Court of Appeals of Indiana | Memorandum Decision 20A-PC-658| December 9, 2020 Page 1 of 14

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

Leroy Butler

Pendleton, Indiana 

ATTORNEYS FOR APPELLEE

 Curtis T. Hill, Jr.

 Attorney General of Indiana

 Jesse R. Drum

 Supervising Deputy Attorney 

 General

 Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Leroy Butler,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

December 9, 2020

Court of Appeals Case No.

20A-PC-658

Appeal from the Shelby Superior 

Court

The Honorable David Neal 

Riggins, Judge

 Trial Court Cause No.

 73D02-1904-PC-5

Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-PC-658| December 9, 2020 Page 2 of 14

Case Summary

[1] Leroy Butler appeals the denial of his pro se petition for post-conviction relief, 

raising the following two restated issues: 

1. Did the post-conviction court err when it denied Butler’s Ind. 

Trial Rule 56 motion for summary judgment? 

2. Did the post-conviction court err when it determined that 

Butler’s trial counsel was not ineffective for not filing a motion to 

suppress?

[2] We affirm.

Facts & Procedural History

[3] On August 17, 2015, Shelbyville Police Department dispatch received an 

anonymous call reporting that someone was believed to be possessing or

dealing narcotics from a green car. The caller provided the location of the 

residence where the car was last seen and its license plate number. Officer 

James Jones drove to the location, and the described vehicle was in the 

driveway. He parked in a nearby location, while another officer watched the 

car and told Officer Jones when it was leaving the residence. Officer Jones 

followed the subject car, observed it fail to make a complete stop at a stop sign, 

and initiated a traffic stop. Officer Jones asked the driver for identification, and 

Butler identified himself. There was an active warrant for Butler’s arrest, and 

Officer Jones arrested Butler. As the registered owner of the vehicle was not 

present, the vehicle was towed. During a search of the vehicle, officers found 

methamphetamine and a glass pipe in the passenger compartment and, in the 
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trunk, officers found methamphetamine, marijuana, and a digital scale. The 

State charged Butler with dealing in methamphetamine, possession of 

methamphetamine, and maintaining a common nuisance. 

[4] At the August 2016 jury trial, Officer Jones testified to following the car and 

observing it fail to make a complete stop at a stop sign before it turned. He 

described, “The way I do it is I watch their rims. If their rims do not come to a 

full resting position . . . that is considered not coming to a complete stop[,]” and

“the vehicle did that” at the stop sign as it was turning south. Exhibits Vol. at 

10. On cross-examination, counsel questioned Officer Jones in more detail 

concerning his exact location when he saw Butler’s vehicle at the stop sign, and 

Officer Jones pointed to his location on a map and said, “So I had a view 

through here of the vehicle’s tires.” Id. at 57.

[5] The jury found Butler guilty of all three charges. At the sentencing hearing, 

Butler stated that he had a substance-abuse problem, including drinking 

alcohol. The trial court merged the possession and dealing charges and 

convicted Butler of dealing in methamphetamine and maintaining a common 

nuisance, sentencing him to a total of twenty years, with eighteen years to be 

served in the Indiana Department of Correction and two years suspended to 

probation. On direct appeal, Butler asserted that a probation condition

prohibiting him from entering any establishment that sells alcohol was

overbroad. We agreed, revised the condition, and remanded for further 

proceedings. Butler v. State, No. 73A01-1609-CR-2238 (Ind. Ct. App. April 7, 

2017). 
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[6] On April 9, 2019, Butler, pro se, filed a petition for post-conviction relief 

asserting that his trial counsel was ineffective for (1) failing to file a motion to 

suppress the evidence seized during what Butler claims was an illegal, pretextual traffic stop, and (2) for failing to object during trial to certain testimony 

of Officer Jones that Butler claimed violated a motion in limine. Butler also 

alleged that his appellate counsel was ineffective for failing to raise certain 

issues on appeal, including ineffective assistance of trial counsel.

[7] Butler filed a number of discovery requests and motions during the pendency of 

his post-conviction petition, including a motion for declaratory judgment, a 

request for judicial notice to supplement/preserve evidence, motions to compel, 

a second motion for declaratory judgment, and motion for change of venue 

from the judge, in which Butler asserted that the judge was “extremely biased” 

against him, did not hold the State in contempt for alleged failures to comply 

with discovery, and “squandered in unsavory, dilatory, impeding actions 

against [his] rights to discovery per trial rules.” Appellant’s Appendix at 30. The 

request for change of judge was granted, and Special Judge David N. Riggins 

was appointed and assumed jurisdiction on November 12, 2019. 

