Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015 Page 1 of 13

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.

ATTORNEYS FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

J. Michael Sauer

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Ellen H. Meilaender

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Myron B. James,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

April 13, 2015

Court of Appeals Case No.

79A02-1410-PC-716

Appeal from the Tippecanoe 

Superior Court

The Honorable Randy J. Williams, 

Judge

Cause No. 79D01-1109-PC-13

Bradford, Judge.

Case Summary

[1] In October of 2007, officers with the Lafayette Police Department learned that 

Appellant-Petitioner Myron B. James, Servan Allen, and Byron Simmons were 
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selling cocaine out of a Lafayette apartment. On October 16, 2007, James, with 

the aid of his then-girlfriend, Sparkle Bennett, sold .035 grams of cocaine to an 

undercover Lafayette officer. James, Allen, and Simmons were subsequently 

found to be in possession of 53.42 grams of cocaine. Appellee-Respondent the 

State of Indiana (the “State”) subsequently charged James with numerous 

crimes, including Class B felony conspiracy to commit dealing in cocaine, Class 

A felony dealing in cocaine, Class A felony possession of cocaine, and Class D 

felony obstruction of justice. Following a jury trial, James was found guilty of 

Class B felony conspiracy to commit dealing in cocaine and not guilty of the 

remaining charges. The trial court sentenced James to a term of forty-five years 

of imprisonment.

[2] James subsequently challenged his sentence, which was affirmed on direct 

appeal. James then filed a petition seeking post-conviction relief (“PCR”). 

Following an evidentiary hearing on James’s PCR petition, the post-conviction 

court denied the petition. We affirm.

Facts and Procedural History

[3] In October of 2007, Bennett lived on Green Acres Drive in the Bridgewater 

Apartments in Lafayette. Bennett had been involved in a romantic relationship 

with James for several years. Bennett knew Allen and Simmons through 

James. James, Allen, and Simmons sold crack cocaine out of Bennett’s 

apartment. They would sometimes use Bennett to deliver the drugs in question. 

James, Allen, and Simmons each had a “work phone” that they used to set up 
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their cocaine sales. Trial Tr. p. 42. The number for this phone was “765-337-

2604.” Trial Tr. p. 42. 

[4] At some point during October of 2007, the Lafayette Police Department was 

provided with information about, and a phone number for, a cocaine dealer 

operating out of the Bridgewater Apartments. The phone number was “765-

337-2604.” Trial Tr. p. 121. Acting in an undercover capacity, on October 16, 

2007, Lafayette Police Officer Jason Walters called the phone number provided 

to police and arranged to purchase cocaine. Officer Walters spoke with both 

James and Allen. James asked Officer Walters how he knew about him, asked 

for Officer Walter’s location and told him to call back when he was closer, 

asked him “how much you got,” and asked him the color of his vehicle. Trial 

Tr. p. 61; State’s Ex. 4.

[5] After receiving the phone call from Officer Walters, James handed Bennett 

some cocaine and said “Here, baby, take this outside for me.” Trial Tr. p. 47. 

James, Allen, and Simmons all remained inside Bennett’s apartment. 

Approximately two or three minutes after James asked Officer Walters to 

describe his vehicle, Bennett came outside, spat cocaine out of her mouth, and 

handed it to Officer Walters in exchange for money. Bennett was then placed 

under arrest. Subsequent testing confirmed that Bennett delivered .035 grams 

of cocaine to Officer Walters. 

[6] Shortly after Bennett’s arrest, police set up a perimeter around Bennett’s 

apartment building so that no one else could enter or exit Bennett’s apartment. 
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After the perimeter was set up, Allen opened the back door to the apartment. 

Officer Robert Petillo instructed Allen to “Stop. Police.” Trial Tr. p. 226. 

Allen disregarded Officer Petillo’s instruction and slammed the door shut. 

Another individual was observed looking out of a window. Officer Petillo also 

observed multiple people running around inside the apartment. 

[7] After receiving Bennett’s consent to search her apartment, officers knocked and 

announced, but received no answer. When officers entered the apartment, they 

found James, Allen, and Simmons in the living room. Officers found that the 

toilet in the upstairs bathroom was clogged and there was water on the floor. 

After removing the toilet, the officers recovered 53.42 grams of cocaine. 

