MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                           FILED
this Memorandum Decision shall not be                                 Feb 12 2018, 9:13 am

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


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
Steven H. Schutte                                        Ian McLean
Deputy Public Defender                                   Supervising Deputy Attorney
Indianapolis, Indiana                                    General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jonathan McPherson,                                      February 12, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1706-PC-1326
        v.                                               Appeal from the
                                                         Elkhart Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Teresa L. Cataldo, Judge
                                                         Trial Court Cause No.
                                                         20D03-1508-PC-34



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018       Page 1 of 21
[1]   Jonathan McPherson1 (“McPherson”) was convicted, following a jury trial,

      under a now-repealed law, of two counts of Class A felony dealing in cocaine.2

      He also was convicted of Class D felony maintaining a common nuisance3 and

      Class B felony unlawful possession of a firearm by a serious violent felon

      (“SVF”),4 and he was found to be a habitual offender.5 The trial court

      sentenced McPherson to ninety-three years. On direct appeal, this court

      affirmed McPherson’s convictions, but reduced his sentence to seventy-five

      years, finding that the sentences for being a habitual offender and possessing a

      firearm as a SVF constituted an impermissible double enhancement because

      they relied on the same predicate felony conviction. McPherson v. State, No.

      20A04-1409-CR-428, 32 N.E.3d 284, at *4 (Ind. Ct. App. Apr. 28, 2015).

      McPherson filed a petition for post-conviction relief, which the post-conviction

      court denied. McPherson now appeals, raising the following restated issues:




      1
       The record before us reveals Petitioner’s name also spelled as “Jonathon” and shows a middle initial of
      “G.” State’s Ex. 201.
      2
       See Ind. Code § 35-48-4-1(b)(3)(iv) (2012). McPherson was convicted of two counts of dealing cocaine, each
      of which was elevated from a Class B felony to a Class A felony because the crimes were committed within
      1,000 feet of a youth program center. Indiana Code section 35-48-4-1 was amended in 2013, effective July 1,
      2014, to remove the enhancement of dealing within 1,000 feet of a youth program center. See Pub. Law 158-
      2013, § 622. McPherson, however, was charged under the statute that existed at the time he committed the
      offenses.
      3
          See Ind. Code § 35-48-4-13(b)(2) (2011).
      4
          See Ind. Code § 35-47-4-5(c) (2011).
      5
          See Ind. Code § 35-50-2-8(a) (2011).


      Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018        Page 2 of 21
               I. Whether the post-conviction court clearly erred when it found
               that McPherson did not prove that trial counsel was ineffective;
               and


               II. Whether the post-conviction court clearly erred when it found
               that McPherson did not prove that appellate counsel was
               ineffective.


[2]   We affirm.


                                   Facts and Procedural History6
[3]   The facts of McPherson’s offenses are summarized by this court’s decision on

      direct appeal as follows:


               On May 16 and May 18, 2012, McPherson sold cocaine to
               different confidential informants working with the Elkhart Police
               Department. McPherson conducted both sales at his house, 412
               Brady Street, in Elkhart. Directly across the street from
               McPherson’s house, located at 411 Brady Street, is “Cornerstone
               Ministries Boy’s and Girl’s Club.” The sign on the building
               reads:


               Cornerstone Ministries Boy’s and Girl’s Club
               By Sandy Ridge Mennonite Church
               Meet Every Wednesday 5:30 p.m.


               Ex. 9 (phone numbers omitted). Detective Tim Freel, who used
               to live in the neighborhood, explained that the Boys and Girls
               Club “would have different groups of children come in there;



      6
        We will cite to the direct appeal using the letters “D.A.” and to the post-conviction proceedings with the
      letters “P-CR.”

      Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018           Page 3 of 21
        typically, on a Wednesday night they had a program called
        ‘Wednesday Night Club.’” He added that children often played
        basketball outside at the Club. In addition, Detective Andrew
        Whitmyer, who participated in the surveillance of McPherson’s
        house on May 16, recalled seeing more children than usual at the
        Boys and Girls Club that day. He observed both “younger” and
        “older” kids playing and said that the activities appeared to be
        organized.


