Opinion
Court of Appeals Case No. 21A-PC-618
01-18-2022
Dorian JACKSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
Appellant Pro Se: Dorian Jackson, Pendleton, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Sierra A. Murray, Deputy Attorney General, Indianapolis, Indiana
Appellant Pro Se: Dorian Jackson, Pendleton, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Sierra A. Murray, Deputy Attorney General, Indianapolis, Indiana
MEMORANDUM DECISION
Friedlander, Senior Judge.
[1] Dorian Jackson appeals the denial of his petition for post-conviction relief. We affirm.
[2] Jackson presents three issues, which we restate as:
1. Whether the post-conviction court abused its discretion when it denied Jackson's request to subpoena two witnesses.
2. Whether the post-conviction court erred by denying Jackson's claim of ineffective assistance of trial counsel.
3. Whether the post-conviction court erred by denying Jackson's claim of ineffective assistance of appellate counsel.
[3] The underlying facts, as stated in Jackson's direct appeal, are as follows:
Elkhart County Sheriff's Undercover Officer 193 ("UC 193"), a member of the Interdiction and Covert Enforcement Unit (the "ICE Unit"), a countywide drug task force for Elkhart County, received information that two cooperating sources wanted to work together to identify and target their source who was identified as Dorian Stephens residing in the Overlook Apartments in Elkhart. On March 14, 2011, UC 193 and other officers met with Cooperating Sources 11–005 ("CS 11–005") and 11–006 ("CS 11–006"). The police searched CS 11–005 and CS 11–006 and CS 11–006's vehicle. CS 11–005 placed a phone call to Stephens advising that they were going to be on their way for a purchase. After twenty or thirty minutes, Stephens called back and said that he was ready to meet and directed them to drive to the playground area of Overlook Apartments.
UC 193 accompanied the cooperating sources in CS 11–006's vehicle to the Overlook Apartments. Shortly after arriving, a white Chevrolet Suburban approached them and stopped, and the cooperating sources recognized the driver as Stephens. Jackson, Stephens’ son, exited the Suburban, entered CS 11–006's vehicle, received money from CS 11–005, and gave heroin to CS 11–005. After a brief conversation, Jackson exited the vehicle.
On March 29, 2011, CS 11–005 called Jackson, and Jackson instructed him to go to a different location. Prior to the buy, the cooperating sources and CS 11–006's vehicle were searched. CS 11–006 drove CS 11–005 and UC 193 to the location, and Jackson entered the vehicle. CS 11–005 handed Jackson money, and Jackson handed him heroin.
The police observed Jackson in a white Dodge Stratus on other buys and during surveillance. The cooperating sources had told police that they believed that the Stratus was used to go to Chicago to retrieve more heroin. Without a search warrant, Undercover Officer 8621 placed a GPS device on the Stratus. The GPS device was used to assist with visual surveillance and to determine that the Stratus had gone to Chicago and was traveling back to the Elkhart area on March 30, 2011. Once the police had observed that the Stratus was going to Chicago, they decided that a traffic stop would be initiated, if possible, when the Stratus returned to Elkhart.
Elkhart County Sheriff's Detective Jeremy Stout positioned his vehicle on County Road 6 and observed the tracking device on his computer and that the "GPS unit was indicating that the vehicle on which the device was placed was traveling eastbound on Cleveland Road, which was also County Road 6." Transcript at 147. Detective Stout did not see the vehicle until its approach of Ash Road but knew of its location because of the GPS. Detective Stout was specifically planning to arrest Jackson, was not just performing traffic control, and was aware of the location of the Stratus because of the GPS tracking. The driver of the Stratus stopped at Ash Road on County Road 6, activated the turn signal, and turned south. Based upon the driver's failure to signal 200 feet prior to making a turn, Detective Stout initiated a traffic stop and observed that Jackson was the driver. Detective Stout asked Jackson to step out of the vehicle and noticed that Jackson's belt was undone, his pants were hanging down, and he was attempting to pull up his pants as he was stepping out of the vehicle. Detective Stout arrested Jackson, searched him, and discovered a baggie of heroin and a baggie of marijuana in Jackson's boxer briefs.
