                                                             FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                         Dec 13 2012, 8:53 am
before any court except for the purpose
of establishing the defense of res                               CLERK
judicata, collateral estoppel, or the law                      of the supreme court,
                                                               court of appeals and
                                                                      tax court
of the case.


ATTORNEYS FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                 GREGORY F. ZOELLER
Public Defender of Indiana                       Attorney General of Indiana

JAY M. LEE                                       KATHERINE MODESITT COOPER
Deputy Public Defender                           Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DANIEL A. SAGE,                                  )
                                                 )
        Appellant-Petitioner,                    )
                                                 )
               vs.                               )    No. 20A03-1206-PC-266
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Plaintiff.                      )


                      APPEAL FROM THE ELKHART CIRCUIT COURT
                          The Honorable Terry C. Shewmaker, Judge
                               Cause No. 20C01-0804-FA-13


                                      December 13, 2012

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                             Case Summary

          Daniel Sage appeals the denial of his petition for post-conviction relief. We

affirm.

                                                   Issue1

          Sage raises one issue, which we restate as whether he received ineffective

assistance of counsel.

                                                   Facts

          On April 5, 2008, Goshen Police Officer Joshua Havens conducted a traffic stop

of the car Sage was driving because a headlight on the vehicle was not working. When

Officer Havens approached the vehicle, he observed Sage lean over as if to place

something on the floorboard. While talking to Sage, Officer Havens noticed that Sage’s

hands were shaking and that he appeared extremely nervous. While the stop was in

progress, a canine unit was summoned. A dog sniffed the exterior of the car, and it

alerted to the presence of narcotics. Methamphetamine eventually was discovered in the

car.

          On April 9, 2008, the State charged Sage with Class A felony dealing in

methamphetamine. On April 14, 2008, attorney R. Brent Zook entered an appearance.

On July 24, 2008, Sage pled guilty to Class B felony possession of methamphetamine.




1
  In his appellant’s brief, Sage appears to raise a free-standing claim of error in addition to the ineffective
assistance of counsel claim. In his reply brief, however, he clarifies that he was not raising a free-
standing claim and that he was only establishing his ineffective assistance of counsel claim. We therefore
only address the ineffective assistance of counsel claim.
                                                      2
Pursuant to the plea agreement, Sage was sentenced to fifteen years with eight years

suspended to probation.

      On November 28, 2011, Sage filed an amended petition for post-conviction relief

alleging that Zook’s failure to file a motion to suppress amounted to ineffective

assistance of counsel. Following a hearing, the post-conviction court denied Sage’s

petition. Sage now appeals.

                                        Analysis

      Sage argues that the post-conviction court improperly concluded that he did not

receive ineffective assistance of trial counsel. Generally, the completion of the direct

appeal process closes the door to a criminal defendant’s claims of error in conviction or

sentencing. Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009). However, defendants

whose appeals have been rejected are allowed to raise a narrow set of claims through a

petition for post-conviction relief. Id. (citing Ind. Post-Conviction Rule 1(1)). A post-

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

presented in the petition. Id. (citing P-C.R. 1(6)). The findings must be supported by the

facts, and the conclusions must be supported by the law. Id. “Our review on appeal is

limited to these findings and conclusions.” Id.

      The petitioner bears the burden of proof, and an unsuccessful petitioner appeals

from a negative judgment. Id. A petitioner appealing from a negative judgment must

show that the evidence as a whole leads unerringly and unmistakably to a conclusion

opposite to that reached by the post-conviction court. Id. We will disturb a post-

conviction court’s decision as being contrary to law only where the evidence is without

                                            3
conflict and leads to but one conclusion and the post-conviction court has reached the

opposite conclusion. Id.

