Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                     Mar 31 2014, 7:59 am
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

STEVEN H. SCHUTTE                                  MONIKA PREKOPA TALBOT
Deputy Public Defender                             Deputy Attorney General
Indianapolis, Indiana                              Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

SAMUEL LEWIS,                                      )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )      No. 20A03-1309-PC-348
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )


                     APPEAL FROM THE ELKHART CIRCUIT COURT
                         The Honorable Terry Shewmaker, Judge
                             Cause No. 20C01-1108-PC-14


                                         March 31, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                STATEMENT OF THE CASE

       Samuel Lewis (“Lewis”) appeals from the post-conviction court’s order denying

his petition for post-conviction relief, in which he sought to set aside his convictions for

four counts of Class A felony dealing cocaine and one count of Class B felony dealing

cocaine based on his claim that his trial counsel was ineffective for failing to present

mitigating evidence at trial.

       We affirm.

                                          ISSUE

       Whether the post-conviction court erred by denying Lewis’s petition for
       post-conviction relief.

                                          FACTS

       The facts of Lewis’s crimes were set forth in the opinion from Lewis’s direct

appeal as follows:

       The Interdiction and Covert Enforcement Unit (ICE) for Elkhart County
       investigates narcotics activities through controlled-buy situations and
       reliance upon confidential sources. Over the course of four months
       (January 2008 to May 2008), ICE officers arranged for two confidential
       sources, identified as CS07–024 and CS08–07, to participate in controlled
       drug buys from a man known as “Flip” (Transcript at 329, 344), who the
       confidential sources later identified from a photographic array as Lewis.
       Both confidential sources had personally met Lewis and knew his
       appearance and voice. Both sources also provided the same phone number
       for Lewis and used that number to contact him to arrange the controlled
       buys.

       ICE has a standard protocol for conducting controlled buys. A controlled
       buy begins by meeting with the confidential source in a hidden location
       where the source and the source’s car are searched. Any contraband or
       money is confiscated and the source is given money that has been
       photocopied to make the purchase.         The source is also given a

                                             2
transmitting/recording device so that ICE officers can monitor the
transaction. The source then travels to the pre-arranged location for the buy
and is kept under visual and audio surveillance by ICE officers at all times.
After the buy is complete, ICE officers follow the source to a given location
where the source and his vehicle are again searched for contraband and
money. The source also gives ICE officers a brief account of what
occurred during the buy.

On January 14, 2008, undercover officers with ICE met with CS07–024
and arranged a controlled buy of cocaine from Lewis. The officers
followed the standard protocol for controlled buys. CS07–024 purchased
2.78 grams of cocaine from Lewis for $140.

On April 23, 2008, CS08–07 cooperated with ICE and arranged a
controlled buy of cocaine from Lewis. CS08–07 was given $400 in cash to
make the purchase. After the buy, CS08–07 gave the officers a bag that
was later determined to contain 13.27 grams of cocaine. On May 1, 2008,
CS08–07 made a second controlled buy from Lewis in the driveway of the
home on Hively Street believed to belong to Lewis. During this transaction,
CS08–07 purchased 13.05 grams of cocaine from Lewis. On May 13,
2008, CS08–07 participated in a third controlled buy from Lewis during
which CS08–07 purchased 13.45 grams of cocaine from Lewis. For each
of these controlled buys, ICE officers followed the standard protocol set
forth above.

On May 15, 2008, the ICE unit, along with the Indiana State Police SWAT
team, served a search warrant on the residence located on Hively Street in
Elkhart. Officers encountered Lewis outside of the residence. Lewis had in
his possession a cell phone with the telephone number used by both
confidential sources to arrange the controlled buys. Lewis also had over
$1900 in cash in his pocket, $320 of which matched the photocopied
money that was used during the May 13 controlled buy by CS08–07. After
being placed under arrest and advised of his Miranda rights, Lewis told the
officers that they could find cocaine in a pill bottle in the kitchen. The
officers did in fact find a total of 20.57 grams of cocaine in eight knotted,
plastic baggies in the pill bottle. When asked where he kept his extra
baggies and scales, Lewis admitted to the officers that he used a separate
home for bagging cocaine.

