Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any               May 02 2013, 8:25 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

STEVEN R. KNECHT                                GREGORY F. ZOELLER
Vonderheide & Knecht, P.C.                      Attorney General of Indiana
Lafayette, Indiana
                                                CYNTHIA L. PLOUGHE
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JASON TYE MYERS,                                )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )      No. 79A04-1209-PC-481
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


              APPEAL FROM THE TIPPECANOE SUPERIOR COURT NO. 4
                       The Honorable Gregory J. Donat, Judge
                           Cause No. 79D04-1205-PC-2



                                       May 2, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
       In this case, appellant-petitioner Jason Tye Myers appeals the denial of his petition

for post-conviction relief, claiming that the post-conviction court erred in summarily

denying his request for relief. Myers contends that he presented facts establishing that

his trial counsel was ineffective for failing to file a motion to suppress evidence when

police officers learned the name of the co-occupant in Myers’s room by examining the

motel’s guest registration card.

       We conclude that Myers failed to show that he had a reasonable expectation of

privacy in the motel’s business records. Contrary to Myers’s assertions, his counsel

could not have raised a successful challenge under the Fourth Amendment to the United

States Constitution to the motel manager’s decision to supply the police officers with the

records of the business. Therefore, Myers has not shown that there was any genuine

issue of material fact, and we conclude that the post-conviction court did not err in

summarily denying his request for relief without a hearing.

       The judgment of the post-conviction court is affirmed.

                                         FACTS

       As part of an ongoing criminal investigation involving Felicia Norris, Tippecanoe

law enforcement officials learned that Myers and Norris were staying together at the

Lincoln Lodge on U.S. Highway 52. There were outstanding arrest warrants for Norris in

both Clinton and Pulaski counties.

       On November 13, 2003, police officers went to Myers’s room and asked him if

Norris was there. Myers responded that a woman by the name of “Becky Best” was

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staying with him. Appellant’s App. p. 74. The officers warned Myers that he would be

charged with harboring a fugitive if he was lying to them about the woman’s identity.

       Thereafter, the police officers learned that Norris was, in fact, staying with Myers

after the motel manager supplied them with Myers’s motel room registration card that

listed Norris as the co-occupant. The police officers then returned to Myers’s room and

arrested Norris. Myers was also arrested and charged with possession of a legend drug, a

class D felony, assisting a criminal, a class A misdemeanor, and false informing, a class

A misdemeanor.

       On June 15, 2004, Myers pleaded guilty to false informing, a class B

misdemeanor, and was later sentenced to 180 days of incarceration. In exchange, the

State dismissed the remaining charges.

       On May 30, 2012, Myers filed a petition for post-conviction relief, alleging that

his trial counsel was ineffective. Myers contended, among other things, that his counsel

was ineffective for failing “to move to suppress evidence that [Myers] had lied about the

fact that . . . Norris . . . was staying in his motel room.” Appellant’s Br. p. 4. The State

responded that even if Myers’s assertions were true, he failed to present any material

facts that entitled him to post-conviction relief. Thus, the State argued that the post-

conviction court should deny Myers’s request for relief without a hearing.

       On August 24, 2012, the post-conviction court summarily dismissed Myers’s

petition, concluding that Myers had failed to allege any facts or issues not known to him

at the time of the guilty plea, and that:

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       6. [Myers] had no expectation of privacy in the motel ledger.

       7. Entry into the motel room was obtained by consent.

       8. There is no colorable suppression issue in the case at bar.

       9. [Myers] failed to allege that he would have been acquitted had he
       proceeded to trial on this matter, nor has he alleged facts that would rise to
       a constitutional violation under the Indiana and Federal Constitutions.

Appellant’s App. p. 87. Myers now appeals.

                             DISCUSSION AND DECISION

                                   I. Standard of Review

       In a post-conviction proceeding, the petitioner must establish the grounds for relief

by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Wesley v. State,

788 N.E.2d 1247, 1250 (Ind. 2003). When challenging the denial of post-conviction

relief, the petitioner appeals a negative judgment, and in doing so, faces a rigorous

standard of review. Id. To prevail, the petitioner must convince this court that the

evidence leads unerringly and unmistakably to a decision opposite that reached by the

post-conviction court. Id.

       A post-conviction court can dispose of claims without a hearing under Indiana

Post-Conviction Rule 1, section 4(g), which provides that a moving party is entitled to

judgment as a matter of law if “it appears from the pleadings, depositions, answers to

interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is

no genuine issue of material fact.” However, “[i]f an issue of material fact is raised, then

the court shall hold an evidentiary hearing as soon as reasonably possible.” Allen v.

                                              4
State, 791 N.E.2d 748, 752 (Ind. Ct. App. 2003. On review, we resolve all doubts about

facts and the inferences to be drawn from the facts in the non-movant’s favor. Id. at 753.

Nevertheless, the appellant still has the burden of persuading us that the post-conviction

court erred. Id.

                                 II. Myers’s Contentions

       As noted above, Myers claims that the police officers violated his constitutional

rights under the Fourth Amendment when they obtained Norris’s identity from the motel

registry card. Myers asserts that his trial counsel was ineffective for failing to file a

motion to suppress “because there was a possibility of an error in the ascertainment of the

information that Norris, rather than Best, was staying with him.” Appellant’s App. p. 11-

12.

       We review claims of ineffective assistance of counsel in accordance with the

principles set forth in Strickland v. Washington:

       [A] claimant must demonstrate that counsel’s performance fell below an
       objective standard of reasonableness based on prevailing professional
       norms, and that the deficient performance resulted in prejudice. Prejudice
       occurs when the defendant demonstrates that there is a reasonable
       probability that, but for counsel’s unprofessional errors, the result of the
       proceeding would have been different. A reasonable probability arises
       when there is a probability sufficient to undermine confidence in the
       outcome.

466 U.S. 668, 694 (1984).

       The decision as to whether a particular motion should be filed is a matter of trial

strategy. Moore v. State, 872 N.E.2d 617, 620 (Ind. Ct. App. 2007). Unless there is an


                                             5
“express showing to the contrary, the failure to file a motion does not indicate ineffective

assistance of counsel.” Id. at 620-21. To prevail on an ineffective assistance of counsel

claim based upon on a failure to file a motion, the defendant must demonstrate that those

motions would have been successful. Id. at 621.

       Here, Myers makes no claim that he had any objectively reasonable expectation of

privacy in the information contained in the motel’s business records. Indeed, at least two

federal appellate courts have held that a defendant has no reasonable expectation of

privacy in a motel’s registration ledger. United States v. Cormier, 220 F.3d 1103, 1108

(9th Cir. 2000); United States v. Willis, 759 F.2d 1486, 1498 (11th Cir. 1985). We

adhere to this rationale and conclude that there is no merit to Myers’s argument. See

California v. Greenwood, 486 U.S. 35, 40 (1988) (recognizing that an expectation of

privacy must be objectively reasonable before it receives Fourth Amendment protection).

In other words, Myers’s defense counsel would not have prevailed if he had filed a

motion to suppress, and Myers has not asserted any facts or directed us to any law that

might suggest otherwise.      Thus, Myers failed to show that his trial counsel was

ineffective, and we conclude that the post-conviction court did not err in summarily

dismissing Myers’s petition without a hearing.

        The judgment of the post-conviction court is affirmed.

MAY, J., and MATHIAS, J., concur.




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