                                                                  FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                Sep 25 2012, 8:28 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                           CLERK
                                                                     of the supreme court,
                                                                     court of appeals and
                                                                            tax court




APPELLANT PRO SE:                                 ATTORNEYS FOR APPELLEE:

CARY L. PATRICK                                   GREGORY F. ZOELLER
Carlisle, Indiana                                 Attorney General of Indiana

                                                  MONIKA PREKOPA TALBOT
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

CARY L. PATRICK,                                  )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
              vs.                                 )        No. 45A03-1109-PC-413
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Respondent.                       )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Salvador Vasquez, Judge
                              Cause No. 45G01-0912-PC-11



                                      September 25, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Cary L. Patrick appeals the post-conviction court’s denial of his petition for post-

conviction relief. Patrick raises three issues for our review, which we restate as the

following two issues:

       1.     Whether he received ineffective assistance from his trial counsel
              when counsel failed to object to the admission of evidence obtained
              pursuant to a search warrant; and

       2.     Whether he received ineffective assistance from his appellate
              counsel when counsel did not raise on appeal whether it was error
              for the trial court to allow various officers to testify that Patrick had
              been uncooperative with them during a search.

       We affirm.

                        FACTS AND PROCEDURAL HISTORY

       The facts underlying Patrick’s convictions for four counts of attempted murder,

Class A felonies, and one count of arson, as a Class B felony, were stated by this court on

his direct appeal:

       [Sometime prior to the summer of 2007,] a niece of [Robert] Badgley’s
       [sic], fourteen[-]year[-]old K.K., was living in Chapel Hill, North Carolina.
       She spent a lot of time talking to her friends on the internet using the screen
       name “peachybeach.” Someone using the screen name “Hopkins” and
       several other screen names talked to K.K. on the [i]nternet and would not
       let her alone. At this same time, flowers and pizza the family did not order
       showed up at K.K.’s house.

             At one point Badgley’s daughter [M.B.] received a message from
       “peachybeach” asking for the Badgleys’ home address. Thinking she was
       communicating with K.K., the girl gave the address. Sometime after that,
       someone spray painted K.K.’s telephone number on the Badgley’s garage
       door.

Patrick v. State, No. 45A05-0810-CR-614, 908 N.E.2d 1280, at *1 (Ind. Ct. App. June

22, 2009) (“Patrick I”). Further:
                                              2
Badgley and his family lived in St. John, Indiana. On the evening of
August 18, 2007, M.B. was playing at home with her friends, J.L., L.L. and
A.S. While outside M.B. saw an old red sports car driving down her street.
Since she had been told to stay away from a car such as this, she and her
friends hid and then went into the house to watch a movie.

        That same evening Sandra Sarsfield and her sister, Cheryl Ladowski,
also saw an older model red Camaro in the cul de sac driving back and
forth slowly every twenty minutes starting about 6:45 p.m. Sarsfield saw
that the driver was a male with black hair.

        About 8:15 p.m., while walking to a neighbor’s house, Sarsfield saw
the car in front of the driveway belonging to Badgley’s next door neighbor.
She heard the car’s door slam and saw a stocky Caucasian man with dark
wavy hair who was wearing dark clothing walk up the driveway. Around
8:30 or 8:45 p.m., Ladowski, who had walked farther and was on her way
back, saw a man with the same description holding two very large red gas
cans. After Ladowski returned to her house, she and Sarsfield stepped out
for a cigarette and saw the Camaro take off at a high rate of speed, without
stopping for a stop sign.

       While the children were watching television in the living room, they
saw that the attached sunroom looked orange. M.B. called her father who
opened the door to the sunroom and discovered the room was on fire. The
fire was put out. The fire department determined that the fire had been
intentionally set from outside the house and that an accelerant had been
used.

        Police Captain Bernard Johnson investigated the fire. When he
asked Mr. Badgley if there was anyone he should look into, Badgley
responded “Cary Patrick,” against whom he had previously secured a
restraining order.

      The next day the police went to Patrick’s home in Warsaw, Indiana,
and discovered his red Camaro. Although it was raining heavily, the
windows of the car were open and there was a strong odor of gasoline
coming from the car. The officers saw Patrick inside the house and
knocked on the door, but no one answered it. Officer Fryzel went to the
back of the house and saw that Patrick had opened the kitchen window. He
advised Patrick of the fire and told him there had been children in the
house. Patrick replied that he knew that.

