Opinion
Court of Appeals Case No. 19A-PC-277
07-31-2019
Gregory Johnson, Appellant-Petitioner, v. State of Indiana, Appellee-Respondent
APPELLANT PRO SE Gregory Johnson Correctional Industrial Facility Pendleton, Indiana ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. APPELLANT PRO SE Gregory Johnson
Correctional Industrial Facility
Pendleton, Indiana ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr.
Attorney General of Indiana J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana Appeal from the Marion Superior Court The Honorable Shatrese M. Flowers, Judge The Honorable James K. Snyder, Commissioner Trial Court Cause No. 49G20-1104-PC-27007 Crone, Judge.
Case Summary
[1] Gregory Johnson, pro se, appeals the denial of his petition for post-conviction relief ("PCR"). We affirm.
Facts and Procedural History
[2] In April 2011, police officers conducting a narcotics investigation in an Indianapolis parking lot approached a vehicle driven by Johnson. A passenger exited the vehicle, began to walk away, and tossed a suspected package of heroin to the ground. Officers stopped the passenger and ordered Johnson out of the vehicle. An officer handcuffed and patted down Johnson, advised him of his Miranda rights, and asked for permission to search the vehicle. Johnson refused. A police dog alerted to the scent of contraband in the vehicle. Police found $550 in cash on Johnson's person and in his car, as well as four packages of drugs in the car containing 16.9234 grams of cocaine, 7.4716 grams of cocaine, 2.5452 grams of cocaine, and 4.0186 grams of heroin. The package that Johnson's passenger tossed to the ground contained 0.4048 grams of heroin. [3] The State charged Johnson with class A felony dealing in cocaine, two counts of class A felony dealing in a narcotic drug, class C felony possession of cocaine, and class C felony possession of a narcotic drug. After a bench trial, the court found Johnson guilty of all but one count of class A felony dealing in a narcotic drug, entered judgment on the remaining class A felony counts, and sentenced him to concurrent thirty-year terms. On direct appeal, Johnson challenged the admissibility of the drug evidence on constitutional grounds. Another panel of this Court affirmed his convictions. Johnson v. State, No. 49A02-1209-CR-709, 2013 WL 2146536 (Ind. Ct. App. May 16, 2013), trans. denied. [4] Johnson filed a pro se petition for PCR, which he later amended. After a hearing, the post-conviction court denied the petition. This appeal ensued.
Discussion and Decision
[5] "A PCR petitioner must establish grounds for relief by a preponderance of the evidence." Ross v. State, 877 N.E.2d 829, 832 (Ind. Ct. App. 2007), trans. denied (2008). "When a post-conviction court denies relief, the petitioner appeals from a negative judgment and must demonstrate on appeal that the evidence unerringly and unmistakably leads to a conclusion opposite that reached by the court." Id. "We may reverse the post-conviction court's decision only if the evidence is without conflict and leads to the conclusion opposite that reached by the court." Id. [6] "Post-conviction proceedings are not intended to be a 'super-appeal'; rather, they provide a narrow remedy for collateral challenges to convictions that must be based on grounds enumerated in the post-conviction rules." Id. "In post-conviction proceedings, complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal." Id. at 833 (quoting Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002)). "Claims of regular or fundamental trial error are not reviewable in a post-conviction 4 proceeding." Id. Although Johnson "is proceeding pro se and lacks legal training, such litigants are held to the same standard as trained counsel and are required to follow procedural rules." Id. [7] The only cognizable claims raised by Johnson in his brief are ineffective assistance of counsel claims related to the following principle: When a defendant is charged with a drug offense that is determined by the weight of the substance involved, the State must prove that the scale used to weigh the substance was tested before and after its use. The burden of producing evidence to disprove the accuracy of the scale then shifts to the defendant. Wattley v. State, 721 N.E.2d 353, 355-56 (Ind. Ct. App. 1999) (citing Robinson v. State, 634 N.E.2d 1367, 1374 (Ind. Ct. App. 1994)). When Johnson committed his crimes in 2011, dealing in cocaine or a narcotic drug, pure or adulterated, was a class B felony; the crime was a class A felony if the amount of the drug involved weighed three grams or more. Ind. Code § 35-48-4-1 (2011). It is the total weight of the substance and not its pure component that is to be considered. Clark v. State, 539 N.E.2d 9, 12 (Ind. 1989). Johnson asserts that his trial counsel was ineffective in failing to question the State's lab technician 5 regarding the calibration of the scale that was used to weigh the drugs and that his appellate counsel was ineffective in failing to raise the calibration issue on appeal. [8] An ineffective assistance of counsel claim requires the defendant to show by a preponderance of the evidence that (1) counsel's performance was below the objective standard of reasonableness based on prevailing professional norms and (2) the defendant was prejudiced by counsel's substandard performance, i.e. there is a reasonable probability that, but for counsel's errors or omissions, the outcome of the trial would have been different. Ross, 877 N.E.2d at 833. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Morales v. State, 19 N.E.3d 292, 297 (Ind. Ct. App. 2014) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)), trans. denied (2015). The two parts of this test are separate and independent inquiries, and if it is easier to dispose of an ineffectiveness claim based on lack of sufficient prejudice, that course should be followed. Id. [9] Contrary to Johnson's insinuation, "the State was not required to prove exact dates or that the scale was checked immediately before and after the [drugs were] weighed." McKnight v. State, 1 N.E.3d 193, 203 (Ind. Ct. App. 2013) (citing Smith v. State, 829 N.E.2d 64, 77 (Ind. Ct. App. 2005)). "Indeed, the scale's accuracy is foundational evidence, not an element of the crime." Id. "Although the defense may rebut the State's evidence regarding accuracy, the question of accuracy is ultimately a question for the trier of fact." Id. "Thus, 6 an objection to the accuracy of the scales would have gone to the weight of the evidence, not to its admissibility." Id. [10] Simply put, Johnson has failed to establish by a preponderance of the evidence that if trial counsel had questioned the lab technician about the calibration of the scale, there is a reasonable probability that the outcome of his trial would have been different. The same holds true for appellate counsel's failure to raise the calibration issue on appeal. Therefore, we affirm the denial of Johnson's PCR petition. [11] Affirmed. Baker, J., and Kirsch, J., concur.