MEMORANDUM DECISION
                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),                        Jul 06 2016, 6:18 am
this Memorandum Decision shall not be                              CLERK
regarded as precedent or cited before any                      Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court
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
Johnny W. Ulmer                                           Gregory F. Zoeller
Bristol, Indiana                                          Attorney General of Indiana

                                                          Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jairo Armas,                                              July 6, 2016
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          79A02-1508-PC-1315
        v.                                                Appeal from the Tippecanoe
                                                          Superior Court
State of Indiana,                                         The Honorable Randy J. Williams,
Appellee-Respondent.                                      Judge
                                                          Trial Court Cause No.
                                                          79D01-1302-PC-4 and 79D01-
                                                          0610-FA-19



Altice, Judge.


                                          Case Summary




Court of Appeals of Indiana | Memorandum Decision 79A02-1508-PC-1315 | July 6, 2016     Page 1 of 9
[1]   Jairo Armas appeals from the denial of his petition for post-conviction relief

      (PCR). On appeal, he raises two arguments, which we restate as follows:


               1. Is Armas’s search-and-seizure argument available as a free-
               standing claim?


               2. Was Armas’s trial counsel ineffective?


[2]   We affirm.


                                         Facts & Procedural History1


[3]   On October 17, 2006, Officer Joseph Clyde of the Lafayette Police Department

      was dispatched to a residence in response to a call regarding an attempted

      residential entry. Upon arriving at the scene, Officer Clyde found a man, later

      identified as Armas, standing in the yard. Armas told the officer that he was at

      the house because the resident owed him money. Officer Clyde then spoke

      with the resident, Cassandra Fordice. Fordice explained that she had called the




      1
        We remind appellant’s counsel of his duty under the Indiana Appellate Rules to state the facts in
      accordance with the standard of review—i.e., the facts most favorable to the post-conviction court’s
      judgment. Ind. Appellate Rule 46(A)(6) (providing that a statement of facts “shall be stated in accordance
      with the standard of review appropriate to the judgment or order being appealed”); West v. State, 938 N.E.2d
      305, 309 (Ind. Ct. App. 2010) (“[w]e consider only the probative evidence and reasonable inferences
      therefrom that support the post-conviction court’s determination, and we will not reweigh the evidence or
      judge witness credibility”), trans. denied. Armas’s counsel repeatedly cites to Armas’s testimony, which is in
      direct conflict with the testimony of other witnesses and the post-conviction court’s findings and judgment.
      We also remind counsel that App. R. 46(A)(6)(c) provides that the Statement of Facts “shall be in narrative
      form and shall not be a witness by witness summary of the testimony.” Armas’s Statement of Facts consists
      almost entirely of verbatim reproductions of long passages from the transcript of the post-conviction hearing.
      Indeed, excerpts from the transcript comprise over twenty pages of Armas’s thirty-page appellant’s brief.
      These deficiencies have made Armas’s Statement of Facts utterly unhelpful to our review of his appellate
      claims.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1508-PC-1315 | July 6, 2016                Page 2 of 9
      police because Armas was pounding on her door. She further stated that

      Armas was her drug dealer and that the vehicle parked in her driveway

      belonged to him. She also told Officer Clyde that she believed that Armas had

      drugs on him at that time.


[4]   Officer Clyde then spoke with Armas again and asked for permission to search

      the vehicle. Armas agreed to allow Officer Clyde to search the vehicle and gave

      him the keys. Officer Clyde then proceeded to conduct the search, and he

      discovered a black nylon zippered bag in the driver’s side door compartment.

      The bag contained multiple baggies of cocaine and a larger bag of marijuana.

      There were also a number of cards with Armas’s telephone number written on

      them in the bag.


[5]   As a result of these events, the State charged Armas with Count I, class A

      felony dealing in cocaine; Count II, class A felony possession of cocaine; Count

      III, class A misdemeanor possession of marijuana, and Count IV, class D

      felony maintaining a common nuisance. Armas ultimately pled guilty to class

      A felony dealing in cocaine pursuant to a plea agreement, the terms of which

      placed a twenty-five year cap on the executed portion of his sentence. The trial

      court sentenced Armas to twenty-five years executed, and this court affirmed

      Armas’s sentence on direct appeal.


