Court of Appeals of Indiana | Memorandum Decision 71A03-1512-PC-2099 | May 11, 2016 Page 1 of 8

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Stephen T. Owens 

Public Defender of Indiana

Jonathan O. Chenoweth

Deputy Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

George P. Sherman

Deputy Attorney General 

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

James “Jamar” Mason

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

May 11, 2016

Court of Appeals Case No.

71A03-1512-PC-2099

Appeal from the St. Joseph 

Superior Court

The Honorable John M. 

Marnocha, Judge

Trial Court Cause No.

71D02-1207-PC-37

Bradford, Judge.

Case Summary
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[1] In 2009, Appellant-Petitioner James Mason was arrested after selling crack 

cocaine to an undercover police officer and a police informant. Mason’s 

conviction for dealing in cocaine was enhanced because the deal took place 

within 1,000 feet of a school. Mason’s conviction was sustained on direct 

appeal. Mason filed a petition for post-conviction relief (“PCR”) arguing that 

his trial counsel was ineffective for failing to argue that Indiana Code section 

35-48-4-16 (2009) precluded the enhancement. Mason now appeals the postconviction court’s denial of his PCR petition. We affirm. 

Facts and Procedural History

[2] We set out the facts of this case in Mason’s 2011 direct appeal.

On September 24, 2009, South Bend Police Officer Paul Moring, 

an undercover police officer with the South Bend Police 

Department’s Metro Special Operations Section, was conducting 

a “bust-buy operation, for open air drug dealing” by “people that 

are either on foot or standing [on] the street corner, riding 

bicycles, sitting in vehicles” and “selling narcotics to individuals 

that flag them down or walk up to them.” (Tr. 108). As part of 

the operation, Officer Moring was driving an unmarked vehicle 

in an area known for drug dealing. Other officers were posted 

outside the vehicle and monitoring the vehicle with video and 

audio recording devices. Minnie Franklin, an informant, was in 

the passenger seat.

As he drove around the area, Officer Moring observed Mason 

standing in an alley. Officer Moring had not seen Mason before, 

and it appeared as if he were loading items from a garage into a 

van. As Officer Moring drove toward Mason, Franklin asked “if 

he had a 2–0,” which is “street slang for twenty dollars of crack 
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cocaine.” (Tr. 112). Mason nodded, indicating they were to drive 

down the alley.

Officer Moring slowly drove down the alley while Mason 

followed on foot. Once Officer Moring parked on the nearest 

cross-street, Mason approached the front passenger side of the 

vehicle and began talking with Franklin, who again told him that 

she was “looking for a twenty.” (Tr. 114). Mason then walked 

over to the driver’s side of the vehicle and asked for a ride to a 

place where he could get some cocaine. Mason “was persistent in 

needing a ride to Indiana Street to obtain the drugs.” (Tr. 117). 

Officer Moring declined and told Mason that he needed to pick 

up his child. Mason therefore gave Officer Moring his cell phone

number, and Officer Moring told him that he would be back “in 

a few minutes.” (Tr. 117).

Shortly thereafter, Officer Moring returned to the alley. Mason 

got in his van and told Officer Moring to follow him. Officer 

Moring followed Mason to East Dubail Street, where Mason 

parked less than 100 feet from Studebaker School. Following 

Mason’s directions, Officer Moring parked behind the van. 

Officer Moring watched as Mason walked northbound. Other 

officers conducting surveillance reported that Mason appeared to

be obtaining cocaine.

Mason then returned to Officer Moring’s vehicle and “asked for 

the money.” (Tr. 127). Officer Moring gave Mason twenty 

dollars, in return for which Mason gave Officer Moring .16 

grams of “loose crack cocaine.” (Tr. 127). Officers arrested 

Mason after Officer Moring left the scene.

On September 28, 2009, the State charged Mason with class A 

felony dealing in cocaine. The trial court commenced a two-day 

jury trial on November 16, 2010, after which the jury found 

Mason guilty as charged. Following a sentencing hearing on 

January 5, 2011, the trial court sentenced Mason to twenty years.
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Mason v. State, 953 N.E.2d 681, slip op. *1 (Ind. Ct. App., Sept. 9, 2011). On 

direct appeal, Mason argued that there was insufficient evidence to rebut his 

entrapment defense, and this court affirmed his conviction. Id. at 2. 

[3] On July 26, 2012, Mason filed a pro se PCR petition which was amended by 

counsel on May 15, 2015. The post-conviction court held an evidentiary 

hearing before ultimately denying Mason’s petition. 

Discussion and Decision

[4] “Post-conviction proceedings are not ‘super appeals’ through which convicted 

persons can raise issues they failed to raise at trial or on direct appeal. Rather, 

post-conviction proceedings afford petitioners a limited opportunity to raise 

issues that were unavailable or unknown at trial and on direct appeal.” Bahm v. 

State, 789 N.E.2d 50, 57 (Ind. Ct. App. 2003) decision clarified on reh’g, 794 

N.E.2d 444 (Ind. Ct. App. 2003). 

