MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                      May 25 2018, 10:47 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    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
C. Brent Martin                                          Caryn N. Szyper
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Raymond Marling,                                         May 25, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         40A01-1711-PC-2620
        v.                                               Appeal from the Jennings Circuit
                                                         Court
State of Indiana,                                        The Honorable Jon W. Webster,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         40C01-1504-PC-1



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 40A01-1711-PC-2620 | May 25, 2018             Page 1 of 14
[1]   Raymond Marling appeals the post-conviction court’s denial of his petition for

      post-conviction relief. He raises one issue which we revise and restate as

      whether the post-conviction court erred in denying his petition. We affirm.


                                      Facts and Procedural History

[2]   The relevant facts as discussed in Marling’s direct appeal follow:


              In April 2013, police were investigating the whereabouts of a
              missing person. Matt Loper was identified as a person of interest
              in that investigation, and North Vernon Police Detective Ivory
              Sandefur discovered that Loper and Marling were friends.
              Detective Sandefur also discovered that Marling drove a black
              Dodge Avenger and found there was an active arrest warrant for
              Marling from Jackson County. The detective also ascertained
              that Marling might be involved in drug activity and that he might
              be in possession of a handgun. Detective Sandefur told local
              police departments to look for Marling.

              On April 25, 2013, Detective Sandefur was investigating leads in
              the missing person case, along with Indianapolis Police Detective
              Jerry Gentry. They were driving when they were passed by a
              black Dodge Avenger. The detectives turned around and
              followed the vehicle; they also ran the license plate, which
              returned to Marling and his wife. The windows of the vehicle
              were tinted, but Detective Sandefur confirmed that the male
              driver appeared to be Marling. At that point, Detective Sandefur
              radioed to a uniformed police officer to conduct a traffic stop.

              North Vernon Police Officer Jeffrey Day responded and initiated
              a traffic stop on County Road 350 North. Marling stopped the
              vehicle in the traffic lane, so that only the oncoming traffic lane
              was passable. Officer Day ordered Marling to step out of the car,
              and Detective Sandefur handcuffed him. Marling was wearing
              an empty shoulder holster under his shirt.


      Court of Appeals of Indiana | Memorandum Decision 40A01-1711-PC-2620 | May 25, 2018   Page 2 of 14
        Officer Day looked inside of the vehicle and saw that there were
        no passengers. He observed a handgun between the driver’s seat
        and the console; the hammer of the handgun was cocked, but the
        safety lock was on. Marling told Officer Day that he did not
        have a permit for the handgun. Officer Day took Marling to jail,
        where $686 was inventoried from Marling’s billfold. Marling
        asked Officer Day to contact his mother to ask if she could
        remove money from a black bag in the Avenger and remove the
        vehicle from impoundment.

        North Vernon Police Sergeant Craig Kipper conducted a search
        of the Avenger prior to impoundment in accordance with North
        Vernon Police General Order 49, which provides for an
        inventory search prior to the impoundment of a vehicle if a driver
        was arrested and was driving the vehicle immediately before
        arrest. The inventory search included a search of the vehicle in
        all locations where items of value may be located, including
        closed and locked containers.

        During his search, Sergeant Kipper first took possession of the
        handgun. He then found several cellphones with chargers, a
        clear bag with several syringes, four Clonazepam pills, a schedule
        IV drug, and a clear container with white powder residue. He
        also found a prescription pill bottle containing Intuniv, a legend
        drug, one Hydroxyine, a legend drug, and one Vyvanse, a
        schedule II drug. In the passenger compartment, Sergeant
        Kipper found $1,000 secured with a rubber band inside a laptop
        bag. In the trunk, the Sergeant found two rifles, a duffel bag
        containing .9mm ammunition, a box of syringes, thirty-two loose
        syringes, and a digital scale that looked like a cell phone.
        Sergeant Kipper also discovered a metal combination lockbox in
        the trunk; he opened the box with a screwdriver. The box held a
        clear baggie containing .51 grams of cocaine, various capsules
        containing dimethyl sulfone, a cutting agent, four baggies with
        white residue, and one Clonazepam.