        Elkhart police officers obtained and executed a search warrant
        for McPherson’s house on May 29. McPherson and his
        girlfriend were home at the time. The officers found two digital
        scales with powdery residue and baggies with cut-off corners.
        The officers also found a loaded .40 caliber semiautomatic pistol
        inside a purse, a box of .40 caliber ammunition in a tote, and a
        loaded magazine for the pistol inside the pocket of a red
        sweatshirt—all in the master bedroom that McPherson used.


        Detective Freel read McPherson his Miranda rights and then
        began to question him. McPherson admitted to “selling drugs
        from the house,” “admitted to a firearm that was found inside the
        house,” knew that his house was directly across the street from
        the Boys and Girls Club, and admitted that the $804 in cash
        found on his person was “proceeds from drug sales.” Although
        no drugs were found during the search of McPherson’s house,
        McPherson explained that he “was currently out of drugs and
        that he was planning to . . . re-up, or purchase more drugs, so
        that he could sell those drugs later on that afternoon.” Finally,
        McPherson admitted that he had a prior felony conviction for
        dealing in cocaine and that as a result of that felony conviction,
        he could not possess a firearm.


        The State charged McPherson with two counts of Class A felony
        dealing in cocaine (within 1,000 feet of youth program center) for
        the controlled buys on May 16 and 18, 2012; Class D felony
        maintaining a common nuisance for drug activities at his house
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018   Page 4 of 21
                 on or between May 16 and 29; and Class B felony unlawful
                 possession of a firearm by a SVF for the firearm found during the
                 May 29 search of his house. The State alleged that McPherson
                 was a SVF as a result of his 1997 conviction in Elkhart County
                 for Class B felony dealing in cocaine. The State also alleged that
                 McPherson was a habitual offender. For the two prior unrelated
                 felony convictions, the State used McPherson’s 1997 dealing-in-
                 cocaine conviction as well as McPherson’s 2008 conviction in
                 Elkhart County for criminal recklessness resulting in serious
                 bodily injury.


                 McPherson’s jury trial was conducted in three phases. During
                 the first phase, the jury found McPherson guilty of both dealing
                 counts and maintaining a common nuisance. During the second
                 phase, the jury found McPherson guilty of unlawful possession of
                 a firearm by a SVF. During the third and final phase, the jury
                 found that McPherson was a habitual offender.


      McPherson, 32 N.E.3d 284, at *1-3 (footnotes omitted) (internal citations

      omitted). The trial court sentenced McPherson to an aggregate term of ninety-

      three years executed. McPherson was represented at trial by attorney Matthew

      Johnson (“trial counsel” or “Johnson”), an Elkhart County Public Defender.


[4]   On direct appeal, McPherson was represented by attorney Elizabeth Bellin

      (“appellate counsel” or “Bellin”), who raised several issues, including:7




      7
          We have paraphrased the language of the issues presented on direct appeal.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018   Page 5 of 21
              (1) The habitual offender enhancement and SVF conviction
              constituted an impermissible double jeopardy enhancement
              because they relied on the same predicate felony conviction;


              (2) The evidence was insufficient to prove that the “Cornerstone
              Ministries Boy’s and Girl’s Club” (“Boys and Girls Club”) was a
              youth program center, as was required to enhance the dealing
              offense from a Class B felony to a Class A felony; and


              (3) The evidence was insufficient to prove that he had two prior
              unrelated felonies to support the habitual offender enhancement.


      P-CR Appellant’s App. Vol. II at 45-46. A panel of this court found sufficient

      evidence to affirm McPherson’s convictions, but agreed with McPherson that

      the trial court had erred in sentencing. We remanded the case to the trial court

      with instructions to run McPherson’s sentence for unlawful possession of a

      firearm by a SVF and his habitual offender enhancement concurrently, resulting

      in an aggregate sentence of seventy-five years. McPherson, 32 N.E.3d 284, at *4.


