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.

ATTORNEY FOR APPELLANT

Brendan K. Lahey

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Phil L. Honer,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

August 28, 2015

Court of Appeals Case No.

71A03-1503-PC-103

Appeal from the St. Joseph Superior 

Court.

The Honorable Jerome Frese, Judge.

Cause No. 71D03-0912-PC-58

Darden, Senior Judge

Statement of the Case

[1] Phil L. Honer appeals from the trial court’s order denying his petition for postconviction relief without holding a hearing. We affirm in part, reverse in part 

and remand.

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Issues

[2] Honer presents the following issue on appeal, which we restate as: whether his 

petition for post-conviction relief conclusively showed that he is entitled to no 

relief.

[3] The State cross-appeals, arguing that we should dismiss Honer’s appeal because 

Honer’s notice of appeal was not timely filed, thereby resulting in the forfeiture 

of his right to appeal, and there are no extraordinarily compelling reasons why 

Honer’s forfeited right should be restored.

Facts and Procedural History

[4] The facts related to Honer’s underlying conviction were set forth in our prior 

memorandum decision as follows:

On September 6, 2006, around midnight, Officers Aaron Brick 

(Officer Brick) and Randall Goering (Officer Goering) of the 

South Bend Police Department, were traveling westbound on 

Western Street in South Bend, Indiana. As the Officers 

approached the intersection of Western and Walnut Streets, they 

pulled up behind an automobile stopped at a red light. While 

Officers Goering and Brick waited for the traffic signal to change, 

they observed the driver of the car, later identified as Honer, 

repeatedly looking back at them. When the light turned green, 

Honer tossed several clear plastic bags from his vehicle. The 

plastic bags landed to the left of the median separating the street. 

The Officers initiated a traffic stop. Officer Goering discovered 

that Honer was the only occupant of the vehicle and began to 

question him. As Officer Brick retrieved the discarded plastic 

bags, he observed no other trash in the immediate area. A field 

test concluded that the discarded plastic bags contained cocaine 

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and marijuana. Both parties stipulated that the drugs found were 

12.86 grams of cocaine and marijuana. Officer Brick determined 

that the distance between where the cocaine and marijuana were 

recovered and Pulaski Park, a public park, was 111 feet.

Honer v. State, 71A05-0806-CR-364, slip op. at 1 (Ind. Ct. App. Nov. 5, 2008), 

trans. denied (2009).

[5] The State charged Honer with one count of possession of marijuana1as a Class 

A misdemeanor; one count of possession of three or more grams of cocaine 

within one thousand feet of a public park2

as a Class A felony; and, one count 

of possession of an automatic opening knife3

as a Class B misdemeanor. After 

his jury trial, Honer was found guilty as charged and received an aggregate 

sentence of thirty years executed.

[6] On his direct appeal, Honer challenged the sufficiency of the evidence. More 

specifically, he argued that the evidence was insufficient to overcome his 

defense that children were not present during the commission of the crime. See 

Ind. Code § 35-48-4-16(b) (2001) (defense that person was briefly within 1,000 

feet of public park and no person under eighteen years old at least three years 

junior to person was present there at time of offense). The majority of a panel 

1 Ind. Code § 35-48-4-11 (1983).

2 Ind. Code § 35-48-4-6(a) (2006); Ind. Code § 35-38-4-6(b)(3)(B)(ii) (2006).

3 Ind. Code § 35-47-5-2 (2000).

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of this court affirmed Honer’s convictions. Honer v. State, 71A05-0806-CR-364 

(Ind. Ct. App. Nov. 5, 2008), trans. denied (2009).

[7] Honer filed a petition for post-conviction relief on December 23, 2009, in which 

he raised five claims pertaining to ineffective assistance of counsel. Those 

claims are as follows: (1) trial counsel failed to challenge the method used to 

test the cocaine; (2) trial counsel failed to object to the testimony of the police 

officers about the authenticity of cocaine, thereby violating Honer’s right to 

confrontation; (3) trial counsel failed to hold the State to its burden of proving 

beyond a reasonable doubt that he was within 1,000 feet of a public park by 

personally measuring the distance; (4) trial counsel failed to present during trial 

or closing argument the statutory defense that children were not present during 

the commission of the crime; and (5) trial counsel failed to present evidence on 

Honer’s behalf to allow the jury to determine if children were present during the 

commission of the crime. Honer also filed an affidavit of indigency and 

requested the assistance of the State Public Defender.

