MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                       FILED
court except for the purpose of establishing                              Jul 13 2020, 8:53 am
the defense of res judicata, collateral
                                                                                CLERK
estoppel, or the law of the case.                                         Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael C. Keating                                        Curtis T. Hill, Jr.
Law Offices of Steven K. Deig, LLC                        Attorney General of Indiana
Evansville, Indiana
                                                          Tiffany A. McCoy
Steven L. Whitehead                                       Deputy Attorney General
Princeton, Indiana                                        Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Craig E. Hardiman,                                        July 13, 2020
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          19A-PC-2950
        v.                                                Appeal from the Gibson Circuit
                                                          Court
State of Indiana,                                         The Honorable Jeffrey F. Meade,
Appellee-Respondent.                                      Judge
                                                          Trial Court Cause No.
                                                          26C01-1904-PC-395



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-2950 | July 13, 2020                     Page 1 of 13
                                           Case Summary
[1]   In 2003, Craig E. Hardiman pled guilty to Class B felony manufacturing a

      controlled substance. In 2019, Hardiman filed a petition for post-conviction

      relief (“PCR”), claiming that he had received ineffective assistance of trial

      counsel. Following an evidentiary hearing, the post-conviction court denied

      Hardiman’s PCR petition. We affirm.



                            Facts and Procedural History
[2]   On January 31, 2003, Gibson County Sheriff’s Department officer John Alley

      and several other officers went to Hardiman’s residence to investigate a report

      that Hardiman was planning to sell methamphetamine and a stolen handgun.

      Hardiman’s residence had a detached garage and an outbuilding approximately

      thirty to forty feet northeast of the house. Officers attempted to locate

      Hardiman in both the house and garage. While attempting to locate Hardiman,

      the officers detected a strong smell of ether. They also observed a large propane

      tank with greenish corrosion and numerous items used during the process of

      manufacturing methamphetamine in a burn pile, in front of the outbuilding,

      and scattered in Hardiman’s yard between the house and the outbuilding.


[3]   The next day, officers observed two males, one identified as Hardiman, at the

      same residence. The officers observed Hardiman carrying what appeared to be

      a glass blender containing a substance similar to “pill dough” and coffee filters

      from the outbuilding to the house. Appellant’s App. Vol. II p. 27. Both officers


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2950 | July 13, 2020   Page 2 of 13
      again detected a strong odor of ether. The officers watched Hardiman and the

      other individual make three separate trips from the outbuilding to the house.


[4]   On February 2, 2003, Officer Alley once again detected a strong smell of ether

      coming from Hardiman’s residence. Approximately fifteen minutes later,

      another officer drove by Hardiman’s residence and also smelled a strong smell

      of ether. Later that day, Officer Alley requested a search warrant for

      Hardiman’s residence. In support of his request, he averred that based on his

      training, experience, and personal observations, he believed that there was

      probable cause to establish that Hardiman was engaged in the manufacture

      and/or possession of methamphetamine. The trial judge found that there was

      probable cause and issued a search warrant. Various drug-related items were

      recovered during the subsequent search of Hardiman’s residence.


[5]   On February 3, 2003, the State charged Hardiman with Class B felony

      manufacturing a controlled substance, Class D felony possession of a controlled

      substance, and Class D felony possession of chemical reagents or precursors

      with intent to manufacture. On May 20, 2003, Hardiman pled guilty to Class B

      felony manufacturing a controlled substance. In exchange for his guilty plea,

      the State agreed to dismiss the remaining charges. The trial court sentenced

      Hardiman to a six-year term, which was to be served consecutive to

      Hardiman’s thirty-four-year sentence in Cause Number 26C01-0210-FA-1, and

      concurrent to his sentence in Cause Number 26C01-0208-FD-67.