[5]   On October 25, 2016, McPherson filed a petition for post-conviction relief

      raising two issues. First, McPherson argued that his trial counsel was

      ineffective for not proceeding with the theory that the enhancement under the

      dealing cocaine statute—i.e., selling cocaine within 1,000 feet of a youth

      program center—was unconstitutionally vague, and that McPherson was

      prejudiced by trial counsel’s failure to raise that issue. P-CR Appellant’s App. Vol.

      II at 47. Second, McPherson argued that his appellate counsel was ineffective

      for not arguing that the statute under which McPherson was convicted was

      unconstitutionally vague, which again caused him prejudice. Id. at 51.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018   Page 6 of 21
[6]   On January 3, 2017, the post-conviction court held an evidentiary hearing on

      McPherson’s petition. Regarding trial counsel’s representation, Johnson

      testified that he remembered the enhancement that raised McPherson’s charges

      of dealing cocaine from Class B felonies to Class A felonies as being whether

      the drug deal had occurred within 1,000 feet of “a youth program center.” P-

      CR Tr. Vol. I at 7. Johnson could not recall whether he considered mounting a

      vagueness challenge to the “youth program center” enhancement. Id. at 8.

      Johnson did, however, describe to the post-conviction court the theory he

      pursued at trial as follows:


              Q. And I think you’ve already suggested your answer to this
              question, let me ask it specifically, do you remember what your
              thoughts were about whether there was a defense to the
              enhancement?


              A. For the defense to the enhancement, what I -– what I
              attempted to do at trial was to show that this was more of a
              church and not youth program center, though kids went to the
              church and played basketball and such things, that it was not so
              much of a -– of a youth program center as a church. That was
              the defense that we attempted to put forward.


              Q. More of a sufficiency claim then?


              A. More of a sufficiency claim.


      Id. at 8.


[7]   Regarding the actions of appellate counsel, Bellin testified at the post-conviction

      hearing that, at the time of McPherson’s direct appeal, she was familiar with a
      Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018   Page 7 of 21
      case, “Whatley v. State,” that challenged whether the enhancement of being

      within 1,000 feet of a youth program center was unconstitutionally vague under

      the United States Constitution. Id. at 12. Bellin stated that, while this question

      of constitutionality was one of the issues she researched in early 2015, she did

      not raise that issue on direct appeal because “[i]n reviewing the transcript at

      trial, Mr. McPherson’s trial counsel did not object or file any sort of motion to

      dismiss based on the constitutionality of the statute itself.” Id. at 12-13.


[8]   Bellin explained,


              If trial counsel fails to object at the time of trial and/or fails to
              raise that issue in a motion to dismiss, as everyone practices
              regularly is aware of that, when you go to challenge a statute,
              specifically, you need to challenge that in a motion to dismiss.
              That would be a separate filing and would accompany a
              memorandum; a separate hearing would have to be held . . .
              separate from the trial itself, and the court would have to make a
              ruling on that motion to dismiss prior to trial. That was never
              done at the trial level. The fact that his trial counsel did not do
              that at the trial level constitutes a waiver for purposes of a direct
              appeal.


      Id. at 13. Bellin testified that she spoke with trial counsel and, “based on the

      evidence that was presented in the trial,” “we were looking at sufficiency.” Id.

      “[A]t no point was the vagueness brought up as a potential issue on appeal.”

      Id. Bellin noted, “At the time of Mr. McPherson’s appeal, the law for which he

      was convicted of was a valid law.” Id. at 16. Bellin also believed that a

      vagueness challenge would not be successful because a motion to dismiss had

      not been filed by trial counsel. P-CR Tr. at 13. The post-conviction court found

      Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018   Page 8 of 21
       that trial counsel and appellate counsel were not deficient in their legal

       representation and denied McPherson’s petition for post-conviction relief.