[8] The State filed its response to Honer’s petition on January 22, 2010. In that 

response, the State asserted the affirmative defenses of waiver, res judicata, and 

laches. The State also denied that Honer was entitled to post-conviction relief 

on any of his claims.

[9] On May 5, 2010, the trial court appointed the State Public Defender’s Office to 

represent Honer. The State Public Defender’s Office filed an appearance by 

counsel of May 24, 2010, in which counsel expressed a present inability to 

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investigate Honer’s claims. On May 25, 2010, the trial court granted the 

motion to stay all proceedings until the State Public Defender notified the trial 

court of its ability to proceed with Honer’s representation. 

[10] On January 10, 2012, substitute counsel with the State Public Defender’s Office 

filed a notice of substitution as counsel of record for Honer with the trial court. 

On February 16, 2012, counsel filed a notice of withdrawal of appearance and a 

certification with the trial court in which counsel noted that he had investigated 

Honer’s claims, expressed his opinion of those claims to Honer, and that Honer 

wished to proceed with his petition nonetheless.

[11] On March 7, 2012, the trial court entered an order in response to the 

withdrawal of the State Public Defender. In the order, the trial court 

acknowledged the procedural history of Honer’s petition, granted the State 

Public Defender’s request to withdraw, and gave Honer forty-five days in which

to notify the trial court whether he was hiring private counsel or proceeding pro 

se, and if he wished to amend his petition. The trial court also declined to 

appoint successor counsel for Honer.

[12] On February 19, 2015, the trial court entered its findings and order denying 

Honer’s petition for post-conviction relief. In the order, the trial court noted 

that it had the option of dismissing the petition pursuant to Indiana Trial Rule 

41(E) for Honer’s failure to comply with the trial court’s March 7, 2012 order. 

However, instead of issuing an order dismissing Honer’s petition for failure to 

prosecute, the trial court chose to enter findings on the merits of Honer’s 

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petition, noting in support of that decision that the State had submitted a 

response to Honer’s petition. Honer now appeals.

Discussion and Decision

I. The State’s Cross-Appeal 

[13] The State argues that we should dismiss Honer’s appeal because Honer’s notice 

of appeal was not timely filed, thereby resulting in the forfeiture of his right to 

appeal. The State also claimed that there are no extraordinarily compelling 

reasons why Honer’s forfeited right to appeal should be restored. We disagree. 

[14] The Supreme Court, in In Re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014), 

clarified that “although a party forfeits its right to appeal based on an untimely 

filing of the Notice of Appeal, this untimely filing is not a jurisdictional defect 

depriving the appellate courts of authority to entertain the appeal.” Rather, 

when a notice of appeal is untimely filed such that the right to appeal has been 

forfeited, “the question is whether there are extraordinarily compelling reasons 

why this forfeited right should be restored.” Id. 

[15] The State claims that there are no extraordinarily compelling reasons why 

Honer’s forfeited right to appeal should be restored, in part because Honer has 

already had a direct appeal from his convictions. Before that question can be 

answered, however, we must determine if Honer’s notice of appeal was in fact 

untimely.

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[16] The trial court entered its order denying Honer’s petition for post-conviction 

relief on Thursday, February 19, 2015, and the chronological case summary 

notes the trial court’s order on that date. Honer’s notice of appeal was filed on 

Monday, March 23, 2015. Indiana Appellate Rule 9(A)(1) provides that a party 

initiates an appeal by filing a notice of appeal within thirty days after the entry 

of a final judgment is noted in the chronological case summary. Therefore, the 

deadline for filing Honer’s notice of appeal was Saturday, March 21, 2015. 

