Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020 Page 1 of 21

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

Amy E. Karozos

Indiana State Public Defender 

J. Michael Sauer

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Tyler G. Banks 

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Marcus Conner,

Appellant-Petitioner, 

v. 

State of Indiana, 

Appellee-Plaintiff

April 8, 2020

Court of Appeals Case No.

19A-PC-2106 

Appeal from the Elkhart Superior 

Court

The Honorable George W. 

Biddlecome, Senior Judge

Trial Court Cause No.

20D03-1701-PC-5 

May, Judge.

[1] Marcus Conner appeals the post-conviction court’s denial of his petition for

post-conviction relief. He raises two issues for our review, which we revise and
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restate as: (1) whether his trial counsel was ineffective for failing to assert his 

right to a speedy trial under the Indiana and United States Constitutions, and 

(2) whether his appellate counsel was ineffective for not arguing that there was 

insufficient evidence to demonstrate he committed his offense within 1,000 feet 

of a youth program center. We affirm.

Facts and Procedural History

[2] In a memorandum decision affirming Conner’s convictions on direct appeal, 

we summarized the facts and course of proceedings in his criminal case as 

follows:

On September 19, 2012, Conner was arrested after he sold 

cocaine to two confidential informants during three separate 

controlled buys arranged by the Elkhart Police Department. 

Conner sold the cocaine from his home, which was located 

within 1000 feet of a youth program center. On September 24, 

2012, the State charged Conner with three counts of Dealing in 

Cocaine, as Class A felonies,[1

] and Maintaining a Common 

Nuisance, as a Class D felony.[2

] On March 26, 2015, the State 

moved to amend the charging information to allege that Conner 

was a habitual offender.[3

]

1 Ind. Code § 35-48-4-1 (2006).

2 Ind. Code § 35-48-4-13 (2001).

3 Ind. Code § 35-50-2-8 (2005).
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At Conner’s initial hearing, a trial date was set for March 11, 

2013.

On the court’s own motion, and by an order dated March 8, 

2013, the trial court vacated the March 11, 2013 trial date due to 

court congestion and set a pre-trial conference for April 11, 2013 

for the purpose of selecting a new trial date. On Conner’s 

motion, the pretrial conference was continued. At a pre-trial 

conference held on May 2, 2013, the trial was rescheduled for 

July 15, 2013.

On defendant’s motion, and by an order dated July 12, 2013, the 

trial court vacated the July 15, 2013 trial date, ‘with [Indiana 

Criminal Rule] 4 time chargeable to the Defense’ (App. 149), and 

scheduled a pre-trial conference for July 25, 2013. At the 

conference, the trial was rescheduled for August 12, 2013.

On the State’s motion, and by an order dated July 31, 2013, the 

trial court vacated the August 12, 2013 trial date due to court 

congestion. At a pre-trial conference held September 5, 2013, the 

trial was rescheduled for January 6, 2014.

On the court’s motion, and by an order dated January 2, 2014, 

the court again vacated the January 6, 2014 trial date due to 

court congestion and set a pre-trial conference for February 6, 

2014. At the conference, the court set the trial for March 24, 

2014.

The State then filed two more motions to continue due to court 

congestion. By an order dated March 17, 2014, the March 24, 

2014 trial was cancelled and rescheduled for June 23, 2014. By 

an order dated June 19, 2014, the June 23, 2014 trial date also 

was vacated.
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On July 7, 2014, Conner, acting pro se, sent to the court a 

motion for discharge under Indiana Criminal Rule 4. Conner 

was represented by counsel at the time, so the court did not 

accept the filing. At a pretrial conference held July 31, 2014, the 

cancelled June 23, 2014 trial was rescheduled for January 26, 

2014 [sic].

On October 23, 2014, Conner submitted another pro se motion 

for discharge, which the trial court again did not accept because 

Conner was represented by counsel.

On the State’s motion, and by an order dated January 20, 2015, 

the court rescheduled the January 26, 2015 trial due to court 

congestion and set a pre-trial conference for February 26, 2015.

At the February 26, 2015 pre-trial conference, Conner, this time 

by counsel, filed in open court a motion for discharge under 

Indiana Criminal Rule 4. The court heard argument on the 

motion. The motion was denied, and trial was set for April 6, 

2015.