On April 4, 2011, the State charged Jackson with: Count I, dealing in a narcotic drug as a class A felony; Count II, dealing in a narcotic drug as a class B felony; Count III, dealing in a narcotic drug as a class B felony; Count IV, dealing in a narcotic drug as a class B felony; and Count V, possession of marijuana as a class A misdemeanor. On September 28, 2011, Jackson filed a motion to suppress all evidence located on Jackson's person and in his vehicle, the evidence obtained from a cell phone, and all evidence from the controlled buys. Jackson argued that his rights under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution were violated. After a hearing, the court denied Jackson's motion to suppress.
....
The State moved to dismiss Count III, and the court granted the motion. During the bench trial, Jackson's counsel objected at various points based upon the same reasons raised in the motion to suppress, and the court overruled the objections. The court found Jackson guilty of Counts I, II, IV, and V, and sentenced him to thirty-seven years with four years suspended for Count I, possession of a narcotic drug as a class A felony, fifteen years for Count II, dealing in a narcotic drug as a class B felony, fifteen years for Count IV, dealing in a narcotic drug as a class B felony, and one year for Count V, possession of marijuana as a class A misdemeanor. The court ordered that the sentence imposed under Count V be served concurrent with the sentence imposed under Count I and that the sentences for Counts II and IV be served concurrent with each other but consecutive to Count I. Thus, the court sentenced Jackson to an aggregate sentence of fifty-two years with four years suspended.
Jackson v. State , 996 N.E.2d 378, 380-81, 382 (Ind. Ct. App. 2013) (internal footnotes omitted), trans. denied (2014).
[4] On direct appeal, Jackson challenged the admission of evidence obtained following the traffic stop and his arrest. This Court affirmed the judgment of the trial court, see id. , and our Supreme Court denied Jackson's request for transfer. See Jackson v. State , 3 N.E.3d 539 (Ind. 2014).
[5] In November 2018, Jackson filed his pro se petition for post-conviction relief, which he later amended. An evidentiary hearing was held on the petition on January 23, 2020. The court took the matter under advisement and allowed the parties to submit proposed findings of fact and conclusions of law. On January 15, 2021, the court issued its findings and conclusions denying Jackson's petition. This appeal ensued.
We commend the post-conviction court for its thorough findings of fact and conclusions of law which greatly facilitated our review of its decision.
[6] To the extent the post-conviction court has denied relief, the petitioner appeals from a negative judgment and faces the rigorous burden of showing that the evidence, as a whole, leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Harris v. State , 762 N.E.2d 163 (Ind. Ct. App. 2002), trans. denied. 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. Kistler v. State , 936 N.E.2d 1258 (Ind. Ct. App. 2010), trans. denied (2011). In this review, findings of fact are accepted unless they are clearly erroneous, and no deference is accorded to conclusions of law. Id. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Witt v. State , 938 N.E.2d 1193 (Ind. Ct. App. 2010), trans. denied (2011).
1. Subpoenas
[7] Jackson contends the post-conviction court erred when it denied his requests for the issuance of subpoenas to certain potential witnesses.
[8] Post-Conviction Rule 1, Section 9(b) provides, in relevant part:
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.
Whether to grant or deny a petitioner's request for a subpoena is within the discretion of the post-conviction court. Pannell v. State , 36 N.E.3d 477 (Ind. Ct. App. 2015), trans denied. Thus, we review the post-conviction court's decision for an abuse of discretion, which occurs when the decision is against the logic and effect of the facts and circumstances before the court. Id.