[8] On December 12, 2019, Butler filed a motion for summary judgment, asserting 

that he was entitled to judgment as a matter of law on the ineffective assistance 

of trial counsel and appellate counsel claims that he raised in his petition for 

post-conviction relief. He asserted that the material facts not in dispute 

included “the arresting officer’s false probable cause affidavit [] which the 

officer illegally utilized to perform a pretextual traffic stop upon Butler.” Id. at 
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37. He designated evidence, including his own two affidavits, the State’s 

interrogatory responses, and a “Motion for Judicial Estoppel” that he had filed. 

Id. at 44.

[9] On February 21, 2020, the court held a post-conviction hearing, at which Butler 

presented the following evidence: (1) portions of the trial transcript, namely 

Officer Jones’s testimony and the prosecutor’s rebuttal argument; (2), Officer 

Jones’s dash-cam video1

; and (3) testimony of his trial counsel, Adam James.2 

The dash-cam video was played on the 72-inch screen in the courtroom. After 

watching the video, the post-conviction court stated, “It’s so blurry its hard for 

me to see anything[,]” and it determined that the video was “inconclusive” as to 

whether Butler stopped. Transcript at 11. The court read the offered and 

admitted trial testimony of Officer Jones, who testified that he watched the 

wheels or rims of Butler’s vehicle roll and not come to a complete stop. 

[10] James testified that, prior to trial, he deposed Officer Jones and watched the 

dash-cam video. James acknowledged that Butler asked him to file a motion to 

suppress but that, based on Officer Jones’s deposition testimony and the video, 

he thought a motion to suppress would not be successful, and he “didn’t want 

to file what [he] thought would be [a] frivolous motion to suppress.” Id. at 26. 

1 Butler did not have the video but the prosecutor had a copy at the hearing, agreed for it to be played, and 

did not object to its admission. 

2 Butler had not subpoenaed James for the hearing, but rather than continue the hearing, and with the 

agreement of the State, the court contacted James, who now was employed as a county prosecutor, and 

asked him to come to the courtroom to testify. The State did not object to that course of action. 
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[11] After receiving testimony and hearing argument, the post-conviction court 

addressed Butler’s motion for summary judgment. The court explained, 

“Summary judgment is not necessarily an appropriate motion for postconviction relief[,]” and, further, “[s]ummary judgment is like a shortcut so you 

don’t have to have a hearing. . . . We’re having the hearing. So, I’m gonna 

deny your motion for summary judgement because it’s not necessary.” Id. at 

32. The court took Butler’s petition for post-conviction relief under advisement 

and issued an order later that day denying relief. 

[12] It found that James’s decision to not file a motion to suppress was reasonable, 

stating, in pertinent part:

A view of the [] video is inconclusive due to the distance and 

blurriness of the video. Had the Motion to Suppress been filed in 

this court, this court would have denied it. The discrepancy 

between Butler and Jones [sic] version of events is not 

appropriate as a matter of law for suppression but instead was a 

matter of credibility for the jury to consider.

Moreover, Butler was wanted on a warrant at the time of the 

stop. . . . This court does not believe the law allows suppression 

of identity, even if the stop was unlawful. Therefore, once 

Butler’s identity was established, the warrant was properly 

executed and items discovered would have been subject to lawful 

search incident to arrest and/or inventory.

Appellant’s Appendix at 13. The post-conviction court determined that James did 

not provide ineffective assistance by not filing a motion to suppress. With 

regard to Butler’s claim that his trial counsel was ineffective for failure to object 

to a claimed violation of a motion in limine, the court found that Butler failed 
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to present any evidence on the issue and failed to make a cogent argument, and, 

accordingly, “fails in his burden.” Id. 

[13] Similarly, concerning Butler’s post-conviction claim that his appellate counsel 

was ineffective, the court found that “again, [Butler] presented no evidence or 

argument in support[,]” but noted that Butler’s testimony at the hearing “hinted 

that after speaking with his appellate counsel he understood why she didn’t 

raise the issue of ineffective assistance of [trial] counsel, instead leaving it to be 

raised in a PCR petition.” Id. The post-conviction court determined that Butler 

“has failed to meet his burden on this claim too.” Id. The court denied the 

petition for post-conviction relief,3 and Butler now appeals.

Discussion & Decision

[14] In order to prevail on a petition for post-conviction relief, a petitioner must 

establish his claims by a preponderance of the evidence. Ind. Post-Conviction 

Rule 1(5); Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). The postconviction 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).

