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.


APPELLANT PRO SE:                                  ATTORNEYS FOR APPELLEE:

DANNY W. RAMSEY                                    GREGORY F. ZOELLER
Carlisle, Indiana                                  Attorney General of Indiana

                                                   RYAN D. JOHANNINGSMEIER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana

                                                                                    FILED
                               IN THE                                            Feb 24 2012, 9:07 am

                     COURT OF APPEALS OF INDIANA
                                                                                         CLERK
                                                                                       of the supreme court,
                                                                                       court of appeals and
                                                                                              tax court



DANNY W. RAMSEY,                                   )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )       No. 14A01-1102-PC-84
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )


                      APPEAL FROM THE DAVIESS CIRCUIT COURT
                     The Honorable Sherry B. Gregg Gilmore, Special Judge
                                Cause No. 14C01-0703-PC-2


                                       February 24, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
       Danny Ramsey appeals the partial denial of his petition for post-conviction relief. He

presents six issues, which we consolidate and restate as three:

       1.     Whether the post-conviction court erred when it denied Ramsey‟s request for
              an evidentiary hearing;

       2.     Whether trial counsel provided ineffective assistance because he did not
              request a change of judge, request suppression of Ramsey‟s confession,
              request a hearing to challenge the probable cause affidavit supporting the
              search warrant for Ramsey‟s house, and/or move to dismiss the charges against
              Ramsey; and

       3.     Whether appellate counsel‟s failure to challenge Ramsey‟s sentence
              constituted ineffective assistance.

We affirm.

                       FACTS AND PROCEDURAL HISTORY

       The facts of Ramsey‟s convictions and sentence were set forth in his direct appeal:

               Between January and May 2002, Penny Drake knew Ramsey through
       her then-boyfriend. Drake had been to Ramsey‟s apartment in Washington and
       had seen a large amount of methamphetamine openly displayed there. Drake
       contacted the Daviess County Sheriffs Department and informed the
       Department that Ramsey was dealing methamphetamine and other illegal
       drugs. Detective Ron Morgan instructed Drake to continue her normal
       activities and to arrange a purchase from Ramsey.
               On May 1, 2002, Drake arranged a buy with Ramsey. Before
       purchasing the methamphetamine, Detective Morgan searched Drake and her
       residence to ensure that no illegal drugs were present. Detective Morgan
       found no drugs or other people inside Drake‟s residence, and he maintained
       visual surveillance of the house in order to ensure that no one other than Drake
       and Ramsey were inside. Detective Morgan also placed a transmitter inside
       the house to hear the conversation between Ramsey and Drake, but he did not
       record the conversation. After Drake met with Ramsey in her house, she gave
       Detective Morgan 3.01 grams of methamphetamine that she had just purchased
       from Ramsey. Drake and Detective Morgan followed similar procedures in
       making several more buys from Ramsey throughout May 2002. These later
       conversations were recorded.
               During late 2003 and early 2004, Molly Haag often visited Ramsey‟s
                                              2
residence, and she saw illegal drugs there every time that she visited. On
February 18, 2004, Haag drove Ramsey to obtain a handgun that she later
observed in a room of Ramsey‟s home.
        The Indiana State Police began a separate investigation of Ramsey after
obtaining information from a confidential informant about Ramsey‟s drug
dealing activities. On February 18, 2004, the Indiana State Police executed a
search warrant at Ramsey‟s residence. The police found Ramsey in the home
as well as plant material, rolling paper, and cocaine. Ramsey had $1,760.21 on
his person. In an upstairs bedroom, the police recovered a baggie corner,
which is commonly used for packaging illegal drugs for sale, marijuana
cigarettes, foil, and a light bulb. The police also found a handgun, two digital
scales, 59.29 grams of methamphetamine under the sink floorboard, 8.12
grams of marijuana, and 82 grams of methamphetamine inside a jacket that
Ramsey admitted was his.
        On February 20, 2004, the State charged Ramsey with dealing in
methamphetamine, possession of a narcotic drug while in possession of a
firearm, maintaining a common nuisance, possession of marijuana, and being a
habitual offender; all of the charges were based on the evidence obtained from
the 2004 arrest. On April 26, 2004, the State charged Ramsey with eight
counts of dealing methamphetamine based on evidence obtained from Drake in
2002. On May 17, 2005, Ramsey moved for and was granted the consolidation
of the two cases for trial, and the State dismissed a possession of paraphernalia
count. Ramsey moved to suppress the warrant obtained by Detective Morgan
and all evidence obtained as a result of the warrant from the 2002 events
because of staleness and lack of control of the buys. The trial court denied the
motion to suppress.
        The jury trial was held on May 17–20, 2005. During the trial, Detective
Morgan testified that the reasons for his delay in filing the charges were that he
wanted to allow time to pass from Drake‟s last contact with Ramsey, that he
was working in Indianapolis from September 2002 through July 2003 on a
complex case that took much of his time, and that the Drug Enforcement
Agency (DEA) had been investigating Ramsey for possible involvement in a
federal drug conspiracy with which Detective Morgan did not want to
interfere. Ramsey objected to the DEA statement and requested a mistrial.
The trial court sustained the objection, stating, “The jury will be instructed to
disregard the answer that was given to that question with regard to those
matters. Court will overrule the motion for mistrial.” Tr. p. 379.
                                       ***
The jury ultimately found Ramsey guilty on all counts.
        On May 20, 2005, the trial court began the habitual
offender/aggravating circumstances phase of the trial. Ramsey objected to the
two being combined, but the trial court overruled the objection. The jury
                                         3
          found Ramsey to be a habitual offender and found the existence of all four
          proposed aggravating circumstances. The trial court sentenced Ramsey to an
          aggregate term of seventy-five years, and Ramsey now appeals.

