MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            May 13 2020, 9:24 am
regarded as precedent or cited before any
court except for the purpose of establishing                          CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Amy E. Karozos                                          Curtis T. Hill, Jr.
Public Defender of Indiana                              Attorney General

Jonathan O. Chenoweth                                   Samuel J. Dayton
Deputy Public Defender                                  Deputy Attorney General
Indianapolis, Indiana                                   Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

James Matthew Hayes,                                    May 13, 2020
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        19A-PC-2538
        v.                                              Appeal from the Greene Circuit
                                                        Court
State of Indiana,                                       The Honorable Lucas M. Rudisill,
Appellee-Respondent                                     Magistrate
                                                        Trial Court Cause No.
                                                        28C01-1603-PC-3



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-2538| May 13, 2020               Page 1 of 10
                                             Case Summary
[1]   James Hayes appeals the denial of his petition for post-conviction relief (PCR)

      claiming that the post-conviction court erred in determining that he had not met

      his burden to establish that he was denied effective assistance of trial counsel.

      Finding no clear error, we affirm.


                                 Facts and Procedural History
[2]   The underlying facts as recited by another panel of this Court on direct appeal

      are as follows:


              On April 15, 2014, after a night of smoking methamphetamine,
              Cory Slaven, Sierra Sipes, and Defendant James Hayes gathered
              at a mobile home in Greene County. They brought with them the
              accoutrements of methamphetamine production, including
              Mucinex D, Coleman camp fuel, and iodized salt. Hayes
              planned to make a fresh batch to smoke.

              The mobile home belonged to Craig Blake, who lived there with
              a friend. Hayes did not live there. Blake was briefly present on
              April 15, but then left. At the bottom left corner at the end of the
              mobile home, there was a small “no trespassing” sign.

              At some point in the evening, Slaven and Sipes had a heated
              argument, and Slaven left. Around 7:30 p.m., he called in an
              anonymous tip to the Greene County Sheriff’s Department,
              telling the dispatcher that there was a methamphetamine lab at
              Blake’s mobile home. Lieutenant Marvin Holt and Deputy
              Jordan Allor proceeded to the property in a marked police car,
              but did not use the lights or sirens. They parked out front and
              followed a gravel path that led to the main entrance of the home.
              They used flashlights to illuminate their way.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2538| May 13, 2020    Page 2 of 10
        The officers came up to a sliding glass door, knocked on it, and
        asked for Blake. From the doorway, they could see Sipes and
        Hayes sitting in the dark on a couch. Lieutenant Holt
        immediately recognized Hayes from an outstanding arrest
        warrant issued two days prior. He ordered Hayes to exit the
        home. Hayes eventually complied, after secreting away a two-
        liter bottle underneath a jacket.

        Hayes was placed in handcuffs and patted down. Lieutenant Holt
        discovered a wet paper towel wrapped in cellophane giving off a
        strong chemical odor. Hayes confirmed that it was
        methamphetamine. The officers then applied for, and were
        granted, a warrant to search the mobile home. During the
        execution of that warrant, officers found the two-liter bottle,
        which held active methamphetamine solution, along with other
        methamphetamine manufacturing paraphernalia.

        On April 23, 2014, the State charged Hayes with class B felony
        dealing in methamphetamine, class D felony possession of
        methamphetamine, and alleged that he was an habitual
        substance offender. On August 22, 2014, the State added a
        charge of class B felony conspiracy to commit dealing in
        methamphetamine. Prior to trial, Hayes filed a motion to
        suppress, arguing that the officers’ conduct violated his rights
        under the United States and Indiana Constitutions. The trial
        court denied his motion. Hayes renewed his argument by
        objecting at trial to the evidence obtained at the mobile home,
        and the trial court again ruled against him. Following the
        November 2014 [bifurcated] trial, the jury found Hayes guilty as
        charged, and the trial court sentenced him to an aggregate
        sentence of thirty-two years imprisonment.


Hayes v. State, No. 28A01-1412-CR-554, 2015 WL 5088829, slip op. at *1 (Ind.

Ct. App. Aug. 28, 2015) (footnote omitted). Hayes filed a direct appeal arguing

that the trial court abused its discretion in admitting certain evidence at trial

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2538| May 13, 2020   Page 3 of 10
      that he alleged was obtained by law enforcement in violation of his rights under

      the United States and Indiana Constitutions. Finding no constitutional

      violations, another panel of this Court affirmed his convictions. Id. at *3.


[3]   Hayes filed a pro se petition for post-conviction relief that was amended by

      counsel on October 2, 2018. In his amended petition, he alleged that he was

      denied his right to effective assistance of trial counsel due to his counsel’s

      failure to object to the admission of Exhibit 32 during the habitual substance

      offender portion of his trial. Exhibit 32 “contained a certified Judgment of

      Conviction, Pronouncement of Sentence, and Verdict Forms for [Hayes’s]

      crimes of possession of methamphetamine and possession of paraphernalia

      from 2008.” Appealed Order at 1. Exhibit 32 “contained references to or

      information about at least 20 prior criminal convictions and/or juvenile

      offenses of [Hayes’s], only two of which were necessary to prove an element or

      elements of the State’s habitual substance offender charge.” Id. Following a

      hearing, the post-conviction court entered findings of fact and conclusions of

      law denying the petition for relief. This appeal ensued. Additional facts will be

      provided as necessary.


