Norman v. State

• Decision Date: 19 May 2021
• Docket Number: Court of Appeals Case No. 20A-PC-2349
• Citation: Norman v. State, 171 N.E.3d 654(Table) (Ind. App. 2021)
• Court: Indiana Appellate Court
• Parties: Todd NORMAN, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent

171 N.E.3d 654 (Table)

Todd NORMAN, Appellant-Petitioner,

v.STATE of Indiana, Appellee-Respondent

Court of Appeals Case No. 20A-PC-2349

Court of Appeals of Indiana.

FILED May 19, 2021

Appellant Pro Se: Todd Norman, Pendleton, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Jodi Kathryn Stein, Supervising Deputy Attorney, General, Indianapolis, Indiana

MEMORANDUM DECISION

May, Judge.

[1] Todd Norman appeals the post-conviction court's denial of his petition for post-conviction relief. Norman argues the trial court erred when it did not conclude that his trial counsel was ineffective for (1) failing to file a motion to suppress the evidence found in Norman's home as part of a probationary search and (2) failing to object at trial to the admission of $8,500 in cash found in Norman's possession at the time of the search. We affirm.

Facts and Procedural History

[2] The facts of Norman's underlying convictions were set forth in our opinion deciding his direct appeal:

On February 17, 2016, Versailles Town Marshall Joseph Mann and Ripley County Probation Officer Ethan Back conducted a routine probation visit at Norman's home. After some time had passed, Norman opened the door and allowed the officers to enter. Upon entering, Officer Back noticed alcohol inside Norman's home, which violated the terms of his probation and gave the officers a reason to inspect the home further. Marshall Mann discovered a bag that contained a white crystalline substance under a couch cushion. The substance was later identified as 12.59 grams of methamphetamine. Mann testified that this amount equals about 125 individual uses of the drug. After the discovery of methamphetamine, Mann contacted the Batesville Police Department, and Batesville Detective Blake Roope arrived on the scene. Mann then discovered a digital scale that contained residue similar in appearance to methamphetamine. Detective Roope decided not to have the residue on the scale tested. Officer Back and Detective Roope later observed a blue container sitting on a ladder inside one of Norman's rooms. Eight thousand dollars in cash was found inside the container. Officers also found $500 inside Norman's pockets.

On February 18, 2016, the State charged Norman with Level 2 felony possession of methamphetamine with the intent to deliver and Level 4 felony possession of methamphetamine. On August 22, 2016, the State filed a motion to amend the Level 2 felony charge and dismiss the Level 4 felony charge. The trial court granted the motion, and a jury trial was held on August 23-24, 2016. During the trial, Mann testified that drug dealers often use scales to measure product intended for sale. He also testified that buyers of illegal substances typically use cash for their transactions. Mann also stated that methamphetamine is typically packaged in half gram to one gram quantities, but that it is not unusual to see it packaged in quantities of three to three-and-one-half grams. Mann also testified that a gram of methamphetamine typically costs $100 and three grams cost between $225 and $250. He also testified that dealers of illegal substances typically keep digital records of sales on phones and other electronic devices.

Norman testified in his own defense that the methamphetamine found in his home did not belong to him but that he entertains friends often and one of them could have left it. Norman also testified that he plays darts competitively and uses the scale to measure the weight of the darts. On cross-examination, the State questioned Norman about his missing cell phone; Norman objected to this questioning. The trial court overruled the objection. Norman then testified that his phone was missing. He also testified that he remembered talking to his sister about the phone, but he denied asking her to destroy it. Norman stated, "That's, I don't know if I, I don't know exactly what I said, but it wasn't nothing that drastic." Tr. Vol. III p. 235. Norman claimed that he did not trust banks and as such withdrew his paychecks every month. He also testified that he had recently made a cash withdrawal to buy a new television set.

The jury found Norman guilty of Level 2 felony possession of methamphetamine with the intent to deliver. The trial court sentenced Norman to twenty-seven-and-one-half years in the Department of Correction with five years suspended to probation.