Ramsey v. State, 853 N.E.2d 491, 496-97 (Ind. Ct. App. 2006), trans. denied. On direct

appeal, Ramsey argued there was

          insufficient evidence to support the habitual offender finding, that the habitual
          offender and aggravating circumstances phases of the trial should not have
          been combined, that the trial court erred in denying his motion for a mistrial
          based on prosecutorial misconduct, and that the trial court erred in admitting
          evidence obtained from controlled buys and during the execution of a search
          warrant.

Id. at 495. We affirmed.

          On March 8, 2007, Ramsey filed a pro se petition for post-conviction relief. The

matter was referred to the State Public Defender, and the State filed its answer on March 16.

Ramsey‟s public defender withdrew on July 31, 2009, and State filed an amended answer on

December 14. Ramsey, pro se, filed a motion to amend his petition for post-conviction relief

and a motion for an evidentiary hearing on December 18. The post-conviction court granted

his motion to amend his petition on February 10, 2010, and ordered Ramsey to submit his

affidavits in support of his petition by April 1. On January 19, 2011, the post-conviction

court denied all of Ramsey‟s claims except the argument his trial counsel was ineffective

because he did not object to the State‟s allegation Ramsey was an habitual offender.1




1
    The post-conviction court ordered Ramsey‟s habitual offender enhancement reversed.

                                                     4
                             DISCUSSION AND DECISION

       Post-conviction proceedings afford petitioners a limited opportunity to raise issues

that were unavailable or unknown at trial and on direct appeal. Davidson v. State, 763

N.E.2d 441, 443 (Ind. 2002). As post-conviction proceedings are civil in nature, the

petitioner must prove his grounds for relief by a preponderance of the evidence. Id. A party

appealing a negative post-conviction judgment must establish that the evidence is without

conflict and, as a whole, unmistakably and unerringly points to a conclusion contrary to that

reached by the post-conviction court. Id. Where, as here, the post-conviction court makes

findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule

1(6), we do not defer to the court‟s legal conclusions, but “the findings and judgment will be

reversed only upon a showing of clear error – that which leaves us with a definite and firm

conviction that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.

