      MEMORANDUM DECISION
                                                                            Apr 13 2015, 6:23 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

      J. Michael Sauer                                          Ellen H. Meilaender
      Deputy Public Defender                                    Deputy Attorney General
      Indianapolis, Indiana                                     Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Myron B. James,                                           April 13, 2015

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                79A02-1410-PC-716
              v.                                                Appeal from the Tippecanoe
                                                                Superior Court
                                                                The Honorable Randy J. Williams,
      State of Indiana,                                         Judge
      Appellee-Respondent                                       Cause No. 79D01-1109-PC-13




      Bradford, Judge.



                                            Case Summary
[1]   In October of 2007, officers with the Lafayette Police Department learned that

      Appellant-Petitioner Myron B. James, Servan Allen, and Byron Simmons were

      Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015         Page 1 of 13
      selling cocaine out of a Lafayette apartment. On October 16, 2007, James, with

      the aid of his then-girlfriend, Sparkle Bennett, sold .035 grams of cocaine to an

      undercover Lafayette officer. James, Allen, and Simmons were subsequently

      found to be in possession of 53.42 grams of cocaine. Appellee-Respondent the

      State of Indiana (the “State”) subsequently charged James with numerous

      crimes, including Class B felony conspiracy to commit dealing in cocaine, Class

      A felony dealing in cocaine, Class A felony possession of cocaine, and Class D

      felony obstruction of justice. Following a jury trial, James was found guilty of

      Class B felony conspiracy to commit dealing in cocaine and not guilty of the

      remaining charges. The trial court sentenced James to a term of forty-five years

      of imprisonment.


[2]   James subsequently challenged his sentence, which was affirmed on direct

      appeal. James then filed a petition seeking post-conviction relief (“PCR”).

      Following an evidentiary hearing on James’s PCR petition, the post-conviction

      court denied the petition. We affirm.



                            Facts and Procedural History
[3]   In October of 2007, Bennett lived on Green Acres Drive in the Bridgewater

      Apartments in Lafayette. Bennett had been involved in a romantic relationship

      with James for several years. Bennett knew Allen and Simmons through

      James. James, Allen, and Simmons sold crack cocaine out of Bennett’s

      apartment. They would sometimes use Bennett to deliver the drugs in question.

      James, Allen, and Simmons each had a “work phone” that they used to set up

      Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015   Page 2 of 13
      their cocaine sales. Trial Tr. p. 42. The number for this phone was “765-337-

      2604.” Trial Tr. p. 42.


[4]   At some point during October of 2007, the Lafayette Police Department was

      provided with information about, and a phone number for, a cocaine dealer

      operating out of the Bridgewater Apartments. The phone number was “765-

      337-2604.” Trial Tr. p. 121. Acting in an undercover capacity, on October 16,

      2007, Lafayette Police Officer Jason Walters called the phone number provided

      to police and arranged to purchase cocaine. Officer Walters spoke with both

      James and Allen. James asked Officer Walters how he knew about him, asked

      for Officer Walter’s location and told him to call back when he was closer,

      asked him “how much you got,” and asked him the color of his vehicle. Trial

      Tr. p. 61; State’s Ex. 4.


[5]   After receiving the phone call from Officer Walters, James handed Bennett

      some cocaine and said “Here, baby, take this outside for me.” Trial Tr. p. 47.

      James, Allen, and Simmons all remained inside Bennett’s apartment.

      Approximately two or three minutes after James asked Officer Walters to

      describe his vehicle, Bennett came outside, spat cocaine out of her mouth, and

      handed it to Officer Walters in exchange for money. Bennett was then placed

      under arrest. Subsequent testing confirmed that Bennett delivered .035 grams

      of cocaine to Officer Walters.


[6]   Shortly after Bennett’s arrest, police set up a perimeter around Bennett’s

      apartment building so that no one else could enter or exit Bennett’s apartment.


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      After the perimeter was set up, Allen opened the back door to the apartment.

      Officer Robert Petillo instructed Allen to “Stop. Police.” Trial Tr. p. 226.

      Allen disregarded Officer Petillo’s instruction and slammed the door shut.

      Another individual was observed looking out of a window. Officer Petillo also

      observed multiple people running around inside the apartment.


[7]   After receiving Bennett’s consent to search her apartment, officers knocked and

      announced, but received no answer. When officers entered the apartment, they

      found James, Allen, and Simmons in the living room. Officers found that the

      toilet in the upstairs bathroom was clogged and there was water on the floor.