On April 6, 2015, the day of trial, Conner’s counsel moved to 

withdraw his representation due to a conflict of interest. The trial 

was continued.

A jury trial was held on July 20 and 21, 2015, and Conner was 

found guilty as charged. Conner admitted to being a habitual 

offender. By orders dated August 27 and 28, 2015, the trial court 

sentenced Conner to an aggregate sentence of seventy-two years.

Conner v. State, No. 20A03-1509-CR-1426, 2016 WL 3745924, slip. op. at 1-2

(Ind. Ct. App. July 13, 2016) (footnotes added).
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[3] On direct appeal, Conner argued that he was entitled to discharge under 

Indiana Criminal Rule 4(C) because two of the trial court’s findings of court 

congestion were erroneous. Id. at 2-3. We held the number of days of delay 

chargeable to the State did not exceed 365. Id. at 5. Conner also argued the 

delay violated his constitutional right to a speedy trial, but we held the 

argument was waived because trial counsel did not raise the argument below. 

Id. at 6. We affirmed Conner’s convictions. Id.

[4] Conner filed a petition for post-conviction relief pro se on January 23, 2017. On 

June 27, 2017, the court appointed a public defender to represent Conner, and 

Conner filed an amended petition on November 8, 2018. The amended petition 

alleged ineffective assistance of both trial counsel and appellate counsel. The 

amended petition argued Conner’s trial counsel were ineffective because they 

did not argue the delay in bringing Conner to trial violated Conner’s right to a 

speedy trial. The amended petition also argued Conner’s appellate counsel was 

ineffective for not arguing there was insufficient evidence to prove Conner sold 

cocaine within 1000 feet of a youth program center. The post-conviction court 

held a bifurcated evidentiary hearing on March 29, 2019, and May 3, 2019. 

[5] Conner’s trial attorneys, Peter Todd and Christopher Crawford, as well as 

Conner’s appellate counsel, Mari Duerring, testified at the hearing. Todd 

initially represented Conner at the trial level, but Crawford took over the 

representation of Conner following a reassignment of responsibilities among the 

Elkhart County public defenders. Crawford withdrew his representation when 

he discovered a conflict of interest, and Todd resumed his representation of 
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Conner. Todd testified at the hearing on Conner’s petition for post-conviction 

relief that even though he was familiar with Criminal Rule 4 and the 

constitutional right to a speedy trial, he “didn’t contemplate in [Conner’s] case 

that that might be something [he] would file on [Conner’s] behalf.” (Tr. Vol. II 

at 10.) 

[6] Crawford testified that, while he filed a motion for discharge under Criminal 

Rule 4, he thought he did not also assert Conner’s constitutional right to a 

speedy trial because evidence was not lost as a result of the delay. Duerring 

testified she did not raise the issue of whether the State presented sufficient 

evidence to prove Conner dealt cocaine within 1,000 feet of a youth program 

center on direct appeal because she did not think the issue was as strong as the 

arguments she raised. 

[7] On August 30, 2019, the post-conviction court issued an order denying 

Conner’s petition for post-conviction relief with findings of fact and conclusions 

of law. Regarding Conner’s claim his trial attorneys were ineffective for failing 

to adequately assert his constitutional right to a speedy trial, the court found 

the issue of whether [Conner] was entitled to be discharged under 

the speedy trial provisions of the United States and Indiana 

Constitutions was raised on direct appeal and decided adversely 

to [Conner]. Accordingly, as a matter of procedure, this 

argument is res judicata and not available for review in this [postconviction proceeding].
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(App. Vol. II at 134-135) (emphasis in original). The court nevertheless 

analyzed the delay from the date of Conner’s arrest to his trial and determined 

the delay was justified. The court held 

trial counsel’s performance cannot be said to have fallen below 

an objective standard of reasonableness when he chose not to 

object to the delay in this case on constitutional grounds as well 

as pursuant to Criminal Rule 4. Moreover, [Conner] has not 

demonstrated that had counsel done so, the result would have 

been different, i.e., he would have been discharged or his 

convictions would have been vacated. 

(Id. at 138.) 