                                     Discussion and Decision
[4]   Hayes contends that the post-conviction court erred in denying his PCR

      petition. Post-conviction proceedings do not offer the petitioner a super appeal;

      rather, subsequent collateral challenges must be based on grounds enumerated

      in the post-conviction rules. McKnight v. State, 1 N.E.3d 193, 199 (Ind. Ct. App.

      2013). These rules limit the scope of relief to issues unknown or unavailable to
      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2538| May 13, 2020   Page 4 of 10
      the petitioner on direct appeal. Id. The petitioner in a PCR proceeding “bears

      the burden of establishing grounds for relief by a preponderance of the

      evidence.” Ind. Post-Conviction Rule 1(5); Humphrey v. State, 73 N.E.3d 677,

      681 (Ind. 2017). When issuing its decision to grant or deny relief, the post-

      conviction court must make findings of fact and conclusions of law on all issues

      presented. Ind. Post-Conviction Rule 1(6); Humphrey, 73 N.E.3d at 682.


[5]   We review a post-conviction court’s denial of a PCR petition for clear error.

      Massey v. State, 955 N.E.2d 247, 253 (Ind. Ct. App. 2011). To prevail on

      appeal, the 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. Ellis v. State, 67 N.E.3d 643, 646 (Ind. 2017). In conducting

      our review, we neither reweigh evidence nor judge witness credibility; rather,

      we consider only the evidence and reasonable inferences most favorable to the

      judgment. McKnight, 1 N.E.3d at 199.


[6]   Hayes maintains that he was denied his constitutional right to effective

      assistance of counsel. To prevail on an ineffective assistance of counsel claim,

      he must satisfy two components: he must demonstrate both deficient

      performance and prejudice resulting from it. Strickland v. Washington, 466 U.S.

      668, 687 (1984). Deficient performance is “representation [that] fell below an

      objective standard of reasonableness, [where] counsel made errors so serious

      that counsel was not functioning as ‘counsel’ guaranteed to the defendant by

      the Sixth Amendment.” Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013).

      We assess counsel’s performance based on facts that are known at the time and

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2538| May 13, 2020   Page 5 of 10
      not through hindsight. Shanabarger v. State, 846 N.E.2d 702, 709 (Ind. Ct. App.

      2006), trans. denied.


[7]   “[C]ounsel’s performance is presumed effective, and a defendant must offer

      strong and convincing evidence to overcome this presumption.” Ritchie v. State,

      875 N.E.2d 706, 714 (Ind. 2007). “Tactical or strategic decisions will not

      support a claim of ineffective assistance,” and we therefore afford those

      decisions great deference. McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)

      (citation omitted). We evaluate counsel’s performance as a whole. Flanders v.

      State, 955 N.E.2d 732, 739 (Ind. Ct. App. 2011), trans. denied (2012). “Strickland

      does not guarantee perfect representation, only a reasonably competent

      attorney.” Hinesley v. State, 999 N.E.2d 975, 983 (Ind. Ct. App. 2013), trans.

      denied (2014). Prejudice occurs when a reasonable probability exists that, but

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

      Passwater, 989 N.E.2d at 770. “A reasonable probability is a probability

      sufficient to undermine confidence in the outcome.” Mitchell v. State, 946

      N.E.2d 640, 643 (Ind. Ct. App. 2011), trans. denied.


[8]   “Although the performance prong and the prejudice prong are separate

      inquiries, failure to satisfy either prong will cause the claim to fail.” Baer v.

      State, 942 N.E.2d 80, 91 (Ind. 2011). “If we can easily dismiss an ineffective

      assistance claim based upon the prejudice prong, we may do so without

      addressing whether counsel’s performance was deficient.” Henley v. State, 881

      N.E.2d 639, 645 (Ind. 2008). “Most ineffective assistance of counsel claims can

      be resolved by a prejudice inquiry alone.” Id.
      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2538| May 13, 2020   Page 6 of 10
[9]    Here, Hayes maintains that he was denied effective assistance of trial counsel

       because his counsel failed to object to the trial court’s admission of Exhibit 32

       during the habitual substance offender phase of trial. We agree with the post-

       conviction court that this case can be resolved based upon the prejudice prong

       alone, and this Court’s opinion in Kyles v. State, 888 N.E.2d 809 (Ind. Ct. App.

       2008), is instructive in doing so.


[10]   In Kyles, during the habitual offender phase of the trial, the State introduced

       into evidence certified copies of judgments of conviction stating that the

       defendant had been previously convicted of class D felony theft, first in 1997

       and again in 2007. Id. at 814. The judgment of conviction for the 1997 theft

       contained handwritten statements indicating that the defendant was convicted

       of class B misdemeanor battery in relation to the theft offense and that his prior

       criminal history included six true findings as a juvenile, fourteen misdemeanor

       convictions, and two other felony convictions. Id. The defendant moved for a

       mistrial which was denied by the trial court, and he was found by the jury to be

       a habitual offender. Id.


