counts, I, V, and VI. The jury convicted Garrett


      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 3 of 25
      on a lesser included offense on Count III and acquitted him on Count II.

      Garrett waived his right to a jury trial on Count IV, possession of a firearm by a

      SVF and, on November 24, 2010, the trial court found Garrett guilty.


[5]   On appeal, Garrett argued that his convictions for possession of a firearm by a

      serious violent felon and pointing a firearm violated Indiana’s constitutional

      prohibition of double jeopardy. A panel of the Court affirmed the trial court’s

      judgment. Id. at 3.


[6]   On May 10, 2012, Garrett, pro se, filed a petition for post-conviction relief.

      Following a hearing at which Garrett was represented by counsel, the trial court

      denied the petition. Garrett appeals the denial of that petition on grounds that

      he received ineffective assistance of counsel at every stage of the proceedings

      against him.


[7]   Post-conviction proceedings are civil proceedings in which the petitioner must

      establish his claims by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5); Hollowell v. State, 19 N.E.3d 263 (Ind. 2014). “When appealing from

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

      appealing from a negative judgment.” Id. at 269 (quoting Fisher v. State, 810

      N.E.2d 674, 679 (Ind. 2004)). In order to prevail on appeal from the denial of a

      post-conviction petition, a petitioner must show that the evidence as a whole

      leads unerringly and unmistakably to a conclusion opposite the one reached by

      the post-conviction court. Hollowell, 19 N.E.3d 263. The post-conviction court


      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 4 of 25
      is the sole judge of the weight of the evidence and the credibility of witnesses.

      Lindsey v. State, 888 N.E.2d 319 (Ind. Ct. App. 2008), trans. denied. We accept

      the post-conviction court’s findings of fact unless they are clearly erroneous, but

      no deference is given to the court’s conclusions of law. Hollowell, 19 N.E.3d

      263.


                                                       1.
[8]   We begin with Garrett’s claim that he received ineffective assistance of trial

      counsel. When evaluating such a claim, we apply the two-part test articulated

      in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

      (1984). See Hollowell v. State, 19 N.E.3d 263. To establish the first element, “the

      defendant must show deficient performance: representation that fell below an

      objective standard of reasonableness, committing errors so serious that the

      defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id.

      at 269 (citing Strickland, 466 U.S. at 687). To establish the second element, “the

      defendant must show prejudice: a reasonable probability (i.e. a probability

      sufficient to undermine confidence in the outcome) that, but for counsel’s

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

      Strickland, 466 U.S. 668).


[9]   Garrett cites two instances that he claims warrant reversal of his convictions on

      this basis. First, he contends trial counsel rendered ineffective assistance in


      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 5 of 25
       failing to move to suppress evidence obtained as a result of an allegedly illegal

       search. Second, he claims that trial counsel rendered deficient, prejudicial

       performance in “failing to file a proper motion to dismiss and/or discharge for

       the violation of criminal rule [4(B)] and [4(C)].” Appellant’s Br. p. 4. Both

       claims of deficient trial counsel performance involve counsel’s failure to file

       motions on Garrett’s behalf – a motion to suppress evidence and a motion for

       discharge under Indiana Criminal Rule 4. “To prevail on an ineffective

       assistance of counsel claim based upon counsel’s failure to file motions on a

       defendant’s behalf, the defendant must demonstrate that such motions would

       have been successful.” Wales v. State, 768 N.E.2d 513, 523 (Ind. Ct. App.

       2002), trans. denied.


[10]   We turn to Garrett’s claim that his trial counsel should have moved to suppress

       all evidence that was found at the Pershing Avenue house during execution of

       the search warrant. Garrett contends the probable cause affidavit that the

       police filed in support of their request for a search warrant failed to comply with

       the requirements of Indiana Code Annotated section 35-33-5-2 (West, Westlaw

       current with all 2015 First Regular Session of the 119th General Assembly

       legislation). In particular, Garrett argues that the affiant “lacked a Substantial

       Basis for concluding that Probable Cause existed and that contraband or

       evidence of a crime would be found at [the named address] or upon the

       petitioner’s person.” Appellant’s Br. p. 13 (emphasis in original). Garrett




       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 6 of 25
       further contends that the search warrant was flawed because it did not name
                                                      1
       Garrett as a person to be searched.