       McPherson now appeals.


                                      Discussion and Decision
[9]    On appeal, McPherson contends that his trial counsel and appellate counsel

       provided ineffective assistance of counsel, and therefore, the post-conviction

       court erred by not granting him the relief of vacating his two convictions for

       Class A felony dealing and entering judgment and sentence on those

       convictions as Class B felonies. Specifically, he contends that trial counsel and

       appellate counsel should have argued, that the youth program center

       enhancement was unconstitutionally vague.


[10]   Post-conviction proceedings do not afford the petitioner an opportunity for a

       super appeal. Newton v. State, 83 N.E.3d 726, 732 (Ind. Ct. App. 2017). Rather,

       post-conviction proceedings provide the petitioner an opportunity to raise issues

       that were unknown or unavailable at the time of the original trial or the direct

       appeal. Id. The proceedings do not substitute for a direct appeal and provide

       only a narrow remedy for subsequent collateral challenges to convictions. Id


               “The petitioner in a post-conviction proceeding bears the burden
               of establishing grounds for relief by a preponderance of the
               evidence.” Humphrey v. State, 73 N.E.3d 677, 681 (Ind. 2017).
               “When appealing the denial of post-conviction relief, the
               petitioner stands in the position of one appealing from a negative
               judgment.” Id. To prevail on appeal from the denial of post-
               conviction relief, the petitioner must show the evidence leads
               “unerringly and unmistakably to a conclusion opposite that
       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018   Page 9 of 21
                reached by the post-conviction court.” Id. We do not defer to
                the post-conviction court’s legal conclusions, but “a post-
                conviction court’s findings and judgment will be reversed only
                upon a showing of clear error—that which leaves us with a
                definite and firm conviction that a mistake has been made.” Id.
                at 682.


       Newton, 83 N.E.3d at 732.


                                             I. Trial Counsel
[11]   McPherson contends that he was sentenced under the unconstitutional youth

       program center enhancement, and therefore, the post-conviction court erred in

       concluding that “[he] should continue to serve the enhanced sentence despite

       that fact.” Appellant’s Br. at 5. McPherson asserts, “Because the post-conviction

       court’s legal conclusion is erroneous, the lower court’s ruling should be

       reversed.” Id. The issue before us, however, is not whether the sentencing

       enhancement should apply. Instead, we must decide whether the post-

       conviction court erred in finding that (1) trial counsel was not ineffective for not

       arguing that the enhancement was unconstitutionally vague, and (2)

       McPherson was not prejudiced by trial counsel’s failure to raise a vagueness

       claim.


[12]   To prevail on a claim of ineffective assistance of trial counsel, a petitioner must

       prove that (1) his or her counsel’s performance was deficient, i.e., counsel made

       errors so serious that counsel was not functioning as the “counsel” guaranteed

       to defendant by the Sixth and Fourteenth Amendments, and (2) petitioner was

       prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668,

       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018   Page 10 of 21
       687 (1984); Black v. State, 54 N.E.3d 414, 424 (Ind. Ct. App. 2016), trans. denied.

       Counsel’s performance is deficient if it falls below an objective standard of

       reasonableness based on prevailing professional norms. Black, 54 N.E.3d at

       424. To meet the appropriate test for prejudice, the petitioner must show that

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

       result of the proceeding would have been different. Id. “A reasonable

       probability is a probability sufficient to undermine confidence in the outcome.”

       Id. “Moreover, because a petitioner must prove both deficient performance and

       prejudice in order to succeed, the failure to prove either element defeats the

       claim.” Myers v. State, 33 N.E.3d 1077, 1089 (Ind. Ct. App. 2015), trans. denied.