        Two days later, Marling called his wife from jail and told her to
        take the $1000 and to get everything out of storage, unless she
Court of Appeals of Indiana | Memorandum Decision 40A01-1711-PC-2620 | May 25, 2018   Page 3 of 14
              wanted “up north” to take it. Tr. p. 447-49. He also told her that
              the situation was serious, that she should be scared, and that she
              should leave the house. He told her that if “up north comes
              down take him with you to collect the 2gs and show him where
              Dennis and Maria are staying and you can collect the 2gs from
              them.” Tr. p. 483.


      Marling v. State, No. 40A01-1403-CR-109, slip op. at 2-5 (Ind. Ct. App.

      September 30, 2014), trans. denied.


[3]   On May 1, 2013, the State charged Marling with: Count I, class B felony

      possession of cocaine with intent to deliver; Count II, class C felony possession

      of cocaine and a firearm; Count III, class C felony carrying a handgun without

      a license; Count IV, class D felony possession of a schedule IV controlled

      substance; Count V, class D felony possession of a schedule II controlled

      substance; Counts VI and VII, two counts of class D felony possession of a

      legend drug; and Count VIII, class D felony unlawful possession of a syringe.

      Id. at 5. Additionally, the State alleged that Marling was an habitual offender.

      Id.


[4]   On September 30, 2013, Marling filed a motion to suppress all the evidence

      discovered during the vehicle stop and subsequent inventory search. Id. The

      motion asserted that “[o]nce the officer opened the trunk and found a box, he

      was not permitted to open it with a screwdriver” and that “[a] warrant should

      have been obtained,” and cited George v. State, 901 N.E.2d 590 (Ind. Ct. App.

      2009), trans. denied. Appellant’s Direct Appeal Appendix Volume 1 at 51. The

      trial court held a hearing on the motion on October 16, 2013. Marling, slip op.

      Court of Appeals of Indiana | Memorandum Decision 40A01-1711-PC-2620 | May 25, 2018   Page 4 of 14
      at 5. At the hearing, the court admitted a document titled “North Vernon

      Police Department General Order 49 IMPOUNDMENT,” which stated:


              49.3.2. Areas to be Inventoried

              Inventory the contents of suitcases, boxes and other containers.
              Inventory articles in:

                                                   *****

              * Closed and/or Locked Containers – Inventory all closed or
              locked containers. If a situation exists that requires extreme
              measures (extensive time, manpower and equipment), and/or
              unreasonable potential damage to property, the officer should
              avoid opening the container, but should document why the
              container was not opened.


      State’s Exhibit 5. The court denied the motion the next day. Marling, slip op.

      at 5.


[5]   On October 21-24, 2013, the court held a jury trial. Id. During trial, Marling’s

      counsel objected to admission of evidence found in the locked box in part based

      upon its opening with a screwdriver and the necessity of having a warrant as

      stated in George v. State, and the court overruled the objection and admitted the

      evidence. At the close of the State’s evidence, the court dismissed Count V,

      class D felony possession of a schedule II controlled substance. Marling, slip

      op. at 5. The jury found Marling guilty of class B felony possession of cocaine

      with intent to deliver, class C felony possession of cocaine and a firearm, class

      A misdemeanor carrying a handgun without a license, class D felony

      possession of a schedule IV controlled substance, both counts of class D felony

      Court of Appeals of Indiana | Memorandum Decision 40A01-1711-PC-2620 | May 25, 2018   Page 5 of 14
      possession of a legend drug, and class D felony unlawful possession of a

      syringe. Id. at 5-6. In a second phase, the jury found Marling guilty of class C

      felony possession of a handgun by a felon, the felony enhancement to class A

      misdemeanor possession of a handgun without a license. Id. at 6. In the third

      and final phase, Marling was found to be an habitual offender. Id. The court

      sentenced Marling to an aggregate sentence of thirty-eight years. Id.


