                                                                            Oct 30 2013, 5:49 am

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.




ATTORNEYS FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

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

GREGORY L. LEWIS                                  ELLEN H. MEILAENDER
Deputy Public Defender                            Deputy Attorney General
Indianapolis, Indiana                             Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

ERIC DANNER,                                      )
                                                  )
        Appellant-Petitioner,                     )
                                                  )
               vs.                                )       No. 71A03-1304-PC-146
                                                  )
STATE OF INDIANA,                                 )
                                                  )
        Appellee-Respondent.                      )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                          The Honorable R.W. Chamblee, Jr., Judge
                               Cause No. 71D08-0909-PC-34


                                       October 30, 2013

                MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Eric Danner appeals the post-conviction court’s denial of his petition for post-

conviction relief. We affirm.

                                            Issue

       Danner raises one issue, which we restate as whether the post-conviction court

properly found that he failed to prove his ineffective assistance of trial counsel claim.

                                           Facts

       The facts, as discussed in Danner’s direct appeal, follow:

                     At approximately 1:00 p.m. on August 15, 2006, South
              Bend Police Officer Greg Early was patrolling in a marked
              squad vehicle with his canine, Tina, when he observed a tan
              Chevy Impala with a temporary paper plate. Officer Early
              knew that a 2005 tan Chevy Impala was on a list of recently
              stolen vehicles. He, however, could not run the temporary
              plate on the Impala because temporary paper plates are “not
              specific to a car.” (Tr. 132). He began following the Impala,
              clocking its speed at forty-two miles per hour in a thirty-mile-
              per-hour zone. He then initiated a traffic stop. The driver of
              the Impala stopped the vehicle in an alley located within
              approximately twenty to fifty feet of Kids’ Kompany [sic]
              Day Care Center (“Kids’ Kompany”).

                     As Officer Early approached the Impala, he observed
              four people inside and saw “the back seat passenger [on the
              passenger’s side] pull his hands real quick away from the
              back of the front seat,” as if he were “getting rid of something
              or doing something with his hands.” (Tr. 135, 136). Officer
              Early ordered all four to show their hands before he continued
              to the driver’s door. As he got closer to the Impala, he
              “immediately could smell a strong odor of marijuana.” (Tr.
              136). When asked for his driver’s license, Danner, who had
              been driving the Impala, admitted that it was suspended.

                     Officer Early asked Danner to step out of the vehicle
              and then “conducted a pat down for weapons.” (Tr. 140). As

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             he “patted [Danner] right by his rear end,” he “felt a large
             hard lump,” which he recognized as drugs. (Tr. 141). Officer
             Early handcuffed Danner and had the vehicle’s remaining
             occupants step out. He then retrieved Tina “to have her
             search inside of the vehicle for anymore illegal drugs.” (Tr.
             142-43). Tina alerted to the presence of drugs in the Impala’s
             “center console between the driver’s front seat and the
             passenger front seat.” (Tr. 143). Officer Early discovered “a
             clear plastic bag containing marijuana” in the console. (Tr.
             144). After an additional search, he discovered more
             marijuana in the pocket behind the front passenger seat.

                    After searching the Impala, Officer Early “jiggled the
             back of [Danner’s] pants” until a plastic bag, containing
             several other small plastic bags, fell onto the ground. (Tr.
             148). The smaller plastic bags contained a “white rock-like
             substance[.]” (Tr. 149). A subsequent test determined the
             substance to be cocaine with a total weight of 24.88 grams.

Danner v. State, 900 N.E.2d 9, 10 (Ind. Ct. App. 2008).

      On August 17, 2006, the State charged Danner in St. Joseph Superior Court No. 8

(“felony court”) under Cause Number 71D08-0608-FA-39 (“FA-39”) with Class A

felony possession of cocaine, Class A misdemeanor possession of marijuana, and Class A

misdemeanor driving while suspended.       Based on the same incident, the State also

charged Danner in St. Joseph Superior Court No. 1 (“traffic/misdemeanor court”) under

Cause Number 71D01-0608-CM-6318 (“CM-6318”) with Class A misdemeanor driving

while suspended and Class C infraction speeding. On April 30, 2007, in CM-6318,

Danner was convicted of Class A misdemeanor driving while suspended, and the

speeding infraction was dismissed.