Simmons’s pants were wet in the front and he gave the police a false name and 

date of birth. The cell phone registered to the 735-337-2604 number was found 

in the pocket of a coat hanging in the closet. The battery for the phone was 

found under the couch. Allen and Simmons were found with $2980 and $1020 

on their persons, respectively. Police also found a pair of “soaking wet” jeans 

on the bed in the bedroom. Trial Tr. p. 148.

[8] Our opinion in James’s prior direct appeal, which was handed down on April 

26, 2011, instructs us to the procedural history of James’s case:

In October 2007, the State charged James with conspiracy to commit 

dealing in cocaine as a Class B felony, dealing in cocaine as a Class A 

felony, possession of cocaine as a Class A felony, and obstruction of 

justice as a Class D felony. James was informed of his trial date in 

person and ordered to appear. His attorney sent him a letter 

confirming the trial date and later spoke with him before trial to verify 

the date. James failed to appear the first day of his trial, and even after 
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communicating with his attorney, failed to appear the remainder of the 

trial. 

James v. State, 79A02-1007-CR-830 *1 (Ind. Ct. App. April 26, 2011). At the 

conclusion of trial, 

[a] jury found James guilty in absentia of conspiracy to commit dealing 

in cocaine as a Class B felony and not guilty of the remaining charges. 

James failed to appear for his pre-sentence interview and was 

sentenced in absentia to a term of forty-five years of imprisonment. 

Id.

[9] On September 21, 2011, James filed a pro se petition for PCR. On January 16, 

2014, James, by counsel, filed an amended PCR petition, which alleged that 

James had received ineffective assistance from his trial counsel. The postconviction court conducted an evidentiary hearing on James’s amended PCR 

petition on April 25, 2014. During this hearing, James, by counsel, presented 

argument, evidence, and witness testimony in support of his ineffective 

assistance claim. On July 15, 2014, the post-conviction court issued an order 

denying James’s request for PCR. This appeal follows.

Discussion and Decision

[10] Post-conviction procedures do not afford the petitioner with a super-appeal. 

Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a 

narrow remedy for subsequent collateral challenges to convictions, challenges 

which must be based on grounds enumerated in the post-conviction rules. Id. 
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A petitioner who has been denied post-conviction relief appeals from a negative 

judgment and as a result, faces a rigorous standard of review on appeal. Dewitt 

v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942 

(Ind. Ct. App. 1999), trans. denied. 

[11] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 

745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his 

claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); 

Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, 

a petitioner must convince this court that the evidence, taken as a whole, “leads 

unmistakably to a conclusion opposite that reached by the post-conviction 

court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without 

conflict and leads to but one conclusion, and the post-conviction court has 

reached the opposite conclusion, that its decision will be disturbed as contrary 

to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. 

The post-conviction court is the sole judge of the weight of the evidence and the 

credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). 

We therefore accept the post-conviction court’s findings of fact unless they are 

clearly erroneous but give no deference to its conclusions of law. Id.

Whether the Post-Conviction Court Erred in 

Determining that James Did Not Receive Ineffective 

Assistance of Trial Counsel

[12] The right to effective counsel is rooted in the Sixth Amendment to the United 

States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The 
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Sixth Amendment recognizes the right to the assistance of counsel because it 

envisions counsel’s playing a role that is critical to the ability of the adversarial 

system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S. 

668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness 

must be whether counsel’s conduct so undermined the proper function of the 

adversarial process that the trial court cannot be relied on as having produced a 

just result.” Strickland, 466 U.S. at 686. 

[13] A successful claim for ineffective assistance of counsel must satisfy two 

components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first 

prong, the petitioner must establish that counsel’s performance was deficient by 

demonstrating that counsel’s representation “fell below an objective standard of 

reasonableness, committing errors so serious that the defendant did not have 

the ‘counsel’ guaranteed by the Sixth Amendment.” Id. We recognize that 

even the finest, most experienced criminal defense attorneys may not agree on 

the ideal strategy or most effective way to represent a client, and therefore, 

under this prong, we will assume that counsel performed adequately and defer 

to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 

(Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of 

bad judgment do not necessarily render representation ineffective. Id. 

[14] Under the second prong, the petitioner must show that the deficient 

performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner 

may show prejudice by demonstrating that there is “a reasonable probability 
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(i.e. a probability sufficient to undermine confidence in the outcome) that, but 

for counsel’s errors, the result of the proceeding would have been different.” Id. 

