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 S FOR APPELLANT : ATTORNEYS FOR APPELLEE : SCOTT KING GREGORY F. ZOELLER RUSSELL W. BROWN, JR. Attorney General of Indiana Scott King Group Merrillville, Indiana JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDIANA

CHARLES FARRELL, III, ) ) Appellant

- Petitioner , ) ) vs. ) No. 20A05

- 1403

- PC

- 105 ) STATE OF INDIANA, ) ) Appellee

- Respondent

. )

APPEAL FROM THE ELKHART CIRCUIT COUR T The Honorable Terry C. Shewmaker , Judge Cause No. 20C01

- 1207

- PC

- 71

January 13, 2015 MEMORANDUM DECISION
- NOT FOR PUBLICATION D ARDEN , Senior Judge2 STATEMENT OF THE CASE Charles Farrell III appeals the denial of his petition for post

- conviction relief. We affirm. ISSUE S Farrell presents two issues for our review , wh ich we restate as : I. W hether the post

- conviction court erred by denying Farrell’ s claim of a violation of his due process rights.
II. Whether the post

- conviction court erred by denying Farrell’s claim of ineffective assistance of appellate counsel. FACTS AND PROCEDURAL HISTORY The underlying facts as reported on direct appeal are as follows: On July 25, 2009, Farrell asked Daron Tuggle if Farrell could “get some work,” which Tuggle understood to mean Farrell wanted to purchase cocaine. Farrell indicated he wanted a “kilo or two.” Tuggle contacted Alphonso James, whom Tuggle had assisted with large quantity cocaine deals in the past, and arranged a deal between Farrell and James. Farrell arrived at the designated site with Br uce White and an unidentified third person. James was present with Tuggle and Noble Dennie. All six men entered a lower level apartment, where James handed Farrell two packages that were three inches wide and eleven inches long and wrapped in duct tape. Tuggle testified such packaging was indicative of a “bird or brick” of cocaine. Farrell asked for something to open the “brick” and Tuggle went to the kitchen to look for a knife. While Tuggle was out of the room, White pulled out a gun, pointed it at James, and told James to “give it up.” While James and White struggled with the gun, Farrell pulled out a gun and pointed it at Tuggle. When he saw the gun, Tuggle ducked down to the floor, saw White shoot James, and covered his head until the gunfire st opped. After the other men left, Tuggle called 911 to get help for James. When police arrived, James was dead.3

Farrell v. State , No. 20A03

- 1008

- CR

- 457, slip op. pp. 2

- 3 (Ind. Ct. App. July 19, 2011) (transcript citations and footnote omitted).
F ollowing a jury trial, Farrell was convicted of felony murder. His conviction was affirmed on appeal. He then sought transf er to the Indiana Supreme Court. The Supreme Court denied transfer, and Farrell filed a peti tion for post

- conviction relief. The post

conviction court held a hearing on Farrell ’ s petition, and, o n February 10, 2014 , the post

conviction court entered findings of fact and conclusions of law denying Farrell’s petition

. He now appeals. DISCUSSION AND DECISION A post

- conviction petitioner has the burden of establishing the grounds for relief by a preponderance of the evidence. Ind. Post

- Conviction Rule 1(5); West v. State , 938 N.E.2d 305, 309 (Ind. Ct. App. 2010), trans. denied

. When appealing from the post

- conviction
court ’s denial of his petition, t he petitioner appeals from a negative judgment and faces the rigorous burden of showing that the evidence, as a whole, leads unerringly and unmistakably to a conclusion opposite that reached by the post

- conv iction court. H arris v. State , 762 N.E.2d 163, 166 (Ind. Ct. App. 2002), trans. denied

. In accordance with Indiana
Post

- Conviction Rule 1(6), the post

- conviction court made findings of fact and conclusions of law. 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. In this review, findings of fact are accepted unless they are clearly erroneous, and no deference is accorded to conclusions of law. Kistler v. State , 936 N.E.2d 1258, 1261 (Ind. Ct. App. 2010), trans. denied . The post

- conviction court is the sole judg e4

of the weight of the evidence and the credibility of witnesses. Witt v. State , 938 N.E.2d 1193, 1196 (Ind. Ct. App. 2010), trans. denied