[11]   Beginning with the first contention, when deciding whether to issue a search

       warrant, the issuing magistrate must make “a practical, common-sense decision

       whether, given all the circumstances set forth in the affidavit, there is a fair

       probability that contraband or evidence of a crime will be found in a particular

       place.” Cartwright v. State, 26 N.E.3d 663, 668 (Ind. Ct. App. 2015), trans.

       denied. Our duty upon review is to determine whether the magistrate had a

       substantial basis for concluding that probable cause existed. Id. Although we

       review the trial court’s substantial-basis determination de novo, we afford

       significant deference to the magistrate’s determination. Id. In doing so, we

       consider only the evidence presented to the issuing magistrate and do not

       consider additional justifications or facts presented after the search. Id.


[12]   The affidavit for probable cause, which was completed by FBI Special Agent

       Robert Brouwer, was not included in the trial record. Nor did Special Agent

       Brouwer testify at Garrett’s trial. In short, there is nothing in the trial record

       reflecting the showing that was made in order to obtain the warrant. During

       the post-conviction hearing, Garrett did not introduce the probable cause

       affidavit into evidence. The post-conviction court took judicial notice of its file,




       1
        Garrett also argues that he has standing to challenge the search of the home, but we need not address this
       argument because the State does not dispute Garrett’s standing.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015           Page 7 of 25
       but the affidavit had not been placed in the file. Garrett’s trial attorney, Travis

       Fox, was asked at the post-conviction hearing whether he considered the

       possibility of filing a motion to suppress alleging lack of probable cause, and he

       responded as follows:

               Well, my recollection – I don’t think I did. I think that I
               summarily bypassed the suppression issue. My recollection of
               the facts of this case, our defense was based upon Mr. Garrett not
               having an interest in that property that he was merely a visitor.
               So, had I believe [sic] it was a search warrant being executed on
               the property, I don’t remember the basis for the search warrant,
               but I typically give the search warrant a read over and see if there
               is [sic] any issues relating to it. I’m guessing that I did that in Mr.
               Garrett’s case also. And then with him – without [sic] defense
               being that he was only at that property for a temporary status the
               combination of all that quite quickly leads me to the conclusion
               that there is no merit to a Motion to Suppress.

       PCR Tr. pp. 17-18. This testimony does not shed light on the evidence that was

       presented to the reviewing magistrate for issuance of a search warrant.

[13]   We reiterate that Garrett bore the burden of establishing his claim by a

       preponderance of the evidence. P-C.R. 1(5); Hollowell v. State, 19 N.E.3d 263.

       He has failed to meet this burden because as he has not provided any evidence

       pertaining to whether the magistrate who issued the warrant had a substantial

       basis for concluding there was probable cause to believe a fair probability

       existed that contraband or evidence of a crime would be found at the North




       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 8 of 25
                                            2
       Pershing Avenue residence. His claim of ineffective assistance in this regard

       fails.


[14]   Garrett’s other challenge to the search of the Pershing Avenue house is that he

       claims the search warrant should have identified him by name as a person to be

       searched. Indiana Code section 35-33-5-2 does not require that a warrant

       targeting a particular premises must identify persons who may be searched in

       that premises based upon developments ensuing from the execution of the

       warrant. The warrant in question identified the house in detail, as well as the

       items to be sought. When officers entered the home to search the premises,

       Garrett was armed with a handgun and attempted to shoot the officers, but

       fortunately the gun was inoperable. Officers were able to subdue him before he

       could successfully discharge the weapon and searched him in the course of

       arresting him. The warrant was not flawed in this respect. See Foster v. State,

       633 N.E.2d 337 (Ind. Ct. App. 1994) (search of defendant was valid, even

       though the search warrant did not authorize search of particular person or

       mention the defendant, where police had warrant authorizing search of

       particular premises for particular items and conducted the search accordingly),

       trans. denied. The post-conviction court properly determined that trial counsel

       did not render ineffective assistance on this point.