       Sage argues that Zook’s failure to challenge the canine sniff in a motion to

suppress amounted to ineffective assistance of counsel. “To establish a post-conviction

claim alleging the violation of the Sixth Amendment right to effective assistance of

counsel, a defendant must establish before the post-conviction court the two components

set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674

(1984).” Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010), cert. denied. First, a

defendant must show that counsel’s performance was deficient by establishing that

counsel’s representation fell below an objective standard of reasonableness and that

“‘counsel made errors so serious that counsel was not functioning as ‘counsel’ guaranteed

to the defendant by the Sixth Amendment.’” Id. (quoting Strickland, 466 U.S. at 687,

104 S. Ct. at 2064).       A defendant must also show that the deficient performance

prejudiced the defense by establishing there is a reasonable probability that, but for

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

Id. “Further, counsel’s performance is presumed effective, and a defendant must offer

strong and convincing evidence to overcome this presumption.”           Id.   “A petitioner

alleging ineffective assistance of counsel in overlooking a defense leading to a guilty plea

must show a reasonable probability that, had the defense been raised, the petitioner would

not have pleaded guilty and would have succeeded at trial.” Helton v. State, 907 N.E.2d

1020, 1024 (Ind. 2009) (citing Segura v. State, 749 N.E.2d 496, 503 (Ind. 2001)).



                                             4
        “Because a traffic stop is a seizure under the Fourth Amendment, police may not

initiate a stop for any conceivable reason, but must possess at least reasonable suspicion

that a traffic law has been violated or that other criminal activity is taking place.”2

Meredith v. State, 906 N.E.2d 867, 869 (Ind. 2009). Sage does not assert that the initial

stop was improper.          Instead, he claims that the canine sniff was an unreasonable

expansion of an initially proper traffic stop and that Officer Havens did not have

reasonable suspicion to allow the canine sniff.3

        In Myers v. State, 839 N.E.2d 1146, 1149 (Ind. 2005), our supreme court

observed:

                       The use of narcotics sniffing dogs by police has
                recently been addressed by the United States Supreme Court.
                Deciding “[w]hether the Fourth Amendment requires
                reasonable, articulable suspicion to justify using a drug-
                detention dog to sniff a vehicle during a legitimate traffic
                stop,” the Court declared that the use of a narcotics-detection
                dog “generally does not implicate legitimate privacy
                interests.” Illinois v. Caballes, 543 U.S. 405, 125 S. Ct. 834,
                837, 838, 160 L.Ed.2d 842, 846, 847 (2005). It reasoned that
2
  Although Sage acknowledges that an analysis under the Indiana Constitution differs from the United
States Constitution, he does not provide us with a substantive analysis based on the Indiana Constitution.
3
  To the extent he argues that a canine sniff is only proper if it is supported by reasonable suspicion, Sage
relies on Cannon v. State, 722 N.E.2d 881 (Ind. Ct. App. 2000), trans. denied, and Kenner v. State, 703
N.E.2d 1122 (Ind. Ct. App. 1999), trans. denied. In his reply brief, Sage claims that the State is “flatly
incorrect” for asserting these cases have been superseded. Appellant’s Reply Br. p. 2. To the contrary, in
Myers v. State, 839 N.E.2d 1146, 1149 (Ind. 2005), our supreme court recognized, “[t]he effect of
Caballes is to supersede the defendant’s assertions regarding Cannon and Kenner on this point.” Myers,
839 N.E.2d at 1158. Sage also incorrectly suggests that in Bush v. State, 925 N.E.2d 787 (Ind. Ct. App.
2010), clarified on reh’g, we held that “an officer must have a reasonable suspicion of criminal activity
before a canine sniff may be conducted.” Appellant’s Reply Br. p. 5. In Bush, we only considered
whether there was reasonable suspicion to prolong Bush’s detention to perform a canine sniff after we
determined that the State failed to show that the canine sniff was justified as an incident of the stop.
Bush, 925 N.E.2d at 791. Thus, we reject Sage’s assertion that, “by summoning the canine unit without
reasonable suspicion to do so, Officer Havens converted a proper stop into one that no longer was
legitimate for purposes of Caballes and its Indiana progeny down to Bush.” Appellant’s Reply Br. p. 5.


                                                     5
              “[o]fficial conduct that does not compromise any legitimate
              interest in privacy is not a search subject to the fourth
              Amendment,” that “government conduct that only reveals the
              possession of contraband compromises no legitimate privacy
              interests,” and that “the expectation that certain facts will not
              come to the attention of the authorities is not the same as an
              interest in privacy that society is prepared to consider
              reasonable.” Caballes, 125 S. Ct. at 837-38, 160 L.Ed.2d at
              847 (included quotations omitted). The Court held that
              “conducting a dog sniff would not change the character of a
              traffic stop that is lawful at its inception and otherwise
              executed in a reasonable manner . . . .” Caballes, 125 S. Ct. at
              837-38, 160 L.Ed.2d at 848. The Court did note, however,
              that a “seizure that is justified solely by the interest in issuing
              a warning ticket to the driver can become unlawful if it if
              prolonged beyond the time reasonably required to complete
              that mission.” Caballes, 125 S. Ct. at 837, 160 L.Ed.2d at
              846.