[8] The court also found appellate counsel was not ineffective because Conner’s 

argument that there was insufficient evidence to show he dealt cocaine within 

1,000 feet of a youth program center was not supported by the record. The 

court made findings referencing an Elkhart Police Department officer’s 

testimony during Conner’s criminal trial that two Elkhart County Health 

Department buildings were located within 1,000 feet of Conner’s residence and 

the testimony of both Gwen Jaeger and Melanie Sizemore regarding the 

programs offered to children at each of the two Health Department buildings.

Discussion and Decision

[9] The petitioner for post-conviction relief must establish that he is entitled to relief 

by a preponderance of the evidence. Timberlake v. State, 753 N.E.2d 591, 597 

(Ind. 2001), reh’g denied, cert. denied 537 U.S. 839 (2002). “Because he is now 
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appealing a negative judgment, to the extent his appeal turns on factual issues, 

[the petitioner] must convince this Court that the evidence as a whole leads 

unerringly and unmistakably to a decision opposite that reached by the postconviction court.” Id. “Where the [post[-]conviction] court has entered 

findings of fact and conclusions of law, we accept the findings of fact unless 

clearly erroneous, but accord no deference [to] conclusions of law.” Turner v. 

State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012), trans. denied. We will reverse 

the post-conviction court’s decision only if the evidence is without conflict and 

leads to a conclusion opposite that reached by the post-conviction court. Id. at 

581-82. 

[10] The Sixth Amendment to the United States Constitution provides that in all 

criminal prosecutions, a defendant is entitled “to have the assistance of counsel 

for his defense.” U.S. Const. amend. VI. Counsel’s assistance must be effective 

for this constitutional guarantee to be realized. Strickland v. Washington, 466 

U.S. 668, 686 (1984), reh’g denied. There is a strong presumption that trial 

counsel provided effective representation, and a petitioner must put forth 

compelling evidence to rebut that presumption. McCullough v. State, 973 N.E.2d 

62, 74 (Ind. Ct. App. 2012), trans. denied. “Isolated poor strategy, inexperience, 

or bad tactics does not necessarily constitute ineffective assistance of counsel.” 

Id. Rather, a petitioner must show that trial counsel’s performance was 

deficient, and the petitioner was prejudiced by the deficiency. Id. at 75.

[11] When evaluating a defendant’s ineffective-assistance-of-counsel claim, we apply 

the well-established, two-part Strickland test. “The defendant must prove: (1) 
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counsel rendered deficient performance, meaning counsel’s representation fell 

below an objective standard of reasonableness as gauged by prevailing 

professional norms; and (2) counsel’s deficient performance prejudiced the 

defendant, i.e., but for counsel’s errors the result of the proceeding would have 

been different.” Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind. 2019) (internal 

citation omitted). We also apply the Strickland test when evaluating a claim of 

ineffective assistance of appellate counsel. Hollowell v. State, 19 N.E.3d 263, 269 

(Ind. 2014). The petitioner “must show appellate counsel was deficient in his or 

her performance and that the deficiency resulted in prejudice.” Id. 

1. Performance of Trial Counsel Regarding Conner’s Right 

to a Speedy Trial 

[12] Conner argues his trial attorneys were ineffective because they failed to preserve 

his constitutional right to a speedy trial. The United States Constitution 

provides: “In all criminal prosecutions, the accused shall enjoy the right to a 

speedy and public trial . . . .” U.S. Const. amend. VI. Additionally, the 

Indiana Constitution provides: “Justice shall be administered freely, and 

without purchase; completely, and without denial; speedily, and without 

delay.” Ind. Const. Art. 1, sec. 12. In Barker v. Wingo, the United States 

Supreme Court announced a balancing test for courts to consider in 

determining if a criminal defendant has been deprived of the right to a speedy 

trial. 407 U.S. 514, 530 (1972). The test considers four factors: “Length of 

delay, the reason for the delay, the defendant’s assertion of his right, and 

prejudice to the defendant.” Id. We use the Barker factors to analyze speedy 
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trial claims asserted under either the federal or the state constitution. Sweeney v. 

State, 704 N.E.2d 86, 102 (Ind. 1998). 