      After removing the toilet, the officers recovered 53.42 grams of cocaine.

      Simmons’s pants were wet in the front and he gave the police a false name and

      date of birth. The cell phone registered to the 735-337-2604 number was found

      in the pocket of a coat hanging in the closet. The battery for the phone was

      found under the couch. Allen and Simmons were found with $2980 and $1020

      on their persons, respectively. Police also found a pair of “soaking wet” jeans

      on the bed in the bedroom. Trial Tr. p. 148.


[8]   Our opinion in James’s prior direct appeal, which was handed down on April

      26, 2011, instructs us to the procedural history of James’s case:

              In October 2007, the State charged James with conspiracy to commit
              dealing in cocaine as a Class B felony, dealing in cocaine as a Class A
              felony, possession of cocaine as a Class A felony, and obstruction of
              justice as a Class D felony. James was informed of his trial date in
              person and ordered to appear. His attorney sent him a letter
              confirming the trial date and later spoke with him before trial to verify
              the date. James failed to appear the first day of his trial, and even after

      Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015   Page 4 of 13
               communicating with his attorney, failed to appear the remainder of the
               trial.


       James v. State, 79A02-1007-CR-830 *1 (Ind. Ct. App. April 26, 2011). At the

       conclusion of trial,

               [a] jury found James guilty in absentia of conspiracy to commit dealing
               in cocaine as a Class B felony and not guilty of the remaining charges.
               James failed to appear for his pre-sentence interview and was
               sentenced in absentia to a term of forty-five years of imprisonment.


       Id.


[9]    On September 21, 2011, James filed a pro se petition for PCR. On January 16,

       2014, James, by counsel, filed an amended PCR petition, which alleged that

       James had received ineffective assistance from his trial counsel. The post-

       conviction court conducted an evidentiary hearing on James’s amended PCR

       petition on April 25, 2014. During this hearing, James, by counsel, presented

       argument, evidence, and witness testimony in support of his ineffective

       assistance claim. On July 15, 2014, the post-conviction court issued an order

       denying James’s request for PCR. This appeal follows.



                                  Discussion and Decision
[10]   Post-conviction procedures do not afford the petitioner with a super-appeal.

       Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a

       narrow remedy for subsequent collateral challenges to convictions, challenges

       which must be based on grounds enumerated in the post-conviction rules. Id.


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       A petitioner who has been denied post-conviction relief appeals from a negative

       judgment and as a result, faces a rigorous standard of review on appeal. Dewitt

       v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942

       (Ind. Ct. App. 1999), trans. denied.


[11]   Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,

       745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his

       claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

       Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,

       a petitioner must convince this court that the evidence, taken as a whole, “leads

       unmistakably to a conclusion opposite that reached by the post-conviction

       court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without

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

       reached the opposite conclusion, that its decision will be disturbed as contrary

       to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.

       The post-conviction court is the sole judge of the weight of the evidence and the

       credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

       We therefore accept the post-conviction court’s findings of fact unless they are

       clearly erroneous but give no deference to its conclusions of law. Id.


              Whether the Post-Conviction Court Erred in
           Determining that James Did Not Receive Ineffective
                      Assistance of Trial Counsel
[12]   The right to effective counsel is rooted in the Sixth Amendment to the United

       States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The
       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015   Page 6 of 13
       Sixth Amendment recognizes the right to the assistance of counsel because it

       envisions counsel’s playing a role that is critical to the ability of the adversarial

       system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S.

       668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness

       must be whether counsel’s conduct so undermined the proper function of the

       adversarial process that the trial court cannot be relied on as having produced a

       just result.” Strickland, 466 U.S. at 686.


[13]   A successful claim for ineffective assistance of counsel must satisfy two

       components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first

       prong, the petitioner must establish that counsel’s performance was deficient by

       demonstrating that counsel’s representation “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. We recognize that

       even the finest, most experienced criminal defense attorneys may not agree on

       the ideal strategy or most effective way to represent a client, and therefore,

       under this prong, we will assume that counsel performed adequately and defer

       to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585

       (Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of

       bad judgment do not necessarily render representation ineffective. Id.


[14]   Under the second prong, the petitioner must show that the deficient

       performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner

       may show prejudice by demonstrating that there is “a reasonable probability



       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015   Page 7 of 13
       (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.


