MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Jul 26 2018, 5:53 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ross G. Thomas                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles Lain,                                             July 26, 2018
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          03A01-1710-PC-2293
        v.                                                Appeal from the Bartholomew
                                                          Circuit Court
State of Indiana,                                         The Honorable Kelly Benjamin,
Appellee-Respondent                                       Judge
                                                          Trial Court Cause No.
                                                          03C01-0710-PC-2123



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1710-PC-2293 | July 26, 2018           Page 1 of 9
[1]   Charles Lain appeals from the denial of his petition for post-conviction relief.

      He argues that trial counsel was ineffective for not making a certain argument

      in a motion to suppress and for not raising a statutory defense, and appellate

      counsel for not adequately raising the issue of a lesser-included offense for his

      sentencing. Finding no error by trial counsel, but that Lain was improperly

      sentenced, we affirm in part, reverse in part, and remand with instructions.


                                                     Facts
[2]   The underlying facts, as described by this Court in one of Lain’s direct appeals,

      are as follows:


              On September 30, 2003, a motorist witnessed Lain driving a
              black GMC truck and chasing a white car driven by Lain’s
              girlfriend, Sherry Waskom (“Waskom”). The motorist reported
              Lain’s erratic driving behavior to the police, who then located
              Lain and Waskom’s vehicles in the parking lot of the Senior
              Center in Columbus, Indiana. The Senior Center is located
              within one thousand feet of a park.


              Lain consented to a police search of his vehicle. During the
              search, the officer discovered a black pouch, which contained a
              digital weighing scale coated with a white powder residue. The
              officer also found a silver metal tin that contained twelve clear
              plastic bags containing a powdery substance. The residue on the
              scale was later tested and determined to contain
              methamphetamine. Five of the twelve plastic bags were tested
              and found to contain 3.56 grams of methamphetamine.


              Lain was charged with Class A felony possession of
              methamphetamine having a weight of three grams or more
              within one thousand feet of a public park and also with Class A

      Court of Appeals of Indiana | Memorandum Decision 03A01-1710-PC-2293 | July 26, 2018   Page 2 of 9
              felony dealing in methamphetamine having a weight of three
              grams or more. A jury trial commenced on February 24, 2004,
              and Lain was found guilty of both charges. On April 12, 2004,
              Lain was sentenced to serve forty years for the Class A felony
              possession of methamphetamine conviction and fifty years for
              the Class A felony dealing in methamphetamine conviction, to be
              served consecutively for an aggregate sentence of ninety years.


      Lain v. State, No. 03A01-0511-CR-511, slip op. at 1 (Ind. Ct. App. Jan. 17,

      2007) (footnote omitted). Lain appealed, arguing in part that the trial court

      erred by denying his motion to merge his two convictions and by ordering Lain

      to serve consecutive terms for his convictions. This Court considered his

      merger argument under double jeopardy principles, finding no double jeopardy

      violation, but reversed and remanded to the trial court for resentencing, finding

      that the maximum term of imprisonment for Lain’s two Class A felony

      convictions was fifty-five years. Id.


[3]   Following a resentencing hearing, the trial court sentenced Lain to twenty-five

      years on the possession of methamphetamine conviction and thirty years on the

      dealing in methamphetamine conviction, ordering the sentences to be served

      consecutively. Lain appealed the resentencing, arguing that the trial court erred

      by not finding mitigating circumstances and by ordering consecutive sentences.

      This Court affirmed. Id. at 4.


[4]   On October 19, 2007, Lain filed a pro se petition for post-conviction relief,

      which was amended by counsel on December 6, 2016. On June 29, 2017, an




      Court of Appeals of Indiana | Memorandum Decision 03A01-1710-PC-2293 | July 26, 2018   Page 3 of 9
      evidentiary hearing took place, and on September 11, 2017, the post-conviction

      court denied Lain’s petition. Lain now appeals.