[13] Indiana Criminal Rule 4 is meant to ensure that a defendant receives a prompt 

trial, but a Criminal Rule 4 challenge is separate and distinct from a claimed 

violation of a defendant’s constitutional right to a speedy trial. Austin v. State, 

997 N.E.2d 1027, 1037 n.7 (Ind. 2013). Criminal Rule 4(A) limits the amount 

of time a defendant may remain in jail awaiting trial. A defendant may not be 

held in jail without trial for a period in excess of six months unless the 

defendant moves for a continuance, the defendant delays the trial by his own 

act, or there is not sufficient time to try the defendant because of court 

congestion or emergency. Ind. Criminal Rule 4. Similarly, Criminal Rule 4(C) 

provides that a defendant shall not be held to answer a criminal charge for a 

period greater than one year unless the defendant moves for a continuance, the 

defendant delays the trial by his own act, or there is not sufficient time to try the 

defendant because of court congestion or emergency. Id. When evaluating a 

Criminal Rule 4 motion, we count the number of days the defendant has been 

held to answer a criminal charge, discount the number of days of delay 

attributable to the defendant’s actions and court congestion, and if the total 

number of days exceeds the time period provided in the rule, grant the 

defendant relief. See Curtis v. State, 948 N.E.2d 1143, 1151 (Ind. 2011) (holding 

that “because the days that count toward the Rule 4(C) period exceed 365, the 

trial court should have granted Curtis’s motion to dismiss and discharge”). 
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[14] Initially, Conner challenges the post-conviction court’s conclusion that his 

argument that he was entitled to discharge pursuant to the speedy trial 

provisions of the United States and Indiana Constitutions is barred by res 

judicata because the argument was raised on direct appeal. Conner 

acknowledges that “[i]f an issue was raised on direct appeal, but decided 

adversely to the petitioner, it is res judicata.” Reed v. State, 856 N.E.2d 1189, 

1194 (Ind. 2006). However, Conner argues we did not consider or decide 

whether Conner should have been discharged pursuant to the speedy trial 

provisions of the state and federal constitutions because we held on direct 

appeal that the challenge was waived. See Conner, slip op. at 6 (“Conner did not 

raise his constitutional claims before the trial court, either in his written motion 

for discharge or at the hearing on the motion. Issues not raised at the trial level 

are generally waived on appeal. Accordingly, Conner’s constitutional speedytrial claims are forfeited.”) (internal citation omitted). Therefore, Conner 

maintains, he is not barred from arguing that he is entitled to post-conviction 

relief because his trial attorneys were ineffective in failing to preserve the issue 

for appeal. We agree that Conner’s claim is not barred by res judicata. See Reed, 

856 N.E.2d at 1195 (holding defendant’s ineffective assistance of counsel claim 

was not barred by res judicata because, although a sentencing issue was raised on 

direct appeal, counsel did not raise argument that the court could not impose 

consecutive sentences).
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A. Length of Delay

[15] Conner argues all four Barker factors weigh in his favor. He notes the delay 

from when charges were filed against him to when he was tried was 1,029 

days.4

 The length of the delay serves as a “triggering mechanism” for a 

defendant to assert his speedy trial right. Barker, 407 U.S. at 530. The tolerable 

length of a delay depends on the nature and circumstances of each case. Id. at 

530-31. Conner points to Ballentine v. State, in which our Indiana Supreme 

Court noted that facially, “and without considering other factors,” a delay of 

two-and-one-half years is “unusually long.” 480 N.E.2d 957, 959 (Ind. 1985). 

Conner also cites Logan v. State, wherein our Indiana Supreme Court observed 

that a delay of over three-and-one-half years in the defendant’s case “was 

considerable, unfortunate, and inexcusable.” 16 N.E.3d 953, 962 (Ind. 2014).

5

 

Consequently, the Supreme Court held the length of the delay weighed heavily 

in Logan’s favor. Id. Therefore, Conner contends the post-conviction court 

should have weighed heavily in his favor the length of delay between when 

Conner was charged and when he was tried.

[16] However, as the State points out, the length of the delay between when Conner 

was charged and when he was tried is not as long as the delay in some cases 

where defendants have made unsuccessful speedy-trial claims. See, e.g., Barker, 

4 The time between charging and trial was 1,029 days. However, Conner was incarcerated for 1,034 days 

before trial because he was arrested five days before he was charged. 

5 Conner’s case and Logan both originated in Elkhart Superior Court 3.
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407 U.S. at 533 (a “well over five year[ ]” delay); O’Quinn v. Spiller, 806 F.3d 

974, 977-79 (7th Cir. 2015) (finding reasonable application of Barker when state 

court denied speedy-trial claim for forty-two-month delay); United States v. 