In reviewing the judgment of a post-conviction court, appellate 

courts consider only the evidence and reasonable inferences 

supporting its judgment. The post-conviction court is the sole 

judge of the evidence and the credibility of the witnesses. To 

prevail on appeal from denial of post-conviction relief, the 

petitioner must show that the evidence as a whole leads 

unerringly and unmistakably to a conclusion opposite to that 

reached by the post-conviction court.... Only where the evidence 

is without conflict and leads to but one conclusion, and the postconviction court has reached the opposite conclusion, will its 

findings or conclusions be disturbed as being contrary to law. 
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Hall v. State, 849 N.E.2d 466, 468-469 (Ind. 2006) (internal citations and 

quotations omitted). 

[5] Mason claims that he received ineffective assistance of trial counsel. We review 

claims of ineffective assistance of counsel based upon the principles enunciated 

in Strickland v. Washington, 466 U.S. 668 (1984): 

[A] claimant must demonstrate that counsel’s performance fell 

below an objective standard of reasonableness based on 

prevailing professional norms, and that the deficient performance 

resulted in prejudice. Prejudice occurs when the defendant 

demonstrates that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding 

would have been different.” A reasonable probability arises 

when there is a “probability sufficient to undermine confidence in 

the outcome.” 

Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 

U.S. at 694). “‘A strong presumption arises that counsel rendered adequate 

assistance and made all significant decisions in the exercise of reasonable 

professional judgment.’” Pruitt v. State, 903 N.E.2d 899, 906 (Ind. 2009) 

(quoting Lambert v. State, 743 N.E.2d 719, 730 (Ind. 2001)). 

[6] At the time of Mason’s offense, dealing in cocaine was a Class B felony which 

was enhanced to a Class A felony in this case because the deal took place 

within 1,000 feet of a school. Ind. Code § 35-48-4-1 (2009). Mason argues that 

his trial counsel was ineffective for failing to argue that the statutory defense 

provided by Indiana Code section 35-48-4-16(c) precluded the enhancement. 
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It is a defense for a person charged under this chapter with an 

offense that contains an element listed in subsection (a) that a 

person was in, on, or within one thousand (1,000) feet of school 

property, a public park, a family housing complex, or a youth 

program center at the request or suggestion of a law enforcement 

officer or an agent of a law enforcement officer.

Ind. Code § 35-48-4-16(c) (2009).

[7] At the post-conviction hearing, trial counsel testified that there was no evidence 

that Officer Moring or the informant suggested the deal location and, in fact, it 

was Mason who chose the location. 

[I]t is readily apparent from [the] trial transcript, that Officer 

Moring actually followed the defendant to the area where the 

transaction was to take place. And it wasn’t Officer Moring who 

told the defendant or any agent of Officer Moring, who told the 

defendant where to meet him, it was the defendant who chose 

the location. And from the photographs introduced into evidence 

at trial it was apparently clear to anybody that that location was 

right across from the Studebaker School. And so because it was 

Mr. Mason who chose the location and not the police, the 

entrapment defense under Ind. Code 35-48-4-[1]6(c), simply does 

not apply. I can’t find at all any evidence which would indicate 

that anybody, including Mr. Moring, that that location was 

chosen by the police or an agent of the police, but it was in fact 

chosen by Mr. Mason for the transaction and the dealing then 

took place.

PCR Tr. p. 25. 

[8] Mason seems to concede that neither Officer Moring nor the informant 

suggested a specific location to complete the deal. Instead, Mason argues that 
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he would not have been at the location at all had Moring and the informant not 

requested to buy crack cocaine in the first place. This argument is no more than 

an attempt by Mason to rehash his entrapment defense, which failed at trial. 

Officer Moring and the informant were ready and willing to purchase the 

contraband at the original location but Mason voluntarily led Officer Moring to

another location near the school to complete the deal. 

[9] To successfully invoke the defense provided by Indiana Code section 35-48-4-

16(c), the evidence must show that police, or an informant being directed by 

police, was the active party in determining the location of the activity in 

question, and that the defendant was passive and only acquiesced to the officer 

or informant’s request. See Bell v. State, 881 N.E.2d 1080, 1086 (Ind. Ct. App. 

2008) (finding that police suggested location within 1,000 feet of a public park 

where defendant was summoned to informant’s apartment by the informant at 

the behest of police to complete sale of crack-cocaine); see also Abbott v. State, 

961 N.E.2d 1016, 1018 (Ind. 2012) (revising sentence for possession of cocaine 

enhanced for being within 1,000 feet of a school where police pulled over 

vehicle in which defendant was riding near a school and “[n[othing in the 

record suggest[ed] that the driver of the car had anything to do with the location

of the stop.”). Because the evidence does not support Mason’s proposed 

statutory defense, Mason’s trial counsel was not ineffective for declining to raise 

the issue. 

[10] The judgment of the post-conviction court is affirmed.
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Bailey, J., and Altice, J., concur.