Indiana Appellate Rule 25(B), which explains the computation of time, 

provides that the day of the act or event from which a period of time begins to 

run is not included in the computation. The rule further provides that the last 

day of the period is included in the computation unless it is a non-business day, 

which is defined as a Saturday, a Sunday, a legal holiday, or a day the Office of 

the Clerk is closed during regular business hours. Ind. Appellate Rule 25(A). 

Here, the last day of the period fell on a Saturday, a non-business day. In such 

a case, the rule further provides that the period runs until the end of the next 

business day. Ind. Appellate Rule 25(B). A business day is defined as all other 

days. Ind. Appellate Rule 25(A).

[17] Therefore, Honer’s notice of appeal was timely filed. We need not address the 

State’s additional argument concerning the existence of extraordinarily 

compelling reasons to restore a forfeited right to appeal, and turn now to the 

merits of the Honer’s appeal.

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II. Entitlement to Post-Conviction Relief

[18] Honer contends that the trial court erred by denying his petition for postconviction relief on the basis that his petition conclusively showed he is entitled 

to no relief. 

[19] “The petitioner in a post-conviction proceeding bears the burden of establishing 

grounds for relief by a preponderance of the evidence.” Campbell v. State, 19 

N.E.3d 271, 273-74 (Ind. 2014). “When appealing the denial of post-conviction 

relief, the petitioner stands in the position of one appealing from a negative 

judgment.” Id. at 274. “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.” Id. 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).

Id. “Although we do not defer to the post-conviction court’s legal conclusions, 

‘[a] post-conviction court’s findings 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.”’ Id. (quoting Ben-Yisrayl v. State, 729 N.E.2d 

102, 106 (Ind. 2000) (internal quotation omitted)). 

[20] In this case, the trial court denied Honer’s petition for post-conviction relief 

without holding a hearing. Additionally, neither party requested summary 

disposition. Turning to the Rules of Post-Conviction Relief, we have noted that 

there are two subsections under Post-Conviction Rule 1, section 4, that address 

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such situations where the court enters judgment without holding a hearing, and 

each subsection leads to a different standard of review on appeal. Allen v. State, 

791 N.E.2d 748, 752 (Ind. Ct. App. 2003). Of those two subsections, PostConviction Rule 1, section 4(f) is applicable here, and provides as follows:

If the State Public Defender has filed an appearance, the State 

Public Defender shall have sixty (60) days to respond to the 

State’s answer to the petition filed pursuant to Rule PC 1(4)(a). 

If the pleadings conclusively show that petitioner is entitled to no 

relief, the court may deny the petition without further 

proceedings.

[21] Honer frames his argument in terms of whether there is a genuine issue of 

material fact precluding denial of his petition as a matter of law, invoking a 

standard of review more appropriate under Post-Conviction Rule 1, section 

4(g), where either party has moved for summary disposition. However, we will 

review the claim under subsection 4(f).

[22] “[W]hen a court disposes of a petition under subsection f, we essentially review 

the lower court’s decision as we would a motion for judgment on the 

pleadings.” Allen, 791 N.E.2d at 752. A court errs in disposing of the petition 

without a hearing unless the pleadings conclusively show that the petitioner is 

entitled to no relief as to his claims. Id. at 752-53. If a petition alleges only 

errors of law, then the court may make the determination without a hearing 

whether the petitioner is entitled to relief on those questions of law. Id. at 753. If, 

on the other hand, the facts pleaded raise an issue of possible merit, then the 

petition should not be disposed of under section 4(f). Id. Such is the case even if

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the petitioner has only a remote chance of establishing his claim in such a hearing. 

Id.

[23] The first two of Honer’s claims involve challenges concerning the cocaine 

evidence. He argued that counsel was ineffective for failing to challenge the 

method the officers used to test the cocaine and by failing to object to the 

officers’ testimony about the authenticity of the cocaine. The State responded 

by noting that Honer and the State entered into a stipulation agreement that the 

substances found were cocaine and marijuana. Prior to trial, a laboratory 

technician had already verified that the substances were cocaine and marijuana. 

The technician did not testify at trial, but the State could have called the 

technician as a witness, except for the stipulation agreement between the 

parties.