      In FA-39, Danner had a jury trial in January 2008, and he was found guilty of

Class A felony possession of cocaine, Class A misdemeanor possession of marijuana, and


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Class A misdemeanor driving while suspended. Danner’s attorney in FA-39 did not

represent him in CM-6318. He received a fifty-year sentence, and we affirmed his

conviction and sentence on direct appeal. See id. at 13.

       Danner filed a petition for post-conviction relief, which was later amended, and

alleged that his trial counsel in FA-39 was ineffective for failing to file a motion to

dismiss all of the charges in that case based on the successive prosecution statute.

Danner filed a motion for judgment on the pleadings, but the post-conviction court denied

the motion and set the matter for an evidentiary hearing. After the hearing, the post-

conviction court found that Danner was prejudiced and, “[b]ut for counsel’s failure to

seek dismissal of the felony case giving rise to this action, [Danner] could not have been

prosecuted to conviction, nor be sentenced as he was.”         Appellant’s App. p. 134.

However, the post-conviction court found that trial counsel’s performance was not

deficient:

                    The evidence presented at the hearing provided no
             basis for determining what the prevailing professional norm
             would be, given the apparently unique circumstances
             presented.
                    Notwithstanding [Danner’s] attacks upon the
             assumption made by trial counsel that the driving while
             suspended charge referred to in the police report as a citation
             was the same driving while suspended charge filed in the
             felony case; and counsel’s further assumption based upon his
             experience that the speeding citation was not separately filed,
             [Danner] presented no evidence to establish that those
             assumptions were unreasonable or that investigation of the
             records of the Misdemeanor Court would be professionally
             required, or appropriate as the norm.




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Id. at 135 (footnote omitted). Consequently, the post-conviction court denied Danner’s

petition for post-conviction relief. Danner now appeals.

                                        Analysis

      Danner challenges the denial of his petition for post-conviction relief. A court that

hears a post-conviction claim must make findings of fact and conclusions of law on all

issues presented in the petition. Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009) (citing

Ind. Post-Conviction Rule 1(6)). “The findings must be supported by facts and the

conclusions must be supported by the law.” Id. Our review on appeal is limited to these

findings and conclusions. Id. Because the petitioner bears the burden of proof in the

post-conviction court, an unsuccessful petitioner appeals from a negative judgment. Id.

(citing P-C.R. 1(5)). “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 trial court.’” Id. (quoting Allen v. State, 749 N.E.2d 1158, 1164 (Ind.

2001), cert. denied. Under this standard of review, “[we] will disturb a post-conviction

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

leads to but one conclusion, and the post-conviction court has reached the opposite

conclusion.” Id.

      Danner argues that he received ineffective assistance of trial counsel. To prevail

on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that

counsel’s performance was deficient and that the petitioner was prejudiced by the

deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citing

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)), cert.

                                            5
denied). A counsel’s performance is deficient if it falls below an objective standard of

reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816,

824 (Ind. 2002). To meet the appropriate test for prejudice, the petitioner must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. Id. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.

Ct. at 2068. Failure to satisfy either prong will cause the claim to fail. Grinstead v. State,

845 N.E.2d 1027, 1031 (Ind. 2006).

       Danner’s argument concerns Indiana’s successive prosecution statute, which

provides:

              A prosecution is barred if all of the following exist:

              (1)    There was a former prosecution of the defendant for a
                     different offense or for the same offense based on
                     different facts.

              (2)    The former prosecution resulted in an acquittal or a
                     conviction of the defendant or in an improper
                     termination under section 3 of this chapter.

