Newcomb v. State

• Decision Date: 24 August 2022
• Docket Number: Court of Appeals Case No. 22A-PC-318
• Citation: 194 N.E.3d 131
• Parties: Paul Dean NEWCOMB, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

194 N.E.3d 131

Paul Dean NEWCOMB, Jr., Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 22A-PC-318

Court of Appeals of Indiana.

FILED August 24, 2022

Attorneys for Appellant: Amy E. Karozos, Public Defender of Indiana, J. Michael Sauer, Deputy Public Defender, Indianapolis, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General for Indiana, Caroline G. Templeton, Deputy Attorney General, Indianapolis, Indiana

Bailey, Judge.

Case Summary

1] Paul Newcomb, Jr. ("Newcomb") was found in possession of a full array of methamphetamine precursors; his stated purpose was to give them to an unidentified friend. Despite an absence of evidence that either Newcomb or a phantom accomplice had begun to manufacture methamphetamine, Newcomb was convicted of Dealing in Methamphetamine, as a Class B felony,¹ as opposed to the lesser offense of Possession of Precursors with Intent to Manufacture, then a Class D felony.² A panel of this Court affirmed the conviction, upon adoption of the State's argument that Newcomb was liable for the greater offense, as an accomplice. Newcomb sought post-conviction relief and now appeals the partial denial of his petition.³ He presents a claim of fundamental error, couched in allegations of ineffective assistance of trial and appellate counsel, because he stands convicted of a crime that did not occur.⁴ The State does not challenge the underlying claim of insufficient evidence to support the greater offense, but rather argues that counsel did not perform deficiently. Indeed, defense advocacy fell within professional norms. Thus, we are now squarely presented with whether a miscarriage of justice can be corrected within the confines of post-conviction relief, which generally addresses ineffectiveness of counsel or a claim demonstrably unavailable at trial and

[194 N.E.3d 135

upon direct appeal. Here, the deprivation of due process has resulted in the loss of an additional thirteen years of liberty. We reverse and remand with instructions to vacate Newcomb's conviction of Manufacturing Methamphetamine, a Class B felony, enter a conviction for the possession offense, and conduct further proceedings upon the habitual substance offender allegation.

Facts and Procedural History

2] The facts underlying this appeal were stated on direct appeal as follows:

In early March 2014, Town and Country Auto Sales reported a Toyota RAV4 stolen from its lot in Elkhart, Indiana. A few weeks later, Town and Country repossession agents spotted the RAV4 at a gas station in Elkhart. The repossession agents parked their vehicles around the RAV4 to block it from leaving and exited their vehicles to confront the driver. Newcomb was the driver and sole occupant of the RAV4.

While speaking with Newcomb, one of the repossession agents reached into the vehicle, which was running, to remove the key from the ignition. The key did not belong to a RAV4, and the engine did not shut off when it was removed. Newcomb grabbed a plastic bag from inside the vehicle and attempted to flee, but one of the repossession agents tackled him to the ground. The plastic bag contained instant cold packs and several bottles of lighter fluid.

Corporal Dustin Young of the Elkhart Police Department was dispatched to the gas station in reference to a fight. When Corporal Young arrived, he learned Newcomb's vehicle was possibly stolen. After confirming with dispatch the vehicle had been reported stolen, Corporal Young approached Newcomb and requested permission to perform a patdown search. Newcomb consented.

During the patdown, Corporal Young felt an object in Newcomb's coat pocket and asked Newcomb to identify the object. Newcomb stated the object was a scale and gave Corporal Young permission to remove it, but before Corporal Young could do so, Newcomb admitted he also had syringes and marijuana on his person. Corporal Young uncovered these items, as well as two baggies of white pills, a glass pipe with burnt residue, and a plastic baggie with white residue. The pills were identified by their markings as an over-the-counter drug containing pseudoephedrine, and subsequent forensic testing confirmed the white residue in the baggie was methamphetamine.