Oriedo, 498 F.3d 593, 598 (7th Cir. 2007) (“nearly three years”); Johnson v. State, 

83 N.E.3d 81, 87 (Ind. Ct. App. 2017) (1,579-day delay); Sickels v. State, 960 

N.E.2d 205, 221 (Ind. Ct. App. 2012) (nine-year delay), reh’g denied, aff’d on 

trans. 982 N.E.2d 1010 (Ind. 2013). But see Logan, 16 N.E.3d at 962 (finding 

“three-and-one-half-year delay” unconstitutional). Therefore, while the delay 

in bringing Conner to trial was lengthy, the delay was not so long that it

violated Conner’s constitutional right to a speedy trial.

B. Reasons for the Delay

[17] The next factor we consider is the reasons for the delay. We look with strong 

disfavor on any attempt by the State to delay trial in order to hamper the 

defendant’s defense. Barker, 407 U.S. at 531. Purportedly neutral reasons for 

delay, such as negligence or overcrowded courts, are weighed less heavily 

against the State. Id. However, a missing witness or some other valid reason 

may fully justify delay. Id.

[18] In Logan, the court stated “[a]though a congested court calendar weighs less 

heavily against the State, it must be viewed as the responsibility of the 

government and an impediment to a defendant’s constitutional right to a speedy 

trial.” 16 N.E.3d at 963. Conner’s trial was delayed 728 days due to court 

congestion, and Conner argues this delay should weigh against the State. 

Additionally, Conner’s trial was delayed 105 days because his trial counsel 
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discovered a conflict of interest on the day of trial. Conner contends this delay 

should also be attributed to the State because the State could have determined 

there was a conflict of interest in advance of trial by reviewing the dockets of 

the confidential informant’s criminal cases.

[19] However, Conner puts forth no authority to support his proposition that the 

State should have reviewed the confidential informant’s chronological case 

summaries to determine if Conner’s trial counsel had a conflict of interest. We 

decline to impose such a duty on the State. We also note that when the court 

continued Conner’s trial due to court congestion, the court did so to 

accommodate older cases. (Prior Case App. Vol. I at 152 (moved for case 

charged in April 2009); 144-45 (moved for case charged in March 2012); 143 

(moved for case charged in September 2010); 139-40 (moved for case charged in 

June 2012 and subject to Rule 4(B) request); 137-38 (moved for case charged in 

June 2012); 127-28 (moved for case charged in September 2011).) Therefore, 

while the delays due to court congestion weigh against the State, we give this 

factor slight weight because the delays were justified. See Wilkins v. State, 901 

N.E.2d 535, 537-38 (Ind. Ct. App. 2009) (holding defendant’s right to speedy 

trial was not violated when trial was continued due to court congestion), trans. 

denied.

C. Assertion of Speedy Trial Right

[20] As explained in Barker: “The more serious the deprivation, the more likely a 

defendant is to complain. The defendant’s assertion of his speedy trial right, 

then, is entitled to strong evidentiary weight in determining whether the 
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defendant is being deprived of the right.” 407 U.S. at 531-32. Conner sent five 

pro se letters or motions to the trial court while he was represented by counsel 

complaining about the delay in bringing him to trial, and Conner’s counsel filed 

a motion for discharge under Criminal Rule 4 in February 2015. The motion 

for discharge asked the court to release Conner from jail or dismiss the case. 

Conner notes the defendant in Logan objected seven times to the delay in 

bringing him to trial, and the Logan court held that these repeated assertions 

weighed in Logan’s favor. 16 N.E.3d at 963.6

 Conner contends his pro se

assertions should receive the same weight in the Barker analysis as motions 

made by counsel. However, as our Indiana Supreme Court observed in 

Underwood v. State, trial courts are “not required” to respond to pro se requests or 

motions when the litigant is represented by counsel. 722 N.E.2d 828, 832 (Ind. 