[15]   A petitioner’s failure to satisfy either prong will cause the ineffective assistance

       of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently,

       “the two parts of the Strickland test are separate inquires, a claim may be

       disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

       2006) (citing Williams, 706 N.E.2d at 154). Further, courts often times prefer to

       address the prejudice element first since it is not the object of an ineffectiveness

       claim to grade counsel’s performance. Cranor v. State, 699 N.E.2d 284, 286

       (Ind. Ct. App. 1998).


[16]   James challenges the post-conviction court’s determination that he did not

       receive ineffective assistance of trial counsel. In raising this challenge, James

       claims that his trial counsel provided ineffective assistance by failing to object to

       what James claims was irrelevant and prejudicial evidence. For its part, the

       State argued that the post-conviction court properly denied James’s PCR

       petition because he failed to prove that he was prejudiced by his trial counsel’s

       allegedly deficient performance. We agree with the State.


[17]   James argues that his trial counsel should have objected to the admission of

       State’s Exhibit 15, a booking sheet from the Tippecanoe County Sheriff’s

       Department. The State admitted this exhibit for the purpose of identifying

       James, who failed to appear at trial. Initially we note that James’s trial counsel

       did object to the admission of certain information that was included in the


       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015   Page 8 of 13
       “Cautions” section which indicated that James was known to carry a concealed

       firearm and was a gang member. State’s Ex. 15. After James’s counsel levied

       this objection, the State agreed to block out this information by placing white

       corrective tape over the challenged information. James asserts on appeal,

       however, that the act of placing white corrective tape over the challenged

       information was insufficient to protect him from the prejudicial nature of the

       information because one could still read the information if the exhibit was held

       up to the light. James also asserts that his trial counsel should have objected to

       the admission of the exhibit into evidence because it contains other irrelevant

       and prejudicial information. Specifically, James points to the “Comments”

       section which he claims suggests that he has faced prior criminal charges and

       the “Alias” section which indicates that James has known aliases. State’s Ex.

       15. James’s trial counsel did not object to the inclusion of either of the above-

       mentioned items.


[18]   Upon review, we observe that while State’s Exhibit 15 may contain some

       irrelevant and potentially prejudicial information, James has failed to prove that

       there is a reasonable probability that, but for his trial counsel’s allegedly

       deficient performance, the result of the proceedings would have been different.

       During trial, the State provided overwhelming evidence of James’s guilt.

       Bennett testified that James, Allen, and Simmons sold crack cocaine out of her

       apartment, and that James would sometimes use her to deliver the drugs in

       question. Bennett was familiar with James, as she had been in a romantic

       relationship with James for several years. Bennett also testified that James,


       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015   Page 9 of 13
       Allen, and Simmons had a “work phone” that they used to set up their cocaine

       sales. Trial Tr. p. 42. The number of this phone matched the number provided

       to Officer Walters.


[19]   Acting in an undercover capacity, Officer Walters called the number and

       arranged to purchase cocaine. In doing so, Officer Walters spoke to both James

       and Allen. James asked Officer Walters how he knew about him, asked for

       Officer Walter’s location and told him to call back when he was closer, asked

       him “how much you got,” and asked him the color of his vehicle. Trial Tr. p.

       61; State’s Ex. 4. Bennett identified James’s voice on a recording of these

       phone calls, a copy and transcript of which was admitted into evidence.

       Bennett further indicated that after receiving the phone call from Officer

       Walters, James handed her some cocaine and said “Here, baby, take this

       outside for me.” Trial Tr. p. 47. Bennett then went outside and delivered .035

       grams of cocaine to Officer Walters in exchange for money.


[20]   James remained in Bennett’s apartment while Bennett went outside to complete

       the sale. After receiving Bennett’s consent to search the apartment, officers

       entered and found James, Allen, and Simmons in the living room. Officers

       observed that an upstairs toilet was clogged. After removing the toilet, officers

       recovered 53.42 grams of cocaine. Officers also recovered the cellular phone

       which was registered to the number that Officer Walters had called to arrange

       his purchase of cocaine. This evidence overwhelmingly supports the jury’s

       conclusion that James committed Class B felony conspiracy to commit dealing

       in cocaine.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015   Page 10 of 13
[21]   Moreover, the fact that the jury found James not guilty of three of the charged