              (3)    The instant prosecution is for an offense with which
                     the defendant should have been charged in the former
                     prosecution.

Ind. Code § 35-41-4-4(a). The post-conviction court found that, if Danner’s trial counsel

had raised the successive prosecution statute, Danner could not have been found guilty of

the charges in FA-39. On appeal, the State does not challenge that finding or the finding

that Danner was prejudiced by his trial counsel’s failure to raise the issue. Rather, the



                                              6
sole issue on appeal is whether Danner’s trial counsel’s performance was deficient for

failing to raise the issue.

       Deficient performance 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.” State v. McManus, 868 N.E.2d 778, 790 (Ind.

2007), cert. denied. Our inquiry focuses on the attorney’s actions while recognizing that

“ʻ[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not

necessarily render representation ineffective.’” Id. (quoting Timberlake v. State, 753

N.E.2d 591, 603 (Ind. 2001), cert. denied). A “strong presumption arises that counsel

rendered adequate assistance.” Id. “[W]e require the defendant or petitioner to show

that, in light of all the circumstances, the identified acts or omissions of counsel were

outside the wide range of professionally competent assistance.” Roche v. State, 690

N.E.2d 1115, 1120 (Ind. 1997). “This showing is made by demonstrating that counsel’s

performance was unreasonable under prevailing professional norms.” Id.

       The parties focus on trial counsel’s failure to investigate the CM-6318 conviction

and failure to file a motion to dismiss the FA-39 charges as a result of the successive

prosecution statute. According to Danner, his trial counsel should have been aware of the

CM-6318 conviction because of information in the FA-39 probable cause affidavit, which

provided: “It should be noted that Danner was issued a citation for Driving While

Suspended/Priors and Speeding 42/30 mph speed zone (citation #’s 06-99867 and 06-

99868).” Petitioner’s Ex. 1A. At the post-conviction hearing, Danner’s trial counsel

testified that he had been an attorney for thirty-five years, that successive prosecution

                                            7
cases are rare, and that he had never before had a case involving successive prosecution.

Trial counsel testified that he typically reviewed probable cause affidavits and that he

likely would have reviewed Danner’s probable cause affidavit in FA-39, but he did not

specifically recall doing so. He further testified that the language in the probable cause

affidavit would not have put him on notice that Danner had another pending case as a

result of the same incident. Trial counsel did not recall previously encountering any

similar cases with charges filed in two different courts, and he did not recall Danner

telling him about the CM-6318 charges. Danner presented no other evidence at the post-

conviction hearing.

      On the deficient performance argument, the post-conviction court found: “The

evidence presented at the hearing provided no basis for determining what the prevailing

professional norm would be, given the apparently unique circumstances presented.”

Appellant’s App. p. 135. We agree. To show that his counsel’s performance was

deficient, Danner was required to present evidence that the performance was

unreasonable under prevailing professional norms, but Danner presented no such

evidence.   Without such evidence, we cannot say that the failure to recognize the

successive prosecution issue based on the one sentence in the probable cause affidavit

was “outside the wide range of professionally competent assistance.” Roche, 690 N.E.2d

at 1120.

      We do not mean to hold that a petitioner can never show deficient performance by

counsel’s failure to recognize a successive prosecution issue. In fact, we can envision

cases where a petitioner could establish deficient performance under those circumstances.

                                            8
However, the record presented to us does not clearly establish that an attorney acting

pursuant to prevailing professional norms should have discovered the successive

prosecution issue based solely on the one sentence in the probable cause affidavit.

Danner has failed to demonstrate that “the evidence, as a whole, unmistakably and

unerringly points to a conclusion contrary to the post-conviction court’s decision.” State

v. Holmes, 728 N.E.2d 164, 169 (Ind. 2000), cert. denied.

                                       Conclusion

      Danner has failed to demonstrate that the post-conviction court’s decision is

clearly erroneous. We affirm.

      Affirmed.

CRONE, J., and PYLE, J., concur.




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