On May 21, 2008, the State charged Lewis with five counts of class A
felony dealing in cocaine. Count I stemmed from the cocaine found during
the search of Lewis’s residence. Counts II through V centered on each
controlled buy. On December 7, 2009, the State was granted permission to

                                     3
       amend one of the charges (Count II) from a class A felony dealing offense
       to a class B felony dealing offense based on the amount of cocaine being
       less than three grams. A three-day jury trial commenced on December 7,
       2009. At the conclusion of the evidence, the jury found Lewis guilty as
       charged.

Lewis v. State, No. 20A03-1001-CR-96, slip op. at 1-2 (Ind. Ct. App. Oct. 6, 2010).

       Lewis hired Rod Sniadecki (“Attorney Sniadecki”) as his counsel for trial and

sentencing. On December 30, 2009, the trial court held a sentencing hearing. During

sentencing, Attorney Sniadecki argued that Lewis was an “unusually thoughtful” and

“considerate” person who was “not otherwise predisposed to commit a criminal offense

but for state intervention.” (Direct Appeal Tr. 668-69). Attorney Sniadecki also argued

that Lewis should receive minimum, concurrent sentences. When the trial court asked

Lewis if he wanted to make a statement, Lewis testified that he had used drugs but did

not sell them. The trial court found mitigating circumstances in Lewis’s statement that he

was a drug addict and Attorney Sniadecki’s comments regarding Lewis. The trial court

found the following aggravating circumstances: (1) Lewis threatened a witness; (2)

Lewis’s “substantial” criminal history, which included six prior controlled substance

offenses, four misdemeanors, five felonies, four juvenile actions, one failure to appear,

and two probation violations; and (3) prior attempts of rehabilitation had been

unsuccessful. (Direct Appeal Tr. 672). The trial court sentenced Lewis to concurrent

sentences of forty-eight (48) years for each Class A felony conviction and twenty (20)

years for his Class B felony conviction, resulting in a total aggregate sentence of forty-

eight (48) years.



                                            4
       Thereafter, Lewis filed a direct appeal from his convictions and sentence, arguing

that: (1) the trial court erred in instructing the jury; (2) the evidence was insufficient to

sustain his convictions; (3) the trial court abused its discretion by denying his motion to

continue the sentencing hearing; and (4) his forty-eight-year sentence was inappropriate.

Our Court affirmed Lewis’s convictions and sentence.

       In August 2011, Lewis filed a pro se petition for post-conviction relief, alleging

that Attorney Sniadecki had rendered ineffective assistance of counsel at trial and at

sentencing by failing to present mitigating evidence at sentencing. In April 2012, Lewis,

represented by a State Deputy Public Defender, amended his post-conviction petition and

substituted his prior post-conviction claims with the claim that Lewis’s trial counsel was

ineffective for failing to sever his charges. On April 5, 2012, the trial court held a post-

conviction hearing.

       Shortly after the post-conviction hearing, a different State Deputy Public Defender

entered an appearance on behalf of Lewis. On June 11, 2012, this new Deputy Public

Defender filed a motion to amend Lewis’s post-conviction petition to add the claim that

Lewis’s trial counsel was ineffective for failing to object to the aggravation of Lewis’s

sentences where Lewis was convicted of multiple sales of drugs in controlled buys. The

post-conviction court granted Lewis’s motion.

       Thereafter, on December 31, 2012, Lewis, by counsel, filed a third amended post-

conviction petition, arguing, in relevant part, that his “[t]rial counsel was ineffective for

failing to prepare to present mitigating evidence at Lewis’s sentencing hearing.” (App.



                                             5
69).1 The trial court held another post-conviction hearing on April 25, 2013. During the

post-conviction hearing, Lewis called Attorney Sniadecki and Lewis’s cousin and aunt as

witnesses. He also testified on his own behalf.