[11]   The defendant appealed arguing that the trial court erred in denying his motion

       for mistrial because the information concerning his prior criminal history “was

       so prejudicial that it absolutely foreclosed any possibility” that the jury would

       find in his favor on the habitual offender allegation. Id. This Court noted that

       in the context of habitual offender determinations where the State need only

       prove beyond a reasonable doubt that a defendant has been convicted of two

       prior unrelated felonies, see Ind. Code § 35-50-2-8, our supreme court has

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2538| May 13, 2020   Page 7 of 10
       consistently stated that if the State introduces evidence that the defendant has

       been convicted of more than two prior unrelated felonies, the introduction of

       such additional felonies is “mere surplusage” and therefore harmless. Id. (citing

       Wilson v. State, 511 N.E.2d 1014, 1017 (Ind. 1987); Golden v. State, 485 N.E.2d

       51, 56 (Ind. 1985)). Accordingly, in Kyles, we failed “to see how the inclusion

       of additional felony and non-felony offenses, though voluminous, substantially

       prejudiced the jury’s decision.” Id.


[12]   During the habitual substance offender phase of the trial here, the State

       introduced into evidence certified copies of judgments of conviction stating that

       Hayes was convicted of class D felony possession of methamphetamine in 2005

       and 2008, and class D felony possession of marijuana in 2013. One of the

       State’s exhibits, Exhibit 32, which was admitted without objection, contained

       references to or information about numerous other prior criminal convictions

       and/or juvenile offenses. At the conclusion of this phase of trial, the jury

       indeed found Hayes to be a habitual substance offender. However, as in Kyles,

       we fail to see how the admission of Hayes’s additional criminal history, though

       voluminous, could have substantially prejudiced the jury’s ultimate decision.

       We acknowledge that neither Kyles nor the precedent it relies upon are

       procedurally identical to the present case, as none of those cases involved post-

       conviction proceedings or a claim of prejudice in the context of ineffective

       assistance of counsel. Nevertheless, we think that any error by counsel in

       failing to object to the admission of evidence, when that admission of evidence

       would have been considered surplusage and ruled harmless, at most, on direct


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2538| May 13, 2020   Page 8 of 10
       appeal, surely does not rise to the level of a denial of the Sixth Amendment

       right to effective assistance of counsel.


[13]   Moreover, we agree with the State that there is nothing in the record to show

       that the jury reviewed or ever learned of the surplus information contained in

       Exhibit 32 such that Hayes could demonstrate that he suffered prejudice. First,

       the record reflects that, while testifying, the State’s sponsoring witness did not

       refer to Hayes’s additional criminal history contained in the exhibit, and there is

       no indication that the State ever moved to publish the exhibit. Trial Tr. Vol. 4

       at 765. During post-conviction proceedings, Hayes’s trial counsel testified that

       he did not believe the exhibit was in fact published because in his experience he

       had never known an exhibit to be passed to the jury absent a motion. PCR Tr.

       Vol. 2 at 13-15. The post-conviction court surmised that, although evidently

       not published, Exhibit 32 was likely “included with the exhibits and documents

       that would have been accessible to the jurors in the jury room during

       deliberations consistent with local practice.” Appealed Order at 2. Still, Hayes

       has not convinced us that this is the case. Based upon the trial transcript

       presented, we are unable to determine whether the jury had access to Exhibit

       32, as any discussion by counsel regarding exhibits traveling to the jury room

       took place off the record. It is well settled that the appellant bears the burden of

       presenting to this Court a record that is complete with respect to the issues

       raised on appeal. Clark v. State, 562 N.E.2d 11, 13 (Ind. 1990). This burden

       includes the duty to ensure that the appellate court has before it a complete

       transcript of the proceedings or, where none is available, an affidavit setting


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2538| May 13, 2020   Page 9 of 10
       forth the content of the proceedings. See Ind. Appellate Rule 31. Hayes has not

       submitted an affidavit stating that Exhibit 32 was sent to the jury room, and,

       unlike the post-conviction court, we will not speculate that it was. 1


[14]   In sum, Hayes has failed to demonstrate that there is a reasonable probability

       that but for his trial counsel’s alleged error, the result of the habitual substance

       offender proceeding would have been different. Thus, we find no clear error in

       the post-conviction court’s conclusion that Hayes did not meet his burden of

       establishing ineffective assistance concerning his trial counsel’s failure to object

       to the admission of Exhibit 32. Finding no clear error in the post-conviction

       court’s judgment, we affirm its denial of Hayes’s PCR petition.


[15]   Affirmed.


       Bailey, J., and Altice, J., concur.




       1
         Hayes’s trial counsel testified that, even assuming Exhibit 32 was sent to the jury room, the jury deliberated
       for such a short time that “there’s no way” the jury would have had time to review it. PCR Tr. Vol. 2 at 15.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2538| May 13, 2020                        Page 10 of 10