       2
        Garrett has included a copy of the probable cause affidavit in his Appellant’s Appendix. We may not
       consider it because he concedes that it was not presented to the post-conviction court.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015        Page 9 of 25
[15]   Next, Garrett contends his trial attorneys in FA-167078 and FA-74802 rendered

       ineffective assistance by failing to file motions to dismiss the charges pursuant
                                                                                                     3
       to Indiana Rule of Criminal Procedure 4, subsections (B) and (C). That rule

       provides, in relevant part:

                (B)(1) Defendant in Jail – Motion for Early Trial. If any
                defendant held in jail on an indictment or an affidavit shall move
                for an early trial, he shall be discharged if not brought to trial
                within seventy (70) calendar days from the date of such motion,
                except where a continuance within said period is had on his
                motion, or the delay is otherwise caused by his act, or where
                there was not sufficient time to try him during such seventy (70)
                calendar days because of the congestion of the court calendar.
                Provided, however, that in the last-mentioned circumstance, the
                prosecuting attorney shall file a timely motion for continuance as
                set forth in subdivision (A) of this rule.
                                                           ****
                (C) Defendant Discharged. No person shall be held on
                recognizance or otherwise to answer a criminal charge for a
                period in aggregate embracing more than one year from the date
                the criminal charge against such defendant is filed, or from the
                date of his arrest on such charge, whichever is later; except where
                a continuance was had on his motion, or the delay was caused by
                his act, or where there was not sufficient time to try him during
                such period because of congestion of the court calendar;
                provided, however, that in the last-mentioned circumstance, the




       3
         Garrett also argues in passing that his trial attorneys should have claimed that the State violated his right to
       a speedy trial under the Sixth Amendment to the United States Constitution and article 1, section 12 of the
       Indiana Constitution. He does not present any argument in support of his constitutional claims, so they are
       waived. See Bigler v. State, 732 N.E.2d 191 (Ind. 2000) (claim waived for appellate review because appellant
       failed to present cogent argument), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015              Page 10 of 25
               prosecuting attorney shall file a timely motion for continuance as
               under subdivision (A) of this rule.
       Id.

[16]   The broad goal of Criminal Rule 4 is to provide functionality to a criminal

       defendant’s constitutionally protected right to a speedy trial. Austin v. State, 997

       N.E.2d 1027 (Ind. 2013). It places an affirmative duty on the State to bring the

       defendant to trial, but at the same time it is not intended to be a mechanism for

       providing defendants a technical means to escape prosecution. Id.


[17]   Garrett argues that his trial attorney in FA-167078 should have moved to

       dismiss with prejudice the charges against him because the deadlines set forth in

       Rule 4(B) and (C) were exceeded. Turning to the issue of Rule 4(B), a

       chronological case summary entry for April 4, 2008, states that the parties

       appeared for a pretrial hearing, and “Defendant’s speedy trial request is still

       active.” Appellant’s App. pp. 10-11. That is the first reference to a speedy trial

       request. On April 30, 2008, Garrett “wavies [sic] his speedy request and then

       re-asserts it.” Id. at 12. A fair reading of that entry indicates that the seventy-

       day deadline was reset and began to run once again. The trial court reset the

       trial for July 2, 2008, sixty-three days from the date of that hearing.


[18]   On July 3, 2008, the court held another pretrial hearing. That hearing was not

       included in the trial transcript. The chronological case summary indicates that

       the State requested a continuance, and Garrett objected. The court granted the


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 11 of 25
       continuance over Garrett’s objection, scheduling a trial for September 22, 2008.

       If the court issued an order reflecting the new date, it was not included in the

       trial record.


[19]   On September 17, 2008, the court held yet another pre-trial conference. That

       hearing was not included in the transcript. During the hearing, the court

       vacated the trial date and rescheduled it for September 29, 2008, although the

       defendant again objected. On September 18, Garrett filed a motion for

       continuance. The court granted the motion and indicated that it would reset

       the trial date at an upcoming hearing. If the court issued an order reflecting the

       new date, it was not included in the trial record.


[20]   The court held additional pretrial hearings on September 24 and 25, 2008. The

       hearings were not included in the transcript. According to a chronological case

       summary entry, the issues the court addressed included “Crim Rule 4.” Id. at

       22. The court, by the agreement of the parties, released Garrett on his own

       recognizance, and Garrett remained free until the State dismissed the case.