       The police called Patrick’s father, who came home and let the
officers into the house. Patrick was wearing dark trousers and a dark T-
                                     3
       shirt, and his clothing smelled of gasoline. He was given Miranda warnings
       and was placed under arrest. When interviewed at the St. John police
       station, Patrick denied any involvement in the fire and denied being in St.
       John. The police mentioned the restraining order against Patrick, and
       Officer Johnsen asked why Patrick thought someone would light Badgley’s
       home on fire. Patrick said, “Maybe that’s what happens when you put out
       restraining orders.”

              The police also impounded the Camaro and took it to St. John.
       Officers found a Schererville CVS receipt in the vehicle, dated August 18,
       2007, for the purchase of a lighter, candy and Moon Pies. [Internal
       footnote six: Schererville is less than three miles from St. John.]

              The police located the clerk at CVS who had made the sale and
       asked if she could identify the purchaser. She was shown a photographic
       array that included Patrick’s picture. She immediately identified Patrick,
       who was picture number 1, then said, “Oh, wait a minute. Maybe it is
       number 3, but I'm leaning toward number 1.”

              Three days after the fire, Sarsdale and Ladowski went to the police
       station and identified Patrick’s red Camaro as the one that had been in their
       neighborhood.

Id. at *3-4 (citations to the record omitted).

       During the course of investigating Patrick for harassment of K.K. in the year

preceding the fire, Columbia City officers initially obtained two search warrants for

Patrick’s residence.1 The officers procured the first search warrant in November 2006

and a second warrant in April of 2007, both based on the probable cause affidavits of

Columbia City Police Officer Dwayne Hively. Pursuant to their April 2007 search,

officers seized a computer.

       When this computer was turned on, it initiated with an AOL messaging
       screen and the name “wellHeythere012” and a password appeared on the
       screen. The computer contained some software programs to crack
       passwords.      Other screen names on the computer included
       “snapcracklepop,” “peachybeach,” and several that included the name

       1
           As discussed below, officers eventually obtained a third search warrant in August of 2007.
                                                     4
      “Hopkins.” There was a note on the computer called [K.K.’s] suicide. The
      police also seized Patrick’s cell phone and found K.K.’s and A.S.’s
      telephone numbers stored in the phone. The cell phone records indicated
      calls and text messages made to K.K.

Id. at *2 (alterations original; footnote omitted). The note, “K.K.’s suicide,” had been

circulated in K.K.’s school sometime in early 2007. K.K. did not author that note.

      On direct appeal following his convictions, Patrick’s counsel first challenged the

admissibility of the evidence seized pursuant to the November 2006 search warrant. We

concluded that the affidavit supporting the warrant for probable cause was so lacking that

the warrant was defective as a matter of law and that no reasonable officer would have

relied on the warrant in good faith. Id. at *1-2. However, we noted that Patrick did not

“make any argument whatever concerning the validity of th[e April 2007] warrant or the

materials seized upon its execution,” and that “the evidence produced under the [April]

2007 warrant was substantially equivalent to that complained of by Patrick under the

[November 2006] search warrant.” Id. at *2-3.

      Rather, Patrick’s complaint regarding the evidence seized under the April 2007

warrant was that it was inadmissible under Indiana Evidence Rule 404(b). We disagreed

and held that the evidence seized under the April 2007 warrant was admissible under

Rule 404(b) because it tended to show a connection between Patrick and the Badgleys.

Id. at *3. However, we acknowledged that “[t]he mere fact that Patrick apparently

engaged in harassing K.K. on the internet and by telephone has little tendency to lead to

the conclusion that he must have committed arson.” Id.

      Having reviewed Patrick’s arguments regarding the evidence seized pursuant to

the two warrants, we then explained that, even without considering the evidence seized
                                            5
pursuant to either of the two warrants, the State had presented sufficient evidence to

support Patrick’s convictions. Id. at *4. In particular, we concluded that “the totality of

the evidence, while circumstantial, clearly supports” Patrick’s convictions.      Id. We

further noted that any errors were harmless based on their “probable impact on the jury,

in light of all the evidence in the case . . . .” Id. at *2.

       On December 2, 2009, Patrick filed a pro se petition for post-conviction relief,

which he later amended. Patrick raised numerous allegations of ineffective assistance

from his trial and appellate counsel, as well as various allegations of fundamental error.

The post-conviction court held an evidentiary hearing on June 14, 2010. And on August

22, 2011, the court entered its findings of fact and conclusion of law denying Patrick’s

petition. This appeal ensued.