[9] Jackson requested subpoenas for several witnesses. The post-conviction court granted some of the requests but denied those for Jessica Troosper and Officer Tony Schmucker. In his affidavits requesting subpoenas for Troosper and Officer Schmucker, Jackson stated that their testimony would prove the officer trespassed onto property to install the GPS device on Jackson's vehicle without a warrant. Jackson asserted this evidence goes to prove his claim of ineffective assistance of trial counsel for failure to investigate. Appellant's App. Vol. 2, pp. 57-60. The court denied Jackson's requests, finding that he had failed to establish a relevant issue on which the witnesses would provide evidence or testimony material to his post-conviction proceeding. See id. at 10. Following the evidentiary hearing on Jackson's post-conviction petition, the court further explained in its findings and conclusions that Jackson was continuing to litigate an issue that had already been determined. He had repackaged his claim of illegal placement of the GPS device/illegal stop and was attempting to relitigate the issue at the post-conviction level as a claim of ineffective assistance of counsel.
[10] If an issue was raised on appeal, but decided adversely, it is res judicata and not subject to consideration for post-conviction relief. Shanabarger v. State , 846 N.E.2d 702 (Ind. Ct. App. 2006), trans. denied. In Jackson's direct appeal, this Court addressed the sole issue of whether the trial court abused its discretion by admitting the evidence obtained from the traffic stop. Jackson argued the evidence was fruit of the poisonous tree due to the warrantless attachment of the GPS device on his vehicle. The Court determined that the intervening circumstances—Jackson's commission of a traffic infraction that precipitated the stop, the police already having probable cause to arrest Jackson based on the controlled buys, and the unfastened state of Jackson's pants that caused safety concerns for officers—were sufficient to remove any taint caused by police illegality. See Jackson , 996 N.E.2d at 385. Therefore, the issue of the admission of the evidence obtained as a result of the traffic stop where police may have acted illegally in placing the GPS device on Jackson's vehicle has already been determined, and Jackson is barred from relitigating the matter. Consequently, we find no abuse of discretion in the trial court's denial of his requests for subpoenas.
The court also noted that, at the time the police installed the GPS device on Jackson's vehicle, case law held that GPS tracking did not constitute a search under the Fourth Amendment. See U.S. v. Garcia , 474 F.3d 994, 997 (7th Cir. 2007) (holding that GPS tracking does not constitute a search under Fourth Amendment), cert. denied , abrogated by U.S. v. Jones , 565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012).
[11] Jackson also alleges ineffective assistance of both trial and appellate counsel. To succeed on a claim of ineffective assistance of counsel, a defendant is required to establish both (1) that counsel's performance was deficient and (2) that counsel's deficient performance prejudiced the defendant. Johnson v. State , 948 N.E.2d 331 (Ind. 2011) (citing Strickland v. Washington , 466 U.S. 668, 687-96, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ). To satisfy the first element, the defendant must show that counsel's representation fell below an objective standard of reasonableness and that counsel's errors were so serious that the defendant was denied the counsel guaranteed by the Sixth Amendment. Bethea v. State , 983 N.E.2d 1134 (Ind. 2013). In order to satisfy the second element, the defendant must show prejudice; that is, a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. There is a strong presumption that counsel rendered effective assistance and made all significant decisions in the exercise of reasonable professional judgment, and the defendant has the burden of overcoming this presumption. Harris , 762 N.E.2d 163. Moreover, failure to satisfy either element of the two-part test will cause the defendant's claim to fail. Henley v. State , 881 N.E.2d 639 (Ind. 2008). If we can easily dispose of an ineffective assistance claim based upon the prejudice element, we may do so without addressing whether counsel's performance was deficient. Id.
2. Assistance of Trial Counsel
[12] Jackson claims his trial counsel failed to investigate the circumstances under which the GPS device was attached to his vehicle. Specifically, Jackson contends that, had counsel properly investigated, he would have discovered that the vehicle was parked on posted private property at the time the device was attached. He alleges this act constitutes a trespass and "flagrant police misconduct" that would have resulted in the suppression of the evidence obtained from the subsequent traffic stop. Appellant's Br. p. 21.