[21]   The record reflects that Garrett objected to two continuances, both of which

       resulted in rescheduling the trial beyond the seventy-day deadline. Rule 4(B)

       permits extensions of the trial date, even over the defendant’s objection, in cases

       of court congestion or if the State is in the process of obtaining evidence that is

       currently not in its possession. See Cook v. State, 810 N.E.2d 1064, 1065 (Ind.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 12 of 25
       2004) (“The rule places an affirmative duty on the State to bring a defendant to

       trial within one year of being charged or arrested, but allows for extensions of

       that time for various reasons.”). The record does not indicate why the trial

       court reset the trial date over Garrett’s objections or why he was released on his

       own recognizance. During the post-conviction hearing, one of Garrett’s trial

       attorneys stated that prior to trial, he had reviewed the chronological case

       summary for Lower Cause Number FA-167078 and had concluded “there

       wasn’t a CR4 issue for Mr. Garrett.” PCR Tr. p. 12.


[22]   In this post-conviction proceeding, Garrett, as the petitioner, bore the burden of

       providing the evidence necessary to establish ineffective assistance, that is, that

       the trial court failed to assert a valid reason for overruling his objections to

       rescheduling the trial, resulting in scheduling the trial beyond the seventy-day

       deadline. For purposes of Garrett’s Rule 4(B) claim as it pertains to Lower

       Cause Number FA-167078, the record is inadequate to allow us to determine

       whether the continuances were justified, and thus whether a motion for

       discharge and dismissal would have been warranted. Garrett has failed to

       provide sufficient evidence, and we cannot review the merits of this claim.


[23]   Turning to Garrett’s 4(C) claim under Lower Cause Number FA-167078, the

       record provided by Garrett has the same shortcomings. We are unable to

       determine the reasons for the trial court’s continuances over Garrett’s

       objections, and we cannot ascertain whether the continuances were valid. If the
       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 13 of 25
       continuances met the requirements of Rule 4(C), then they do not count against

       the Rule 4(C) deadline.


[24]   In any event, we further note Garrett was originally charged on August 15,

       2007, and the one-year deadline would have expired on or before August 15,

       2008. On April 30, 2008, Garrett “wavies [sic] his speedy request and then re-

       asserts it.” Appellant’s App. p. 12. He thus agreed to waive the time that had

       elapsed to that point and to reset the deadline. The State was obligated to try

       him on or before April 30, 2009. The State dismissed the charges on January

       22, 2009, well before that deadline. Thus, despite the gaps in the evidence

       provided by Garrett, it appears that the one-year deadline set forth under

       Appellate Rule 4(C) was not exceeded. If any of Garrett’s trial counsels had

       moved for discharge or dismissal under Rule 4(C) as to FA-167078, the motion

       would have been denied. Counsel cannot have rendered ineffective assistance

       by failing to file a motion that would have been denied.


[25]   In summary, the post-conviction court did not err in rejecting Garrett’s claim of

       ineffective assistance of trial counsel for failure to claim that the State had

       violated Criminal Rule 4(B) and (C) in Cause Number FA-167078.


[26]   Next, under FA-74802, the State refiled the charges on August 22, 2009.

       Garrett was not arrested and jailed until November 13, 2009. He had several

       different attorneys in FA-74802, and he claims two of them rendered ineffective


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 14 of 25
       assistance by failing to file motions to discharge and dismiss pursuant to

       Criminal Rule 4(B) and 4(C).


[27]   We turn to Garrett’s arguments under Rule 4(B). He claims his first attorney in

       FA-74802, Marla Thomas, should had filed a motion to dismiss “immediately”

       upon filing her appearance on November 30, 2009, due to the delays in FA-

       167078. Appellant’s Br. p. 8. We have already determined that Garrett has

       failed to provide a sufficient record to address his Rule 4(B) claim as to FA-

       167078. It follows that we also cannot address whether Attorney Thomas

       should have moved for discharge under Rule 4(B).


[28]   Next, Garrett claims that a subsequent attorney in FA-74802, Travis Fox,

       should have filed a motion for discharge and dismissal upon filing his

       appearance on June 9, 2010. Garrett cites delays in FA-167078 as justifying the

       motion, but he has provided an insufficient record for us to determine whether

       a Rule 4(B) motion for discharge and dismissal would have succeeded as to

       events in that case.


[29]   Garrett also claims that Attorney Fox should have filed a motion for discharge

       upon filing his appearance because delays in FA-74802 violated Rule 4(B). We

       disagree, because Garrett did not request a speedy trial through counsel until




       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 15 of 25
                           4
       April 13, 2010. Attorney Fox appeared in the case on June 9, 2010, and only

       fifty-seven days had elapsed in the seventy-day period. A motion for discharge

       pursuant to Rule 4(B) would not have been successful at that time. Attorney

       Fox did not perform deficiently by failing to file a motion that would have been

       denied.


