MEMORANDUM DECISION                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Apr 12 2017, 10:55 am
this Memorandum Decision shall not be
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regarded as precedent or cited before any                                Indiana Supreme Court
                                                                            Court of Appeals
court except for the purpose of establishing                                  and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.



ATTORNEY PRO SE                                          ATTORNEYS FOR APPELLEE
Mike Harmon, Jr.                                         Curtis T. Hill, Jr.
Bunker Hill, Indiana                                     Attorney General of Indiana

                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Mike Harmon, Jr.,                                        April 12, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         45A03-1605-PC-1048
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Respondent.                                     Judge

                                                         The Honorable Kathleen A.
                                                         Sullivan, Magistrate
                                                         Trial Court Cause No.
                                                         45G01-1305-PC-6



Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 45A03-1605-PC-1048 | April 12, 2017            Page 1 of 12
                                       Statement of the Case
[1]   Mike Harmon, Jr. appeals the post-conviction court’s denial of his petition for

      post-conviction relief. Harmon raises the following three issues for our review:

              1.      Whether the post-conviction court erred when it rejected
                      Harmon’s contention that the State had improperly
                      withheld potentially exculpatory evidence from him during
                      his trial.


              2.      Whether the post-conviction court erred when it
                      concluded that Harmon did not receive ineffective
                      assistance from trial counsel.


              3.      Whether Harmon’s convictions denied him his
                      constitutional rights to due process and equal protection of
                      the laws.


      We affirm.


                                 Facts and Procedural History
[2]   The facts underlying Harmon’s convictions were stated by our court in his

      direct appeal:

              During the evening of January 4, 2011, Dominique Smith
              (“Dominique”) was in his Gary apartment located across the
              street from the New Jerusalem Church of God and Christ (“the
              Church”). Dominique’s grandfather, Pastor Lawrence Smith
              (“Pastor Smith”), had served as pastor of the Church for nearly
              thirty years and continued to preach at the Church on a regular
              basis. While watching television, Dominique heard a loud noise
              that sounded like a knock at his door. Dominique went down
              the back stairs and looked down the alley in an attempt to

      Court of Appeals of Indiana | Memorandum Decision 45A03-1605-PC-1048 | April 12, 2017   Page 2 of 12
        discover the source of the noise. Dominique saw a man, who
        was subsequently identified as Harmon, attempting to break one
        of the Church’s windows with either a rock or a brick.
        Dominique saw Harmon enter the Church through the window
        after he was able to successfully break the window. After
        watching Harmon enter the church, Dominique notified Pastor
        Smith of the break-in.


        Dominique walked around to the front of the church to wait for
        Pastor Smith to arrive. As Pastor Smith approached, Dominique
        went back around the side of the Church. Dominique saw
        Harmon’s legs hanging out of the window. Pastor Smith also
        saw Harmon’s legs hanging out of the window. Dominique
        ordered Harmon to “Stop, don’t move. Don’t go nowhere.” Tr.
        p. 14. Harmon attempted to flee but was cornered by Pastor
        Smith’s vehicle and detained by Dominique until police arrived.


        Shortly after Dominique detained Harmon, Gary Police Officers
        Francis Peckler and David Finley arrived at the scene. Officer
        Finley secured Harmon while Officer Peckler, Pastor Smith’s
        wife Theodora, and Dominique entered the Church. Upon
        entering the Church, Theodora noticed broken glass near the
        window through which Harmon had gained access to the
        Church. Theodora also saw that a piece of cardboard had been
        placed in the broken window. She further noticed that some of
        the furnishings had been rearranged and a stone statute depicting
        angels and a waterfall had been moved from its normal location
        and placed near the broken window. Dominique noticed that a
        keyboard and a public address system which were normally
        stored near the pulpit had been moved to near the broken
        window. In addition to pieces of broken glass laying near and a
        piece of cardboard placed in the broken window, Officer Peckler
        noticed what appeared to be a broken vase right below the
        broken window. Pastor Smith testified that while he could not
        remember specifically whether certain items were out of place


Court of Appeals of Indiana | Memorandum Decision 45A03-1605-PC-1048 | April 12, 2017   Page 3 of 12
              when he entered the Church a few days after the break-in, he did
              remember that a gold flower pot had been moved.