. I. DUE PROCESS CLAIM As his first issue, Farrell allege s a violation of his constitutional right to due process
st ating that h e did not have re asonable notice of the crime with which he was charged . The essence of Farrell’s claim is that, in its appellee’s brief to this Court in the course of hi s direct appeal, the State argued the sufficiency of the evidence under a different sta tute than the one under which he was charged. Consequently, Farrell contends, this Court ’s decision in his direct appeal was in error, because it was based up on the same incorrect statute. Farrell was charged with felony murder. Specificall y, he was charged with and convicted of participat ing in the murder of James while attempting to “ commit dealing in cocaine .” In his direct appeal, Farrell raised three issues , only one of which is relevant here : whether there was sufficient evidence to sustain his conviction of the underlying felony as charged

. In support of his sufficiency argument , Farrell a lleged that he was a purchaser of cocaine and that no evidence was presented t o show that he participated in the delivery of cocaine. In its a ppellee’s brief, the State responded that “D efendant was attempting to possess cocaine with the intent to deliver it. I.C. § 35

- 48

- 4

- 1(a)(2)(C).” Petitioner’s PCR Ex. 3, p. 9. A panel of this Court affirmed Farrell’s conviction. Farrell’s assertion of error in his post

- conviction proceeding stems from the State’s citation in its brief to Indiana Code se ction 35

- 48

- 4

- 1(a)(2)(C) (2006), which provides:

(a) A person who:

. . .5 (2) possesses, with intent to:

. . . (C) deli ver . . . cocaine . . . commits dealing in cocaine. This statute is a subsection of the dealing in cocaine statute; however, it is a different subsection than the subsection under which Farrell was charged and convicted. Farrell was charged and convicte d under Indiana Code section 35

- 48

- 4

- 1(a)(1)(C), which provides:

(a) A person who: (1) knowingly or intentionally:

. . . (C) delivers

. . . cocaine . . . commits dealing in cocaine. Although Farrell is correct that these are two different statutes requiring different evidence to prove the offense of dealing in cocaine, he is incorrect in his asser tion that a misstatement in the State’s brief on appeal creates a violation of his right to due process. In the amended information, Farrell was charged with acting as an accomplice in the murder of James while attempting to commit dealing in cocaine , th at is, by knowingly engaging in conduct which constitutes a substantial step toward knowingly delivering cocaine. See Appellant’s DA App. p. 10. 1 Thus, Farrell was charged pursuant to Indiana Code section 35

- 48

- 4

- 1(a)(1)(C). This same charge was read to the jury at trial in both the

1 We will refer to Farrell’s direct appeal appendix as “Appellant’s DA App.” and to his PCR appendix as “Appellant’s PCR App.”6

preliminary and the final instructions , s ee Appellant’s DA App. p p . 32, 55, 56 , and it is the offense of which Farrell was convicted. Indeed, Farrell recognizes that a conviction under Indiana Code section 35

- 48

- 4

- 1(a)(2)(C) w as not pursued at trial. In his reply brief on direct appeal, he noted that “[t]he State also presented its entire case and argument upon the theory of delivery, not possession with the intent to deliver. The first mention of possession with the intent to deliver was in the Appellee’s brief. The State cannot change its theory of the case on appeal.” Petitioner’s PCR Ex. 4, p. 6. Additionally , in his brief to this Court in the instant case, Farrell states that “[t]he State argued for the first time on appeal that there was sufficient evidence that Farrell was in possession of cocaine with the intent to distribute.” Appellant’s Br. p . 5 (emphasis added). Thus, Farrell was not convicted of a crime with which he was not charged ; t he alleged error of which he complains arose during the process of his direct appeal.
F arrell f urther contends that this Court, in his direct appeal, “relied upon this theory” of possession of cocaine with the intent to distribute in affirming his conviction. Id

. We disa gree. I n Farrell’s direct appeal, this Court cited to Indiana Code section 35

- 48

- 4

- 1(a)(1)(C) in its discussion of the sufficiency of the evidence of the underlying felony of attempted dealing in cocaine. Upon reviewing the evidence and citing to case law for the concept that the quantity of cocaine involved could lead to an inference of a predisposition to sell, this Court determin ed that a reasonable factfinder could conclude that Farrell complet ed a substantial step toward the delivery of cocaine to someone in the future based
up on the quantity of drugs he tried to obtain

. In its opinion, this Court neither c ite d to7

Indiana Code section 35

- 48

- 4

- 1(a)(2)(C) nor stated anything about Farrell possessing cocaine with intent to deliver. Thus , Farrell’s argume nt raises no due process claim. R ather, his complaint is merely with the Sta te’s reasoning and misstatement in its appellee’s brief, which is not a proper issue for post

