MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Sep 28 2017, 8:55 am

court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana

John Pinnow                                              George P. Sherman
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Paula Lynn Tackett,                                      September 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         35A02-1704-PC-888
        v.                                               Appeal from the Huntington
                                                         Superior Court
State of Indiana,                                        The Honorable Jeffrey R.
Appellee-Plaintiff.                                      Heffelfinger, Judge Pro Tem
                                                         Trial Court Cause No.
                                                         35D01-1309-PC-14



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 35A02-1704-PC-888 | September 28, 2017       Page 1 of 9
                                       Statement of the Case
[1]   Paula Tackett appeals from the post-conviction court’s denial of her petition for

      post-conviction relief. Tackett raises two issues for our review:

              1.       Whether she was denied the effective assistance of trial
                       counsel.

              2.       Whether she was denied the effective assistance of
                       appellate counsel.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts underlying Tackett’s convictions were stated by this court on direct

      appeal:


              On October 25, 2011, a family case manager for the Huntington
              County department of child services investigated allegations of a
              minor child being left home alone and the manufacture and use
              of methamphetamine by the minor’s parents. When the family
              case manager arrived at the residence, she found a note pinned
              on the front door which read “Don’t bother Knocking[.] Junior
              has left town and [S.T.] is not having company. Please Don’t
              Disturb. Go Away.” (State’s Ex. No. 2). Although there were
              lights on inside the house, a television was playing, and dogs
              were barking, no one opened the door. The following day, the
              family case manager received a phone call from Tackett,
              informing the case manager that she and her minor child, S.T.,
              were at a hotel about an hour away.

              Meanwhile, police had obtained a search warrant for the
              residence. During the search, police officers discovered several
              of the ingredients used to manufacture methamphetamine,
      Court of Appeals of Indiana | Memorandum Decision 35A02-1704-PC-888 | September 28, 2017   Page 2 of 9
        including lye, used cold medicine packs, a baggie containing
        lithium strips, tubing, and several bottles which had been used as
        generators and reaction vessels. Based on the number of
        reactionary vessels located, the officers determined that eight
        separate meth labs had been created inside the residence. The
        officers also found mail addressed to Tackett.

        On October 28, 2011, Indiana State Police Detective Shane Jones
        (Detective Jones) interviewed Tackett. Tackett admitted that her
        husband, Raymond Tackett, Jr. (Raymond) manufactured
        methamphetamine because they needed money. They lived
        together in the residence and Tackett had witnessed Raymond
        cooking methamphetamine in the house. She stated that she had
        purchased lye for Raymond at a local hardware store which he
        had used to manufacture methamphetamine. Detective Jones
        also reviewed the pharmacy log of the local Wal-Mart, which
        showed that Tackett had purchased pseudoephedrine on
        September 18, 2011, October 7, 2011, and October 22, 2011.

        On October 28, 2011, the State filed an Information charging
        Tackett with Count I, dealing in methamphetamine, [as] a Class
        A felony, Ind. Code § 35-48-1-1(b)(3)(B)(ii). On March 28, 2011,
        the State amended the charging Information and added Count II,
        conspiracy to commit dealing, [as] a Class B felony, I.C. §§ 35-
        41-5-2; 48-4-1.1(b)(3)(B)(iii). On April 18 through April 19,
        2012, the trial court conducted a jury trial. At the close of the
        evidence, Tackett was found guilty as charged. On May 22,
        2012, during a sentencing hearing, the trial court sentenced
        Tackett to thirty years on Count I and ten years on Count II,
        with sentences to run concurrently.

        On May 23, 2012, Tackett filed a notice of appeal. On August 6,
        2012, she filed a motion to stay appeal and remand, which we
        granted ten days later. On October 15, 2012, Tackett filed a
        motion to certify her statement of evidence in the trial court.
        This statement of evidence, verified by Tackett’s trial counsel,
        noted that Tackett “wore a dark blue jail uniform on both days of

Court of Appeals of Indiana | Memorandum Decision 35A02-1704-PC-888 | September 28, 2017   Page 3 of 9
              her trial, as she was in custody during the trial.” (Appellant’s
              App. p. 81C). The statement also indicated that “[t]here was no
              objection to this either on the record, at sidebar, in chambers, or
              at any other time during the course of this proceeding.”
              (Appellant’s App. p. 81C). On November 7, 2012, the trial court
              denied Tackett’s motion to certify statement of evidence because
              “[t]he statement is not evidence and is an attempt by [Tackett] to
              certify allegations that are outside of the official record of the
              proceedings.” (Appellant’s App. p. 81E).


      Tackett v. State, No. 35A05-1205-CR-267, 2013 WL 782404, at *1-*2 (Ind. Ct.

      App. Feb. 27, 2013) (“Tackett I”).


[4]   In her direct appeal, Tackett alleged that her sentence was inappropriate in light

      of the nature of the offenses and her character, and she challenged the trial

      court’s denial of her motion to certify her statement of evidence. We affirmed

      her sentence and held that the trial court’s denial of her motion to certify was

      not reviewable on appeal.


[5]   In her petition for post-conviction relief, Tackett alleged that she was denied the

      effective assistance of both trial and appellate counsel. After an evidentiary

      hearing, the post-conviction court entered detailed and well-reasoned findings

      of fact and conclusions of law denying her petition for relief. This appeal

      ensued.


