Ronald Weaver v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 14 2016, 10:22 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court 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 Borahm Kim Jesse R. Drum Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ronald Weaver, October 14, 2016 Appellant-Petitioner, Court of Appeals Case No. 20A03-1601-PC-14 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Appellee-Respondent Judge Trial Court Cause No. 20D03-1310-PC-66

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 20A03-1601-PC-14 | October 14, 2016 Page 1 of 8 [1] Ronald Weaver appeals the denial of his petition for post-conviction relief. He

argues that the post-conviction court erroneously determined that (1) he

pleaded guilty knowingly, voluntarily, and intelligently; and (2) he did not

receive the ineffective assistance of trial counsel. Finding no error, we affirm.

Facts [2] On June 9, 2009, Elkhart County law enforcement officers executed a search

warrant at Weaver’s home. Weaver, his wife, and their two minor children

were present in the residence at that time. Among other things, the officers

located the following items inside the home: (1) .3 grams of methamphetamine

in the pocket of Weaver’s wife; (2) sixteen blister packs of pseudoephedrine;

(3) a digital scale; (4) a coffee filter containing a white, powdery substance;

(5) multiple receipts for items that are precursors to the manufacture of

methamphetamine; and (6) a Hawaiian Punch bottle, which had a hose with a

valve attached coming out of the top of the bottle, containing sludge at the

bottom and a liquid inside—later tests revealed that ammonia was present in

this bottle. Weaver admitted to the officers that he manufactures

methamphetamine, that he likely made the methamphetamine found in his

wife’s pocket, and that he generally manufactures between three and six grams

of methamphetamine per batch. [3] On June 16, 2009, the State charged Weaver with class A felony manufacturing

methamphetamine over three grams. On April 19, 2012, Weaver pleaded guilty

as charged. The trial court sentenced him to forty years imprisonment, with ten

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years suspended to probation. On October 15, 2013, Weaver filed a pro se

petition for post-conviction relief, which was later amended by counsel. On

October 21, 2015, the post-conviction court held an evidentiary hearing on the

petition, and on December 11, 2015, the post-conviction court issued an order

denying Weaver’s petition. Weaver now appeals.

Discussion and Decision [4] Weaver raises two arguments on appeal. First, he argues that he did not plead

guilty knowingly, intelligently, and voluntarily because he was misled by his

attorney, who told him that the State had enough evidence to convict him of the

class A felony. Second, he argues that his trial attorney was ineffective for

advising him to accept the plea agreement. [5] The general rules regarding the review of a ruling on a petition for post-

conviction relief are well established:

“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). “When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment.” Id. To prevail on appeal from the denial of post- conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post- conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post–Conviction Rule 1(6). Although we do not defer to the post-conviction court’s legal conclusions, “[a] post-conviction court’s findings Court of Appeals of Indiana | Memorandum Decision 20A03-1601-PC-14 | October 14, 2016 Page 3 of 8

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) (quotation omitted).

Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).

I. Guilty Plea [6] In evaluating Weaver’s argument regarding his guilty plea, we look at all

evidence before the post-conviction court that supports its determination that

the plea was knowing, voluntary, and intelligent. Collins v. State, 14 N.E.3d 80,

85 (Ind. Ct. App. 2014). If a defendant can show that he was misled into

pleading guilty by the judge, prosecutor, or defense counsel, he presents a

colorable claim that his plea was not voluntary. Baker v. State, 768 N.E.2d 477,

479 (Ind. Ct. App. 2002). [7] Initially, we note that in his petition for post-conviction relief and at the post-

conviction hearing, Weaver argued that he was misled by the prosecutor, rather

than by his own attorney. As he may not raise a new argument on appeal, this

issue is waived. [8] Waiver notwithstanding, Weaver contends that his attorney misled him about

the likelihood of conviction if he proceeded to trial. Specifically, he notes that

only .3 grams of methamphetamine were found in his residence. He contends

that his attorney misled him when she stated that the State could use the

evidence of the sludge and liquid in the Hawaiian Punch bottle to reach the

required weight of three grams for the class A felony conviction. Court of Appeals of Indiana | Memorandum Decision 20A03-1601-PC-14 | October 14, 2016 Page 4 of 8

[9] We disagree. Weaver pleaded guilty to manufacturing three grams or more of

“methamphetamine, pure or adulterated.” Ind. Code § 35-48-4-1.1(b) (2009).