[15] A petitioner’s failure to satisfy either prong will cause the ineffective assistance 

of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently, 

“the two parts of the Strickland test are separate inquires, a claim may be 

disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 

2006) (citing Williams, 706 N.E.2d at 154). Further, courts often times prefer to 

address the prejudice element first since it is not the object of an ineffectiveness 

claim to grade counsel’s performance. Cranor v. State, 699 N.E.2d 284, 286 

(Ind. Ct. App. 1998).

[16] James challenges the post-conviction court’s determination that he did not 

receive ineffective assistance of trial counsel. In raising this challenge, James 

claims that his trial counsel provided ineffective assistance by failing to object to 

what James claims was irrelevant and prejudicial evidence. For its part, the 

State argued that the post-conviction court properly denied James’s PCR 

petition because he failed to prove that he was prejudiced by his trial counsel’s 

allegedly deficient performance. We agree with the State.

[17] James argues that his trial counsel should have objected to the admission of 

State’s Exhibit 15, a booking sheet from the Tippecanoe County Sheriff’s 

Department. The State admitted this exhibit for the purpose of identifying 

James, who failed to appear at trial. Initially we note that James’s trial counsel 

did object to the admission of certain information that was included in the 
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“Cautions” section which indicated that James was known to carry a concealed 

firearm and was a gang member. State’s Ex. 15. After James’s counsel levied 

this objection, the State agreed to block out this information by placing white 

corrective tape over the challenged information. James asserts on appeal, 

however, that the act of placing white corrective tape over the challenged 

information was insufficient to protect him from the prejudicial nature of the 

information because one could still read the information if the exhibit was held 

up to the light. James also asserts that his trial counsel should have objected to 

the admission of the exhibit into evidence because it contains other irrelevant 

and prejudicial information. Specifically, James points to the “Comments” 

section which he claims suggests that he has faced prior criminal charges and 

the “Alias” section which indicates that James has known aliases. State’s Ex. 

15. James’s trial counsel did not object to the inclusion of either of the abovementioned items. 

[18] Upon review, we observe that while State’s Exhibit 15 may contain some 

irrelevant and potentially prejudicial information, James has failed to prove that 

there is a reasonable probability that, but for his trial counsel’s allegedly 

deficient performance, the result of the proceedings would have been different. 

During trial, the State provided overwhelming evidence of James’s guilt. 

Bennett testified that James, Allen, and Simmons sold crack cocaine out of her 

apartment, and that James would sometimes use her to deliver the drugs in 

question. Bennett was familiar with James, as she had been in a romantic 

relationship with James for several years. Bennett also testified that James, 
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Allen, and Simmons had a “work phone” that they used to set up their cocaine 

sales. Trial Tr. p. 42. The number of this phone matched the number provided 

to Officer Walters. 

[19] Acting in an undercover capacity, Officer Walters called the number and 

arranged to purchase cocaine. In doing so, Officer Walters spoke to both James 

and Allen. James asked Officer Walters how he knew about him, asked for 

Officer Walter’s location and told him to call back when he was closer, asked 

him “how much you got,” and asked him the color of his vehicle. Trial Tr. p. 

61; State’s Ex. 4. Bennett identified James’s voice on a recording of these 

phone calls, a copy and transcript of which was admitted into evidence. 

Bennett further indicated that after receiving the phone call from Officer 

Walters, James handed her some cocaine and said “Here, baby, take this 

outside for me.” Trial Tr. p. 47. Bennett then went outside and delivered .035 

grams of cocaine to Officer Walters in exchange for money.

[20] James remained in Bennett’s apartment while Bennett went outside to complete 

the sale. After receiving Bennett’s consent to search the apartment, officers 

entered and found James, Allen, and Simmons in the living room. Officers 

observed that an upstairs toilet was clogged. After removing the toilet, officers 

recovered 53.42 grams of cocaine. Officers also recovered the cellular phone 

which was registered to the number that Officer Walters had called to arrange 

his purchase of cocaine. This evidence overwhelmingly supports the jury’s 

conclusion that James committed Class B felony conspiracy to commit dealing 

in cocaine.
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[21] Moreover, the fact that the jury found James not guilty of three of the charged 