[13] While it is undisputed that effective representation requires adequate pretrial investigation and preparation, it is well settled that we should resist evaluating an attorney's performance with the benefit of hindsight. McKnight v. State , 1 N.E.3d 193 (Ind. Ct. App. 2013). Accordingly, when deciding a claim of ineffective assistance for failure to investigate, we afford counsel's judgments a great deal of deference. Id.
[14] The record reflects that Jackson's trial counsel exhaustively attempted to suppress all the evidence obtained from Jackson's person and vehicle. Counsel first filed a motion to suppress the evidence, arguing that the State relied on information gleaned from the GPS device which was placed on Jackon's vehicle without a warrant and that therefore any evidence obtained from the use of the GPS device must be suppressed as fruit of the poisonous tree. See Prior Case Appellant's App. Vol. 1, pp. 13, 19-21. When the trial court denied the motion, counsel moved the court to certify its order for interlocutory appeal, but the court denied that motion as well. At trial, counsel again objected to the evidence. See Prior Case Tr. Vol. I, pp. 121, 128, 141-45, 146, 170, 188, 190.
[15] Moreover, assuming for the sake of argument that the performance of Jackson's trial counsel was deficient due to a failure to investigate the specific location of Jackson's vehicle when the GPS device was attached by police, Jackson would still not be entitled to relief because he cannot show he was prejudiced. See Bethea , 983 N.E.2d 1134 (to satisfy prejudice element, defendant must show reasonable probability that, but for counsel's errors, result of proceeding would have been different).
[16] In its detailed order denying Jackson's motion to suppress, the trial court determined that "any evidence or information obtained by the [police] in this case solely as a result of the GPS tracking device which was attached to Defendant's vehicle is inadmissible" based upon the recent decision of U.S. v. Jones , 565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012). Prior Case Appellant's App. Vol. 1, p. 46. In Jones , the United States Supreme Court held that the government's warrantless attachment of a GPS device to a vehicle and use of the device to monitor the vehicle's movements constituted a prohibited search under the Fourth Amendment. The trial court pointed out that the only information gleaned from the device was that Jackson traveled to and from Chicago with no information on specific locations visited and no information regarding drug trafficking. The court emphasized that the evidence Jackson sought to suppress "was discovered irrespective of the GPS device" in that officers were already aware that he had engaged in three illegal drug transactions; his vehicle was lawfully stopped for a traffic violation; and the evidence was seized pursuant to a search incident to arrest. Id. Thus, Jackson has not established that, but for any subpar pretrial investigation by his trial counsel, the outcome of the proceeding would have been different.
[17] Jackson also alleges his trial counsel was ineffective for failing to adequately argue for suppression of the evidence under article 1, section 11 of the Indiana Constitution and Litchfield v. State , 824 N.E.2d 356 (Ind. 2005) based on the installation of the GPS device on his vehicle by police.
[18] In his motion to suppress, Jackson's trial counsel requested suppression of the evidence based on a violation of Jackson's rights under article 1, section 11 of the Indiana Constitution. Prior Case Appellant's App. Vol. 1, p. 13. In the brief in support of the motion to suppress, counsel acknowledged that article 1, section 11 is analyzed independently from the Fourth Amendment, specifically identified Litchfield , and set forth the Litchfield factors. Counsel stated that, for the same reasons expressed in his Fourth Amendment analysis, the seizure of the evidence also violated Jackson's state constitutional rights. Id. at 21. Yet, in its order denying the motion to suppress, the trial court found that Jackson's assertion of a violation of his state constitutional rights was "unsupported by cogent argument or citation to authority." Id. at 46-47.