2000) (citation omitted).

       1.     Denial of Evidentiary Hearing

       Ramsey argues he was erroneously denied an evidentiary hearing on his petition for

post-conviction relief because his petition raised issues of fact to be decided by the court. P-

C. R. 1(4)(g) states:

       The court may grant a motion by either party for summary disposition of the
       petition when it appears from the pleadings, depositions, answers to
       interrogatories, admissions, stipulations of fact, and any affidavits submitted,
       that there is no genuine issue of material fact and the moving party is entitled
       to judgment as a matter of law. The court may ask for oral argument on the
       legal issue raised. If an issue of material fact is raised, then the court shall
       hold an evidentiary hearing as soon as reasonably possible.

                                               5
Based thereon, Ramsey asserts, the court had an obligation to hold a hearing.

       The State asserts that rule applies only when a party requests a summary disposition,

which neither party did here. Instead, the State argues, because Ramsey filed his petition pro

se, the court correctly proceeded without an evidentiary hearing pursuant to another post-

conviction rule:

       In the event petitioner elects to proceed pro se, the court at its discretion may
       order the cause submitted upon affidavit. It need not order the personal
       presence of the petitioner unless his presence is required for a full and fair
       determination of the issues raised at an evidentiary hearing. If the pro se
       petitioner requests issuance of subpoenas for witnesses at an evidentiary
       hearing, the petitioner shall specifically state by affidavit the reason the
       witness‟ testimony is required and the substance of the witness‟ expected
       testimony. If the court finds the witness‟ testimony would be relevant and
       probative, the court shall order that the subpoena be issued. If the court finds
       the proposed witness‟ testimony is not relevant and probative, it shall enter a
       finding on the record and refuse to issue the subpoena. Petitioners who are
       indigent and proceeding in forma pauperis shall be entitled to production of
       guilty plea and sentencing transcripts at public expense, prior to a hearing, if
       the petition is not dismissed. In addition, such petitioners shall also be entitled
       to a record of the post-conviction proceeding at public expense for appeal of
       the denial or dismissal of the petition.

P-C. R. 1(9)(b) (italics added).

       As the post-conviction court could “order the cause submitted upon affidavit at its

discretion,” id., Ramsey must demonstrate the post-conviction court abused its discretion.

See Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App. 2005) (“[W]e will review the PCR

court‟s decision to forego an evidentiary hearing when affidavits have been submitted under

Rule 1(9)(b) under an abuse of discretion standard.”), trans. denied. We hold it did not.

       Ramsey filed a forty-two page petition for post-conviction relief, with extensive


                                               6
argument regarding each of his requests for relief. The trial court issued a thirty-nine page

order addressing each of Ramsey‟s issues. On appeal, Ramsey argues, “it is clear that there

were unresolved facts that required an evidentiary hearing for a full and fair determination of

the cause[,]” (Br. of Appellant at 7), but he cites no specific issues or facts to support his

contention. Because Ramsey failed to cite specific issues that contained genuine questions of

fact, he has failed to demonstrate an evidentiary hearing was necessary for determination of

the issues he raised. See P-C R. 1(4)(g) (“If an issue of material fact is raised, then the court

shall hold an evidentiary hearing as soon as reasonably possible.”) Thus we cannot say the

trial court abused its discretion in denying his petition for an evidentiary hearing.

       2.     Ineffective Assistance of Trial Counsel

       We review claims of ineffective assistance of counsel under the two-part test in

Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail, a claimant must show

counsel‟s performance fell below an objective level of reasonableness based on prevailing

professional norms, Taylor v. State, 882 N.E.2d 777, 781 (Ind. Ct. App. 2008), and that the

deficient performance resulted in prejudice. Id.