                                     Discussion and Decision
[6]   Tackett appeals the post-conviction court’s denial of her petition for post-

      conviction relief. Our standard of review is clear:


      Court of Appeals of Indiana | Memorandum Decision 35A02-1704-PC-888 | September 28, 2017   Page 4 of 9
              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)
              (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).


                              Issue One: Effectiveness of Trial Counsel

[7]   Tackett first argues that she received ineffective assistance from her 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
              reasonableness, committing errors so serious that the defendant
              did not have the ‘counsel’ guaranteed by the Sixth Amendment.”

      Court of Appeals of Indiana | Memorandum Decision 35A02-1704-PC-888 | September 28, 2017   Page 5 of 9
              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).


      Id. at 274.


[8]   Tackett alleges that her trial counsel committed two errors, namely, his failure

      to object to Tackett being tried while wearing jail clothing and his failure to

      object to alleged hearsay. We address each contention in turn.


                                                 Jail Clothing

[9]   In Lyda v. State, 395 N.E.2d 776, 783 (Ind. 1979), our Supreme Court held as

      follows:


              In Estelle v. Williams, (1976) 425 U.S. 501, 96 S. Ct. 1691, 48
              L.Ed.2d 126, the Supreme Court of the United States held that it
              was reversible error for a state to compel a person to be tried in
              identifiable prison clothing. Here the record clearly shows that
              the defendant was not compelled by the trial court to wear jail
              attire. The defendant had the option. He chose not to wear his regular
              civilian clothes because of the condition they were in, but he does not
              claim that other clothing was not available to him for trial. Defendant
              did not assert to the trial court or here on appeal that because of
              his economic condition he was unable to obtain any other
              clothing and was therefore forced to wear the jail attire.
              Furthermore, the trial court here admonished the jurors not to
              consider defendant’s clothing or appearance in their
              deliberations. We therefore do not feel that defendant has
              demonstrated reversible error on this issue.

      Court of Appeals of Indiana | Memorandum Decision 35A02-1704-PC-888 | September 28, 2017   Page 6 of 9
       (Emphasis added).


[10]   Here, during trial, Tackett wore jail-issued clothing that consisted of a navy

       blue shirt with the letters “HCJ”1 on the back and plain navy blue pants. The

       evidence shows that, one week before trial, Tackett’s trial counsel instructed her

       to have someone get her clothes to wear at trial. The post-conviction court

       found that Tackett was unable to get anyone to bring her clothes to wear for

       trial, and the undisputed evidence shows that she had gained weight while in

       jail and could not fit into the jeans she had been wearing when she was

       arrested. But Tackett makes no contention that she could not have worn the

       shirt she was wearing at the time she was arrested or that it was unavailable to

       her. As the post-conviction court found, Tackett “could have worn the navy

       blue jail pants . . . with the shirt she had been arrested in.” Appellant’s App.

       Vol. 2 at 77. Tackett has not demonstrated that she was compelled to wear the

       navy blue shirt with the initials “HCJ” on the back of it during trial. And while

       the jail-issued shirt was arguably identifiable as jail garb, the plain navy blue

       pants were not. In light of that evidence, Tackett has not shown that she was

       compelled to wear the jail-issued clothing, and she has not shown reversible

       error. See Lyda, 395 N.E.2d at 783.


[11]   Further, because Tackett admitted to Detective Shane Jones that she knew her

       husband had been manufacturing methamphetamine in their home and that she




       1
           HCJ stands for Huntington County Jail.


       Court of Appeals of Indiana | Memorandum Decision 35A02-1704-PC-888 | September 28, 2017   Page 7 of 9
       had purchased ingredients for him to use in that manufacture, the probable

       impact on the jury of the jail clothing was sufficiently minor so as not to affect

       her substantial rights, and any error was harmless. Ind. Appellate Rule 66.

       Tackett has not shown that she was prejudiced by her trial counsel’s failure to

       object to her wearing jail clothing at trial. See, e.g., Brown v. State, 24 N.E.3d

       529, 534 (Ind. Ct. App. 2015) (holding defendant failed to show that defense

       counsel’s deficient performance prejudiced him because the error was harmless

       in light of the other evidence presented at trial).


                                                     Hearsay

[12]   Tackett also contends that her trial counsel erred when he did not object to

       Detective Jones’ testimony that a “person” had “reported there was

       manufacturing of methamphetamine going on” in Tackett’s home. Trial Tr.

       Vol. 8 at 116. But, again, in light of Tackett’s own admission that her husband

       was manufacturing methamphetamine in her home, Tackett cannot

       demonstrate that her trial counsel’s failure to object to the alleged hearsay

       testimony was reversible error or otherwise prejudiced her. App. R. 66.

       Tackett has not demonstrated that she was denied the effective assistance of

       trial counsel.


                            Issue Two: Effectiveness of Appellate Counsel

[13]   Tackett also contends that she was denied the effective assistance of appellate

       counsel when he failed to raise on direct appeal the issue of Tackett being tried

       in jail clothing. “Ineffectiveness is very rarely found” where a defendant alleges


       Court of Appeals of Indiana | Memorandum Decision 35A02-1704-PC-888 | September 28, 2017   Page 8 of 9
       deficient performance based on appellant counsel’s failure to raise an issue on

       direct appeal. Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997) (quotations and

       alteration omitted). Indeed, here, because we hold that Tackett has not

       demonstrated reversible error on the jail clothing issue, she cannot show that

       she was prejudiced when her appellate counsel did not raise the issue on direct

       appeal.


[14]   Affirmed.


       Kirsch, J., and Brown, J., concur.




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