                               DISCUSSION AND DECISION

                                      Standard of Review

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

conviction relief. As we have explained:

       [The petitioner] bore the burden of establishing the grounds for post-
       conviction relief by a preponderance of the evidence. See Ind. Post-
       Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d 591, 597 (Ind.
       2001). Post-conviction procedures do not afford a petitioner with a super-
       appeal, and not all issues are available. Timberlake, 753 N.E.2d at 597.
       Rather, subsequent collateral challenges to convictions must be based on
       grounds enumerated in the post-conviction rules. Id. If an issue was
       known and available, but not raised on direct appeal, it is waived. Id. If it
       was raised on appeal, but decided adversely, it is res judicata. Id.

              In reviewing the judgment of a post-conviction court, appellate
       courts consider only the evidence and reasonable inferences supporting the
       post-conviction court’s judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind.
       2006). The post-conviction court is the sole judge of the evidence and the
                                                 6
       credibility of the witnesses. Id. at 468-69. Because he is now appealing
       from a negative judgment, to the extent his appeal turns on factual issues
       [the petitioner] must convince this court that the evidence as a whole leads
       unerringly and unmistakably to a decision opposite that reached by the
       post-conviction court. See Timberlake, 753 N.E.2d at 597. We will disturb
       the decision only if the evidence is without conflict and leads only to a
       conclusion contrary to the result of the post-conviction court. Id.

Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.

       Patrick argues that the post-conviction court erred for two reasons. First, he

asserts that he was denied the effective assistance of trial counsel. Patrick also contends

that he was denied the effective assistance of his appellate counsel.           A claim of

ineffective assistance of counsel must satisfy two components. Strickland v. Washington,

466 U.S. 668 (1984).         First, the defendant must show deficient performance:

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. at 687-88. Second, 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. at

694.

       With those principles in mind, we address each of Patrick’s arguments.

                                Issue One: Trial Counsel

       Patrick first asserts that he was denied the effective assistance of trial counsel for

two reasons: because his counsel did not object to the admission of evidence seized

pursuant to the April 2007 search warrant and because they did not object to the




                                             7
admission of evidence seized pursuant to a third warrant obtained in August of 2007,

after the fire had occurred.2 We cannot agree with Patrick’s assertions.

        Patrick cannot demonstrate that, but for his counsel’s refusal to object to the

admission of the evidence seized pursuant to the April 2007 search warrant, the result of

his criminal trial would have been different. See Strickland, 466 U.S. at 694. As we

explained in Patrick I, even if that seized evidence had been excluded, the totality of the

remaining evidence “clearly supports” Patrick’s convictions. Patrick I, supra at *3-4.

Accordingly, Patrick cannot demonstrate prejudice from his counsel’s purported error,

and the post-conviction court’s judgment on this issue is not clearly erroneous.

        As for the August 2007 warrant issued after the fire, Patrick contends that the

officer’s affidavit in support of the August 2007 warrant was based on the false and

misleading statements of two witnesses. And, as a result of the August 2007 warrant, the

State seized Patrick’s red Camaro, his clothing, which smelled of gasoline, and the CVS

receipt.

        The affidavit in support of the August 2007 search warrant states that the affiant

officer, Officer Johnsen, spoke to two witnesses at the scene of the arson—Lauren and

Cheryl Ladowski—who had observed a red Camaro, in poor condition, near the

Badgleys’ residence on several occasions on the date of the fire. Officer Johnsen also




        2
          The August 2007 warrant and supporting affidavit, as well as other documents relevant to this
appeal, are not contained in the Appellant’s Appendix but were instead filed separately as “Appellant’s
Exhibit.” See Ind. Appellate Rule 50(a)(1) (“The purpose of an Appendix in civil appeals . . . is to
present the Court with copies of only those parts of the record on appeal that are necessary for the Court
to decide the issues presented.”). Further, insofar as Patrick attempted to raise any arguments under
Indiana’s Constitution, those arguments are not supported by cogent reasoning and are waived. App. R.
46(A)(8)(a).
                                                    8
reported that Mr. Badgley had told him that he had a restraining order against Patrick.

And Officer Johnsen stated that Patrick owns a red, 1984 Camaro.

       Here, Patrick asserts that Lauren and Cheryl subsequently testified to facts

materially different from those reported to Officer Johnsen immediately after the fire.