[19] Despite the trial court's finding, we cannot say Jackson was deprived of the effective assistance of counsel. The full sentence of the trial court's ruling provides: "Defendant's assertion that the GPS device also violated Article I, Section 11 of the Indiana Constitution, although unsupported by cogent argument or citation to authority, is rendered moot given the United States Supreme Court's ruling in Jones, supra. " Id. Moreover, the court determined that the evidence Jackson sought to suppress "was discovered irrespective of the GPS device and is, thus, admissible." Id. at 46.
[20] We cannot say the post-conviction court erred in concluding that Jackson's trial counsel was not ineffective.
3. Assistance of Appellate Counsel
[21] Finally, Jackson asserts that his appellate counsel was ineffective for failing to raise the issue of inappropriate sentence on appeal. Because the strategic decision regarding which issues to raise on appeal is one of the most important decisions to be made by appellate counsel, counsel's failure to raise a specific issue on direct appeal rarely constitutes ineffective assistance. Brown v. State , 880 N.E.2d 1226 (Ind. Ct. App. 2008), trans. denied. "For countless years, experienced advocates have ‘emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most a few key issues.’ " Walker v. State , 988 N.E.2d 1181, 1191 (Ind. Ct. App. 2013) (quoting Bieghler v. State , 690 N.E.2d 188, 194 (Ind. 1997) ), trans. denied. Accordingly, on review, we should be particularly deferential to appellate counsel's strategic decision to exclude certain issues in favor of other issues more likely to result in a reversal. Id.
[22] To evaluate whether appellate counsel performed deficiently by failing to raise an issue on appeal, we apply a two-part test: (1) whether the unraised issue is significant and obvious from the face of the record, and (2) whether the unraised issue is "clearly stronger" than the raised issues. Walker , 988 N.E.2d at 1191. Thus, to prevail on a claim of ineffective assistance of appellate counsel, a defendant must show from the information available in the trial record or otherwise known to appellate counsel that counsel failed to present a significant and obvious issue and that this failure cannot be explained by any reasonable strategy. Ben-Yisrayl v. State , 738 N.E.2d 253 (Ind. 2000).
[23] On direct appeal, counsel raised one issue: whether the trial court abused its discretion by admitting the evidence seized following the traffic stop. At the post-conviction hearing, appellate counsel testified that the issue she "wanted to push on appeal was the fact that the GPS monitoring device was attached to [Jackson's] vehicle without a warrant." Tr. Vol. II, p. 13. Counsel additionally testified:
In my opinion, I – I would have swor[n] we would have won on the [GPS] issue. And then I believe it was two to three years later when that very issue came up again, and the law was changed, and now GPS units have to have a warrant in order to be attached to a vehicle. I was hoping to have that same decision rendered in Mr. Jackson's appeal. However, the Appellate Court did not agree with me.
Id. at 20-21.
[24] The only question Jackson asked in regard to this claim was whether there was any strategic reason that counsel did not challenge his consecutive sentence under Appellate Rule 7(B). Counsel responded that, although she did not recall the specific strategy, after looking at all the transcripts she must have decided that was not an issue that needed to be pursued on appeal. On cross-examination, counsel further explained the procedure she followed when handling an appeal. She testified she would first obtain and fully review the case file and all transcripts and then send a letter to the defendant with possible grounds for appeal and ask for the defendant's input. In Jackson's case, counsel concluded the GPS issue was the primary appellate issue because she believed, based on her research, that was the one issue that would produce a favorable result. In addition, although she had no specific independent recollection of Jackson's case, she testified that for all her criminal appeals she explored the appropriateness of the sentence and raised it as an issue on appeal if it appeared worthwhile.
[25] Thus, Jackson's appellate counsel testified that her decision not to raise a sentencing claim on appeal was a strategic decision based on her assessment of his sentence and the GPS claim and their corresponding potential benefit. Jackson has not met his burden of showing that his appellate counsel failed to present a significant and obvious issue and that the failure cannot be explained by any reasonable strategy.
[26] Based on the foregoing, we conclude Jackson has not met his burden of showing the evidence leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.
[27] Judgment affirmed.
Vaidik, J., and Crone, J., concur.