[30]   Turning to Criminal Rule 4(C), Garrett again asserts that Attorneys Thomas

       and Fox should have filed motions for discharge and dismissal in FA-74802

       along with their appearances. Rule 4(C)’s one-year deadline was tolled by the

       State’s dismissal of charges in FA-167078 until Garrett was rearrested on

       November 13, 2009. See Stinson v. State, 797 N.E.2d 352 (Ind. Ct. App. 2003).

       The State concedes, and Garrett does not disagree, that 138 days that counted

       against Rule 4(C)’s one-year deadline carried over to FA-74802 from FA-

       167078.


[31]   Attorney Thomas entered her appearance on November 30, 2010, twenty-seven

       days after Garrett was arrested. The twenty-seven days are not attributable to

       Garrett and, when added to the 138 days that carried over from FA-167078,

       results in a total of 165 days, which was well-short of the one-year deadline set




       4
         Garrett tendered pro se motions for speedy trial in March 2010, but the trial court rejected them because
       Garrett was represented by counsel. The court was not obligated to consider the motions. See Underwood v.
       State, 722 N.E.2d 828 (Ind. 2000) (a party speaks to the court through counsel).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015         Page 16 of 25
       forth in Rule 4(C). Attorney Thomas could not have succeeded on a motion for

       discharge if she had filed one with her appearance, so she did not render

       deficient performance by declining to file that motion.


[32]   As for Attorney Fox, he entered his appearance on June 9, 2010. At that point,

       208 days had elapsed since Garrett was arrested on November 13, 2009.

       Assuming without deciding that none of the 208 days were attributable to

       Garrett, if that number is added to the 138 days that carried over from FA-

       167078, the total number of days that counted against the 365-day deadline was

       346, still short of the deadline. Thus, if Attorney Fox had filed a motion for

       discharge and dismissal contemporaneously with his appearance, the motion

       would have been denied. Attorney Fox did not render deficient performance

       on this point.


[33]   Garrett does not offer any other arguments under Criminal Rule 4(B) and (C),

       nor does he demonstrate prejudice resulting from deficient performance. See

       Heyward v. State, 769 N.E.2d 215 (Ind. Ct. App. 2002) (petitioner failed to

       demonstrate prejudice arising from attorney’s failure to object to Rule 4(C)

       violation because, if he had timely objected, the trial court would have

       rescheduled the date, so petitioner failed to demonstrate the outcome would

       have been different). The post-conviction court did not err in rejecting Garrett’s

       claim of ineffective assistance of trial counsel for failure to claim that the State

       had violated Criminal Rule 4(B) and (C) in FA-74802.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 17 of 25
[34]   We affirm the post-conviction court’s rejection of Garrett’s claims of ineffective

       assistance of trial counsel.


                                                        2.
[35]   We next consider Garrett’s claim that he received ineffective assistance of

       appellate counsel. As was the case with his claims pertaining to trial counsel, in

       order to prevail on a claim of ineffective assistance of appellate counsel, a

       petitioner must demonstrate both that counsel’s performance was deficient and

       that the petitioner was prejudiced thereby. Kubsch v. State, 934 N.E.2d 1138

       (Ind. 2010) (citing Strickland, 466 U.S. 668). Counsel’s performance is deficient

       if it falls below an objective standard of reasonableness and “counsel made

       errors so serious that counsel was not functioning as ‘counsel’ guaranteed to the

       defendant by the Sixth Amendment.” Id. at 1147 (quoting Strickland, 466 U.S.

       at 687)).


[36]   To establish the requisite prejudice, a 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.” Smith v. State,

       765 N.E.2d 578, 585 (Ind. 2002). The two elements of Strickland are separate

       and independent inquiries. The failure to satisfy either component will cause

       an ineffective assistance of counsel claim to fail. Taylor v. State, 840 N.E.2d 324


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 18 of 25
       (Ind. 2006). Thus, if it is easier to dispose of such a claim on the ground of lack

       of sufficient prejudice, that course should be followed. Landis v. State, 749

       N.E.2d 1130 (Ind. 2001).


[37]   Garrett argues that his counsel on direct appeal rendered ineffective assistance

       because she failed to raise the Criminal Rule 4 issues discussed above. We have

       already determined that Garrett’s claims of ineffective assistance of trial counsel

       in relation to Criminal Rule 4 are without merit, and as a result any claim on

       direct appeal that the trial court had violated Criminal Rule 4 would have

       failed. Appellate counsel did not render ineffective assistance on this point by

       failing to raise the issue.