                                   Discussion and Decision
[5]   The general rules regarding the review of a ruling on a petition for post-

      conviction relief are well established:


              “The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
              “When appealing from 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, a petitioner must show that the evidence as a
              whole leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
              conviction court in this case made findings of fact and
              conclusions of law in accordance with Indiana Post-Conviction
              Rule 1(6). Although we do not defer to the post-conviction
              court’s legal conclusions, “[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.” Ben-Yisrayl v. State, 729 N.E.2d
              102, 106 (Ind. 2000) (quotation omitted).


      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).


                    I. Ineffective Assistance of Trial Counsel
[6]   Lain first argues that he received the ineffective assistance of trial counsel. A

      successful claim of ineffective assistance of trial counsel requires a showing that:


      Court of Appeals of Indiana | Memorandum Decision 03A01-1710-PC-2293 | July 26, 2018   Page 4 of 9
      (1) counsel’s performance was deficient by falling below an objective standard

      of reasonableness based on prevailing professional norms; and (2) counsel’s

      performance prejudiced the defendant such that “‘there is a reasonable

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

      proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

      (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A

      reasonable probability arises when there is a ‘probability sufficient to undermine

      confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

      2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two

      prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.

      Ct. App. 2012).


[7]   Lain first argues that trial counsel was ineffective because counsel failed to

      argue in a motion to suppress that Lain’s consent to search was not voluntary

      because he did not receive a Pirtle warning. Our Supreme Court has held that

      “a person who is asked to give consent to search while in police custody is

      entitled to the presence and advice of counsel prior to making the decision

      whether to give such consent.” Pirtle v. State, 263 Ind. 16, 29, 323 N.E.2d 634,

      640 (1975).


[8]   Here, trial counsel testified at the post-conviction hearing that the basis of the

      motion to suppress was an argument that Lain had not consented to the search

      at all. Therefore, counsel chose not to make an argument based on Pirtle, which

      presupposes consent. PCR Tr. Vol. II p. 14, 16. In other words, an argument

      that the evidence should be suppressed because Lain did not receive a Pirtle

      Court of Appeals of Indiana | Memorandum Decision 03A01-1710-PC-2293 | July 26, 2018   Page 5 of 9
       warning would have run counter to trial counsel’s strategy. Trial counsel’s

       decision to argue that the evidence should be suppressed because Lain did not

       consent to a search—rather than to argue that any consent was not voluntary—

       was a reasonable strategy that we will not second-guess. E.g., Wrinkles v. State,

       749 N.E.2d 1179, 1191 (Ind. 2001) (“Counsel is given significant deference in

       choosing a strategy which, at the time and under the circumstances, he or she

       deems best.”).


[9]    Lain also asserts that trial counsel was ineffective for failing to raise a defense

       based on Indiana Code section 35-48-4-16 (2003). Under a separate statute, the

       State enhanced Lain’s charge of possession from a Class C felony to a Class A

       felony because the possession took place within 1,000 feet of a public park. At

       the time of Lain’s offense, Indiana Code section 35-38-4-16 provided a defense

       to that proximity enhancement if no person under eighteen years of age, at least

       three years junior to the person, was in, on, or within 1,000 feet of the public

       park at the time of the offense.


[10]   Lain asserts that, because his offense took place around 9:30 p.m. on a Tuesday

       night in late September, it would be unlikely that children would have been in

       the area; further, no eyewitness testified that children were present. It is true

       that trial counsel could have raised this defense, and if successful, the charge

       would have been reduced from a Class A felony to a Class C felony. But this

       defense would have contradicted the defense that trial counsel pursued at trial,

       which was an all-or-nothing defense that the drugs did not belong to Lain.

       Trial counsel testified that his strategy was not to raise contradictory defenses.

       Court of Appeals of Indiana | Memorandum Decision 03A01-1710-PC-2293 | July 26, 2018   Page 6 of 9
       PCR Tr. Vol. II p. 31. This strategy was a reasonable one because if successful,

       it would have resulted in an acquittal. Trial counsel did not perform below

       acceptable professional standards. Therefore, the post-conviction court did not

       err by finding that Lain did not receive the ineffective assistance of counsel.


