Nathan A. Slabach v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Aug 06 2015, 8:26 am 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.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Gregory F. Zoeller Public Defender of Indiana Attorney General of Indiana Victoria Christ Eric P. Babbs Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Nathan A. Slabach, August 6, 2015

Appellant-Defendant, Court of Appeals Cause No. 20A03-1408-PC-292 v. Appeal from the Elkhart Superior State of Indiana, Court The Honorable George W. Appellee-Plaintiff, Biddlecome, Judge Cause No. 20D03-1210-PC-90

Robb, Judge.

Case Summary and Issues [1] Nathan Slabach appeals the post-conviction court’s denial of his petition for

post-conviction relief, raising two issues for review: (1) whether Slabach

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received ineffective assistance of counsel, and (2) whether Slabach’s guilty plea

was knowing, intelligent, and voluntary. Concluding the post-conviction court

did not err by denying Slabach’s petition, we affirm.

Facts and Procedural History [2] In the fall of 2008, Phillip Miller hired Slabach to repair the garage at a vacant

house that Miller owned in Elkhart, Indiana. Slabach, in turn, hired Joseph

Buelna to help him with the work. Unbeknownst to Miller, Slabach and Buelna

used Miller’s vacant house to manufacture and smoke methamphetamine. [3] On October 13, 2008, law enforcement officers investigated a possible

methamphetamine lab at the house owned by Miller. Officers approached the

house and detected a chemical odor which they associated with the

manufacture of methamphetamine. Two officers climbed a ladder propped

against the house which led to the second floor, where they discovered Buelna

inside along with an assortment of materials used to manufacture

methamphetamine. Slabach arrived at the house soon after, accompanied by

Kammi Pantoja. Slabach, Pantoja, and Buelna were all arrested. An active

methamphetamine lab was found in Pantoja’s vehicle, along with syringes,

iodine, digital scales, and fuel additive. A search of the house revealed several

items associated with the manufacture of methamphetamine: eight spent

reaction vessels; pseudoephedrine tablets; hydrochloric acid generators; lithium

batteries; cold packs; coffee filters; and three active reaction vessels. Two of the

reaction vessels tested positive for ephedrine or pseudoephedrine. The third

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reaction vessel tested positive for liquid methamphetamine, which weighed

approximately thirteen grams. [4] Slabach was charged with aiding in dealing in methamphetamine over three

grams, a Class A felony, and burglary, a Class C felony. On September 10,

2009, Slabach pled guilty to both counts. In exchange for his plea, his sentence

was capped at thirty years, and criminal charges against Slabach in a separate

cause were dismissed. Slabach was sentenced to thirty years imprisonment. [5] Buelna was charged with Class A felony manufacturing methamphetamine and

convicted of that offense in August 2012. Slabach testified at Buelna’s trial.

Slabach testified that prior to the officers’ arrival at the house, he removed

approximately six grams of methamphetamine from three reaction vessels and

left. He claimed he smoked some of that methamphetamine and threw the rest

away before he was arrested. [6] On October 1, 2012, Slabach filed a petition for post-conviction relief. An

evidentiary hearing was held on that petition on March 5, 2014. At the hearing,

Slabach presented testimony from Hailey Newton and Sara Wildeman, two

Indiana State Police lab analysts, and Fay Schwartz, Slabach’s trial counsel. [7] Schwartz testified about a handwritten note she wrote referencing a

conversation with a deputy prosecutor about the case. The note indicated that

the State’s expert witness would testify that the conversion rate from raw

materials to methamphetamine was between 40-75%. A computation at the

bottom of the note said “19.3 x .40 = 7.72.” Exhibit 5. However, Newton and

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Wildeman clarified that the conversion rate applies to the amount of

pseudoephedrine, which is a key ingredient for methamphetamine. Newton

testified that the pseudoephedrine tablets recovered contained 2.16 grams of

pseudoephedrine. Utilizing the conversation rate of 40-75%, the 2.16 grams of

pseudoephedrine would not produce an amount of methamphetamine equal to

or greater than three grams. Slabach testified that he pled guilty to the Class A

felony because he believed that the evidence, as presented to him by Schwartz,

showed that he was guilty of the crime as charged. [8] On July 29, 2014, the post-conviction court denied Slabach’s petition for relief.

This appeal followed. Additional facts will be provided as necessary.

Discussion and Decision I. Standard of Review [9] A petitioner seeking post-conviction relief bears the burden of establishing

grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

Rule 1(5). A petitioner who is denied post-conviction relief appeals from a

negative judgment, which may be reversed only if “the evidence as a whole

leads unerringly and unmistakably to a decision opposite that reached by the

post-conviction court.” Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert.

denied, 540 U.S. 830 (2003). We defer to the post-conviction court’s factual

findings, unless they are clearly erroneous. Id. at 746.