              Officers Finley and Peckler found two flashlights and two hand
              files in Harmon’s jacket pocket at the time of his arrest. Both
              Officer Peckler and lead detective Officer Brian Farrow testified
              that in their experience as police officers, hand files and
              flashlights are items that are typically used during the course of a
              burglary when an individual is attempting to break into a
              structure and steal something.


              On January 6, 2011, the State charged Harmon with Class C
              felony burglary and Class B misdemeanor criminal mischief. On
              February 4, 2011, the State amended the charging information to
              include an allegation that Harmon was a habitual offender. The
              State again amended the charging information on July 26, 2011,
              adding a charge of Class B felony burglary. On November 10,
              2011, Harmon waived his right to a jury trial.


              Following a bench trial, the trial court, acting as the fact-finder,
              found Harmon guilty of Class B felony burglary and Class B
              misdemeanor criminal mischief. Harmon stipulated that he was
              a habitual offender. On January 5, 2012, the trial court imposed
              an aggregate twenty-year term of incarceration. Harmon
              subsequently filed a motion to correct error, which was denied by
              the trial court on February 27, 2012. . . .


      Harmon v. State, No. 45A02-1203-CR-256, 2012 WL 5193218 at *1-2 (Ind. Ct.

      App. Oct. 22, 2012) (footnote omitted), trans. denied (“Harmon I”).


[3]   In Harmon I, Harmon argued that the State had failed to present sufficient

      evidence to show that he had committed burglary, as a Class B felony. In

      particular, Harmon asserted that the State’s evidence established only “that he

      Court of Appeals of Indiana | Memorandum Decision 45A03-1605-PC-1048 | April 12, 2017   Page 4 of 12
      entered and exited the Church through a broken window” and “not that he

      moved any property in a way that would envince [sic] an intent to commit

      theft.” Id. at *2. We held, “[i]n light of witness testimony that certain

      furnishings had been rearranged and multiple items were moved from their

      normal locations and placed near the broken window[,] combined with

      Harmon’s possession of tools . . . typically used during the course of a

      burglary,” that the State presented sufficient evidence to support Harmon’s

      conviction. Id. at *4.


[4]   In May of 2013, Harmon filed his petition for post-conviction relief, which he

      later amended. In his amended petition, Harmon alleged that he had received

      ineffective assistance from his trial counsel, Samuel Vazanellis, based on

      various theories. At an ensuing evidentiary hearing, Harmon first argued that

      Vazanellis had failed to demand certain allegedly exculpatory photographs

      taken by the State at the Church during the course of its investigation. In

      response to that argument, Vazanellis testified:

              [T]he pictures would have shown the objects next to the window.
              I don’t see what . . . the difference is between people testifying to
              what was below the window and what the pictures would have
              shown. Everyone testified they don’t know whether or not they
              moved it or you moved it, so I don’t see how that’s an issue.


      P-CR Tr. at 35.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1605-PC-1048 | April 12, 2017   Page 5 of 12
[5]   Harmon further alleged that Vazanellis had erroneously advised Harmon to

      waive his right to a jury trial. In response, Vazanellis testified that, in light of

      the fact that Harm had “admitted” that he had broken into the Church:


              I explained to you that this was a question of law, not a question
              of fact, that you had broken into the church[] but you didn’t
              intend to steal anything. And that was a question of law, and it
              was my opinion that a bench trial would be better than a jury
              hearing that you broke into a church and weren’t planning on
              stealing anything.