2000) (“To require the trial court to respond to both Defendant and counsel 

would effectively create a hybrid representation to which Defendant is not 

entitled.”), reh’g denied. We also note that a litigant’s pro se requests could 

6 Conner offered the chronological case summary in Logan and motions Logan filed in the trial court as 

Petitioner’s Exhibit 4 at the hearing on postconviction relief. However, the court did not admit the exhibit 

into evidence. Conner argues the exhibit “is relevant to a proper evaluation of Conner’s assertion of his 

speedy trial right. The post-conviction court abused its discretion by refusing to admit Petitioner’s Exhibit 4 

into evidence.” (Appellant’s Br. at 29.) The trial court may refuse to admit evidence that is cumulative. The 

Pelican, Inc. v. Downey, 567 N.E.2d 847, 850 (Ind. Ct. App. 1991), trans. denied. Before ruling on the State’s 

objection to Exhibit 4, the court asked Conner what the exhibit added to what was said in the Logan decision. 

Apparently unsatisfied with Conner’s answer, the court sustained the State’s objection. Therefore, we hold 

the trial court did not abuse its discretion in refusing to admit Exhibit 4. See id. at 850 (holding trial court did 

not abuse discretion in excluding cumulative evidence).
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undermine trial counsel’s litigation strategy. Therefore, Conner’s assertion of 

his constitutional right carries little weight.

D. Prejudice Due to Delay

[21] The speedy trial right is designed to protect three interests: “(i) to prevent 

oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the 

accused; and (iii) to limit the possibility that the defense will be impaired.” 

Barker, 407 U.S. at 532. The most serious of these concerns is the possibility the 

defense may be impaired. Id. Conner argues he was prejudiced by his lengthy 

“oppressive pretrial incarceration.” (Appellant’s Br. at 30.) He notes his period 

of pretrial incarceration was longer than the defendant in Logan. 16 N.E.3d at 

964 (Conner’s 1,034 days as compared to Logan’s 1,029 days). Conner 

disagrees with the post-conviction court’s conclusion that his pretrial 

incarceration “although lengthy, is clearly explainable and justified.” (App. 

Vol. II at 138.) However, Conner puts forth no assertion of prejudice beyond 

the fact of his incarceration. See Johnson, 83 N.E.3d at 87 (“The burden is on 

the defendant to show actual prejudice to prove a speedy trial deprivation.”). In 

fact, Crawford testified evidence was not lost as a result of the delay. 

Therefore, this factor weighs heavily in favor of the State. See id. (holding 

prejudice factor weighed against defendant when his defense was not impaired). 

[22] The length of delay in bringing Conner to trial was long, but other defendants 

have had longer delays without violating their rights to a speedy trial. 

Therefore, we weigh the length of the delay in Conner’s favor but afford it little 
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weight. Similarly, we weigh the substantial delay due to court congestion only 

slightly against the State. We also weigh Conner’s assertion of his speedy trial 

right slightly in his favor because, while his trial counsel did not explicitly raise 

Conner’s constitutional right to a speedy trial, Conner’s counsel did file a 

motion for discharge under Criminal Rule 4. However, most significantly, we 

weigh the lack of prejudice to Conner as a result of the delay heavily against 

Conner. Having considered all four Barker factors, we hold that Conner’s trial 

attorneys did not perform deficiently because any constitutional challenge to 

the pretrial delay would not have been successful. See Wingate v. State, 900 

N.E.2d 468, 474 (Ind. Ct. App. 2009) (holding trial counsel did not render 

ineffective assistance by not arguing the State violated Criminal Rule 4(B) when 

it filed additional charges).

2. Performance of Appellate Counsel

[23] Conner argues his appellate counsel was ineffective because she “failed to 

recognize that despite evidence of youth program centers within 1,000 feet of 

the offenses at the time of trial in 2015, there was no evidence of youth program 

centers at these locations at the time of the offenses in 2012.” (Appellant’s Br. 

at 33.) He argues the only evidence that a youth program center operated 

within 1,000 feet of Conner’s house in 2012 was hearsay, which the trial court 

admonished the jury not to consider. 

[24] Claims of ineffective assistance of appellant counsel generally fall into three 

categories: “(1) denying access to appeal; (2) waiver of issues; (3) failure to 

present issues well.” Harrison v. State, 707 N.E.2d 767, 786 (Ind. 1999). 
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Appellate counsel is expected to present the issues on appeal most likely to 

result in a reversal, and we show strong deference to appellate counsel’s 

strategic decision of which issues to bring. Walker v. State, 988 N.E.2d 1181, 

1191 (Ind. Ct. App. 2013), trans. denied. “In evaluating whether appellate 

counsel performed deficiently by failing to raise an issue on appeal, we apply 

the following test: (1) whether the unraised issue is significant and obvious from 

the face of the record and (2) whether the unraised issue is ‘clearly stronger’ 

than the raised issues.” Id. (quoting Henley v. State, 881 N.E.2d 639, 644 (Ind. 