      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2950 | July 13, 2020   Page 3 of 13
[6]   On April 22, 2019, Hardiman filed a PCR petition, claiming that he had

      received ineffective assistance of counsel. The post-conviction court conducted

      an evidentiary hearing on Hardiman’s petition on August 29, 2019. During the

      evidentiary hearing, trial counsel acknowledged that he had not moved to

      suppress the evidence recovered during the execution of the search warrant.

      While trial counsel testified that he could not remember why he had not filed a

      motion to suppress, he indicated that it is his standard practice to review a

      criminal case file for search and seizure issues. On November 14, 2019, the

      post-conviction court denied Hardiman’s PCR petition.



                                  Discussion and Decision                              1



[7]   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.

      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.




      1
        We note that in denying Hardiman’s PCR petition, the post-conviction court found both that the PCR
      proceedings were barred by laches and that Hardiman failed to establish that he suffered ineffective assistance
      of trial counsel. Given our preference for deciding cases on the merits, we focus our review on the merits of
      Hardiman’s ineffective-assistance claim.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2950 | July 13, 2020                     Page 4 of 13
[8]   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

      unerringly and unmistakably to a decision 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).


                            Ineffective Assistance of Counsel
[9]   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

      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 functioning of the

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

      result.’” Id. (quoting Strickland, 466 U.S. at 686). “The Strickland standard is

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2950 | July 13, 2020   Page 5 of 13
       not limited to the trial or appellate phases in criminal proceedings, but also

       applies when defendants allege ineffective assistance during the guilty plea

       phase.” Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind. 2019).


[10]   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.


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

       performance resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner may

       show prejudice by demonstrating that there is “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. 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,

       “[a]lthough the two parts of the Strickland test are separate inquires, a claim

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2950 | July 13, 2020   Page 6 of 13
       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).


[12]   Hardiman contends that his trial counsel provided ineffective assistance by

       failing to file a motion to suppress the evidence recovered during the execution

       of the search warrant. “A petitioner alleging ineffective assistance of counsel in

       overlooking a defense leading to a guilty plea must show a reasonable

       probability that, had the defense been raised, the petitioner would not have

       pleaded guilty and would have succeeded at trial.” Helton v. State, 907 N.E.2d

       1020, 1023 (Ind. 2009). Further, “‘[t]o prevail on an ineffective assistance of

       counsel claim based upon counsel’s failure to file motions on a defendant’s

       behalf, the defendant must demonstrate that such motions would have been

       successful.’” Moore v. State, 872 N.E.2d 617, 621 (Ind. Ct. App. 2007) (quoting

       Wales v. State, 768 N.E.2d 513, 523 (Ind. Ct. App. 2002), trans. denied).


[13]   We have previously concluded that while “[i]t is certainly the case that in some

       circumstances a claim of ineffective assistance of counsel can be established by

       showing a failure to suppress evidence,” the petitioner bears the burden of proof

       at his post-conviction evidentiary hearing. Helton, 907 N.E.2d at 1024. As

       such, it is incumbent on the petitioner—not the State—to show that “there is a

       reasonable probability of insufficient evidence if a suppression motion had been

       granted.” Id. at 1025. In Helton, the petitioner argued that without the seized

       contraband, the odds of a better result at trial “would have been much better

       than negligible” but presented “no evidence to establish [his] claim.” Id. Upon

       review, we concluded that

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2950 | July 13, 2020   Page 7 of 13
                 Perhaps if the evidence seized from Helton’s home had been
                 excluded, the chances of a better outcome would have been
                 greater. But in the absence of any showing that the State’s other
                 evidence would have been insufficient, we are unable to evaluate
                 the likelihood of acquittal or dismissal, and Helton has not
                 shown a reasonable probability, or any probability at all, that he
                 would have prevailed at trial.


       Id.


