Court of Appeals of Indiana | Memorandum Decision 19A-PC-277 | July 31, 2019 Page 1 of 6

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

I N T H E

COURT OF APPEALS OF INDIANA

Gregory Johnson,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

July 31, 2019

Court of Appeals Case No.

19A-PC-277

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.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-277 | July 31, 2019 Page 2 of 6

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 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-277 | July 31, 2019 Page 3 of 6

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 postconviction 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 
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proceeding.” Id.

1

 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.2 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 

 

1

Johnson argues, “[I]t was fundamental error that the State had the burden to prove (before any other 

progression in the trial court forward), experts calibrated the weighing scales before and after weighing of the 

drugs.” Appellant’s Br. at 9. This freestanding fundamental error claim is not reviewable in a postconviction proceeding. Ross, 877 N.E.2d at 833. Johnson also purports to raise a “fatal variance” argument 

that is incomprehensible. Appellant’s Br. at 8, 11.

2

Johnson’s assertion to the contrary is erroneous.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-277 | July 31, 2019 Page 5 of 6

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, 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-277 | July 31, 2019 Page 6 of 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.3 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.

 

3 At the post-conviction hearing, Johnson’s trial counsel testified,

My trial strategy was that the weight was sufficient weight over the amount needed to obtain a 

conviction. And I didn’t have any reason to believe that the equipment was not functioning or 

would have been so far off. And my recollection is that I felt it would be detrimental to the 

outcome of the case to have them go through all of those steps when I didn’t have reason to 

believe that there was a malfunction with the scales.

Tr. Vol. 2 at 10. “We will not second-guess trial counsel’s strategy and tactics unless they are so 

unreasonable that they fall outside objective standards.” Burnell v. State, 110 N.E.3d 1167, 1170 (Ind. Ct. 

App. 2018). Trial counsel’s strategy strikes us as eminently reasonable under the circumstances, and thus 

Johnson’s ineffectiveness claim would fail on this basis as well.