         Attorney Sniadecki testified that he did not recall Lewis asking him to call

witnesses for sentencing but that his normal practice was to do so if requested by his

client and if it was in the client’s interest. Lewis’s cousin testified Lewis had lived with

her for approximately one year before he was arrested and that he did not have a job at

that time. She also testified that she knew that Lewis had used drugs and that she would

not allow him to use drugs when he lived with her. Lewis’s aunt testified that she did not

know when Lewis started using drugs but that she was aware that he was arrested for the

drug offenses in this case. She also testified that she would be willing to help him when

he got out of prison. Lewis’s cousin and aunt both testified that they were not aware of

when Lewis’s trial and sentencing had occurred.

        At the post-conviction hearing, Lewis no longer claimed that his drug dealing was

only a result of state intervention. Instead, he testified that he sold cocaine so that he

could help his mother who had cancer. He also testified that he would sell drugs again to

help his mother. Additionally, Lewis testified during the post-conviction hearing that

Attorney Sniadecki contacted Lewis’s mother and asked her to testify on Lewis’s behalf

at sentencing.




1
  Lewis’s third amended post-conviction petition also alleged that his trial counsel was ineffective for
failing to sever his charges and failing to object at sentencing to the aggravation of his sentences based on
his convictions of multiple controlled buys. On appeal, Lewis makes no argument regarding these claims.
                                                     6
       On August 9, 2013, the post-conviction court issued an order denying post-

conviction relief to Lewis. The post-conviction court concluded that Lewis had failed to

meet his burden of proving that he had received ineffective assistance of trial counsel.

Specifically, the post-conviction court concluded:

              None of the witnesses who testified at the post[-]conviction hearing
       presented any evidence or any testimony that, had it been offered at the
       sentencing hearing, would have made a difference in the sentence. The
       record establishes that the court did consider [Lewis’s] statement that he
       was a drug addict as a mitigator. Attorney Sniadecki’s failure to call either
       of the aforementioned persons to testify at the sentencing hearing does not
       establish that he was ineffective[.]

(App. 92). Lewis now appeals.

                                       DECISION

       Lewis appeals from the post-conviction court’s order denying post-conviction

relief on his claim of ineffective assistance of trial counsel. Our standard of review in

post-conviction proceedings is well settled.

       We observe that post-conviction proceedings do not grant a petitioner a
       “super-appeal” but are limited to those issues available under the Indiana
       Post-Conviction Rules. Post-conviction proceedings are civil in nature, and
       petitioners bear the burden of proving their grounds for relief by a
       preponderance of the evidence. Ind. Post–Conviction Rule 1(5). A
       petitioner who appeals the denial of PCR faces a rigorous standard of
       review, as the reviewing court may consider only the evidence and the
       reasonable inferences supporting the judgment of the post-conviction court.
       The appellate court must accept the post-conviction court’s findings of fact
       and may reverse only if the findings are clearly erroneous. If a PCR
       petitioner was denied relief, he or she must show that the evidence as a
       whole leads unerringly and unmistakably to an opposite conclusion than
       that reached by the post-conviction court.

Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal citations

omitted), trans. denied.

                                               7
       A claim of ineffective assistance of trial counsel requires a showing that: (1)

counsel’s performance was deficient by falling below an objective standard of

reasonableness based on prevailing professional norms; and (2) counsel’s performance

prejudiced the defendant such that “‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.’”

Davidson v. State, 763 N.E.2d 441, 444 (Ind. 2002) (quoting Strickland v. Washington,

466 U.S. 668, 687 (1984)), reh’g denied, cert. denied. “Failure to satisfy either of the

two prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind. Ct.

App. 2012) (citing French v. State, 778 N.E.2d 816, 824 (Ind. 2002)), trans. denied.

Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry

alone. French, 778 N.E.2d at 824.