At the time Weaver committed this crime, the State could use evidence of

unfinished methamphetamine to prove the weight of the drug. See Traylor v.

State, 817 N.E.2d 611, 619-20 (Ind. Ct. App. 2004) (finding evidence sufficient

where a methamphetamine reaction vessel contained a product weighing more

than three grams).1 In this case, Weaver admitted that he had manufactured the

.3 grams of methamphetamine found in his wife’s pocket. Additionally, he told

the police that he uses three boxes of pseudoephedrine per two-liter bottle and

produces three to six grams of methamphetamine per batch. Law enforcement

officials found pseudoephedrine and other evidence of a methamphetamine lab

corroborating Weaver’s confession, including a Hawaiian Punch bottle with a

hose coming out of it, a valve attached to the hose, sludge at the bottom, and a

liquid inside the bottle. [10] It is true that, had the case proceeded to trial, the State would have had to offer

evidence of the weight of the sludge and liquid inside the two-liter bottle to

convict Weaver of the charged offense. See Halsema v. State, 823 N.E.2d 668,

1 Traylor was later overruled by Buelna v. State, 20 N.E.3d 137 (Ind. 2015). In Buelna, our Supreme Court clarified that “‘adulterated’ methamphetamine is the final, extracted product that may contain lingering impurities or has been subsequently debased or diluted by a foreign substance—not an intermediate mixture that has not undergone the entire manufacturing process. Thus, the weight of an intermediate mixture is probative of the weight enhancement only if the State presents evidence that establishes how much finished drug the intermediate mixture would have yielded if the manufacturing process had been completed.” Id. at 142. For the purposes of this case, however, we must examine the state of the law at the time Weaver pleaded guilty; therefore, we will not rely on Buelna and its progeny.

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674 (Ind. 2005) (holding that State must introduce evidence of weight of

methamphetamine to convict defendant of possessing three grams or more of

it). But Weaver’s attorney did not mislead him by advising him that if the

amount of sludge and liquid in the two-liter bottle totaled 2.7 grams or more (an

easy inference to make given Weaver’s confession that he typically produces

three to six grams of methamphetamine per batch), the State would have

sufficient evidence to convict him of class A felony manufacturing

methamphetamine. [11] When Weaver pleaded guilty, he understood the charge and voluntarily

admitted his guilt. He has not established that he was misled by his attorney in

the process. Consequently, the post-conviction court did not err by denying his

petition for post-conviction relief on this basis.

II. Assistance of Counsel [12] Weaver also argues that his attorney was ineffective for advising him to accept

the guilty plea offer. A claim of ineffective assistance of trial counsel requires a

showing that: (1) counsel’s performance was deficient by falling below an

objective standard of reasonableness based on prevailing professional norms;

and (2) counsel’s performance prejudiced the defendant such that “‘there is a

reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441,

444 (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A

reasonable probability arises when there is a ‘probability sufficient to undermine

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confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two

prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.

Ct. App. 2012). [13] As noted above, Weaver’s attorney correctly advised him based on the state of

the law at the time he pleaded guilty. Counsel reasonably concluded that

Weaver could be convicted of the class A felony based on the amount of

methamphetamine found in his wife’s pocket plus the amount of sludge and

liquid in the two-liter bottle found in Weaver’s residence. Counsel was also

concerned about Weaver’s exposure to additional charges, including

maintaining a common nuisance and two counts of neglect of a dependent, as

well as his total possible sentencing exposure given a significant criminal history

and the fact that he was on probation at the time he committed this crime. She

attempted to negotiate the charge down to a class B felony, but in the end

agreed to an A felony because of the threat of the additional charges. Counsel

did, however, obtain the State’s agreement to cap Weaver’s executed sentence

at thirty years, dismiss any other charges, and refrain from filing any additional

charges arising from the incident. In our view, trial counsel performed well

given that Weaver had freely confessed to law enforcement before she was

appointed to represent him. [14] We will not second-guess counsel’s strategy in negotiating this plea agreement

or in presenting the negotiated agreement to her client. We find that Weaver

has not met his burden of showing that his trial attorney’s performance was

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deficient, and find no error in the post-conviction court’s denial of Weaver’s

petition on this basis. [15] The judgment of the post-conviction court is affirmed.

Vaidik, C.J., and Najam, J., concur.

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