Reiner v. State
| Decision Date | 07 May 2013 |
| Docket Number | No. 20A05–1210–PC–499.,20A05–1210–PC–499. |
| Parties | Jonathan REINER, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Elkhart Superior Court; The Honorable George W. Biddlecome, Judge; Cause No. 20D03–1102–PC–6.
Stephen T. Owens, Public Defender of Indiana, Anne Murray Burgess, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant–Petitioner Jonathan Reiner seeks post-conviction relief from his conviction and thirty-year sentence for Class A felony dealing in methamphetamme. Reiner was arrested after being found inside a local residence housing a clandestine methamphetamme laboratory. At trial, Appellee–Respondent the State of Indiana presented evidence that 0.7 grams of finished methamphetamme and at least 2.66 grams of pseudoephedrine were found inside the residence. An Indiana State Police detective also testified that the maximum yield rate from the conversion of pseudoephedrine to methamphetamme is 92 to 93 percent. Applying a 90 percent yield rate to the 2.66 grams of pseudoephedrine, the State argued that Reiner was manufacturing an additional 2.4 grams of methamphetamme, for a sum of 3.1 grams. Reiner claims that his trial counsel was ineffective for failing to raise a competency objection to the detective's yield rate testimony; failing to present evidence challenging the reliability of yield rate evidence in general; and failing to move for a directed verdict on the Class A felony charge on the basis of insufficient evidence as to the amount of methamphetamme being manufactured. Reiner also claims that his appellate counsel was ineffective for failing to challenge the sufficiency of the State's evidence as to the amount of methamphetamme being manufactured. Concluding that neither counsel was ineffective, we affirm.
The underlying facts of this case were set forth in this court's memorandum decision on Reiner's direct appeal:
[A]t 10:45 p.m. on February 7, 2008, Elkhart County Deputy Sheriffs Adam Leeper and Evan Witt, along with Sergeant Michael Lee McHenry, responded to a dispatch reporting the possible existence of a meth lab at 27415 County Line Road 24. When the officers arrived at the residence, they observed three vehicles, including a white Ford Thunderbird later confirmed to belong to Reiner. They noticed a strong odor of ether coming from the open windows of the house. Shortly thereafter, a woman emerged from the house, and Sergeant McHenry and Officer Leeper immediately apprehended her. She identified herself as the homeowner [Jerikay Delater] and gave consent to a search of the premises.
When the officers entered the residence, they observed a thick haze and smelled a very strong odor of chemicals associated with the manufacturing of meth. They also observed lithium batteries, ammonium sulfate, lye, a glass pipe, aluminum foil, coffee filters, salts, plastic containers and baggies, Coleman fuel, and other articles associated with the manufacturing of meth. An Indiana State Police Lab Team searched the premises and found additional items including pseudoephedrine, sulfuric acid, soiled coffee filters, homemade cardboard funnels, a propane burner, soda bottles containing white sludge, and cups and bowls containing white and red crushed powder. Lab tests confirmed the presence of meth. The officers found three men in the house: Joseph Moore, Justin Feathers, and Reiner. When they found Reiner, he was standing in the laundry room with his hand on a plastic bottle that contained a chemical and had a tube attached to the top. An expert confirmed that the bottle was an HCL generator, a device used in the production of meth.
The officers arrested Reiner at the scene, and on February 11, 2008, the State charged him with class A felony dealing in methamphetamme.[1 ...
Reiner v. State, Cause No. 20A05–0907–CR–375, slip op. at 1 (Dec. 17, 2009). Indiana Code section 35–48–4–1.1(a) provides that “[a] person who knowingly or intentionally manufactures ... methamphetamme, pure or adulterated ... commits dealing in methamphetamme, a Class B felony.” “The offense is a Class A felony if the amount of the drug involved weighs three (3) grams or more....” Ind.Code § 35–48–4–1.1(b).