       offenses suggests that James was not prejudiced by his counsel’s allegedly

       deficient performance. In Wooden v. State, 657 N.E.2d 109 (Ind. 1995),

       Wooden argued that his trial counsel provided ineffective assistance by failing

       to object to the State’s motion to consolidate two “separate and distinct cases

       for one trial” because after hearing from the two alleged victims, the jury

       “would undoubtedly feel that [Wooden] was necessarily guilty of one of the

       crimes.” 657 N.E.2d at 112 (internal record quotation omitted). The Indiana

       Supreme Court found that Wooden failed to prove that he was prejudiced by

       the allegedly ineffective assistance provided by his trial counsel. Id. In finding

       that Wooden had failed to prove that he was prejudiced by his counsel’s

       allegedly ineffective assistance, the Indiana Supreme Court noted that the

       record demonstrated that the jury was able to evaluate the evidence and render

       an appropriate verdict as to both cases, observing that the jury acquitted

       Wooden on two of the three charges. Id.


[22]   In Cranor, Cranor argued that his trial counsel provided ineffective assistance by

       repeatedly failing to object to inadmissible evidence. 699 N.E.2d at 287.

       Specifically, Cranor argued that, as a result of counsel’s allegedly ineffective

       assistance, “the jury was exposed to improper character evidence or irrelevant,

       prejudicial testimony solely calculated to inflame the jury, thereby creating a

       risk that [he] would be convicted on jury passion alone.” Id. In concluding that

       Cranor failed to prove that he was prejudiced by counsel’s allegedly ineffective

       assistance, we noted that the jury acquitted Cranor of one of the two charged


       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015   Page 11 of 13
       offenses. Id. As such, even “[a]ssumming arguendo that the jury was exposed to

       inadmissible, inflammatory evidence due to Cranor’s trial counsel’s failure to

       lodge objections, it appears this evidence did not influence the jury to the extent

       Cranor fears since he was acquitted of one of the two charges: a result

       inconsistent with an impassioned jury.” Id.


[23]   In Rentas v. State, 519 N.E.2d 162 (Ind. Ct. App. 1988), the Indiana Court of

       Appeals concluded that Rentas had failed to prove that he was prejudiced by

       the allegedly ineffective assistance provided by his trial counsel. 519 N.E.2d at

       165. Upon review, we noted that “Rentas was charged with two counts of

       dealing in a narcotic drug—yet, the jury acquitted him of the first count.” Id.

       We concluded that “[i]f trial counsel’s performance did not prejudice the jury’s

       verdict as to count I, it could not have prejudiced the jury’s verdict as to count

       II.” Id.


[24]   In the instant matter, James was charged with four criminal offenses. At the

       conclusion of the presentation of the evidence, the jury considered the evidence

       and acquitted James of three of the four charged offenses. We agree with the

       previous conclusions of both this court and the Indiana Supreme Court, that

       such an outcome is inconsistent with a claim that the allegedly irrelevant and

       potentially prejudicial evidence impacted the jury in a manner which affected

       the jury’s ability to evaluate the evidence and render an appropriate verdict.1



       1
         We disagree with James’s assertion that the fact that the jury found him not guilty of three of
       the four charged offenses indicates that the jury doubted Bennett’s credibility.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015   Page 12 of 13
       See Wooden, 657 N.E.2d at 112; Cranor, 699 N.E.2d at 287; Rentas, 519 N.E.2d

       at 165.


[25]   Again, a successful claim for ineffective assistance of counsel requires a

       petitioner to prove both prejudice and deficient performance. In light of the

       overwhelming evidence of James’s guilt coupled with the fact that the record

       indicates that the jury was able to evaluate the evidence and render an

       appropriate verdict, we conclude that James has failed to prove that he was

       prejudiced by his trial counsel’s allegedly deficient performance. James,

       therefore, failed to meet his burden of proving his claim of ineffective assistance

       of counsel. See Reed, 866 N.E.2d at 769 (providing that a successful claim for

       ineffective assistance of counsel must satisfy two components, i.e., deficient

       performance and prejudice); Williams, 706 N.E.2d at 154 (providing that a

       petitioner’s failure to satisfy either prong will cause the ineffective assistance of

       counsel claim to fail). As such, we need not consider whether trial counsel

       provided deficient performance.


[26]   The judgment of the post-conviction court is affirmed.


       Vaidik, C.J., and Kirsch, J., concur.




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