Norman v. State , 69A05-1611-CR-2661, 2017 WL 3429067, slip op. at *1-*2 (Ind. Ct. App. August 10, 2017), trans. denied. In his direct appeal, Norman argued the trial court abused its discretion when it allowed the State to question him about a missing cell phone; the State did not present sufficient evidence to prove Norman committed Level 2 felony possession of methamphetamine with intent to deliver; and his sentence was inappropriate based on the nature of his offense and his character. We affirmed the trial court's judgment. Id. at *5.

[3] Norman filed a pro se petition for post-conviction relief on January 8, 2018, alleging, in relevant part:

8a) The trial court abused its discretion in admitting evidence obtained during a warrantless search of Norman's laptop computer,^[1] which was obtained in violation of the Article I, section 11 of the Indiana Constitution and 4th Amendment of the United States Constitution.

8b) Trial counsel Ineffective for failing pursue a an illegal search of Norman's home under the pretence of a Probation Check, thus violating Article 11 and 4th amendment claim that is in violation of the Article I, section 11, 12, and 13 of the Indiana Constitution and 4th 6th, and 14th Amendment to the United States Constition.

(App. Vol. II at 8) (errors in original). The State filed its answer and motion for summary disposition on February 5, 2018. On November 25, 2019, Norman filed an amended petition for post-conviction relief with the assistance of counsel. Therein, he alleged the matters before us on appeal:

Norman's Trial Counsel, John Watson ("Mr. Watson"), provided ineffective assistance of counsel.

(a) Mr. Watson provided ineffective assistance which violated the Sixth Amendment right to counsel when he failed to move to suppress the evidence seized on the basis of an unconstitutional search that violated the Fourth Amendment of the U.S. Constitution;

(b) Mr. Watson provided ineffective assistance which violated the Sixth Amendment right to counsel when he failed to move to recover the $8500 law enforcement officers seized from Norman.

(Id. at 22-3.)

[4] The post-conviction court held an evidentiary hearing on Norman's amended petition for post-conviction relief on August 5, 2020. On October 5, 2020, Norman filed a motion to amend the pleadings to conform to the evidence pursuant to Indiana Trial Rule 15(B), which argued Norman's trial counsel was ineffective for failing to object, based on relevancy, to the admission of the $8,500 found as part of the probationary search of Norman's residence. The post-conviction court granted Norman's motion to amend on October 7, 2020. On October 22, 2020, the post-conviction court entered its order denying Norman's amended petition for post-conviction relief.

Discussion and Decision

[5] Post-conviction proceedings are not "super appeals" through which a convicted person can raise issues that he failed to raise at trial or on direct appeal. McCary v. State , 761 N.E.2d 389, 391 (Ind. 2002), reh'g denied. Instead, they afford petitioners a limited opportunity to raise issues 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 appealing² 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), cert. denied , 534 U.S. 830 (2001). We neither reweigh the evidence nor judge credibility of witnesses when reviewing the denial of a petition for post-conviction relief. Mahone v. State , 742 N.E.2d 982, 984 (Ind. Ct. App. 2001), trans. denied.

[6] The Sixth Amendment to the United States Constitution states that a defendant in a criminal prosecution is entitled "to have the assistance of counsel for his defense." U.S. Const., Am. VI. This right requires that counsel be effective. Strickland v. Washington , 466 U.S. 668, 686 (1984), reh'g denied. "Generally, to prevail on a claim of ineffective assistance of counsel a petitioner must demonstrate both that his counsel's performance was deficient and that the petitioner was prejudiced by the deficient performance." Davis v. State , 139 N.E.3d 246, 261 (Ind. Ct. App. 2019), trans. denied. Counsel is deficient if his performance falls below the objective standard of reasonableness established by prevailing professional norms. Id. There is a strong presumption that trial counsel provided effective representation, and the petitioner must rebut that presumption with strong evidence. Warren v. State , 146 N.E.3d 972, 977 (Ind. Ct. App. 2020), trans. denied.

[7] "Isolated poor strategy, inexperience, or bad tactics does not necessarily constitute ineffective assistance of counsel." McCullough v. State , 973 N.E.2d 62, 74 (Ind. Ct. App. 2012), trans. denied. "To meet the appropriate test for prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of...