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: ATTORNEYS FOR APPELLEE:

DENNIS MEYER GREGORY F. ZOELLER

Carlisle, Indiana Attorney General of Indiana

JUSTIN F. ROEBEL

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

DENNIS MEYER, )

)

Appellant-Petitioner, )

)

vs. ) No. 49A02-1206-PC-547

)

STATE OF INDIANA, )

)

Appellee-Respondent. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Robert R. Altice, Judge

Cause No. 49G02-0006-PC-97299

May 24, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
2

STATEMENT OF THE CASE

Appellant-Petitioner, Dennis Meyer (Meyer), appeals the denial of his amended 

petition for post-conviction relief.

We affirm.

ISSUES

Meyer raises four issues, which we consolidate and restate as the following two 

issues:

(1) Whether Meyer’s trial counsel provided ineffective assistance of counsel; and 

(2) Whether Meyer’s appellate counsel provided ineffective assistance of counsel.

FACTS AND PROCEDURAL HISTORY

We reviewed the factual background in the direct appeal of this case as follows:

Meyer and M.R. met when they participated in a drug and alcohol 

rehabilitation program with a group of people, including Sidney Newman 

(Newman). Newman lived in half of a double he owned. He rented out the 

four bedrooms in the other half to recovering addicts from the group. 

Newman required the renters to work and pay rent and to remain “clean and 

sober.” []. Meyer and M.R. were two of the renters in the half of the double 

located at 102 Neal Avenue, in Indianapolis, Indiana. Each renter had his 

or her own bedroom, but shared a kitchen, a living room, and a bathroom.

Prior to the incident at issue, M.R. had been under the impression 

that Meyer was interested in her romantically. M.R. testified that she 

repeatedly told Meyer that she struggled with her addiction and that 

becoming romantically involved with him was not what she needed. 

Nevertheless, on the evening of June 8, 2000, Meyer expressed to M.R. that 

he was unhappy with the living arrangement and that he planned on moving 

out of the house. He asked M.R. if she wanted to move into an apartment 

with him. M.R. told Meyer that she liked where she lived and that she was 

not interested in moving into an apartment with him.
3

At the conclusion of the conversation, M.R. went into her first-floor 

bedroom and sat down on the sofa. Meyer followed her and sat down on 

the floor. The conversation resumed, and, as Meyer tried to persuade M.R. 

to move into an apartment with him, the conversation became 

“argumentative.” []. Eventually, Meyer left the house and M.R. closed her 

bedroom door and locked it from the inside. M.R. was upset about the 

conversation with Meyer, so she telephoned another member of the 

recovery program and talked to him about her conversation with Meyer for 

approximately an hour before she went to bed. 

Later that night, in the early morning hours of June 9, 2000, M.R. 

awakened to find Meyer coming into her bedroom through a hole he cut in 

the window screen. Meyer grabbed M.R. and placed a knife to her neck. 

M.R. said, “Dennis, what are you doing to me? Why are you doing this?” 

[]. Meyer proceeded to remove M.R.’s pajamas, as she struggled to escape 

him, and forced himself on top of her. When he was unable to attain an 

erection, Meyer penetrated M.R. with his fingers, causing a vaginal tear in 

the process. At this point, M.R. freed herself and jumped out of her 

window onto the concrete porch and ran to the other half of the double 

where Newman lived. Newman let M.R. inside and told her to call [911] 

while he went to find some clothes for her to wear. 

Meyer v. State, No. 49A05-0306-CR-265, slip op. at 1-4 (Ind. Ct. App. Feb. 24, 2004)

(internal citations omitted). After police met with M.R., Meyer was apprehended. Meyer 

requested medical attention for an injury to his hand. He was transported to Wishard 

Hospital and signed a consent form permitting a search of his person and authorization 

for police to seize any article deemed pertinent to its investigation. A nurse collected 

blood, head and pubic hair samples as well as penile, fingernail, and oral swabs. 

On June 12, 2000, the State filed an [I]nformation against Meyer, 

charging him with Count I, burglary, as a Class A felony [Ind. Code § 35-

43-2-1]; Count II, attempted rape, as a Class A felony [I.C. § 35-42-4-1, 35-

41-5-1]; Count III, attempted criminal deviate conduct, as a Class A felony

[I.C. § 35-42-4-2, 35-41-5-1]; Count IV, criminal confinement as a Class B 

felony [I.C. § 35-42-3-3]; and Count V, battery, as a Class C felony [I.C. § 

35-42-2-1]. Meyer remained in jail until his first jury trial setting on 
4

February 12, 2001, at which M.R. failed to appear to testify. As a result, 

Meyer was released from jail on his own recognizance.

Id. at 4. On May 7-8, 2001, a second jury trial was held; however, Meyer failed to 

appear. Meyer was found guilty in absentia on all charges. On May 2, 2003, following 

his apprehension in Kentucky, the trial court held a sentencing hearing and sentenced 

Meyer to two consecutive fifty-year sentences for burglary and attempted rape. Meyer

also received concurrent sentences of twenty years for attempted criminal deviate 

conduct as a lesser included offense and three years for criminal confinement as a Class 

D felony. Meyer received an aggregate sentence of one hundred years. 