- conviction proceedings. In addition, t o the extent that Farrell’s argument in the instant case is a continuation of his challenge to the sufficiency of the evidence i n his direct appeal, i t also is not a proper issue for p ost

- conviction proceedings.
See Wieland v. State , 848 N.E.2d 679 , 681 (Ind. Ct. App. 2006 ) (stating that p ost

conviction proceedings do not afford petitioner opportunity for super appeal ), trans. denied

. Farrell’s contention that the State’s evidence was insufficient to support his conviction was decided against him on direct appeal, and our Su preme Court declined transfer of the case. Our review of this issue is thus barred by res judicata. S ee S towers v. State , 657 N.E.2d 194, 199 (Ind. Ct. App. 1995) (stating that doctrine of res judicata precludes presentation of issues in post

- conviction petition which have previously been decided upon direct appeal ), trans. denied

.

II. INEFFECTIVE ASSISTANCE OF COUNSEL Farrell contends that his appellate attorney rendered ineffective assistance of counsel by failing to raise the due process challenge o n direct appeal.
C laims of ineffective assistance of counsel are governed by the familiar two

- part standard set forth in Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A defendant is required to establish both (1) that counsel’s performance was deficient and (2) that counsel’s defic ient performance prejudiced the defendant.8

Johnson v. State , 948 N.E.2d 331, 334 (Ind. 2011), cert. denied , 132 S. Ct. 1575, 182 L. Ed. 2d 194 (2012). The deficient performance prong requires a showing that counsel’s representation fell below an objective standard of reasonableness. Kubsch v. State , 934 N.E.2d 1138, 1147 (Ind. 2010). The prejudice prong req uires a showing that counsel’s errors were so serious as to render the result of the trial unreliable. Id. Counsel’s performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption. Id. Moreover , failure to satisfy either prong of the two

- part test will cause the defendant’s claim to fail. Henley v. State , 881 N.E.2d 639, 645 (Ind. 2008). If we can easily dispose of an ineffective assistance claim based upon the prejudice prong, we may do so wi thout addressing whether counsel’s performance was deficient. Id

. When raised on collateral review, ineffective assistance claims commonly fall into three basic categories: (1) denial of access to an appeal (2) waiver of issues and (3) failure to presen t issues well. Ritchie v. State , 875 N.E.2d 706, 723 (Ind. 2007). As we determined in Issue I, there was no violation of Farrell’s due process rights. The State charged and prosecuted Farrell on the underlying offense of attempted dealing in cocaine by c ompleting a substantial step toward knowingly delivering cocaine. The jury heard argument of counsel and both preliminary and final instructions on that offense and convicted Farrell accordingly. Farrell’s theory of a due process violation did not arise until his direct appeal was underway, specifically until the filing of the State’s appellate brief. As we stated previously, Farrell acknowledged the timing of the appearance of this issue both in his reply brief in his direct appeal, see P etitioner’s PCR Ex. 4, p. 6, and in his brief to this Court in the present case. See Appellant’s Br. p. 5. Thus, at the time of filing of9

Farrell’s appellate brief, there was no argument to be made regarding an alleged violation of due process rights and , therefore , there was no defect in appellate counsel’s performance for failing to argue such. See Vaughn v. State , 559 N.E.2d 610, 615 (Ind. 1990) (stating that counsel will not be deemed ineffective for failing to present meritless claim). Nevertheless , in Farrell’s reply brief, his appellate counsel specifically addressed Farrell’s allegation of error. Appellate counsel noted that although the two offenses are contained in a single statute, they are two distinct offenses requiring distinct evidence to
prove. He also noted that Farrell was charged with knowingly delivering cocaine (Indiana Code section 35

- 48

- 4

- 1(a)(1)(C)) and that, at trial, the State presented its entire case upon this statute. Counsel, remarking that the State cannot change its theor y of the case on appeal, further observed that the first mention of possession with intent to deliver cocaine (Indiana Code section 35

- 48

- 4

- 1(a)(2)(C)) was in the appellee’s brief. See Petitioner’ s Ex. 4, p. 6. Thus, Farrell’s appellate counsel was not deficient for failing to raise a due process violation on direct appeal because that claim was m eritless. Furthermore, when an issue arose regarding a misstatement in the State’s brief , Farrell’s counsel presented timely and appropriate argument. CONCLUSI ON For the reasons stated, we conclude that the post

- conviction court properly denied Farrell’s claim of a violation of his due process rights and his claim of ineffective assistance of his appellate counsel. Affirmed. VAIDIK, C.J., and PYLE, J., concur.