[14]   In arguing that his trial counsel provided ineffective assistance, Hardiman

       asserts


                 Had trial counsel filed a motion to suppress, it would have been
                 granted. If one removes the observations made during the
                 officer’s illegal entry from the search warrant affidavit, the
                 remaining facts set out therein are woefully inadequate to
                 establish probable cause to search the Petitioner’s property.
                 Under the circumstances, with the evidence ultimately
                 suppressed, the Petitioner obviously (and reasonably) [would]
                 have opted for proceeding with his plea of not guilty and would
                 not have chosen to plead guilty. Trial counsel was, therefore,
                 ineffective in not filing a motion to suppress and in allowing the
                 Petitioner to plead guilty.


       Appellant’s Br. pp. 19–20. We cannot agree with Hardiman that the facts set

       forth in Officer Alley’s affidavit in support of his request for a search warrant

       were “woefully inadequate to establish probable cause.” Appellant’s Br. p. 19.

[15]   “To be valid, a warrant and its underlying affidavit must comply with the

       Fourth Amendment prohibition on unreasonable searches and seizures, as well

       as Indiana constitutional and statutory law.” Gray v. State, 758 N.E.2d 519, 521

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2950 | July 13, 2020   Page 8 of 13
(Ind. 2001). “In order to comply with these restrictions, the [judge’s] task is

simply to make a practical, commonsense decision whether, given all the

circumstances set forth before him there is a fair probability that contraband or

evidence of a crime will be found in a particular place.” Id. (internal quote and

ellipses omitted). “Probable cause to search premises is established when a

sufficient basis of fact exists to permit a reasonably prudent person to believe

that a search of those premises will uncover evidence of a crime.” Redden v.

State, 850 N.E.2d 451, 461 (Ind. Ct. App. 2006) (internal quotation omitted).

“The decision to issue the warrant should be based on the facts stated in the

affidavit and the rational and reasonable inferences drawn therefrom.” Id.

“When seeking a search warrant, the police must follow the warrant statute,

I.C. § 35–33–5–2,[2] which specifies the minimum information necessary to

establish probable cause.” Id. (internal quotation omitted). “As the reviewing

court, our duty under the Fourth Amendment is to determine whether the

[judge] issuing the warrant had a substantial basis for concluding that probable

cause existed.” Gray, 758 N.E.2d at 521 (internal quotation omitted). “While




2
    Indiana Code section 35-33-5-2(a) provides that
          no warrant for search or arrest shall be issued until there is filed with the judge an affidavit:
                   (1) particularly describing:
                             (A) the house or place to be searched and the things to
                             be searched for; or
                             (B) particularly describing the person to be arrested;
                   (2) alleging substantially the offense in relation thereto and that the
                   affiant believes and has good cause to believe that:
                             (A) the things sought are concealed there; or
                             (B) the person to be arrested committed the offense;
                             and
                   (3) setting forth the facts known to the affiant through personal
                   knowledge or based on hearsay, constituting the probable cause.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2950 | July 13, 2020                           Page 9 of 13
       significant deference is due to the [judge’s] determination, our search for

       substantial basis must focus on whether reasonable inferences drawn from the

       totality of the evidence support the determination.” Id. (internal quotation

       omitted).


[16]   Officer Alley requested a warrant to search Hardiman’s property on February 2,

       2003. In support of his request, Officer Alley averred:

               1. That affiant is an officer with the Gibson County Sheriff
               Department.

               2. On January 31, 2003, this affiant and several officers went to
               the residence of Craig Hardiman, which is the third house east of
               Greer Fruit Market on the north side of SR 64 west with an
               unattached outbuilding approximately 30 to 40 feet northeast of
               the house. The purpose of the contact was to investigate a report
               that [Hardiman] was to sell methamphetamine and a stolen
               handgun at 10:00 pm at this residence. Officers went to the
               house and to the garage to locate [Hardiman] and observed a
               strong smell of ether, numerous punched starting fluid cans and
               stripped batteries in a burn pile, additional stripped batteries in
               front of the outbuilding, used coffee filters scattered between the
               house and the outbuilding in the yard area, and a large propane
               tank with greenish corrosion.