[15] When appealing from the denial of a petition for post-conviction relief, a 

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

3 In its order, the court recognized the “passionate plea” that Butler had made about his situation in prison 

and his efforts at reform, and it congratulated Butler on his progress, suggesting that “such progress is best 

noted and appreciated in a Petition to Modify Sentence” and “it really has no place for consideration in a 

Petition for Post-Conviction relief.” Appellant’s Appendix at 13. 
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unerringly and unmistakably to a decision opposite that reached by the postconviction court.” Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). “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.

I. Motion for Summary Judgment

[16] Butler challenges the post-conviction court’s denial of his T.R. 56 motion for 

summary judgment, arguing that the State “failed to present any evidence to 

rebut Butler’s designated evidence establishing that he did not run a stop 

sign[.]” Appellant’s Brief at 22 (internal quotation marks omitted). 

[17] Although post-conviction proceedings are civil, see Ind. Post-Conviction Rule 

1(1)(5), the Indiana Supreme Court “established the special procedures set out 

in the Indiana Post-Conviction Rules to facilitate review of criminal convictions 

and sentences[,]” and the remedy provided under P-C.R. 1 “takes the place of 

all other common law, statutory, or other remedies heretofore available for 

challenging the validity of the conviction or sentence and shall be used 

exclusively in place of them.” P-C.R. 1(1)(b); Van Meter v. State, 650 N.E.2d 

1138, 1138 (Ind. 1995). Our Indiana Supreme Court has explained that 

Indiana’s Trial Rules “generally only govern procedure and practice in civil 

cases” and that the Court has considered their applicability in post-conviction 
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proceedings where the Post-Conviction Rules “are silent.” Corcoran v. State, 845 

N.E.2d 1019, 1021 (Ind. 2006).

[18] The post-conviction rules expressly provide for summary disposition. P-C.R. 

1(1)(4)(g) states:

The court may grant a motion by either party for summary 

disposition of the petition when it appears from the pleadings, 

depositions, answers to interrogatories, admissions, stipulations 

of fact, and any affidavits submitted, that there is no genuine 

issue of material fact and the moving party is entitled to 

judgment as a matter of law.

 

The State argues that “[b]ecause the Post-Conviction Rules are not silent about 

summary disposition, and in fact conflict with Trial Rule 56(C), Trial Rule 

56(C) does not apply in post-conviction proceedings,” and, therefore, the postconviction court properly denied Butler’s summary judgment motion. 

Appellant’s Brief at 15. 

[19] Regardless of whether Butler was allowed to file for summary disposition under 

T.R. 56, his claim fails. That is, under either rule – P-C.R. 1(1)(4)(g) or T.R. 56 

– Butler has failed to show that that there was no genuine issue of material fact 

and that he was entitled to judgment as a matter of law. The main fact that he 

represented in his motion as being undisputed – that he did stop at the stop sign 

– was expressly disputed in the probable cause affidavit and by Officer Jones in 

his deposition, where he stated that he observed Butler fail to completely stop. 

The State’s responses to interrogatories, which Butler designated in support of 
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his motion, were consistent with that position. Accordingly, summary 

disposition was not warranted. See State v. Gonzalez-Vazquez, 984 N.E.2d 704, 

709 (Ind. Ct. App. 2013) (observing that, where post-conviction petitioner 

sought summary judgment on his ineffectiveness claim, “it would be an 

extremely rare occasion upon which a petitioner would be able to show an 

absence of an issue of material fact and further show his entitlement to 

judgment as a matter of law without a hearing and the presentation of 

evidence”), trans. denied. The post-conviction court did not err when it denied 

Butler’s motion for summary judgment. 

II. Ineffective Assistance of Trial Counsel

[20] Butler’s primary argument on appeal is that the traffic stop was pretextual and 

illegal and that his counsel was ineffective for not filing a motion to suppress

the seized evidence.

4

 Ineffective assistance of counsel claims are governed by 

the two part test established by Strickland v. Washington, 466 U.S. 668 (1984). 

According to this test, [Butler] must first establish that his trial 

counsel’s performance was deficient. To demonstrate deficient 

performance, [Butler] must show that his trial counsel’s 

representation fell below an objective standard of reasonableness 

and that the errors were so serious that they resulted in a denial 

of [Butler’s] Sixth Amendment right to counsel. Second, [Butler] 

must demonstrate that the deficient performance prejudiced his 

4 Although Butler raised in his petition the argument that trial counsel was also ineffective for failing to object 

to certain testimony, he did not address that claim at the hearing, and the post-conviction court found that he 

waived it. Butler does not challenge that determination on appeal, and any claim regarding a failure to object 

is waived.
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defense. In order to establish prejudice, [Butler] must show that 

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

unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.