offenses suggests that James was not prejudiced by his counsel’s allegedly 

deficient performance. In Wooden v. State, 657 N.E.2d 109 (Ind. 1995), 

Wooden argued that his trial counsel provided ineffective assistance by failing 

to object to the State’s motion to consolidate two “separate and distinct cases 

for one trial” because after hearing from the two alleged victims, the jury 

“would undoubtedly feel that [Wooden] was necessarily guilty of one of the 

crimes.” 657 N.E.2d at 112 (internal record quotation omitted). The Indiana 

Supreme Court found that Wooden failed to prove that he was prejudiced by 

the allegedly ineffective assistance provided by his trial counsel. Id. In finding 

that Wooden had failed to prove that he was prejudiced by his counsel’s 

allegedly ineffective assistance, the Indiana Supreme Court noted that the 

record demonstrated that the jury was able to evaluate the evidence and render 

an appropriate verdict as to both cases, observing that the jury acquitted 

Wooden on two of the three charges. Id.

[22] In Cranor, Cranor argued that his trial counsel provided ineffective assistance by 

repeatedly failing to object to inadmissible evidence. 699 N.E.2d at 287. 

Specifically, Cranor argued that, as a result of counsel’s allegedly ineffective 

assistance, “the jury was exposed to improper character evidence or irrelevant, 

prejudicial testimony solely calculated to inflame the jury, thereby creating a 

risk that [he] would be convicted on jury passion alone.” Id. In concluding that 

Cranor failed to prove that he was prejudiced by counsel’s allegedly ineffective 

assistance, we noted that the jury acquitted Cranor of one of the two charged 
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offenses. Id. As such, even “[a]ssumming arguendo that the jury was exposed to 

inadmissible, inflammatory evidence due to Cranor’s trial counsel’s failure to 

lodge objections, it appears this evidence did not influence the jury to the extent 

Cranor fears since he was acquitted of one of the two charges: a result 

inconsistent with an impassioned jury.” Id. 

[23] In Rentas v. State, 519 N.E.2d 162 (Ind. Ct. App. 1988), the Indiana Court of 

Appeals concluded that Rentas had failed to prove that he was prejudiced by 

the allegedly ineffective assistance provided by his trial counsel. 519 N.E.2d at 

165. Upon review, we noted that “Rentas was charged with two counts of 

dealing in a narcotic drug—yet, the jury acquitted him of the first count.” Id. 

We concluded that “[i]f trial counsel’s performance did not prejudice the jury’s 

verdict as to count I, it could not have prejudiced the jury’s verdict as to count 

II.” Id.

[24] In the instant matter, James was charged with four criminal offenses. At the 

conclusion of the presentation of the evidence, the jury considered the evidence 

and acquitted James of three of the four charged offenses. We agree with the 

previous conclusions of both this court and the Indiana Supreme Court, that 

such an outcome is inconsistent with a claim that the allegedly irrelevant and 

potentially prejudicial evidence impacted the jury in a manner which affected 

the jury’s ability to evaluate the evidence and render an appropriate verdict.1 

 

1

 We disagree with James’s assertion that the fact that the jury found him not guilty of three of 

the four charged offenses indicates that the jury doubted Bennett’s credibility. 
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See Wooden, 657 N.E.2d at 112; Cranor, 699 N.E.2d at 287; Rentas, 519 N.E.2d 

at 165.

[25] Again, a successful claim for ineffective assistance of counsel requires a 

petitioner to prove both prejudice and deficient performance. In light of the 

overwhelming evidence of James’s guilt coupled with the fact that the record 

indicates that the jury was able to evaluate the evidence and render an 

appropriate verdict, we conclude that James has failed to prove that he was 

prejudiced by his trial counsel’s allegedly deficient performance. James, 

therefore, failed to meet his burden of proving his claim of ineffective assistance 

of counsel. See Reed, 866 N.E.2d at 769 (providing that a successful claim for 

ineffective assistance of counsel must satisfy two components, i.e., deficient 

performance and prejudice); Williams, 706 N.E.2d at 154 (providing that a 

petitioner’s failure to satisfy either prong will cause the ineffective assistance of 

counsel claim to fail). As such, we need not consider whether trial counsel 

provided deficient performance. 

[26] The judgment of the post-conviction court is affirmed.

Vaidik, C.J., and Kirsch, J., concur.