[13]   “When considering a claim of ineffective assistance of counsel, a ‘strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment’”; a

       defendant must offer strong and convincing evidence to overcome this

       presumption. Black, 54 N.E.3d at 424-25 (quoting Morgan v. State, 755 N.E.2d

       1070, 1073 (Ind. 2001)). Evidence of isolated poor strategy, inexperience, or

       bad tactics will not support a claim of ineffective assistance of counsel. Id. The

       post-conviction court must assess trial counsel’s decisions objectively, in view of

       what a “reasonably competent attorney” could have chosen to do or not do

       under the circumstances. Harrington v. Richter, 562 U.S. 86, 110 (2011).

       “Representation is constitutionally ineffective only if it ‘so undermined the

       proper functioning of the adversarial process’ that the defendant was denied a

       fair trial.” Id. (quoting Strickland,466 U.S. at 686). “Just as there is no

       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018   Page 11 of 21
       expectation that competent counsel will be a flawless strategist or tactician, an

       attorney may not be faulted for a reasonable miscalculation or lack of foresight

       or for failing to prepare for what appear to be remote possibilities.” Id.


[14]   To support his claim that trial counsel was ineffective for not raising the issue

       that the youth program center enhancement was unconstitutionally vague,

       McPherson relies exclusively on Whatley v. Zatecky, 833 F.3d 762 (7th Cir.

       2016). Whatley was arrested at his father’s home on a warrant for an unrelated

       charge. Whatley, 833 F.3d at 765. The arresting officer discovered a bag

       containing just over three grams of cocaine in Whatley’s pocket. Id. At that

       time, possession of that amount of cocaine was a Class C felony, with a

       sentencing range of two to eight years. Id. Whatley’s crime was enhanced to a

       Class A felony after police found that Whatley’s father’s home was located

       approximately 795 feet from the Robinson Community Church (“Church”)—a

       venue that witnesses testified was a youth program center. A “youth program

       center” was defined as any “building or structure that on a regular basis provides

       recreational, vocational, academic, social, or other programs or services for

       persons less than eighteen (18) years of age.” Id. at 765 (quoting Ind. Code §

       35-41-1-29(a) (emphasis added) (2011)).8 Whatley was convicted of a Class A

       felony, in part, on evidence that included testimony of the Church’s pastor that,




       8
        The definition of “youth program center” is now found in Indiana Code section 35-31.5-2-357(a) (2012).
       The recodification from section 35-41-1-29 to section 35-31.5-2-357 was effective on July 1, 2012.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018     Page 12 of 21
       in any given week, the church hosted a number of events targeted to persons

       under the age of eighteen. Id. at 765.


[15]   The Seventh Circuit reversed Whatley’s Class A felony conviction.9 The Court

       recognized that due process requires that a criminal statute give a person an

       opportunity to conform his conduct to the law, a requirement that applies with

       equal force to the conduct used to enhance a sentence. Whatley, 833 F.3d at

       784. Focusing on the enhancement’s requirement that programs and services

       must be provided on a “regular basis,” the Seventh Circuit concluded:


                The Indiana courts failed to narrow the statute by adding an
                intent element, by limiting application to the core cases of
                facilities such as YMCAs or Boys and Girls Clubs, or by
                providing any objective standard to the meaning of “regular.”
                There was no “reasonable basis for the state court to deny relief.”
                As applied to Whatley, the statute delegated to the police, the
                prosecutor and the jury the task of determining what conduct was
                proscribed. No one in Whatley’s position could have known that
                the Robinson Community Church would fall within the
                definition simply because it hosted a handful of children’s events
                each week and otherwise bore no indicia of the children’s
                activities within.




       9
         The Seventh Circuit held, “We therefore reverse and remand the judgment, with instructions to grant the
       writ of habeas corpus ordering that, within sixty days, Whatley either be released or that he be re-sentenced
       under the Class C felony statute. If he is re-sentenced, he must, of course, be given credit for the time he
       served under the Class A felony conviction.” Whatley v. Zatecky, 833 F.3d 762, 784-85 (7th Cir. 2016).