While Corporal Young searched Newcomb, Indiana State Police Trooper Gretchen Deal searched the RAV4. She uncovered the following items used in the manufacture of methamphetamine: additional instant cold packs, additional bottles of lighter fluid, a bottle of drain opener, a bag of salt, lithium batteries, coffee filters, pliers, and a plastic bottle. Trooper Deal did not find an active reaction vessel, but she noted the presence of loose cold pack beads on the floorboard in the back of the vehicle.

Corporal Young confronted Newcomb about the items found in the RAV4. Newcomb "acknowledged that he knew what they were" and "said they were for a friend," but he refused to reveal the friend's identity. Transcript at 262.

When Corporal Young pressed Newcomb for the friend's name, Newcomb said he would not be answering any more questions. The friend's identity was never ascertained.

The State charged Newcomb with dealing in methamphetamine by manufacturing as a Class B felony and also alleged he was an habitual substance offender,

[194 N.E.3d 136

based on two prior convictions for possession of methamphetamine. A bench trial was held on January 14, 2015.

Newcomb v. State , No. 20A05-1503-CR-108, slip op. at 1-2, 2016 WL 126345 (Jan. 12, 2016). The trial court found Newcomb guilty as charged and Newcomb admitted his status as a habitual substance offender.

3] On February 12, 2015, the trial court conducted a sentencing hearing. At that hearing, defense counsel maintained that there had been "no actual manufacture of methamphetamine that happened." (Tr. Vol. III, pg. 397.) At trial, the State admitted as much, stating that, "The State will stipulate that this was not an active methamphetamine laboratory, it was not rolling, it was not in the process of actually converting pseudoephedrine into methamphetamine. (Tr. Vol. II, pg. 137) (emphasis added.) At sentencing, the prosecutor described the offense for which Newcomb was to be sentenced as: "He was in the process of obtaining ingredients" and "had all the necessary ingredients." (Tr. Vol. III, pg. 403.) The trial court then acknowledged "the fact that you had everything ready to manufacture methamphetamine ," but nevertheless stated that a sentence would be imposed for the Class B felony, for dealing by manufacture. (Id. at 407.) (emphasis added.) The trial court sentenced Newcomb to sixteen years’ imprisonment, enhanced by eight years due to Newcomb's status as a habitual substance offender.

[4] Newcomb appealed, challenging the sufficiency of the evidence to support his conviction. Specifically, Newcomb argued that the manufacturing process had not begun; he "point[ed] to the fact that many of the items recovered were unopened and did not appear to have ever been used to manufacture methamphetamine." Id. at 3. The Newcomb Court determined that, although Newcomb had "assembled necessary components" and removed pills from packaging, the manufacturing process had not begun. Id. However, the Court affirmed Newcomb's conviction, concluding that he had made admissions sufficient to show that he acted as an accomplice:

Although Newcomb had assembled all of the necessary components, we conclude the manufacturing process had not yet begun when the police searched the RAV4. Nonetheless, we believe the evidence was sufficient to support Newcomb's conviction. "In Indiana there is no distinction between the responsibility of a principal and an accomplice." Wise v. State , 719 N.E.2d 1192, 1198 (Ind. 1999). As the State argues, Newcomb admitted he knew the purpose of precursors, "said they were for a friend," and possessed the finished product. Tr. at 262.

Id. In June of 2016, the Indiana Supreme Court permitted Newcomb to file a belated pro-se petition for transfer. On August 11, 2016, the Supreme Court denied the petition.

[5] In June of 2017, Newcomb filed a pro-se petition for post-conviction relief. His petition was amended, with assistance of counsel, in December of 2020 and February of 2021. The Indiana Public Defender represented Newcomb at an evidentiary hearing conducted on June 29, 2021. On January 10, 2022, the post-conviction court entered an order granting relief in part and denying relief in part. Newcomb now appeals.

Discussion and Decision

[6] Indiana Post-Conviction Rule...