Meyer appealed, challenging the sufficiency of the evidence for his convictions on 

the burglary and attempted rape. On February 26, 2004, we affirmed the trial court. See

Meyer v. State, No. 49A05-0306-CR-265 (Ind. Ct. App. Feb. 26, 2004). On April 28, 

2004, Meyer filed a petition for post-conviction relief, which was withdrawn without 

prejudice on January 27, 2006. On June 18, 2007, Meyer filed his second petition for 

post-conviction relief, which he amended on May 1, 2008, and thereafter filed four 

addendums on July 9, 2008, October 15, 2009, May 17, 2010, and February 8, 2011. On 

June 6, 2008, the State filed its answer. On January 19, 2009 and October 9, 2011, a 

bifurcated hearing was held. On May 31, 2012, the post-conviction court issued its Order 

denying post-conviction relief.

Meyer now appeals. Additional facts will be provided as necessary. 

DISCUSSION AND DECISION

 I. Standard of Review
5

We first state the applicable standard of review for post-conviction relief. The 

preponderance of evidence standard applies when determining whether the petitioner has 

established his claims to post-conviction relief. See Ind. Post-Conviction Rule 1, § 5; see 

Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). Appeal from a denial of postconviction relief is equivalent to appeal from a negative judgment. See Henley, 881 

N.E.2d at 643. 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. at 643-44. Where the 

post-conviction court has entered findings of fact and conclusions of law, findings of fact 

are accepted unless clearly erroneous, but conclusions of law are accorded no deference. 

See id. at 644.

II. Ineffective Assistance of Trial Counsel

Meyer argues that his trial counsel was ineffective for failing to suppress 

biological evidence obtained prior to his initial hearing, failing to object to jury 

instructions, and failing to object to his sentence. Ineffective assistance of counsel claims 

are subject to the two prong test established in Strickland v. Washington, 466 U.S. 668 

(1984). The petitioner must establish counsel’s deficient performance and prejudice 

resulting therefrom. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). Counsel’s 

performance (1) must fall below an objective standard of reasonableness in light of 

professional norms, and (2) but for counsel’s failure to meet such norms, the results of 

the proceedings would have been different. Johnson v. State, 832 N.E.2d 985, 996 (Ind. 
6

Ct. App. 2005), trans. denied. Prejudice is measured by inquiring “whether it is 

‘reasonably likely’ the result would have been different” but for counsel’s performance. 

Harrington v. Richter, 131 S.Ct. 770, 792 (2011). “The likelihood of a different result 

must be substantial, not just conceivable.” Id. An ineffective assistance of counsel claim

fails if either prong of the Strickland test is not satisfied. Henley, 881 N.E.2d at 645.

A. Motion to Suppress

Meyer first argues that his trial counsel’s performance was deficient because she 

did not seek suppression of biological evidence obtained from him following his arrest. 

Specifically, Meyer argues that his initial hearing was unreasonably delayed because he 

was arrested on Friday, June 9, 2000 and his initial hearing occurred on Monday, June 

12, 2000. As a result, Meyer contends that a motion to suppress biological evidence 

obtained from him between his arrest and initial hearing would have been successful. 

“To 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 that such 

motions would have been successful.” Moore v. State, 872 N.E.2d 617, 621 (Ind. Ct.

App. 2007). Meyer was arrested without a warrant sometime after M.R. contacted the

police on Friday, June 9, 2000. However, a probable cause hearing did not occur until 

the following day, Saturday, June 10, 2000. His initial hearing occurred the following 

Monday, June 12, 2000. 

At the time of Meyer’s arrest, the statute governing warrantless arrests provided 

that “a person arrested without a warrant shall be taken promptly before a judicial officer 
7

[...] for an initial hearing in court.” I.C. § 35-33-7-1(a) (West St. Ann. 2000).1 Further, 

an ex parte probable cause determination for warrantless arrests may be made at or before 

the initial hearing. See I.C. § 35-33-7-2(a) (West St. Ann. 2000).2 As a general matter, a 

person arrested without a warrant should be brought before a magistrate within fortyeight hours of the arrest for a determination of probable cause. See Griffith v. State, 788 

N.E.2d 835, 840-41 (Ind. 2003). The normal remedy for the violation of such a delay is 

the suppression of the evidence obtained during the unreasonable delay. Stafford v. State, 

890 N.E.2d 744, 749 (Ind. Ct. App. 2008). 

In urging us to conclude that an unreasonable delay occurred, Meyer cites 

language from a repealed statute, I.C. § 36-8-3-11, providing generally that initial 

 

1 At the time of Meyer’s arrest, I.C. § 35-33-7-1 (West St. Ann. 2000) provided, in relevant part:

(a) A person arrested without a warrant for a crime shall be taken promptly before a judicial officer:

(1) in the county in which the arrest is made; or

(2) of any county believed to have venue over the offense committed; for an initial hearing in court.

