Polk v. State, 79A02-0407-PC-565.

• Decision Date: 11 February 2005
• Docket Number: No. 79A02-0407-PC-565.,79A02-0407-PC-565.
• Citation: 822 N.E.2d 239
• Parties: Ronnie E. POLK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

822 N.E.2d 239

Ronnie E. POLK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 79A02-0407-PC-565.

Court of Appeals of Indiana.

February 11, 2005.

Transfer Denied April 7, 2005.

Susan K. Carpenter, Public Defender, Chris Hitz-Bradley, Deputy Public Defender, Indianapolis, IN, for Appellant.

Steve Carter, Attorney General, Stephen Tesmer, Deputy Attorney General, Indianapolis, IN, for Appellee.

OPINION

SHARPNACK, Judge.

Ronnie E. Polk appeals the post-conviction court's denial of his petition for post-conviction relief. Polk raises two issues, which we revise and restate as:

I. Whether Polk was denied the effective assistance of trial counsel; and

II. Whether the trial court improperly enhanced Polk's sentence.

We affirm.

The relevant facts, as found in the record and set forth in our supreme court's opinion in Polk's direct appeal, follow. "In the early morning hours of July 5, 1995, [Polk] was a passenger in a moving vehicle that was stopped by police for a traffic violation in Lafayette, Indiana." Polk v. State, 683 N.E.2d 567, 568 (Ind.1997). The police also stopped a vehicle driven by Gordon Ivens Jr. two or three blocks away.

Officer Dennis Cole watched Polk while Officer Brad Hayworth talked to the driver, Joyce Lamberson. Officer Hayworth noticed a black zippered pouch¹ on the dash in front of Polk, a fanny pack around Polk's waist, and a purse between the front seats. Officer Hayworth asked the driver, Lamberson, to step out of the vehicle to perform a field sobriety test. Polk removed the fanny pack from around his waist and placed it on the dashboard next to the black pouch. Lamberson passed the field sobriety test. Officer Hayworth obtained the Lamberson's consent to search the car. After Officer Hayworth told Officer Cole that he was going to search the car, Officer Cole asked Polk to step out of the car. When Polk got out of the car, he removed the fanny pack from the dashboard and took it with him. Officer Hayworth conducted a search of the vehicle, unzipped the black pouch that was lying on the passenger side dashboard, and found drug paraphernalia inside.

Officer Hayworth asked Lamberson who owned the pouch, and she indicated that Polk owned the pouch. When Officer Hayworth and Sergeant David Payne asked Polk about the pouch, Polk told them that it belonged to someone who had been in the car earlier and maintained that he did not smoke cocaine. Sergeant Payne asked Polk if he would take a drug screen and if they could search the fanny pack. Polk said yes and handed the fanny pack to Sergeant Payne. Officer Hayworth searched the fanny pack and found a short piece of pipe that had gray tape wrapped around one end and burn marks on the other end and two small rock shaped objects that appeared to be crack cocaine.

Polk was arrested and patted down for weapons. During this search, several tablets were found in a pocket of Polk's pants that later proved to be a Schedule IV controlled substance (diazepam). Hayworth also felt a fist-sized item in the rear crotch of Polk's pants. Believing that the item was not a weapon, Hayworth did not attempt to remove it. The defendant was handcuffed and then placed in the rear seat of Hayworth's police car. He was left alone there for four to five minutes. It is undisputed that these events took place less than 1,000 feet from Highland Christian School in Lafayette.

Officer Hayworth next drove Polk to a nearby hospital for a drug test and accompanied Polk into a hospital bathroom to monitor Polk as he gave a urine sample. At that point, Hayworth determined that the fist-sized item was no longer in Polk's pants or anywhere on his person. After releasing Polk to the custody of the Tippecanoe County Jail, Hayworth checked the rear seat cushion of his police car for the missing object. A plastic bag containing several rock substances that were subsequently determined to be crack cocaine was found under the rear seat cushion. The bag was approximately the same size as the item Hayworth had felt earlier in Polk's pants. Hayworth testified that (1) he had a steady practice of checking at the beginning of each shift for items or contraband under the rear seat cushion of his police vehicle; (2) he had done so on the night of Polk's arrest; and (3) he had found nothing. Between this initial search by Hayworth and the time Polk was placed in the back seat, no other suspects or police officers had been in the rear seat area. By design the rear doors of Hayworth's police vehicle were locked at all other times because the car was used to transport prisoners. Hayworth testified that the rear seat area where the cocaine was found was not accessible from the front seat or the outside unless the officer opened the rear doors himself.

Id. at 568-569.

The State charged Polk with possession of over three grams of cocaine within one thousand feet of school property as a class A felony,² possession of a schedule IV controlled substance (diazepam) within one thousand feet of school property as a class C felony,³ possession of paraphernalia as a class A misdemeanor,⁴ and being an habitual offender. The jury found Polk guilty of possession of cocaine as a class A felony, possession of a controlled substance as a class C felony, and being an habitual offender. The trial court sentenced Polk to serve thirty years for possession of cocaine concurrent with four years for possession of diazepam with ten years suspended, and five years on probation. The trial court enhanced the sentence by thirty years for the habitual offender finding for a total sentence of sixty years, with fifty years executed, ten years suspended, and five years on probation.

Polk appealed and challenged the sufficiency of the evidence and the enhancement of the sentences for possession within one thousand feet of school property. Our supreme court affirmed Polk's convictions and sentences. Id. at 573.

Polk then filed a petition for post-conviction relief, alleging that his convictions were based upon evidence obtained during an illegal search and seizure, he was denied a fair trial, and that he was denied the effective assistance of counsel at trial and on direct appeal. The post-conviction court entered findings of fact and conclusions thereon and denied all of Polk's claims. Specific portions of these findings of fact and conclusions thereon will be discussed in detail below.

Before discussing Polk's allegations of error, we note the general standard under which we review a post-conviction court's denial of a petition for post-conviction relief. The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004); Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. Further, the post-conviction court in this case entered findings of fact and conclusions thereon in accordance with Indiana Post-Conviction Rule 1(6). Id."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." Id. In this review, we accept findings of fact unless clearly erroneous, but we accord no deference to conclusions of law. Id. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Id.

I.

The first issue is whether Polk was denied the effective assistance of trial counsel. 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. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984),reh'g denied), reh'g denied, cert. denied, 534 U.S. 830, 122 S.Ct. 73, 151 L.Ed.2d 38 (2001). A counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind.2002). 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 the proceeding would have been different. Id. Failure to satisfy either prong will cause the claim to fail. Id. Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.

Polk argues that he received ineffective assistance of trial counsel because counsel failed to: (A) file a motion to suppress evidence from Lamberson's car based on her involuntary consent; (B) challenge the scope and authority of Lamberson's consent to search the pouch; (C) file a motion to suppress evidence from the search of the fanny pack; and (D) object to the introduction of the drug test evidence as prejudicial and irrelevant. We will address each argument in turn.

A. Lamberson's Consent to Search the Car

Polk argues that his trial counsel was ineffective because he failed to file a motion to suppress evidence based on Lamberson's consent to search the car.⁵ On this issue, the post-conviction court's order provided:

[Polk's] specific contention that he received ineffective assistance of counsel because defense counsel failed to challenge the constitutionality of Lamberson's consent to search her car fails as a matter of law. Constitutional rights cannot be vicariously asserted. Peterson v. State, 674 N.E.2d 528, 532 (Ind.1996). Thus, [Polk] had no standing to object to the constitutionality of the manner in which police obtained Lamberson's

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