[38]   Garrett next argues that his appellate counsel should have challenged the

       sufficiency of the evidence for his conviction of conspiracy to commit dealing in

       cocaine. He asserts that there is no evidence from which the jury could have

       determined that he knew there was cocaine in the house or that there was an

       ongoing cocaine manufacturing enterprise.


[39]   When reviewing a claim of insufficient evidence, an appellate court considers

       only the probative evidence and reasonable inferences supporting the verdict.

       Kirk v. State, 974 N.E.2d 1059 (Ind. Ct. App. 2012), trans. denied. We do not

       assess the credibility of witnesses or reweigh evidence. Id.


[40]   In order to obtain a conviction for conspiracy to commit dealing in cocaine as

       charged, the State was required to prove beyond a reasonable doubt that Garrett

       (1) acting with the intent to commit dealing in cocaine, (2) agreed with his co-
       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 19 of 25
       conspirators (3) to knowingly possess with intent to deliver or possessed with

       intent to manufacture (4) cocaine in a an amount greater than three grams. Ind.

       Code Ann. § 35-41-5-2 (West, Westlaw current with all 2015 First Regular

       Session of the 119th General Assembly legislation); Ind. Code Ann. § 35-48-4-1
                                       5
       (West, Westlaw 2006).


[41]   The evidence presented at trial demonstrated that the police engaged in

       extensive surveillance of the Pershing Avenue house for almost a year before

       applying for a search warrant. The house was owned by the father of Willie

       Stott, one of Garrett’s companions. Surveillance was often difficult because

       lookouts were stationed at nearby houses and would shout warnings when they

       saw the police. Despite these challenges, officers saw Stott, Courtney Long,

       James Sublett, and Garrett together at the Pershing Avenue house between

       eight and ten times. Officers also saw Long, Sublett, and Garrett visit the house

       separately twice a month each.


[42]   On July 24, 2007, an officer saw Long, Sublett, and Garrett traveling together

       in a car that was registered to Stott. The officer followed them to the Pershing

       Avenue house, where he saw the three men get out of the car and enter the




       5
         The version of the governing statute, i.e., Ind. Code Ann. § 35-48-4-1 (West, Westlaw 2006), in effect at the
       time this offense was committed classified it as a class A felony. This statute has since been revised and in its
       current form reclassifies this as a Level 4 felony. See I.C. § 35-48-4-1 (West, Westlaw current with all 2015
       First Regular Session of the 119th General Assembly legislation effective through June 28, 2015). The new
       classification, however, applies only to offenses committed on or after July 1, 2014. See id. Because this
       offense was committed prior to that date, it retains the former classification.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015             Page 20 of 25
       house together. The officers saw the men carrying a duffle bag with rifle

       muzzles sticking out.


[43]   From July 24 through August 14, 2007, an officer saw Long, Sublett, and

       Garrett travel in Stott’s car to the house. The house was very small. It had

       surveillance cameras on the front and back, a configuration that one of the

       officers testified is sometimes used by individuals who deal in cocaine.


[44]   When the officers executed the search warrant at the house, Stott, Long, Sublett

       and Garrett were present. A team of officers used a battering ram to open the

       front door. It took four to six strikes to force the door open because it was

       being propped up by a piece of wood inside of the house. The officers loudly

       identified themselves as police officers as they entered. Once they were inside,

       they secured three of the men, but Garrett popped out of a doorway three to

       four times, ten to fifteen feet from the officers. He pointed a handgun at the

       officers and moved his hand in a manner consistent with attempting to fire the

       gun. The gun did not fire because, although there was a round in the gun’s

       chamber, the magazine had been removed from the gun, rendering it

       inoperable. Another team of officers entered the house through the back door

       and secured Garrett in a bedroom. All four men were wearing latex gloves,

       which an officer testified is a practice consistent with persons involved in

       manufacturing crack cocaine.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 21 of 25
[45]   Meanwhile, the first team of officers found an assault rifle and two handguns in

       the front room. Later, another assault rifle was found in the kitchen, and a

       handgun was found in the room where Garrett had been subdued.


[46]   The house was not being used in a manner that was consistent with a residence.