              I thought that the fact that you broke into a church and the jury
              hearing that would prejudice you, and the jury would just assume
              that you had broken in to steal something. Where a [j]udge can
              be fair and impartial and he can distinguish between those things.
              If there was no evidence that anything was moved and there was
              no evidence of an intent to steal, he would only be able to find
              you guilty of trespass. I thought it would be better to have a
              bench trial.


              And then I advised you of that and you chose. You made the
              ultimate decision of having a bench trial.


      Id. at 45-47. And, in response to Harmon’s claim that Vazanellis had failed to

      introduce favorable letters written by the victims, Vazanellis responded that

      such evidence was unnecessary as Pastor Smith and his wife had “testified in

      court for you on your behalf” and specifically stated that they believed Harmon

      “didn’t move anything and . . . didn’t commit burglary.” Id. at 45.


[6]   Following the evidentiary hearing, the post-conviction court denied Harmon’s

      petition. In doing so, the court found and concluded as follows:

      Court of Appeals of Indiana | Memorandum Decision 45A03-1605-PC-1048 | April 12, 2017   Page 6 of 12
              14.     . . . [Harmon] was presumably aware of the alleged
              existence of the [alleged exculpatory] photographs at trial, yet
              their lack [of having been admitted] was not raised on direct
              appeal and so is waived here.


              15. In addition, [Harmon] fails to demonstrate how any
              photographs of clear glass and a vase might be exculpatory in any
              way, as he does not dispute that Officer Peckler’s testimony in
              describing those items was accurate.


                                                      ***


              22. [Harmon] has failed to show prejudice in regard to any of
              the issues raised in his petition. As to [Harmon’s] allegations
              that [Vazanellis] failed to investigate, Mr. Vazanellis testified as
              to his theory of defense and it was a reasonable, albeit ultimately
              unsuccessful, one. . . .


              23. [Harmon] also alleges violations of due process and equal
              protection of the laws; however, the gist of [Harmon’s] argument
              appears to be that there was insufficient evidence to convict him.
              On this point, he is barred by res judicata as the issue was
              addressed by the Court of Appeals [in Harmon I] . . . .


      Appellant’s App. Vol. II at 13-14. This appeal ensued.


                                     Discussion and Decision
[7]   Harmon appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Our standard of review is clear:


              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)
      Court of Appeals of Indiana | Memorandum Decision 45A03-1605-PC-1048 | April 12, 2017   Page 7 of 12
               (citations omitted). 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, 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) (internal quotation omitted).


      Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to

      Campbell).


[8]   On appeal, Harmon raises three issues for our review: (1) whether the State

      failed to disclose potentially exculpatory photographs;1 (2) whether Harmon

      received ineffective assistance from Vazanellis; and (3) whether his conviction

      for Class B felony burglary violated his rights to due process and equal

      protection of the laws. We address each argument in turn.




      1
        In the post-conviction court, Harmon styled this alleged error as a claim of ineffective assistance of counsel.
      While he does not frame the issue in the same way on appeal, the State does not take issue with Harmon’s
      repackaging of the substance of the claim he had presented to the post-conviction court. Cf. Bunch v. State,
      964 N.E.2d 274, 297-304 (Ind. Ct. App. 2012) (considering the post-conviction petitioner’s claim that the
      State had withheld potentially exculpatory evidence), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1605-PC-1048 | April 12, 2017               Page 8 of 12
                                           Issue One: Photographs

[9]    We first consider Harmon’s argument that the State failed to disclose

       potentially exculpatory photographs, namely, certain photographs that,

       according to Harmon, would have shown that a vase placed near the broken

       window “belong[ed] there.” Appellant’s Br. at 11. The post-conviction court

       rejected Harmon’s argument on two grounds. First, the court found that this

       issue was available, but not argued, by Harmon on direct appeal. Second, the

       court found that, Harmon’s waiver notwithstanding, his argument lacked merit.