      Here, on the issue of whether the seizure was unreasonably prolonged, the post-

conviction court concluded:

              25.    In the case currently before the court, there was no
              evidence presented that the canine sniff at question
              unreasonably extended the traffic stop of Petitioner’s vehicle,
              or that the traffic stop was completed before the canine sniff
              commenced. Therefore, the facts of this case did not require
              that the police officer have independent reasonable suspicion
              to conduct a canine sniff of Petitioner’s vehicle.

App. p. 71.

      Sage has not established that the evidence leads unerringly and unmistakably to a

conclusion opposite to that reached by the post-conviction court. The only admissible

evidence presented by Sage at the post-conviction relief hearing was a copy of the

Incident Offense Report, Sage’s certified driving record, and the chronological case




                                              6
summary. The Incident Offense Report contains a two-page narrative by Officer Havens.

The narrative provides:

                      While on patrol I observed a blue Pontiac 6000,
              Indiana license plate LO7293 in the area of Plymouth and
              Lincolnway East. I had my turn signal to turn north indicated
              and the driver was in the traffic lane next to me on the south
              side of the road. I noticed that the passenger side headlight
              was not working on the vehicle. I waited for the vehicle to
              turn south but it would not go until I went.
                      I turned north and observed the vehicle slowly pull out
              from Lincolnway East and Plymouth. I turned around and
              activated my emergency lights as the vehicle was turning into
              the Best Western hotel at 900 Lincolnway East. The vehicle
              pulled into a parking space and the driver was bending over at
              the waist near the floorboard of the vehicle. It appeared as if
              he was placing something on the floor of the vehicle. There
              was a female on the passenger side and she was not making
              any movement.
                      I approached the vehicle and advised the driver that I
              had stopped him for the headlight being burnt out. The driver
              appeared to be extremely nervous. His hands were shaking,
              and he was repeating himself. I asked the driver for his
              drivers license and registration. The defendant was identified
              as Daniel A. Sage. I then asked the passenger if she had
              identification, and she said yes. The passenger was identified
              as Diana West-Fusaro. I asked Mr. Sage to exit his vehicle
              and I showed him the passenger side headlight was burned
              out. Mr. Sage said that it wasn’t his vehicle and that he did
              not know that it was burnt out.
                      Due to the movements that Mr. Sage was making in
              the immediate area of the vehicle, I had K-9 Officer Tara
              Powell #140 en route with her K-9 partner Eros for a free air
              search. I sat Mr. Sage uncuffed into the back of my police
              vehicle, and Diana stood outside the vehicle next to Officer
              Powell’s vehicle.
                      Officer Powell walked her K-9 partner around the
              vehicle and she said that he had indicated an odor of narcotics
              in the back seat of the vehicle, and near the front driver side
              floor board where I had seen Mr. Sage bending over.

Ex. 1 p. 5 (capitalization altered).

                                            7
       Based on various computer printouts attached to the Incident Offense Report, Sage

appears to suggest that he was issued a citation for the headlight violation and the stop

was complete before the K-9 unit arrived. Even if we were to assume that the various

printouts establish that Officer Havens issued a citation, it is not clear when the citation

was issued in relation to arrival of the K-9 unit and subsequent canine sniff. Quite

simply, the limited evidence presented by Sage at the post-conviction relief hearing does

not show that the traffic stop was complete when the canine sniff was conducted or that

the canine sniff unreasonably prolonged his detention. In the absence of such evidence,

Sage has not shown a reasonable probability that counsel overlooked a defense that

would have likely changed the outcome of the proceeding.              Therefore, the post-

conviction court properly denied Sage’s petition.

                                       Conclusion

       Sage has not established that the evidence leads unerringly and unmistakably to a

conclusion opposite to that reached by the post-conviction court. We affirm.

       Affirmed.

BAKER, J., and RILEY, J., concur.




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