       Lewis alleges that his trial counsel was ineffective for failing to present mitigating

evidence at sentencing.2 Specifically, Lewis asserts that his trial counsel “failed to

present any evidence with which he could have argued for a more lenient sentence for

Lewis.” (Lewis’s Br. 4). He also contends that his counsel was ineffective for failing to

contact or present testimony from his cousin and aunt, which he claims would have been

mitigating evidence.

       Lewis’s claim that his trial counsel failed to present any mitigating evidence is

without merit.      Indeed, the record, which was admitted as an exhibit in the post-

2
    The State contends that Lewis has waived review of this specific ineffective assistance of counsel
claim because he failed to include it in his final amended post-conviction petition. We, however,
disagree. As discussed in the facts above, Lewis—in his December 2012 third amended post-conviction
petition—specifically argued that his “[t]rial counsel was ineffective for failing to prepare to present
mitigating evidence at Lewis’s sentencing hearing.” (App. 69).

                                                   8
conviction proceeding, reveals that Lewis’s trial counsel advocated for Lewis to receive

minimum and concurrent sentences.         Furthermore, the trial court found mitigating

circumstances in “Lewis’s statement to the court that he is a drug addict and comments

by Lewis’s counsel that Lewis is a thoughtful and considerate person who is not

predisposed to commit criminal offenses.” Lewis, No. 20A03-1001-CR-96, slip op. at 7.

Moreover, Lewis testified during the post-conviction hearing that Attorney Sniadecki

contacted Lewis’s mother and asked her to testify on Lewis’s behalf at sentencing. “We

certainly cannot and will not find [Lewis’s] trial counsel ineffective for failing to do

something that he did, in fact, do.’” Perry v. State, 904 N.E.2d 302, 309 (Ind. Ct. App.

2009) (finding trial counsel was not ineffective for failing to argue defendant’s mental

health as a mitigator during sentencing where trial counsel did raise the issue during

sentencing), trans. denied.

       Additionally, Lewis cannot show that his trial counsel was deficient or that he was

prejudiced when his trial counsel did not call Lewis’s cousin or aunt as witnesses at the

sentencing hearing. Attorney Sniadecki testified that he did not recall Lewis asking him

to call witnesses for sentencing but that his normal practice was to do so if requested by

his client and if it was in the client’s interest. Lewis presented no evidence in this post-

conviction proceeding to show that his trial counsel had any knowledge of Lewis’s aunt

or cousin or Lewis’s desire to call them as witnesses. Thus, he has failed to show that his

trial counsel’s performance was deficient.

       Further, Lewis has failed to show he was prejudiced by his trial counsel’s failure

to call Lewis’s aunt and cousin as witnesses at sentencing. As the post-conviction court

                                             9
found, Lewis has failed to show that these witnesses’ testimony would have made a

difference in Lewis’s sentence. Because Lewis has failed to show that his trial counsel’s

performance was deficient or that he was prejudiced, his claim of ineffective assistance of

counsel fails. See, e.g., Alvarado v. State, 686 N.E.2d 819, 822-23 (Ind. 1997) (holding

that petitioner failed to show he was prejudiced by his counsel’s failure to present

witnesses at petitioner’s sentencing hearing because petitioner failed to show how the

witnesses testimony would have changed the sentencing outcome); Johnson v. State, 832

N.E.2d 985, 1005 (Ind. Ct. App. 2005) (holding that petitioner failed to demonstrate that

he received ineffective assistance of counsel because he did not provide any evidence as

to how the result of his sentencing hearing would have been different if his counsel

would have argued more or different mitigating circumstances), trans. denied.

       Lewis had the burden to establish that he was entitled to post-conviction relief by a

preponderance of the evidence. Ind. Post–Conviction Rule 1(5). Lewis, however, failed

to present evidence to support or establish his post-conviction claim. Because Lewis

failed to establish his claim of ineffective assistance of trial counsel, we affirm the post-

conviction court’s denial of his petition for post-conviction relief.

       Affirmed.

MATHIAS, J., and BRADFORD, J., concur.




                                              10