[24] Also, the field test conducted by the officers indicated that the substances were 

cocaine and marijuana. We have held that the opinion testimony of someone 

sufficiently experienced with a drug may establish its identity, as may other 

evidence. Boggs v. State, 928 N.E.2d 855, 865 (Ind. Ct. App. 2010), trans. denied. 

Additionally, stipulations are looked upon with favor as a method by which 

litigation may be simplified and expedited. Corbin v. State, 713 N.E.2d 906, 908 

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

[25] Honer’s counsel’s decision to stipulate to the identification of the substances

involves a matter of trial strategy. Trial counsel is given significant deference in 

the choice of a trial strategy, which at the time and under the circumstances he 

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deems is best. Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011). On 

review, we will not second-guess trial counsel’s choice of trial tactics. Id. 

Moreover, trial strategy is not subject to attack via an ineffective assistance of 

counsel claim unless the trial strategy is so deficient or unreasonable that it falls 

outside an objective standard of reasonableness. Id. 

[26] There is nothing improper with stipulating to expected testimony. Corbin, 713 

N.E.2d at 908. The pleadings conclusively show that Honer is entitled to no 

relief as to his first two claims, and the facts do not raise an issue of possible 

merit.

[27] Honer also argued that trial counsel was ineffective by failing to personally 

measure the distance between the location of the traffic stop and Pulaski Park to 

verify whether he possessed cocaine within 1,000 feet of the park. He also 

argues that trial counsel was ineffective by failing to challenge the method used 

to measure the distance. One of the officers testified at Honer’s trial that the 

location of the stop was 111 feet from the park. Based upon the pleadings, the 

facts do not raise an issue of possible merit. The testimony at trial established 

that Honer was stopped well within 1,000 feet of the park. Under the 

circumstances herein, trial counsel’s decision not to personally measure the 

distance or challenge the method used to measure the distance, was reasonable 

trial strategy. The court did not err by denying relief as to this claim without 

holding an evidentiary hearing.

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[28] Next, Honer raised two claims regarding whether there were children present

within 1,000 feet of where he committed the offense. He claimed that he 

received ineffective assistance of counsel because counsel did not present during 

trial or closing argument the statutory defense that children were not present 

during the commission of the crime. He also alleged that trial counsel failed to 

present evidence on Honer’s behalf to allow the jury to determine if children 

were present during the commission of the crime. 

[29] In denying relief to Honer, the court found that those claims were barred by res 

judicata as they had been resolved in this Court’s decision on Honer’s direct 

appeal. We conclude that the trial court erred by failing to have an evidentiary 

hearing on these issues. The pleadings do not conclusively show that Honer is 

entitled to no relief on the issue of whether he was denied effective assistance of 

counsel and the facts raise an issue of possible merit. 

[30] In Honer’s direct appeal he argued that the evidence was insufficient to rebut 

the affirmative defense that children were not present during the commission of 

the crime. Indiana Code section 35-48-4-6(a) provides that a person possessing 

cocaine who does not have a valid prescription for the drug commits the offense 

of possession of cocaine, a Class D felony offense. The offense is enhanced in 

pertinent part to a Class C felony if the defendant engages in such conduct and 

the amount of the cocaine weighs three grams or more. Here, the parties 

stipulated that the cocaine weighed 12.86 grams. Therefore, we need not 

discuss the Class B felony enhancement which applies to the possession of less 

than three grams of cocaine within 1,000 feet of a public park. Ind. Code § 35-

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48-4-6(b)(2)(B)(ii). The offense is further enhanced to a Class A felony in 

pertinent part if the defendant engages in such conduct if he possesses more 

than three grams of cocaine within 1,000 feet of a public park. Ind. Code § 35-

48-4-6(b)(3)(B)(ii). 

[31] However, Indiana Code section § 35-48-4-16(b) provides certain defenses to 

qualifying offenses, of which Honer’s conviction of possession of cocaine is 

one. Subsection (b) provides in pertinent part that it is a defense to the charge: 

(1) if the person was briefly in, on, or within 1,000 feet of a public park; and (2) 

that no person under eighteen years of age at least three years junior to the 

defendant was in, on, or within 1,000 feet of the public park at the time of the 

offense. There is no dispute regarding the brevity of Honer’s presence within 

1,000 feet of Pulaski Park. Instead, the dispute centers on the presence of 

children in the protected zone at the time of the offense.