       “Prejudice occurs when the defendant demonstrates that „there is a reasonable

probability that, but for counsel‟s unprofessional errors, the result of the proceeding would

have been different.‟” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting

Strickland, 466 U.S. at 694). We need not consider whether counsel‟s performance fell

below the objective standard if that performance would have not changed the outcome.

Strickland, 466 U.S. at 687.

                                               7
              a.      Change of Judge

        “To 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)), reh’g denied, trans.

denied. Ramsey argues counsel was ineffective because he did not request a change of judge

based on the fact the judge presiding over Ramsey‟s trial was also the judge who signed the

warrant for Ramsey‟s arrest.

       In Beverly v. State, 543 N.E.2d 1111, 1115 (Ind. 1989), our Indiana Supreme Court

held “the fact that appellant‟s trial judge signed his probable cause affidavit and arrest

warrant does not constitute a showing of actual prejudice or bias[.]” Based on that case law,

the trial court should not have granted a motion for a change of judge based on that

argument. Ramsey has not indicated any other reason the judge may have been prejudiced or

biased. Therefore, Ramsey has not demonstrated counsel was ineffective for declining to

request a change of judge.

              b.      Suppression of Evidence

       Ramsey next argues his trial counsel should have requested suppression of his

confession because it was the product of an unreasonable delay between his arrest and initial

hearing. As a rule, a person arrested without a warrant should be brought before a magistrate

within forty-eight hours of the arrest for a determination of probable cause. Griffith v. State,

                                               8
788 N.E.2d 835, 841 (Ind. 2003). If there is a delay in this process, “[t]he normal remedy . . .

is the suppression of the evidence obtained during the unreasonable delay.” Stafford v. State,

890 N.E.2d 744, 749 (Ind. Ct. App. 2008).

       The State notes, and the Record confirms, the statement that Ramsey calls his

confession occurred while police were executing the search warrant at his residence. The

police asked if a jacket was his, he said “yes,” and the jacket contained methamphetamine.

Although neither party explains whether Ramsey was under arrest at the time he admitted the

jacket was his, it is obvious that his admission to owning the jacket was not the product of a

prolonged detention and Ramsey has not argued he was coerced into making the statement.

See Peterson v. State, 674 N.E.2d 528, 539 (Ind. 1996) (“It is only when the confession is the

product of that detention that it must be suppressed. When the confession is the product of

the defendant‟s free will, it is admissible.”), reh’g denied, cert. denied, 522 U.S. 1078. Thus,

had his counsel requested suppression of his confession, Ramsey has not demonstrated any

likelihood the trial court would have granted it. Therefore, Ramsey has not demonstrated his

trial counsel was ineffective.

              c.      Franks Hearing

       Ramsey asserts his trial counsel should have requested a hearing to test the sufficiency

of the probable cause affidavit that was the basis for the charges against him. In Franks, the

United States Supreme Court held:

       [W]here the defendant makes a substantial preliminary showing that a false
       statement knowingly and intentionally, or with reckless disregard for the truth,
       was included by the affiant in the warrant affidavit, and if the allegedly false
       statement is necessary to the finding of probable cause, the Fourth Amendment
                                               9
       requires that a hearing be held at the defendant‟s request.

438 U.S. at 155-56.

       On direct appeal, Ramsey challenged the search warrant, and we held the State

sufficiently established the credibility of the confidential informant providing the information

therefor. Ramsey, 853 N.E.2d at 504. Ramsey has not explained how different information

would have been elicited during the Franks hearing. Thus it appears Ramsey is attempting to

restate an issue that was already decided against him. Post-conviction petitioners are not

permitted to rephrase an issue raised on direct appeal in an attempt to induce a different result

during post-conviction proceedings. See Ben-Yisrayl, 738 N.E.2d at 258 (When an issue has

been presented and decided as part of a direct appeal, “the doctrine of res judicata applies,

therefore precluding its review in post-conviction proceedings. . . . A petitioner for post

conviction relief cannot escape the effect of claim preclusion merely by using different

language to phrase an issue and define an alleged error.”) (internal citations omitted). This

issue was decided in Ramsey‟s direct appeal and was not available for re-litigation in post-

conviction proceedings.