       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018          Page 13 of 21
       Whatley, 833 F.3d at 784. Noting that a criminal law should not be so vague

       that “it fails to give ordinary people fair notice of the conduct it punishes, or so

       standardless that it invites arbitrary enforcement,” the Seventh Circuit held that

       the enhancement’s definition of “youth program center” was unconstitutional

       because it “forbade conduct in terms so vague that persons of ordinary

       intelligence must necessarily guess at the statute’s meaning and differ as to its

       application.” Whatley, 833 F.3d at 766, 782. In granting Whatley relief, the

       Seventh Circuit stated: “It is the particular language of the Indiana statute that

       is at issue here, and more importantly the unique circumstances of its

       application to Whatley." Id. at 782.


[16]   The instant case is distinguishable from Whatley. Unlike Whatley, who may or

       may not have known there was a church that provided youth center programs

       near his father’s home, here, the building in question was right across the street

       from McPherson’s home, a mere sixty-eight feet away.10 D.A. Tr. at 263.

       Printed on the building, in big black letters, were the words, “Cornerstone

       Ministries Boy’s and Girl’s Club, Meet Every Wednesday 5:30 p.m.” D.A.

       State’s Ex. 9. Detective Tim Freel, who himself lived in the subject

       neighborhood, testified at trial that the Boys and Girls Club “would have

       different groups of children come in there; typically, on a Wednesday night they

       had a program called ‘Wednesday Night Club.’” D.A. Tr. at 391. McPherson




       10
         The affidavit in support of McPherson’s warrantless arrest stated that the distance between the house and
       the Boys and Girls Club was approximately seventy-five feet. D.A. Appellant’s App. Vol. IV at 156.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018       Page 14 of 21
       sold cocaine to a confidential informant on Wednesday, May 16, 2012. Id. at

       392.


[17]   Detective Freel also testified:


               Mr. McPherson admitted to selling drugs from the house. Mr.
               McPherson admitted to a firearm that was found inside the
               house. Mr. McPherson acknowledged to me that he was aware
               that the house was directly across the street from the Boys and
               Girls Club, which was also connected to a city park.


       Id. at 382. Even if trial counsel had raised the issue that the enhancement was

       unconstitutionally vague as applied to the facts before the court, it would have

       been difficult for the trial court to conclude that as to McPherson, who admitted

       he lived across the street from the Boys and Girls Club, the enhancement

       forbade conduct in terms so vague that he had to guess whether the locale of his

       drug sales was within 1,000 feet of a building that qualified as a youth program

       center.


[18]   Moreover, McPherson committed his dealing offenses in May 2012 and was

       tried to a jury in June 2014. Whatley had challenged the constitutionality of the

       enhancement as applied to him prior to McPherson’s trial; however, in 2014, a

       resolution in favor of Whatley did not seem likely. At the time of McPherson’s

       trial, Whatley was serving a sentence imposed in 2008 for his conviction for

       possession of cocaine enhanced to a Class A felony because he possessed the

       cocaine within 1,000 feet of a youth program center. Our court, on direct

       appeal, finding that faith-based activities at the Church did not turn the Church


       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018   Page 15 of 21
into a youth program center, reversed and remanded the case for entry of a

conviction as a Class C felony and sentencing consistent with a Class C felony

conviction. Whatley v. State, 906 N.E.2d 259, 263 (Ind. Ct. App. May 21,

2009), trans. granted. On transfer, our Supreme Court held that the youth

program center enhancement was not unconstitutionally vague as applied to

Whatley and affirmed his Class A felony conviction. Whatley v. State, 928

N.E.2d 202, 206 (Ind. 2010). Whatley’s motion for re-trial was dismissed as

untimely on June 22, 2010, and our court affirmed the dismissal. Whatley v.

State, 937 N.E.2d 1238, 1242 (Ind. Ct. App. 2010). The post-conviction court’s

denial of Whatley’s petition for relief was affirmed in Whatley v. State, No.