2008)).

[25] Conner maintains the absence of evidence regarding youth program centers in 

2012 was significant and obvious from the face of the record, and the issue was 

clearly stronger than the issues raised on direct appeal by Conner’s appellate 

counsel. Conner sold cocaine in three separate controlled buys between August 

31 and September 19, 2012.7

 Conner’s jury trial occurred on July 20 and 21, 

2015. Melanie Sizemore testified during Conner’s jury trial. She was an 

employee of Healthy Beginnings, a division of the Elkhart County Health 

Department, located at 1400 Hudson Street in Elkhart, Indiana.

[26] Conner challenges the post-conviction court’s finding that the State 

“question[ed] Ms. Sizemore about her knowledge of the hours of operation in 

2012, [sic] and established a business records exception to the hearsay 

7 The trial court took judicial notice that one of the controlled buys occurred on a Friday, and the other two 

controlled buys occurred on Wednesdays. 
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objection.” (App. Vol. II at 161.) Conner objected on hearsay grounds to 

Sizemore’s testimony about Healthy Beginnings’ hours of operation in 2012. 

The court sustained Conner’s objection and admonished the jury. While the 

State asked Sizemore additional questions to try to establish that her testimony 

fell within the business records exception to the hearsay rule, Conner contends 

such efforts were insufficient.

[27] However, we note the uncorroborated testimony of a single witness can sustain 

a conviction. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). Notwithstanding 

Sizemore’s testimony, Conner’s proposed sufficiency argument fails because of 

the testimony of Gwen Jaeger, manager of the nursing division for the Elkhart 

County Health Department building at 608 Oakland Avenue in Elkhart. The 

building housed an immunization clinic, a lead poison prevention program for 

small children, and other services. The clinic served both children and adults. 

Jaeger testified the clinic was open Monday through Friday and approximately 

twenty to thirty children would visit the clinic per day. The State asked Jaeger:

[State:] So, Miss Jaeger, would children have been present at 608 

Oakland Avenue on Friday, August 31st, at around 11:00 a.m.?

[Jaeger:] I would say, yeah.

[State:] Okay. What about on Wednesday, September 5th of 

2012, about 1:30 p.m.?

[Jaeger:] Yeah. We’re not closed for lunch, so yeah. Yes.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020 Page 20 of 21

[State:] How about Wednesday, September 19th, 2012, at 1:45 

p.m.?

[Jaeger:] Yes.

(Prior Case Tr. Vol. II at 256.) Conner attempts to discredit this testimony by 

arguing there is no evidence in the record that Jaeger worked at the Oakland 

Avenue clinic in 2012. He also contends Jaeger’s use of the present tense 

demonstrates she was testifying as to the hours of operation at time of trial 

rather than at the time of offense. However, these arguments would not have 

been successful on direct appeal because they are requests for us to reweigh the 

evidence. See Schath v. State, 2 N.E.3d 136, 138 (Ind. Ct. App. 2014) (“appellate 

courts do not reweigh the evidence or assess the credibility of the witnesses”).

Therefore, we hold Conner’s appellate counsel did not perform deficiently 

when she chose not to raise a meritless argument. See Garrett v. State, 992 

N.E.2d 710, 724-25 (Ind. 2013) (holding appellate counsel did not perform 

deficiently by not raising weak double jeopardy argument on direct appeal).

Conclusion

[28] Conner’s trial attorneys did not perform deficiently by failing to raise a 

constitutional speedy trial objection to the delay in bringing Conner to trial. 

The delay was justified, and Conner’s defense was not prejudiced as a result of 

the delay. Also, Conner’s appellate counsel did not perform deficiently by 

failing to raise a sufficiency argument on direct appeal because such argument 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020 Page 21 of 21

would not have been successful. Therefore, we affirm the trial court’s denial of 

Conner’s petition for post-conviction relief.

[29] Affirmed.

Najam, J., and Altice, J., concur.