[10]   We agree that Harmon’s argument lacks merit. Assuming for the sake of

       argument that this issue was even properly before the post-conviction court,

       Vazanellis testified that the allegedly exculpatory photographs were merely

       cumulative to the testimony of the witnesses. See P-CR Tr. at 35. Error cannot

       be predicated on evidence that is merely cumulative. See, e.g., Sibbing v. Cave,

       922 N.E.2d 594, 598 (Ind. 2010). Accordingly, Harmon cannot demonstrate

       that the post-conviction court’s judgment on this issue is contrary to law.


                         Issue Two: Ineffective Assistance of Counsel Claim

[11]   Harmon next argues that he received ineffective assistance from his trial

       counsel:


               When evaluating an ineffective assistance of counsel 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 Helton v.
               State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
               prong, “the defendant must show deficient performance:
               representation that fell below an objective standard of

       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-PC-1048 | April 12, 2017   Page 9 of 12
               reasonableness, committing errors so serious that the defendant
               did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
               McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
               Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
               second prong, “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. at 694, 104 S. Ct. 2052).


       Campbell, 19 N.E.3d at 274. Harmon argues that Vazanellis rendered

       constitutionally deficient assistance because, according to Harmon, Vazanellis

       did not properly advise Harmon regarding Harmon’s decision to waive his right

       to a jury trial; Vazanellis failed to submit to the court during trial letters written

       by the victims that were favorable to Harmon; and Vazanellis did not timely file

       a motion to correct error in the trial court following the bench trial.


[12]   We first consider Harmon’s argument that Vazanellis did not properly advise

       him regarding his right to a jury trial. At the evidentiary hearing before the

       post-conviction court, Vazanellis testified that he advised Harmon to waive his

       right to a jury trial because Harmon’s best defense was to argue that he had

       only committed trespass at the Church and not burglary. Vazanellis advised

       Harmon that this argument was best made to the court, and not the jury,

       because Vazanellis did not think a jury would be likely to believe that Harmon

       broke into the Church without an intent to commit a felony therein. The post-

       conviction court relied on Vazanellis’ testimony and concluded that he had

       acted in a reasonable manner. We cannot say that the post-conviction court’s

       judgment, which is supported by the record, is contrary to law.
       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-PC-1048 | April 12, 2017   Page 10 of 12
[13]   We next consider Harmon’s argument that Vazanellis failed to submit favorable

       evidence, namely, the letters from the victims, to the trial court. At the

       evidentiary hearing before the post-conviction court, Vazanellis testified that he

       did not submit the written letters because the victims testified to the court and

       the substance of their testimony was the same as the substance of the letters.

       Harmon presents no cogent argument on appeal to demonstrate that Vazanellis’

       testimony is incorrect. Accordingly, we cannot say that the post-conviction

       court’s judgment on this issue is contrary to law.


[14]   Finally, Harmon argues that Vazanellis rendered ineffective assistance because

       he failed to file a timely motion to correct error. But whether timely filed or

       not, the substance of the motion to correct error was based on a claim of

       insufficient evidence to support Harmon’s conviction for Class B felony

       burglary. As explained in Harmon I, that argument failed. Accordingly,

       Harmon cannot demonstrate that the post-conviction court’s judgment on this

       issue is contrary to law.


                           Issue Three: Due Process and Equal Protection

[15]   Harmon’s final issue on appeal is whether he “has been denied due process

       and . . . equal protection” based on Issue One, Issue Two, and/or “the [b]ench

       trial” generally. Appellant’s Br. at 17. For the reasons explained above, we

       reject Harmon’s arguments under Issue One and Issue Two. And, as his

       conviction for Class B felony burglary was supported by sufficient evidence, as

       explained in Harmon I, we reject his third argument that his bench trial violated

       his constitutional rights.
       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-PC-1048 | April 12, 2017   Page 11 of 12
[16]   In sum, we affirm the post-conviction court’s denial of Harmon’s petition for

       post-conviction relief.


[17]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1605-PC-1048 | April 12, 2017   Page 12 of 12