49A04-1110-PC-548, 969 N.E.2d 634 (Ind. Ct. App. June 21, 2012). Whatley’s

petition for transfer was denied on October 11, 2012. The same month as

McPherson’s trial in the present case, the federal district court denied Whatley’s

request for habeas corpus relief. Whatley v. Zatecky, 2014 WL 2511585, at *1

(S.D. Ind. June 4, 2014). The enhancement was not found to be

unconstitutionally vague until the Seventh Circuit handed down its decision on

August 15, 2016, two years after McPherson’s trial. A finding of ineffective

assistance of counsel requires consideration of only legal precedent available to

counsel at the time of counsel’s representation of the accused. Sweeney v. State,

886 N.E.2d 1, 8 (Ind. Ct. App. 2008), trans. denied, cert. denied, 555 U.S. 1003

(2008). Given the facts before us, it was not professionally incompetent for trial

counsel to forego a motion to dismiss on the basis that the enhancement was

unconstitutionally vague.


Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018   Page 16 of 21
[19]   Finally, the affidavit in support of McPherson’s “warrantless arrest” set forth

       that McPherson sold crack cocaine to the confidential informant at his home,

       which was approximately “75 feet from The Boys and Girls Club located at 411

       Brady Street, Elkhart, Indiana, which was having a social activity going with

       multiple children present during the controlled buy, and is also located

       approximately 200 Feet from a City of Elkhart Public Park known as The Tot

       Lot . . ..” D.A. Appellant’s App. Vol. IV at 156. McPherson admitted that he

       knew the Boys and Girls Club was connected to a city park. D.A. Tr. Vol. II at

       382. As the State notes, “Competent counsel would have been entitled to

       consider the extent to which a motion to dismiss, even if it could have been

       persuasive, would have simply resulted in an amended information on equally-

       enhanced charges,” i.e., McPherson was dealing cocaine within 1,000 feet of a

       city park. Appellee’s Br. at 24 (citing Ind. Code § 35-38-4-1(b)(3)(B)(ii) (2011)).

       Based on this information, it would not have been professionally incompetent

       for McPherson to forego a motion to dismiss on the basis that the enhancement

       was unconstitutionally vague. Having found that trial counsel’s performance

       was not deficient, we need not reach the prejudice prong. Accordingly, we

       conclude that the post-conviction court did not err in finding that McPherson

       did not receive ineffective assistance of trial counsel.


                                         II. Appellate Counsel
[20]   McPherson also contends that his appellate counsel provided ineffective

       assistance by failing to raise on direct appeal the issue that the youth program

       center enhancement was unconstitutionally vague. The standard of review for

       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018   Page 17 of 21
       a claim of ineffective assistance of appellate counsel is identical to the standard

       for trial counsel. Walker v. State, 988 N.E.2d 1181, 1190 (Ind. Ct. App. 2013)

       (citing Lowery v. State, 640 N.E.2d 1031, 1048 (Ind. 1994), cert. denied, 512 U.S.

       992 (1995)), trans. denied. The petitioner must establish deficient performance

       by appellate counsel resulting in prejudice. Id. Ineffective assistance of

       appellate counsel claims generally fall into three basic categories: (1) denial of

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

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


[21]   “‘[T]he decision of what issues to raise is one of the most important strategic

       decisions to be made by appellate counsel.’” Walker, 988 N.E.2d at 1190-91

       (citing Reed v. State, 856 N.E.2d 1189, 1196 (Ind. 2006)). For countless years,

       experienced advocates have “emphasized the importance of winnowing out

       weaker arguments on appeal and focusing on one central issue if possible, or at

       most a few key issues.” Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), cert.