Moore v. State, 872 N.E.2d 617, 620 (Ind. Ct. App. 2007) (quoting Glotzbach v. 

State, 783 N.E.2d 1221, 1224 (Ind. Ct. App. 2003)), trans. denied.

[21] Counsel is afforded considerable discretion in choosing strategy and tactics, and 

a strong presumption arises that counsel rendered adequate assistance. Oberst v. 

State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010), trans. denied. We will not 

lightly speculate as to what may or may not have been an advantageous trial 

strategy, as counsel should be given deference in choosing a trial strategy that, 

at the time and under the circumstances, seems best. Perry v. State, 904 N.E.2d 

302, 308 (Ind. Ct. App. 2009), trans. denied. Isolated omissions or errors, poor 

strategy, or bad tactics do not necessarily render representation ineffective. 

McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012), trans. denied. 

[22] Butler contends that his trial counsel was ineffective for not filing a motion to 

suppress. Appellant’s Brief at 14. The decision of whether to file a particular 

motion is generally a matter of trial strategy, and, absent an express showing to 

the contrary, the failure to file a motion does not indicate ineffective assistance 

of counsel. Glotzbach, 783 N.E.2d at 1224. Specifically, we have held that 

“‘[t]o prevail on an ineffective assistance of counsel claim based upon counsel’s 

failure to file motions on a defendant’s behalf, the defendant must demonstrate 
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that such motions would have been successful.’” Moore, 872 N.E.2d at 621

(quoting Wales v. State, 768 N.E.2d 513, 523 (Ind. Ct. App. 2002), on reh’g, 774 

N.E.2d 116, trans. denied).

[23] Here, at the post-conviction hearing, James acknowledged that he and Butler 

had discussed the possibility of filing a motion to suppress, but James explained 

that, after deposing Officer Jones and watching the video that was blurry and 

essentially inconclusive, he decided not to file “what [he] thought would be [a] 

frivolous motion to suppress.” Transcript at 26. The partial trial transcript 

admitted at the post-conviction hearing reflected that James posed questions to 

Officer Jones on cross-examination that inquired where exactly Officer Jones 

was located at the time that Butler’s car arrived at the stop sign and appeared to 

be calculated to raise doubts on the officer’s assertion that he saw the rims of 

Butler’s vehicle not come to a complete stop. The record also suggests that 

James’s closing argument included that Butler stopped at the stop sign and that 

the officer could not see it.

5 On this record, Butler has failed to carry his burden 

of showing that James’s decision – to not file a motion to suppress – was not a 

matter of trial strategy. See Glotzbach, 783 N.E.2d at 1225 (trial counsel’s

decision not to file a motion to suppress photo array was matter of trial strategy 

5 James’s closing argument is not in the record before us, but the prosecutor’s rebuttal argument is, having 

been offered by Butler at the post-conviction hearing and admitted without objection, and such rebuttal 

argument indicates that the State responded to suppression-type arguments that had been made by Butler’s 

counsel.
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and not ineffective assistance where counsel’s cross-examination at trial asked 

questions aiming to raise doubt about the legitimacy of the photo array). 

[24] Moreover, the post-conviction court (a special judge who assumed jurisdiction

after Butler’s motion for change of venue from the judge) stated that “[h]ad the 

Motion to Suppress been filed in this court, this court would have denied it”

because the matter hinged on witness credibility, i.e. Butler’s version versus 

Officer Jones’s version. Appellant’s Appendix at 13. In sum, the record before us 

does not show that a motion to suppress would have been granted. See Oberst, 

935 N.E.2d at 1257 (trial counsel was not ineffective for not filing a motion to 

suppress a confession, where defendant’s claim that his confession was 

involuntary due to intoxication was in conflict with the detective’s version, 

which was that Oberst did not appear to be intoxicated, and counsel was 

present at the confession and observed defendant and his ability to answer 

questions). 

[25] For these reasons, we conclude that Butler has failed to establish by a 

preponderance of the evidence that his trial counsel was ineffective for not filing 

a motion to suppress.

6 We therefore affirm the denial of Butler’s petition for 

post-conviction relief.

6 Butler raised a claim of ineffective assistance of appellate counsel in his petition for post-conviction relief, 

which the post-conviction court determined had been waived. Butler does not expressly challenge this 

determination on appeal and only generally offers the claim that “trial and appellate counsel were both 

ineffective for failing to argue suppression in court or on appeal.” Appellant’s Brief at 21. We find that he has
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[26] Judgment affirmed.

Riley, J. and May, J., concur.

failed to make a cogent argument or cite to authority and has waived any claim that his appellate counsel was 

ineffective. Ind. Appellate Rule 46(A)(8).