       There was relatively little furniture and very few decorations. Only one of the

       bedrooms contained a bed, which lacked sheets, and there were very few

       clothes in either bedroom. Firearms and bullets were scattered throughout the

       common areas of the house. The assault rifles contained magazines and were

       ready to fire.


[47]   In the kitchen, officers found few dishes. They opened one cabinet and found

       two digital scales that had cocaine residue, next to a box of baking soda. A

       detective testified that scales are commonly used to measure narcotics into

       smaller amounts, and baking soda is used to mix with powder cocaine to make

       crack cocaine. On top of the cabinet, they found blue porcelain bowls that

       contained 61.93 grams of cocaine, an amount that an officer explained is more

       consistent with dealing in cocaine rather than merely using it. The officers also

       found stacks of twenty dollar bills on top of another cabinet, $8,000 in total.

       The police characterized the house as a “stash house,” where a small group of

       narcotics dealers process drugs for sale. Trial Tr. p. 409.


[48]   Meanwhile, officers had placed the four men in an enclosed front porch area

       that had previously been searched for contraband and deemed secure. Officers

       found two small baggies of cocaine near the four men during the process of


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 22 of 25
       searching the house. In addition, the officers searched Garrett before he was

       taken to jail, and they found a third baggie of cocaine on his person. The

       officers did not find any items in the house or on Garrett’s person that could be

       used to consume cocaine.


[49]   This evidence is more than sufficient for a jury to conclude beyond a reasonable

       doubt that Garrett agreed to join with Stott, Long, and Sublett to deal in

       cocaine in an amount greater than three grams and was well aware of the

       cocaine manufacturing operation at the Pershing Avenue house. The house

       was not a residence but was instead the hub of an illegal narcotics venture that

       would have been obvious to a frequent visitor. Garrett and his companions

       visited the house on many occasions, including once when they delivered rifles.


[50]   When the police executed the search warrant, Garrett attempted to shoot the

       officers, who loudly identified themselves as police. Garrett and his

       companions were all wearing latex gloves when they were apprehended, which

       is consistent with persons manufacturing cocaine for sale, and several of them

       had smaller baggies of cocaine on their person. Firearms and bullets were

       scattered around the house. Garrett’s claim that he did not know about the

       61.93 grams of cocaine that was concealed in the kitchen is a request to reweigh

       the evidence, which our standard of review forbids. See Massey v. State, 816

       N.E.2d 979 (Ind. Ct. App. 2004) (evidence sufficient to support conviction for

       dealing in cocaine where State proved circumstances that established

       defendant’s knowledge of the presence of contraband). If his appellate attorney

       had challenged the sufficiency of the evidence supporting the conviction, that

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 23 of 25
       claim would have failed. Counsel did not render deficient performance by

       failing to present a futile claim, and the post-conviction court did not err in

       ruling against Garrett on this issue.


                                                        3.
[51]   Finally, we address Garrett’s claim that he received ineffective assistance of

       post-conviction counsel. Neither the Sixth Amendment of the United States

       Constitution nor article 1, section 13 of the Indiana Constitution guarantee a

       right to counsel in post-conviction proceedings. Graves v. State, 823 N.E.2d

       1193 (Ind. 2005). Post-conviction proceedings are not criminal actions and are

       not conducted under the standards applicable to such actions. Id.

       Consequently, when a petitioner raises a claim of ineffective assistance of post-

       conviction counsel, we consider whether “counsel in fact appeared and

       represented the petitioner in a procedurally fair setting which resulted in a

       judgment of the court.” Id. at 1196.


[52]   In this case, Garrett’s post-conviction counsel appeared at the post-conviction

       hearing and submitted evidence in the form of witness testimony, the trial

       transcript, and the chronological case summaries from FA-167078 and FA-

       74802. Counsel thus met the standard set forth in Graves. Garrett argues that

       post-conviction counsel should have amended his petition for post-conviction

       relief to add other claims, submitted additional evidence at the hearing, and

       submitted proposed findings of facts and conclusions thereon. Such actions are

       not required under the standard set forth in Graves. See Matheney v. State, 834


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 24 of 25
       N.E.2d 658 (Ind. 2005) (post-conviction counsel’s choice to present some

       claims and not others did not amount to ineffective assistance).


[53]   For the reasons stated above, we affirm the judgment of the trial court.


[54]   Judgment affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015   Page 25 of 25