              d.      Vindictive Prosecution

       Ramsey claims his trial counsel should have moved to dismiss the additional charges

filed against him after he rejected the State‟s plea offer because the new charges were filed

vindictively and in retaliation for his rejection of the plea offer. When charges are modified

prior to trial, the defendant is not entitled to a presumption of vindictiveness. Reynolds v.

State, 625 N.E.2d 1319, 1321 (Ind. Ct. App. 1993), trans. denied. “The filing of charges

                                               10
supported by probable cause subsequent to a break down in plea negotiations does not

constitute retaliation for the defendant‟s exercise of his right to trial.” Id. at 1322. The State

had probable cause to file the additional charges against Ramsey based on a prior

investigation. Therefore, pursuant to Reynolds, the trial court would not have granted a

motion to dismiss the additional charges against Ramsey, and he has not demonstrated trial

counsel was ineffective for failing to do so.

       3.      Ineffective Assistance of Appellate Counsel

       We review claims of ineffective assistance of appellate counsel using the same

standard applicable to claims of trial counsel ineffectiveness. Fisher v. State, 810 N.E.2d

674, 676-77 (Ind. 2004). The defendant must show that appellate counsel was deficient in

his performance and that the deficiency resulted in prejudice. Id. at 677.

       Ineffective appellate assistance claims generally fall into three categories: (1) denial

of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Id. We

employ a two-part test to evaluate “waiver of issue” claims: (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 issues raised. Id.

       Because counsel is afforded considerable discretion in choosing strategy and tactics,

we presume counsel‟s assistance was adequate and all significant decisions were made in the

exercise of reasonable professional judgment. State v. Miller, 771 N.E.2d 1284, 1288 (Ind.

Ct. App. 2002). Deciding which issues to raise on appeal is one of the most important

strategic decisions appellate counsel must make. Bieghler v. State, 690 N.E.2d 188, 193 (Ind.

                                                11
1998), reh’g denied.

       Ramsey argues his appellate counsel, who was also his trial counsel, should have

challenged his sentence because “the sentencing court failed to give a sentencing statement

with a detail [sic] recitation of the court‟s reason for the sentence imposed, considering

aggravating and mitigating circumstances.” (Br. of Appellant at 21.) However, had his

appellate counsel challenged his sentence based on an allegedly insufficient sentencing

statement, the argument would have been rejected pursuant to Corbett v. State, 764 N.E.2d

622, 631 (Ind. 2002), in which our Indiana Supreme Court held an appellate court may

review both the written and the oral sentencing statements of the trial court to determine the

findings of the court. Thus, because the argument would have been unsuccessful, Ramsey

was not prejudiced by its omission and has failed to demonstrate his appellate counsel was

ineffective for that reason.

                                      CONCLUSION

       The post-conviction court did not abuse its discretion when it denied Ramsey‟s request

for an evidentiary hearing because the matter was properly decided by affidavits pursuant to

P-C Rule 1(9)(b). Ramsey has not demonstrated trial counsel was ineffective; the motions

for change of judge, suppression of evidence, and to dismiss the additional charges against

Ramsey would not have been granted. Ramsey‟s argument trial counsel should have moved

for a Franks hearing is res judicata because the issue was addressed on direct appeal.

Finally, Ramsey has not demonstrate appellate counsel was ineffective for omitting the issue

of sentencing before the trial court because there were stronger issues to be presented on

                                             12
appeal and Ramsey‟s proffered argument would have been ultimately unsuccessful.

Accordingly, we affirm the decision of the post-conviction court.

      Affirmed.

NAJAM, J., and RILEY, J., concur.




                                           13