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II. Ineffective Assistance of Counsel [10] First, Slabach argues that his trial counsel was ineffective. The Sixth

Amendment’s “right to counsel is the right to the effective assistance of

counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann

v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish a claim of ineffective

assistance of counsel, a convicted defendant must show (1) that counsel’s

performance was deficient such that it fell below an objective standard of

reasonableness based on prevailing professional norms and (2) the defendant

was prejudiced by counsel’s deficient performance. Id. at 687. When

considering whether counsel’s performance was deficient, the reviewing court

begins with a “strong presumption” that counsel’s performance was reasonable.

Id. at 689. A defendant is prejudiced if “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 694. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id. [11] When a defendant contests his guilty plea based on claims of ineffective

assistance of counsel, we apply the same two-part test from Strickland discussed

above. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). The first part, regarding

counsel’s performance, is largely the same. Id. The prejudice requirement,

however, “focuses on whether counsel’s constitutionally ineffective

performance affected the outcome of the plea process. In other words, . . . the

defendant must show that there is a reasonable probability that, but for

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counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Id. at 59. [12] The two prongs of the Strickland test—performance and prejudice—are

independent inquiries, and both prongs need not be addressed if the defendant

makes an insufficient showing as to one of them. 466 U.S. at 697. For

instance, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice . . . that course should be followed” without

consideration of whether counsel’s performance was deficient. Id. [13] Slabach contends that his counsel performed deficiently by incorrectly

informing him that the State would be able to prove that he manufactured

methamphetamine in an amount greater than three grams. Specifically,

Slabach claims that his counsel’s incorrect advice was the result of inadequate

investigation and improper arithmetic. The State argues that Slabach overlooks

the significance of the liquid methamphetamine, which was sufficient to prove

Slabach was guilty of the Class A felony at the time of his guilty plea. [14] Both before and for several years after Slabach’s guilty plea in 2009, it was

established that the weight of an unfinished methamphetamine product could

be used to prove guilt of manufacturing methamphetamine under Indiana Code

section 35-48-4-1.1. See, e.g., Hundley v. State, 951 N.E.2d 575, 581-84 (Ind. Ct.

App. 2011), trans. denied; Caron v. State, 824 N.E.2d 745, 754 n.7 (Ind. Ct. App.

2005), trans. denied; Traylor v. State, 817 N.E.2d 611, 619-20 (Ind. Ct. App.

2004), trans. denied. It was not until more recently, in Buelna v. State, that our

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Supreme Court overruled those decisions and held that only the finished

methamphetamine product—or evidence as to the amount of finished product

that an intermediate mixture would have yielded—may be used to support a

weight enhancement for manufacturing methamphetamine. 20 N.E.3d 137,

149 (Ind. 2014). However, for the purposes of this case, it is the pre-Buelna

decisions that are controlling, because a finding of ineffective assistance of

counsel “requires consideration of legal precedent available to counsel at the

time of his representation of the accused, and counsel will not be deemed

ineffective for not anticipating or initiating changes in the law.” Sweeney v.

State, 886 N.E.2d 1, 8 (Ind. Ct. App. 2008), trans. denied. [15] At bottom, Slabach’s argument is that he was improvidently advised to plead

guilty when the State could not have proven he was guilty of manufacturing

methamphetamine as a Class A felony. Slabach is incorrect. The intermediate

mixture of liquid methamphetamine found by police weighed thirteen grams.

At the time Slabach pled guilty, that evidence was sufficient to prove he

manufactured methamphetamine in an amount greater than three grams.

Therefore, Slabach’s claim—that he was improperly advised to plead guilty to

an offense that the State could not prove—is erroneous. Slabach cannot

demonstrate that he was prejudiced by his counsel’s advice, and thus his claim

of ineffective assistance fails.

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III. Validity of Slabach’s Plea [16] Second, Slabach claims that he did not enter into his guilty plea intelligently

and voluntarily. A guilty plea is valid “only if done voluntarily, knowingly, and

intelligently, with sufficient awareness of the relevant circumstances and likely

consequences.” Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (citation and

quotation marks omitted). We look at all evidence before the post-conviction

court that supports its determination that a guilty plea was voluntary, knowing,

and intelligent. Moffitt v. State, 817 N.E.2d 239, 248-49 (Ind. Ct. App. 2004),

trans. denied. [17] Slabach’s claim of an invalid plea rests on the same faulty premise as his

ineffective assistance claim—namely, he wrongly believes that the State could

not have proved he was guilty of manufacturing methamphetamine as a Class

A felony. We therefore conclude that the voluntariness of his plea could not

have been negated by a mistaken belief concerning the State’s ability to prove

he was guilty of manufacturing methamphetamine as a Class A felony.1

Conclusion [18] Concluding the trial court did not err by denying Slabach’s petition for post-

conviction relief, we affirm.

1 The State argues that Slabach does not present a valid challenge to the validity of his plea, but that “Slabach’s claim fails even on its own on [sic] terms.” Brief of Appellee at 19. We agree that Slabach’s claim fails regardless, and thus a more in depth discussion of his claim’s viability is unnecessary.

Court of Appeals of Indiana | Memorandum Decision 20A03-1408-PC-292 | August 6, 2015 Page 8 of 9 [19] Affirmed.

May, J., and Mathias, J., concur.

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