Garrett v. State

• Decision Date: 05 November 2015
• Docket Number: No. 49A02–1408–PC–589.,49A02–1408–PC–589.
• Citation: 41 N.E.3d 720 (Table)
• Parties: Eqwan GARRETT, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent.
• Court: Indiana Appellate Court

41 N.E.3d 720 (Table)

Eqwan GARRETT, Appellant–Petitioner

v.STATE of Indiana, Appellee–Respondent.

No. 49A02–1408–PC–589.

Court of Appeals of Indiana.

Nov. 5, 2015.

Eqwan Garrett Pendleton, IN, Appellant Pro Se.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

FRIEDLANDER

, Senior Judge.

[1] Eqwan Garrett, pro se, appeals the denial of his petition for post-conviction relief presenting the following consolidated and restated issues:

1. Did the post-conviction court err in rejecting Garrett's claim of ineffective assistance of trial counsel.

2. Did the post-conviction court err in rejecting Garrett's claim of ineffective assistance of appellate counsel.

3. Did the post-conviction court err in rejecting Garrett's claim of ineffective assistance of post-conviction counsel.

We affirm.

[2] The facts, as set forth by this Court in Garrett's direct appeal, are as follows:

In 2007, after a year-long surveillance operation of a residence on North Pershing Avenue in Marion County, the Indianapolis Metropolitan Police Department (IMPD) suspected that the residence was used as a facility for the manufacture of cocaine. IMPD observed Garrett, along with several other individuals, frequent the residence approximately eight to ten times over the course of the surveillance. While conducting surveillance on July 24, 2007, Detective Jake Hart observed Garrett and two others park near the residence and carry a large duffle bag full of rifles.

On August 14, 2007, officers with IMPD's narcotic[s] division executed a ‘no-knock’ search warrant on the residence. SWAT team members Detective Garry Riggs, Sergeant Robert Stradling, and Officer Baker breached the residence through the front door using a battering ram. During this time, police officers loudly announced, ‘[P]olice, search warrant. Everybody get down on the ground!’

Upon entering the house, Detective Riggs and Sergeant Stradling noticed Garrett repeatedly popping out of the second bedroom, approximately ten to twelve feet away from them. Garrett again and again pointed a semi-automatic handgun at Detective Riggs and Sergeant Stradling. Each time, he attempted to fire the handgun, but it misfired. A second SWAT team entered the residence from the rear and secured Garrett in the second bedroom. Three other individuals were also in the house and arrested during the execution of the search warrant.

The police then searched the residence for evidence. In the kitchen, police recovered cocaine, digital scales, over $8,000, and an assault rifle. In the second bedroom, where police apprehended Garrett, they found a silver and black Smith & Wesson .40 caliber semi-automatic handgun within arm's length of Garrett. No other suspects were in the second bedroom. In the living room, police recovered an additional assault rifle, two handguns, and a magazine for the handgun found near Garrett. The weapons in the living room were within ten feet of where Garrett had stood in the second bedroom.

Garrett v. State, No. 49A05–1101–CR–2, slip op. at 1–2 (Ind.Ct.App. Aug. 31, 2011) (internal citations to the record omitted), trans. denied.

[3] On August 15, 2007, the State charged Garrett under Cause Number 49G20–0708–FA–167078 (FA–167078) with: conspiracy to commit dealing in cocaine, a Class A felony; dealing in cocaine, a Class A felony; possession of cocaine, a Class C felony; possession of a firearm by a serious violent felon (possession of a firearm by a SVF), a Class B felony; and pointing a firearm, a Class D felony. On January 22, 2009, the State moved to dismiss the charges, and the trial court granted the motion.

[4] On August 25, 2009, the State charged Garrett under Cause Number 49G20–0908–FA–74802 (FA–74802) with: Count I, conspiracy to commit dealing in cocaine, a class A felony; Count II, dealing in cocaine, a class A felony; Count III, possession of cocaine, a class C felony; Count IV, possession of a firearm by a SVF, a class B felony; Count V, pointing a firearm, a class D felony; and Count VI, possession of cocaine and a firearm, a class C felony. On November 3 and 4, 2010, a two-day jury trial was held on Counts I, II, III, V, and VI. The jury found Garrett guilty on Counts, I, V, and VI. The jury convicted Garrett on a lesser included offense on Count III and acquitted him on Count II. Garrett waived his right to a jury trial on Count IV, possession of a firearm by a SVF and, on November 24, 2010, the trial court found Garrett guilty.