[6]   On direct appeal, Marling argued that the trial court erred when it admitted

      evidence obtained as a result of a pretextual inventory search, the evidence was

      insufficient to support his conviction for possession of cocaine with intent to

      deliver, and the trial court erred when it determined that he was an habitual

      offender, and this Court affirmed. Id. at 2. Specifically, this Court held that the

      decision to impound the vehicle was reasonable and lawful, that Sergeant

      Kipper was required to search the vehicle in all locations where items of value

      may be located pursuant to North Vernon Police Order 49 which “mandates,

      ‘[i]nventory all closed or locked containers,’” and that the search was

      conducted in accordance with standard police procedures. Id. at 10 (quoting

      State’s Exhibit 5). The Court also concluded that the inventory search was

      reasonable under a totality of the circumstances under Article 1, Section 11 of

      the Indiana Constitution. Id. at 9-12.


[7]   On April 10, 2015, Marling, pro se, filed a verified petition for post-conviction

      relief. On March 6, 2017, Marling’s counsel filed a Motion for Leave to

      Amend Petition for Post-Conviction Relief asserting that he received ineffective

      assistance of trial and appellate counsel. Marling also asserted that “the Officer

      Court of Appeals of Indiana | Memorandum Decision 40A01-1711-PC-2620 | May 25, 2018   Page 6 of 14
      permanently damaged the lock box by prying the lid open with a screw driver”

      and the State could not prove that the search was conducted in conformity with

      their written regulations because “Officer Kipper caused unreasonable damage

      to property, the lock box, in violation of the written policy.” Appellant’s

      Appendix Volume 2 at 32.


[8]   That same day, Marling, by counsel, filed a motion for summary disposition.

      An affidavit of Marling’s appellate counsel attached to the motion for summary

      disposition stated: “I did not consider challenging the admission of the cocaine

      based on the State’s failure to follow its own written procedures for conducting

      an inventory search. Had I considered it I would have raised the issue based on

      the decision in Fair v. State, 627 N.E.2d 427 (Ind. 1993).” Id. at 97. On March

      15, 2017, the post-conviction court denied Marling’s motion for summary

      disposition. Marling appealed, and this Court dismissed the appeal without

      prejudice and remanded for further proceedings on June 30, 2017.


[9]   On November 1, 2017, the post-conviction court held an evidentiary hearing.

      The court admitted the record from the direct appeal as Petitioner’s Exhibit 1.

      Marling’s post-conviction counsel asserted that he had an affidavit that was

      attached to the motion for summary disposition from Marling’s appellate

      counsel “essentially admitting, this was a good argument, I should have made

      it.” Post-Conviction Transcript at 11. Marling’s counsel acknowledged that he

      did not have an affidavit from Marling’s trial counsel but argued “there’s not

      strategy for not making this argument.” Id. Marling’s trial and appellate



      Court of Appeals of Indiana | Memorandum Decision 40A01-1711-PC-2620 | May 25, 2018   Page 7 of 14
       counsel did not testify at the hearing. On November 6, 2017, the post-

       conviction court denied Marling’s petition.


                                                   Discussion

[10]   Before addressing Marling’s allegations of error, we note the general standard

       under which we review a post-conviction court’s denial of a petition for post-

       conviction relief. 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); Ind. Post-Conviction Rule 1(5).

       When appealing from the denial of post-conviction relief, the petitioner stands

       in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d

       at 679. On review, we will not reverse the judgment unless the evidence as a

       whole unerringly and unmistakably leads to a conclusion opposite that reached

       by the post-conviction court. Id. “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.” Id.

       In this review, we accept findings of fact unless clearly erroneous, but we

       accord no deference to conclusions of law. Id. The post-conviction court is the

       sole judge of the weight of the evidence and the credibility of witnesses. Id.