But Lauren’s subsequent testimony wholly omits the information contained in Officer

Johnsen’s affidavit; she neither confirmed nor denied the facts as stated by Officer

Johnsen. However, another witness, Sandra Sarsdale, Lauren’s aunt, did testify to facts

substantially similar to those Officer Johnsen had attributed to Lauren.          Likewise,

Cheryl’s subsequent trial testimony is substantially similar to the statements Officer

Johnson attributed to her in his affidavit.

       Accordingly, had Patrick’s counsel objected to the admission of the State’s

evidence seized pursuant to the August 2007 warrant on the grounds that the foundation

underlying Officer Johnsen’s affidavit was false and misleading, the trial court would

have overruled the objection. It is well established that, “in order to prevail on a claim of

ineffective assistance due to the failure to object, the defendant must show an objection

would have been sustained if made.” Overstreet v. State, 877 N.E.2d 144, 155 (Ind.

2007). As Patrick cannot demonstrate that the trial court would have been required to

sustain any objection by his counsel to the admission of the evidence seized pursuant to

the August 2007 warrant, Patrick cannot demonstrate that his counsel rendered

unconstitutionally deficient performance in their failure to so object. See Strickland, 466

U.S. at 687-88. Thus, we cannot say that the post-conviction court’s judgment on this

issue is clearly erroneous.


                                              9
                              Issue Two: Appellate Counsel

       Patrick also argues that his appellate counsel was ineffective when she failed to

raise as an issue on appeal trial counsel’s purported failure to object to the testimony of

several officers that Patrick was “not cooperative with them” during their investigation.

See Appellant’s Br. at 23. As our supreme court has explained:

       We review claims of ineffective assistance of appellate counsel using the
       same standard applicable to claims of trial counsel ineffectiveness. The
       defendant must show that appellate counsel was deficient in his
       performance and that the deficiency resulted in prejudice. Ineffective
       assistance claims at the appellate level of proceedings generally fall into
       three basic categories: (1) denial of access to an appeal; (2) waiver of
       issues; and (3) failure to present issues well.

Fisher v. State, 810 N.E.2d 674, 676-77 (Ind. Ct. App. 2004) (citations omitted).

       Patrick’s argument in this appeal is based on the second category.           We are

especially deferential to appellate counsel on this type of claim:

       [T]he reviewing court should be particularly sensitive to the need for
       separating the wheat from the chaff in appellate advocacy, and should not
       find deficient performance when counsel’s choice of some issues over
       others was reasonable in light of the facts of the case and the precedent
       available to counsel when that choice was made.

Id. at 677 (alteration original; quotation omitted).

       On direct appeal, Patrick’s counsel argued the following: (1) that the November

2006 search warrant was invalid; (2) that the evidence seized pursuant to the April 2007

search warrant was inadmissible under Indiana Evidence Rule 404(b); and (3) that the

evidence was insufficient to support Patrick’s convictions. We agreed with Patrick’s

counsel on the first issue; the second question was a close decision for the State; and we

agreed with the State that the totality of the remaining evidence supported Patrick’s


                                              10
convictions. Patrick I, supra, at *1-4. The post-conviction court expressly found that the

trial court “did exclude several of the details surrounding the defendant’s refusal to

cooperate” with the investigating officers. Appellant’s App. at 22. The post-conviction

court further credited the testimony of Patrick’s appellate counsel that “she chose the two

issues to raise on appeal that she felt had the best likelihood of success” and that, given

the record, Patrick could not demonstrate reversible error. Id. at 22-23.

       We agree with the post-conviction court.        The choice of Patrick’s appellate

counsel to raise the issues she did instead of the issue Patrick now asserts was reasonable

in light of the facts of the case and precedent. See Fisher, 810 N.E.2d at 677. As

explained in Patrick I, Patrick’s appellate counsel raised meritorious arguments.

Nonetheless, as we also explained in Patrick I, even without considering the allegedly

inadmissible evidence, the facts presented by the State during his trial “clearly

support[ed]” Patrick’s convictions. Patrick I, supra, at *4. That same conclusion holds

even when we do not consider the allegedly erroneous testimony regarding Patrick’s lack

of cooperation with police. See id. Thus, Patrick cannot demonstrate that his appellate

counsel’s performance was constitutionally deficient or that there is a reasonable

probability that, but for the supposedly deficient performance, the result of his direct

appeal would have been different. See Strickland, 466 U.S. at 694. As such, we cannot

say that the post-conviction court’s judgment on this issue is clearly erroneous.

       Affirmed.

KIRSCH, J., and MAY, J., concur.




                                            11