[32] In our decision on Honer’s direct appeal we acknowledged cases which set forth 

the requirement that the defendant bears an initial burden of proof by a 

preponderance of the evidence on any affirmative defense. See, e.g., Adkins v. 

State, 887 N.E.2d 934, 938 (Ind. 2008). We went on to hold that “the State’s 

evidence is sufficient to rebut Honer’s defense.” Honer v. State, 71A05-0806-CR364, slip op. at 2 (Ind. Ct. App. Nov. 5, 2008), trans. denied (2009). 

[33] In support of his contention that there was insufficient evidence, Honer pointed 

to the lack of testimony during cross-examination that there were children 

present within the park or surrounding protected zone at the time of the offense. 

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The majority affirmed the conviction citing to testimony provided by the 

officers that they had seen children present at various times other than the time 

of the offense in what they characterized as a mixed neighborhood of businesses 

and residences. We concluded that the State had sufficiently rebutted Honer’s 

affirmative defense.

[34] In his petition for post-conviction relief, however, he alleges that no such 

defense was asserted or argued and that no evidence was presented in support 

of the affirmative defense. He claims that trial counsel was ineffective for 

failing to present evidence in support of that affirmative defense. 

[35] The State, in its response to Honer’s petition, presented an argument similar to 

the one made by Judge Bailey in his dissenting opinion in Honer’s direct 

appeal. The State argued that because the offense happened a little after 

midnight, “the park was closed and curfews would have prevented children 

from being present. Thus, there appeared to be no question that children were 

not present in the park.” Appellant’s App. at 50. The State further argued that 

trial counsel’s cross-examination at trial convinced at least one judge on the 

panel deciding Honer’s direct appeal that the State had not rebutted the 

affirmative defense and thus, trial counsel was not ineffective.

[36] The State has the burden of proving all elements of a charged crime beyond a 

reasonable doubt. Moore v. State, 673 N.E.2d 776, 779 (Ind. Ct. App. 1996), 

trans. denied. However, the burden of proving an affirmative defense may be 

placed on the defendant, provided that proving the defense does not require the 

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defendant to negate an element of the crime. Id. The absence of children 

within 1,000 feet of a public park at the time of the offense is not an element of 

the crime. Ind. Code § 35-48-4-6(b)(3)(B)(ii). Rather, the affirmative defense 

“establishes separate and distinct facts in mitigation of culpability.” See Geljack 

v. State, 671 N.E.2d 163, 165 (Ind. Ct. App. 1996) (discussing burdens in 

context of emergency defense to operating motor vehicle while license 

suspended). The defendant must raise the affirmative defense and bears the 

initial burden of proof by a preponderance of the evidence. Wilson v. State, 4 

N.E.3d 670, 676 (Ind. Ct. App. 2014). The State bears the burden of negating 

beyond a reasonable doubt any defense sufficiently raised by the defendant. Id. 

[37] The pleadings show that Honer argues that he received ineffective assistance of 

counsel because the defense was not sufficiently raised by counsel, while the 

State argues that it was. The consequences to Honer of the failure to present 

the evidence of the affirmative defense meant the difference between being 

convicted of a Class A felony, if children were found to be present at the time of 

the offense, and a Class C felony if children were not found to be present. 

Without deciding the issue, we conclude that Honer has raised an issue of 

possible merit warranting an evidentiary hearing as opposed to a decision on 

the pleadings. 

Conclusion

[38] Honer’s notice of appeal was timely filed, so we find that his appeal should not 

be dismissed as forfeited. Reaching the merits of this appeal, we conclude that 

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the court properly found three of Honer’s claims could be disposed of without a 

hearing. However, the pleadings with respect to the last two of Honer’s claims 

present facts that raise an issue of possible merit.

[39] Affirmed in part, reversed in part and remanded. 

Robb, J., and Pyle, J., concur. 

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