               3. On February 1, 2003, two other officers with the Gibson
               County Sheriff Department observed two males, one identified as
               [Hardiman], at this residence. [Hardiman] was observed
               carrying what appeared to be a glass blender containing a
               substance similar to “pill dough,” and coffee filters from the
               outbuilding to the residence. The officers while observing the
               residence also observed a strong odor of ether. These officers
               observed the individuals make three separate trips from the
               outbuilding to the house.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2950 | July 13, 2020   Page 10 of 13
                4. On February 2, 2003, this affiant observed a strong smell of
                ether coming from the residence. Another officer also drove by
                the residence within approximately fifteen minutes of this
                affiant’s observation and also smelled a strong smell of ether.

                5. Based on this affiant’s training, experience and personal
                observations this affiant believes that there is evidence of
                manufacture/possession of methamphetamine, precursors, stolen
                weapons and paraphernalia within the above buildings and/or
                vehicles.


       Appellant’s App. Vol. II p. 27.

[17]   In challenging the sufficiency of the affidavit to establish probable cause,

       Hardiman asserts that the burn pile and outbuilding were located in the

       curtilage surrounding his property and were not visible from the area where a

       visitor to his property would be expected to go. “The area immediately

       surrounding one’s home is known as ‘curtilage,’ a term derived from Medieval

       Latin for court or yard.” Divello v. State, 782 N.E.2d 433, 437 (Ind. Ct. App.

       2003).


                When police enter onto private property in order to conduct an
                investigation or for another legitimate purpose and restrict their
                entry to places that other visitors would be expected to go, such
                as walkways, driveways, or porches, any observation made from
                these areas is permissible under the United States Constitution
                and the Fourth Amendment thereto. Accordingly, an individual
                does not have a reasonable expectation of privacy with regard to
                things or activities within a residence that may be observed by
                persons using their natural senses from places impliedly open to a
                visitor’s entry. In general, this means that if police utilize normal

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2950 | July 13, 2020   Page 11 of 13
               means of access to and egress from the house for some legitimate
               purpose, such as to make inquiries of the occupant, it is not a
               Fourth Amendment search for the police to see or hear or smell
               from that vantage point what is happening inside the dwelling.
               The implied invitation, however, extends only to those with
               legitimate business, and applies only to recognized access routes
               reasonable under the circumstances.


       Id. (internal citations, quotations, and ellipses omitted).


[18]   In this case, even if we were to assume that Hardiman’s description of the

       location of the burn pile and outbuilding as being located in the curtilage

       beyond the view from where a visitor is expected to go is accurate, we conclude

       that the affidavit is nonetheless sufficient to establish probable cause. The

       remaining portions of Officer Alley’s affidavit indicate that on three consecutive

       days, multiple officers smelled the strong odor of ether, and Hardiman does not

       claim that any of them were in the curtilage at the time. We have previously

       noted that the strong smell of ether is a common sign of methamphetamine

       production. See generally Holder v. State, 847 N.E.2d 930, 933 n.1 (Ind. 2006)

       (“Ether is a chemical commonly known among law enforcement to be

       employed in the manufacture of methamphetamine.”). On the second of the

       three days, Hardiman was observed entering and exiting the house carrying

       what appeared to be materials used in or produced during the manufacture of

       methamphetamine. Officers also observed a large propane tank with “greenish

       corrosion” and Hardiman makes no argument that the propane tank was

       located beyond an individual’s view from an area where a visitor is expected to

       go. In addition, officers had received a report that Hardiman was going to sell

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2950 | July 13, 2020   Page 12 of 13
       methamphetamine and a stolen handgun from the property on at a particular

       time on a particular date. We conclude that these factors are sufficient to

       establish probable cause to believe that Hardiman was engaged in the

       manufacture of methamphetamine. Thus, similar to Helton, we conclude that

       Hardiman has failed to carry his burden of establishing a reasonable probability

       that he would have succeeded at trial if a motion to suppress had been made

       and sustained.


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

       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2950 | July 13, 2020   Page 13 of 13