Reiner's jury trial began on March 23, 2009. The State presented evidence that, inside the residence, police found 0.7 grams of finished methamphetamme, a bowl of white powder containing 2.66 grams of pseudoephedrine, and a variety of empty blister packs that would have contained 14.1 grams of ephedrine or pseudoephedrine pills. Indiana State Police (“ISP”) Detective Aaron Campbell testified that the maximum yield rate from the conversion of pseudoephedrine to methamphetamine “[is] like 92 to 93 percent.” Trial Tr. p. 355. Detective Campbell further testified that “on average” clandestine laboratories yield methamphetamine at a 60 to 70 percent rate. Trial Tr. p. 356. Applying a 90 percent yield rate to the 2.66 grams of pseudoephedrine found at the residence, the State argued that Reiner was manufacturing 2.4 grams of methamphetamine in addition to the 0.7 grams that had already been produced—a sum of 3.1 grams.
Reiner did not challenge the sufficiency of the State's evidence as to the amount of methamphetamine being manufactured. Rather, he argued that he was not involved in the manufacturing of methamphetamine, had no association with the clandestine laboratory, and was merely present at the residence when police arrived. In support of this defense, Reiner presented the testimony of Feathers, who admitted that he and Delater made and consumed methamphetamine at Delater's residence on the night in question. Afterward, Feathers called Reiner and asked Reiner to pick up him and Moore so that the three men could go to a bar. When Reiner arrived, Feathers invited him inside the residence to wait while Moore finished drinking a beer. The police arrived while Reiner was waiting inside. Reiner also testified at trial, claiming that he had been at the residence for no more than ten minutes before the police arrived. The State challenged Reiner's defense with the testimony of Delater's brother, Thomas Kerns. Kerns testified that he saw Reiner's vehicle parked in front of Delater's residence at approximately 9:00 p.m. on the night in question, nearly two hours before police arrived.
On March 25, 2009, the jury found Reiner guilty as charged, and the trial court sentenced him to thirty years of incarceration. Reiner filed a direct appeal, arguing that the evidence was insufficient to sustain his conviction because he was not involved in the manufacturing of methamphetamine and was merely present at the residence when police arrived. On December 17, 2009, this Court issued its memorandum decision affirming the trial court's judgment.
Reiner's actions during the commission of the crime support his conviction for dealing in meth. When the officers found him, he was in possession of meth paraphernalia and was venting the HCL generator. Moreover, to the extent he argues that he had arrived just moments before police and that he came to the house merely to give Feathers a ride, we note eyewitness Kerns's testimony that he observed Reiner's “T-bird” parked out front at 9:00 p.m., nearly two hours before police arrived.
Reiner, slip op. at 2.
Reiner, pro se, filed a petition for post-conviction relief (“PCR”) on February 24, 2011. On September 2, 2011, Reiner, by counsel, filed an amended PCR petition, alleging that both his trial and appellate counsel were ineffective. The post-conviction court held an evidentiary hearing on February 28, 2012, at which, Reiner's trial counsel, Thomas Leatherman; his appellate counsel, Marielena Duerring; and ISP forensic scientist Hailey Newton testified.
Trial counsel testified that he received the ISP's lab report prior to trial and that he was aware that the amount of finished methamphetamine found at the residence was 0.7 grams. Trial counsel further testified that he did not have an understanding of or experience with yield rates and was not aware prior to trial that the State would use yield rate evidence to prove the weight element of the Class A felony charge. Trial counsel also testified that it was a tactical approach to argue that Reiner was not involved in the manufacturing of methamphetamine and was merely present at the residence. Trial counsel did not consider objecting to Detective Campbell's yield rate testimony because he was focused on this “merely present” defense. According to trial counsel, “[I]t didn't matter how much [methamphetamine] was there, [Reiner] wasn't involved in the manufacture.” PCR Tr. p. 79. Trial counsel, however, did consider challenging the sufficiency of the State's evidence as to the amount of methamphetamine being manufactured, but believed such an argument would have contradicted Reiner's “merely present” defense. Trial counsel admitted that it would have been a “good argument” to move for a directed verdict to reduce the charge from a Class A to a Class B felony, PCR Tr. p. 80, explaining that this would not have compromised Reiner's “merely present” defense because the motion would have been made to the judge without the jury's knowledge.
Appellate counsel testified that she did not consider challenging the sufficiency of the State's evidence as to the amount of methamphetamine being manufactured because the amount of finished methamphetamine coupled with the amount of other material found at the residence indicated that the lab had the potential to produce in excess of 3.0 grams. Appellate Counsel also testified that, at the time she represented Reiner, she believed that yield rate evidence was sufficient to prove the weight element of Class A...
To continue reading
Request your trial