[11]   Marling argues that he received ineffective assistance of both trial and appellate

       counsel when they failed to “make an obvious argument in support of the

       denied Motion to Suppress and against the subsequent admission of the

       cocaine.” Appellant’s Brief at 13. He acknowledges that the initial stop and the

       impoundment of his vehicle were proper, but argues that his trial and appellate
       Court of Appeals of Indiana | Memorandum Decision 40A01-1711-PC-2620 | May 25, 2018   Page 8 of 14
       counsel failed to argue that the State did not follow its written policy and that

       the locked box was damaged. He asserts that the language of the regulations “is

       mandatory that the officer shall avoid opening the container if it could cause

       potential damage or requires extreme measures.” Id. at 15.


[12]   The State maintains that the policy does not include the word “shall” as stated

       by Marling and contemplates some permissible level of damage that may occur

       in certain circumstances when officers complied with the general mandate that

       all locked containers must be opened and inventoried. It argues that Sergeant

       Kipper’s ability to pop open the box with a screwdriver was hardly an extreme

       measure and nothing in the record reflects any damage to the box or suggests

       that opening a locked box with a screwdriver would cause unreasonable

       damage. The State asserts that the photograph of the box admitted at trial does

       not reveal any actual damage to the box and Marling never complained of any

       damage. It also contends that opening the box fulfilled one of the

       administrative purposes of the inventory search, the protection of police from

       possible danger.


[13]   Generally, to prevail on a claim of ineffective assistance of counsel a petitioner

       must demonstrate both that his counsel’s performance was deficient and that

       the petitioner was prejudiced by the deficient performance. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104

       S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is deficient if it falls

       below an objective standard of reasonableness based on prevailing professional

       norms. Id. To meet the appropriate test for prejudice, the petitioner must show

       Court of Appeals of Indiana | Memorandum Decision 40A01-1711-PC-2620 | May 25, 2018   Page 9 of 14
       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.

       Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong

       will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective

       assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.


[14]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

       is presumed effective, and a defendant must offer strong and convincing

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Clark v. State, 668

       N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

       Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

       guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly

       speculate as to what may or may not have been an advantageous trial strategy

       as counsel should be given deference in choosing a trial strategy which, at the

       time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d

       40, 42 (Ind. 1998). In order to prevail on a claim of ineffective assistance due to

       the failure to object, the defendant must show a reasonable probability that the

       objection would have been sustained if made. Passwater v. State, 989 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 40A01-1711-PC-2620 | May 25, 2018   Page 10 of 14
       766, 772 (Ind. 2013) (citing Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001),

       cert. denied, 535 U.S. 1019, 122 S. Ct. 1610 (2002)).


[15]   We apply the same standard of review to claims of ineffective assistance of

       appellate counsel as we apply to claims of ineffective assistance of trial counsel.

       Williams v. State, 724 N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied,

       531 U.S. 1128, 121 S. Ct. 886 (2001). Ineffective assistance of appellate counsel

       claims fall into three categories: (1) denial of access to an appeal; (2) waiver of

       issues; and (3) failure to present issues well. Garrett v. State, 992 N.E.2d 710,

       724 (Ind. 2013). “To show that counsel was ineffective for failing to raise an

       issue on appeal thus resulting in waiver for collateral review, ‘the defendant

       must overcome the strongest presumption of adequate assistance, and judicial

       scrutiny is highly deferential.’” Id. (quoting Ben-Yisrayl v. State, 738 N.E.2d 253,

       260-261 (Ind. 2000), reh’g denied, cert. denied, 534 U.S. 1164, 122 S. Ct. 1178

       (2002)). “To evaluate the performance prong when counsel waived issues upon

       appeal, we apply the following test: (1) whether the unraised issues are

       significant and obvious from the face of the record and (2) whether the unraised

       issues are ‘clearly stronger’ than the raised issues.” Id. (quoting Timberlake v.

       State, 753 N.E.2d 591, 605-606 (Ind. 2001), reh’g denied, cert. denied, 537 U.S.