                II. Ineffective Assistance of Appellate Counsel
[11]   Lain also contends that the post-conviction court should have found that he

       received the ineffective assistance of appellate counsel because appellate counsel

       failed to adequately argue that his possession conviction was a lesser-included

       offense of his dealing conviction. To establish ineffective assistance of appellate

       counsel, the petitioner must show that (1) appellate counsel was deficient in his

       or her performance, and (2) the deficiency resulted in prejudice. Hollowell v.

       State, 19 N.E.3d 263, 269 (Ind. 2014). Failure to satisfy either prong will cause

       the claim to fail. Henley v. State, 881 N.E.2d 639, 644 (Ind. 2008). To satisfy

       the second prong, the defendant must show a reasonable probability that, but

       for counsel’s errors, the result of the proceeding would have been different. Id.


[12]   Initially, we note that in Lain’s first direct appeal, appellate counsel did raise

       the issue of lesser-included offenses, but because appellate counsel relied on

       cases that were decided under double jeopardy principles, this Court considered

       the issue under double jeopardy principles and found no violation. See Lain v.

       State, No. 03A04-0406-CR-341 (Ind. Ct. App. Feb. 21, 2005).


[13]   We sua sponte correct this error. Indiana Code section 35-38-1-6 provides that


               Whenever:
       Court of Appeals of Indiana | Memorandum Decision 03A01-1710-PC-2293 | July 26, 2018   Page 7 of 9
                        (1) a defendant is charged with an offense and an included
                        offense in separate counts; and


                        (2) the defendant is found guilty of both counts;


               judgment and sentence may not be entered against the defendant
               for the included offense.


       At the time of Lain’s offense, Indiana Code section 35-41-1-16(1) (1998 & Supp.

       2004) provided that an “included offense” is an offense that “is established by

       proof of the same material elements or less than all the material elements

       required to establish the commission of the offense charged[.]” This Court has

       consistently found that possession of methamphetamine is a lesser-included

       offense of dealing in methamphetamine. See, e.g., Hall v. State, 975 N.E.2d 401,

       407 n.1 (Ind. Ct. App. 2012) (noting that the charge of possession of

       methamphetamine is a lesser-included offense of dealing in methamphetamine).


[14]   Lain was charged with Class A felony possession of methamphetamine, which,

       at the time of the offense, included three elements: 1) knowing or intentional

       possession of methamphetamine, 2) weighing three or more grams, 3) within

       1,000 feet of a public park. I.C. § 35-48-4-6 (1998 & Supp. 2004). Lain was

       also charged with Class A felony dealing in methamphetamine, which, at the

       time of the offense, included three elements: 1) knowing or intentional

       possession of methamphetamine, 2) weighing three or more grams, 3) with

       intent to deliver. I.C. § 35-48-4-1 (1998 & Supp. 2004).




       Court of Appeals of Indiana | Memorandum Decision 03A01-1710-PC-2293 | July 26, 2018   Page 8 of 9
[15]   The same methamphetamine was used to convict Lain of these two offenses,

       and the two offenses occurred at the same time and place. Even though the

       dealing offense does not explicitly include an element about proximity to a

       public park, here, Lain’s dealing offense did take place within 1,000 feet of a

       public park. In other words, all of the elements used to establish the possession

       offense were also used to establish two of the elements of the dealing offense,

       making the possession offense a lesser-included offense of the dealing offense.

       Accordingly, under Indiana Code section 35-38-1-6, a judgment and sentence

       may not be entered against Lain for the possession offense, and we remand to

       the trial court with instructions to vacate Lain’s possession conviction.


[16]   The deficiency of appellate counsel about which Lain complains is rectified by

       our conclusion.


[17]   The judgment of the post-conviction court is affirmed in part, reversed in part,

       and remanded with instructions to vacate the possession conviction and

       sentence and issue a new judgment and abstract on the dealing conviction and

       sentence.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1710-PC-2293 | July 26, 2018   Page 9 of 9