[6]   Armas filed a PCR petition on February 28, 2013, which was subsequently

      amended. A hearing on the petition was conducted on April 20, 2015. On July




      Court of Appeals of Indiana | Memorandum Decision 79A02-1508-PC-1315 | July 6, 2016   Page 3 of 9
      31, 2015, the trial court issued its order denying the petition. Armas now

      appeals.


                                          Discussion & Decision


[7]   Before turning to the merits of this appeal, we note that Armas has wholly

      failed to cite the standard of review applicable to appeals from the denial of

      post-conviction relief. See App. R. 46(A)(8)(b) (providing that “[t]he argument

      must include for each issue a concise statement of the applicable standard of

      review”). Moreover, Armas’s appellate arguments are poorly developed and

      inadequately supported by citation to relevant authority and portions of the

      record. See App. R. 46(A)(8)(a) (providing that “[t]he argument must contain

      the contentions of the appellant on the issues presented, supported by cogent

      reasoning” and that the contentions “must be supported by citations to the

      authorities, statutes, and the Appendix or parts of the Record on Appeal relied

      on”). Indeed, Armas has devoted only three pages of his thirty-page brief to the

      Summary of Argument and Argument sections of his brief. His Summary of

      Argument section is two sentences long, and simply states that the trial court

      erred in denying his PCR petition and that this court should therefore reverse.

      See App. R. 46(A)(7) (providing that the Summary of Argument section “should

      contain a succinct, clear, and accurate statement of the arguments made in the

      body of the brief” and “should not be a mere repetition of the argument

      headings”). The majority of the Argument section is composed of recitations of

      various legal standards. We are left with roughly two and a half paragraphs of

      analysis, composed almost entirely of conclusory assertions that the previously

      Court of Appeals of Indiana | Memorandum Decision 79A02-1508-PC-1315 | July 6, 2016   Page 4 of 9
      cited legal standards have been satisfied. In light of the numerous deficiencies

      in Armas’s briefing, we would be well within our discretion to consider his

      arguments waived. See Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App.

      2005) (explaining that “[a] party waives an issue where the party fails to

      develop a cogent argument or provide adequate citation to authority and

      portions of the record”), trans. denied. However, because we prefer to decide

      cases on their merits where possible, we will address Armas’s arguments to the

      extent his briefing allows.


[8]   In a post-conviction proceeding, the petitioner bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Bethea v. State, 983

      N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction

      relief, the petitioner stands in the position of one appealing from a negative

      judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In

      order to prevail, the petitioner must demonstrate that the evidence as a whole

      leads unerringly and unmistakably to a conclusion opposite the post-conviction

      court’s conclusion. Id. Although we do not defer to a post-conviction court’s

      legal conclusions, we will reverse its findings and judgment only upon a

      showing of clear error, i.e., “that which leaves us with a definite and firm

      conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729

      N.E.2d 102, 106 (Ind. 2000)).


                            1. Free-standing Search-and-Seizure Claim




      Court of Appeals of Indiana | Memorandum Decision 79A02-1508-PC-1315 | July 6, 2016   Page 5 of 9
[9]   Armas first raises a free-standing search-and-seizure claim. Specifically, he

      argues that he was subjected to an unconstitutional search and seizure when

      police allegedly prevented him from leaving and searched his vehicle. Because

      Armas pled guilty, however, he has waived his right to challenge the propriety

      of the search as a free-standing claim. Our Supreme Court has noted that

      “[d]efendants who plead guilty to achieve favorable outcomes forfeit a plethora

      of substantive claims and procedural rights.” Alvey v. State, 911 N.E.2d 1248,

      1250-51 (Ind. 2009). Defendants may not simultaneously plead guilty and

      challenge the evidence supporting the underlying conviction. Id. at 1249.

      Accordingly, “[w]hen a judgment of conviction upon a guilty plea becomes

      final and the defendant seeks to reopen the proceedings, the inquiry is normally

      confined to whether the underlying plea was both counseled and voluntary.”