[5] On appeal, Garrett argued that his convictions for possession of a firearm by a serious violent felon and pointing a firearm violated Indiana's constitutional prohibition of double jeopardy. A panel of the Court affirmed the trial court's judgment. Id. at 3.

[6] On May 10, 2012, Garrett, pro se, filed a petition for post-conviction relief. Following a hearing at which Garrett was represented by counsel, the trial court denied the petition. Garrett appeals the denial of that petition on grounds that he received ineffective assistance of counsel at every stage of the proceedings against him.

[7] Post-conviction proceedings are civil proceedings in which the petitioner must establish his claims by a preponderance of the evidence. Ind. Post–Conviction Rule 1(5)

; Hollowell v. State, 19 N.E.3d 263 (Ind.2014). “When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment.” Id. at 269 (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004) ). In order to prevail on appeal from the denial of a post-conviction petition, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite the one reached by the post-conviction court. Hollowell, 19 N.E.3d 263. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Lindsey v. State, 888 N.E.2d 319 (Ind.Ct.App.2008), trans. denied. We accept the post-conviction court's findings of fact unless they are clearly erroneous, but no deference is given to the court's conclusions of law. Hollowell, 19 N.E.3d 263.

1.

[8] We begin with Garrett's claim that he received ineffective assistance of trial counsel. When evaluating such a claim, we apply the two-part test articulated in Strickland v. Washington, 466 U .S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

. See

Hollowed v. State, 19 N.E.3d 263. To establish the first element, “the defendant must show deficient performance: representation that 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. at 269 (citing Strickland, 466 U .S. at 687 ). To establish the second element, “the defendant must show prejudice: 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. (citing Strickland, 466 U.S. 668 ).

[9] Garrett cites two instances that he claims warrant reversal of his convictions on this basis. First, he contends trial counsel rendered ineffective assistance in failing to move to suppress evidence obtained as a result of an allegedly illegal search. Second, he claims that trial counsel rendered deficient, prejudicial performance in “failing to file a proper motion to dismiss and/or discharge for the violation of criminal rule [4(B) ] and [4(C) ].” Appellant's Br. p. 4. Both claims of deficient trial counsel performance involve counsel's failure to file motions on Garrett's behalf—a motion to suppress evidence and a motion for discharge under Indiana Criminal Rule 4

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

[10] We turn to Garrett's claim that his trial counsel should have moved to suppress all evidence that was found at the Pershing Avenue house during execution of the search warrant. Garrett contends the probable cause affidavit that the police filed in support of their request for a search warrant failed to comply with the requirements of Indiana Code Annotated section 35–33–5–2

(West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation). In particular, Garrett argues that the affiant “lacked a Substantial Basis for concluding that Probable Cause existed and that contraband or evidence of a crime would be found at [the named address] or upon the petitioner's person.” Appellant's Br. p. 13 (emphasis in original). Garrett further contends that the search warrant was flawed because it did not name Garrett as a person to be searched.¹

[11] Beginning with the first contention, when deciding whether to issue a search warrant, the issuing magistrate must make “a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Cartwright v. State, 26 N.E.3d 663, 668 (Ind.Ct.App.2015)

, trans. denied. Our duty upon review is to determine whether the magistrate had a substantial basis for concluding that probable cause existed. Id. Although we review the trial court's substantial-basis determination de novo, we afford significant deference to the magistrate's determination. Id. In doing so, we consider only the evidence presented to the issuing magistrate and do not consider additional justifications or facts presented after the search. Id.

[12] The affidavit for probable cause, which was completed by FBI Special Agent Robert Brouwer, was not included in the trial record. Nor did Special Agent Brouwer testify at Garrett's trial. In short, there is nothing in the trial record...