       839, 123 S. Ct. 162 (2002)). “If the analysis under this test demonstrates

       deficient performance, then we evaluate the prejudice prong which requires an

       examination of whether ‘the issues which . . . appellate counsel failed to raise

       would have been clearly more likely to result in reversal or an order for a new




       Court of Appeals of Indiana | Memorandum Decision 40A01-1711-PC-2620 | May 25, 2018   Page 11 of 14
       trial.’” Id. (quoting Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), reh’g

       denied, cert. denied, 525 U.S. 1021, 119 S. Ct. 550 (1998)).


[16]   We observe that Marling’s trial counsel filed a motion to suppress asserting that

       the traffic stop was improper, that the impoundment of the vehicle and resulting

       inventory search violated Article 1, Section 11 of the Indiana Constitution

       because the vehicle did not pose any threat or harm to the community or itself,

       that “[o]nce the officer opened the trunk and found a box, he was not permitted

       to open it with a screwdriver,” and that “[a] warrant should have been

       obtained.” Appellant’s Direct Appeal Appendix Volume 1 at 51. During trial,

       Marling’s trial counsel also objected to the evidence in the box.


[17]   Marling’s appellate counsel raised the issues of “[w]hether the discovery of a

       small undivided amount of cocaine is sufficient to support a conviction for

       dealing in cocaine,” “[w]hether a habitual offender enhancement may be

       sought for a dealing in cocaine conviction when the defendant has no prior

       dealing convictions,” and “[w]hether evidence obtained as a result of pretextual

       inventory search that included locked containers should have been excluded

       from presentation to the jury.” Appellant’s Direct Appeal Brief at 1. Appellate

       counsel argued that the search of the locked box in the trunk was unreasonable

       under the Indiana Constitution. Thus, both trial and appellate counsel

       challenged the search of the locked box.


[18]   To the extent Marling argues that his trial and appellate counsel failed to argue

       that the State did not follow its written policy because the box was damaged,


       Court of Appeals of Indiana | Memorandum Decision 40A01-1711-PC-2620 | May 25, 2018   Page 12 of 14
       we observe that Marling asserts that, “[b]y the State’s own evidence, the police

       report of Officer Kipper, he had to break open the locked box with a screw

       driver, causing damage to the property.” Appellant’s Brief at 15 (citing

       Appellant’s Appendix at 51). However, page 51 of the Appellant’s Appendix,

       cited by Marling, merely states: “In the trunk was a silver square combination

       lock box. The box was locked. The locked box was opened with a screw

       driver. In the locked box was more syringes and several items that are used for

       the ingestion of illegal substances.” Appellant’s Appendix Volume 2 at 51. We

       cannot say that this document alone establishes that the box was damaged.

       Marling does not point elsewhere in the record in support of the assertion that

       the box was damaged. We cannot say that Marling has demonstrated that his

       trial or appellate counsel were deficient or that he was prejudiced.1


                                                      Conclusion

[19]   For the foregoing reasons, we affirm the post-conviction court’s denial of

       Marling’s petition for post-conviction relief.


[20]   Affirmed.




       1
         To the extent Marling cites Fair, we find that case distinguishable. In Fair, the Indiana Supreme Court held
       that a search must be conducted pursuant to standard police procedures and the procedures must be
       rationally designed to meet the objectives that justify the inventory search. Fair, 627 N.E.2d at 435. The
       Court also held that searches in conformity with such regulations are reasonable under the Fourth
       Amendment and that to defeat a charge of pretext the State must establish the existence of sufficient
       regulations and that the search at issue was conducted in conformity with them. Id. Given that the State
       presented its inventory procedure and the portion of the record cited by Marling does not reveal damage to
       the box and he does not point elsewhere in the record for any damage to the box, we cannot say that the
       police failed to perform the search in conformity with their procedures.

       Court of Appeals of Indiana | Memorandum Decision 40A01-1711-PC-2620 | May 25, 2018              Page 13 of 14
Bailey, J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 40A01-1711-PC-2620 | May 25, 2018   Page 14 of 14