       denied, 525 U.S. 1021 (1998) (citation and quotation marks omitted). “Thus,

       when reviewing these types of claims, we should be particularly deferential to

       appellate counsel’s strategic decision to exclude certain issues in favor of other

       issues more likely to result in a reversal.” Walker, 988 N.E.2d at 1191. As a

       result, “[i]neffective assistance is very rarely found in cases where a defendant

       asserts that appellate counsel failed to raise an issue on direct appeal.” Reed,

       856 N.E.2d at 1196.


[22]   McPherson contends that appellate counsel Bellin was ineffective by not

       challenging on direct appeal the constitutionality of the youth program center

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       enhancement. During the post-conviction hearing, Bellin testified that, at the

       time of McPherson’s direct appeal, she was familiar with a case that raised the

       issue of whether the youth program center enhancement was unconstitutionally

       vague. P-CR Tr. Vol. I at 12. She said that she had examined constitutionality

       as one of the issues to raise in McPherson’s direct appeal; however, in

       reviewing the trial transcript, she found that trial counsel “did not object or file

       any sort of motion to dismiss based on the constitutionality of the statute itself.”

       Id. at 12-13. Bellin explained that, because trial counsel did not raise the

       constitutionality issue in a motion to dismiss, the issue was waived for direct

       appeal. Id. at 13.


[23]   The State and Bellin are correct, “Generally, the failure to file a proper motion

       to dismiss raising the Constitutional challenge waives the issue on appeal.”

       Pittman v. State, 45 N.E.3d 805, 815 (Ind. Ct. App. 2015) (citing Payne v. State,

       484 N.E.2d 16, 18 (Ind. 1985); see also Rhinehardt v. State, 477 N.E.2d 89, 93

       (Ind. 1985) (holding that defendant did not preserve claim that a statute was

       unconstitutionally vague where he did not raise the issue prior to trial by a

       timely and proper motion to dismiss)). However, in some cases, our court has

       “considered challenges to the constitutionality of statutes even where the

       defendant failed to file a motion to dismiss.” Pittman, 45 N.E.3d at 815 (citing

       Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008). In evaluating

       whether appellate counsel performed deficiently by not raising the

       constitutionality issue on appeal, we apply the following test: (1) whether the

       unraised issue is significant and obvious from the face of the record and (2)


       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018   Page 19 of 21
       whether the unraised issue is “clearly stronger” than the raised issues. Henley,

       881 N.E.2d at 645.


[24]   Here, Bellin had to decide which issues would be the most successful on direct

       appeal. After considering the various options, Bellin argued: (1) McPherson’s

       habitual offender enhancement and SVF conviction were an impermissible

       double enhancement because they were based on the same prior felony; (2) the

       evidence was insufficient to prove that McPherson dealt cocaine within 1,000

       feet of a youth program center; and (3) evidence is insufficient to support his

       habitual offender enhancement because the State did not prove that he was the

       one who committed the prior unrelated felonies. McPherson, 32 N.E.3d 284, at

       *1. Bellin succeeded in proving her first issue, and our court remanded the

       case, ordering the trial court to “run McPherson's sentence for unlawful

       possession of a firearm by a SVF concurrently, resulting in a new aggregate

       sentence of seventy-five years.” Id. Here, Bellin researched the unraised issue

       of the enhancement’s constitutionality, even though that issue was not obvious

       from the face of the record. Further, because it was uncertain whether the

       appellate court would entertain the arguably waived issue of constitutionality,

       the issue of double enhancement was a stronger issue. In fact, Bellin reduced

       McPherson’s sentence by eighteen years. Under these facts and circumstances,

       the decision of McPherson’s appellate counsel to not assert an appellate claim

       that the enhancement was unconstitutionally vague did not constitute

       ineffective assistance of appellate counsel. Having found that trial counsel’s

       performance was not deficient, we need not reach the prejudice prong.


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       Accordingly, we conclude that the post-conviction court did not err in finding

       that McPherson did not receive ineffective assistance of appellate counsel.


[25]   The post-conviction court did not clearly err in rejecting McPherson’s claims of

       ineffective assistance of trial and appellate counsel. Accordingly, we affirm the

       judgment of the post-conviction court denying McPherson’s petition for post-

       conviction relief.


[26]   Affirmed.


[27]   Bailey, J., and Pyle, J., concur.




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