      Id.; Branham v. State, 813 N.E.2d 809, 812 (Ind. Ct. App. 2004) (noting that a

      defendant cannot question pre-trial orders following the entry of a guilty plea);

      Neville v. State, 663 N.E.2d 169, 172 (Ind. Ct. App. 1996) (holding that a post-

      conviction challenge to the trial court’s ruling on a motion to suppress was

      “foreclosed by the decision to plead guilty”). Accordingly, Armas forfeited any

      free-standing challenge to the propriety of the search by pleading guilty. Armas

      makes no argument that his guilty plea was not knowing, intelligent, and

      voluntary, nor does he challenge the factual basis supporting the plea. Thus,

      the only avenue remaining to Armas to challenge his guilty plea is his claim of

      ineffective assistance of trial counsel, which we address below.


                                 2. Ineffective Assistance of Counsel


      Court of Appeals of Indiana | Memorandum Decision 79A02-1508-PC-1315 | July 6, 2016   Page 6 of 9
[10]   Essentially, Armas argues that his trial counsel was ineffective for advising him

       to accept the plea agreement without first challenging the admissibility of the

       evidence seized from his car through a motion to suppress. A petitioner will

       prevail on a claim of ineffective assistance of counsel only upon a showing that

       counsel’s performance fell below an objective standard of reasonableness and

       that the deficient performance prejudiced the petitioner. Bethea, 983 N.E.2d at

       1138. To satisfy the first element, the petitioner must demonstrate deficient

       performance, which is “representation that fell below an objective standard of

       reasonableness, committing errors so serious that the defendant did not have

       the ‘counsel’ guaranteed by the Sixth Amendment.” Id. (quoting McCary v.

       State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the second element, the

       petitioner must show prejudice, which is “a reasonable probability that, but for

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

       1139. In the context of a guilty plea, this requires the petitioner to establish a

       reasonable probability that, but for counsel’s errors, he would not have pled

       guilty and would have instead insisted on going to trial. Scott v. State, 986

       N.E.2d 292, 296 (Ind. Ct. App. 2013). “A reasonable probability is one that is

       sufficient to undermine confidence in the outcome.” Kubsch v. State, 934

       N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668,

       694 (1984)). Failure to satisfy either element will cause an ineffectiveness claim

       to fail. Carrillo v. State, 98 N.E.2d 461, 464 (Ind. Ct. App. 2013). Thus, if a

       petitioner cannot establish prejudice, we need not evaluate the reasonableness

       of counsel’s performance. Id.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1508-PC-1315 | July 6, 2016   Page 7 of 9
[11]   Armas argues that his counsel was ineffective for failing to file a motion to

       suppress the drugs discovered as a result of the search of his vehicle. It is

       apparent, however, that trial counsel made a strategic decision not to file such a

       motion. At the PCR hearing, trial counsel testified as follows:


                 I did not file a motion to suppress. Certainly it was considered
                 but I believed the problem was that he consented to the search.
                 Sometimes that’s hard to get over and then if you do file a
                 motion to suppress and you lose typically you don’t get favorable
                 plea agreements.


       Transcript at 95. Armas cannot establish deficient performance based on such

       reasonable tactical decisions. See Morales v. State, 19 N.E.3d 292, 297 (Ind. Ct.

       App. 2014) (explaining that “trial strategy is not subject to attack through an

       ineffective assistance of counsel claim, unless the strategy is so deficient or

       unreasonable as to fall outside the objective standard of reasonableness”), trans.

       denied.


[12]   Moreover, the facts most favorable to the post-conviction court’s judgment

       support its conclusion that a motion to suppress, if filed, would have been

       denied because Armas consented to the search. See State v. Cunningham, 26

       N.E.3d 21, 25 (Ind. 2015) (explaining that a warrantless search based on lawful

       consent is consistent with both the state and federal constitutions). Trial

       counsel will not be deemed deficient for failing to present a meritless claim.

       Peak v. State, 26 N.E.3d 1010, 1016 (Ind. Ct. App. 2015). For all of these

       reasons, Armas has not established that his trial counsel was ineffective.



       Court of Appeals of Indiana | Memorandum Decision 79A02-1508-PC-1315 | July 6, 2016   Page 8 of 9
[13]   Judgment affirmed.


[14]   Bailey, J. and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1508-PC-1315 | July 6, 2016   Page 9 of 9