(b) Except as provided in subsection (c), if the person arrested makes bail before the person’s initial 

hearing before a judicial officer, the initial hearing shall occur at any time within twenty (20) calendar 

days after the person's arrest.

2 At the time of Meyer’s arrest, I.C. § 35-33-7-2 (West St. Ann. 2000) provided:

(a) At or before the initial hearing of a person arrested without a warrant for a crime, the facts upon which 

the arrest was made shall be submitted to the judicial officer, ex parte, in a probable cause affidavit. In 

lieu of the affidavit or in addition to it, the facts may be submitted orally under oath to the judicial officer. 

If facts upon which the arrest was made are submitted orally, the proceeding shall be recorded by a court 

reporter, and, upon request of any party in the case or upon order of the court, the record of the 

proceeding shall be transcribed.

(b) If the judicial officer determines that there is probable cause to believe that any crime was committed 

and that the arrested person committed it, the judicial officer shall order that the arrested person be held to 

answer in the proper court. If the facts submitted do not establish probable cause or if the prosecuting 

attorney informs the judicial officer on the record that no charge will be filed against the arrested person, 

the judicial officer shall order that the arrested person be released immediately.
8

hearings be held within 24 hours of an arrest. See I.C. § 36-8-3-11 (West St. Ann. 1994). 

However, I.C. § 36-8-3-11 was repealed in 1995, almost five years before Meyer’s arrest, 

and is therefore inapplicable. See P.L. 148-1995, Sec. 8, effective July 1, 1995. The 

record confirms that Meyer received a probable cause hearing on Saturday, June 10, 

2009, one day after his arrest. Meyer’s presentation to the magistrate was therefore 

compliant with I.C. §§ 35-33-7-1, -2 and thus no unreasonable delay occurred. 

Furthermore, Meyer has not alleged that his consent to search his person was the product

of coercion. See Peterson v. State, 674 N.E.2d 528, 539 (Ind. 1996), reh’g denied, cert. 

denied, 522 U.S. 1078 (1998). Had his counsel requested suppression of the biological 

evidence, Meyer has not demonstrated any likelihood the trial court would have granted 

it. Therefore, Meyer has not demonstrated his trial counsel was ineffective.

B. Jury Instruction

Meyer next argues that his trial counsel’s performance was deficient because she 

did not object to Final Instruction No. 16, providing the elements of Class A felony 

burglary. Specifically, he contends that because the instruction omitted the word 

“dwelling,” it deviated from the charging Information which alleged that Meyer entered 

“the building or structure, and dwelling of [M.R.].” (Direct Appeal App. p. 32). 

Class A felony burglary is defined as follows: 

A person who breaks and enters the building or structure of another person, 

with intent to commit a felony in it, commits burglary, a Class C felony. 

However, the offense is:

[...]

(2) a Class A felony if it results in: 
9

(A) bodily injury; or 

(B) serious bodily injury; 

to any person other than a defendant. 

I.C. § 35-43-2-1(2) (West St. Ann. 2000). “The elements of [C]lass A burglary, then, are: 

the (1) breaking and (2) entering of (3) the building or structure (4) of another (5) by one 

who intends to commit a felony therein (6) which results in bodily injury or serious 

bodily injury to another person.” Goodpaster v. State, 402 N.E.2d 1239, 1242 (Ind. 

1980). The record shows that Final Instruction No. 16 set out the elements of Class A 

felony burglary consistent with the statute and included all of the essential elements. 

Therefore, Meyer has not demonstrated his trial counsel was ineffective. 

C. Sentencing

Meyer also contends that his trial counsel was ineffective because she did not 

object to the trial court’s sentencing based upon the Supreme Court of the United States’

decision in Blakely v. Washington, 594 U.S. 296 (2004), reh’g denied.

3 However, 

Meyer’s trial concluded on May 7, 2000 and his sentencing hearing was held on May 2, 

2003. Further, Meyer filed his direct appeal on May 29, 2003, and this court issued its 

decision affirming his convictions on February 24, 2004. 

On June 24, 2004, the Supreme Court decided Blakely and on March 9, 2005, our 

supreme court applied Blakely to Indiana’s sentencing scheme in Smylie v. State, 823 

 

3

In Blakely, the Supreme Court held that the Sixth Amendment to the United States Constitution requires a jury to 

find beyond a reasonable doubt any fact “that increases the penalty for a crime beyond” “the maximum sentence a 

judge may impose solely on the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. 

at 303-04 (emphasis omitted). 
10

N.E.2d 679 (Ind. 2005), cert. denied, 546 U.S. 976 (2005). In Smylie, our supreme court

recognized that “[b]ecause Blakely represents a new rule that was sufficiently novel that 

it would not have been generally predicted, much less envisioned to invalidate part of 

Indiana’s sentencing structure, requiring a defendant or counsel to have prognosticated 

the outcome of Blakely or of [the Smylie] decision would be unjust.” Smylie, 823 N.E.2d 

at 689. Similarly, in Donnegan v. State, 889 N.E.2d 886, 892-93 (Ind. Ct. App. 2008), 

trans. denied, we determined that appellate counsel was not ineffective for not raising a 

Blakely challenge to a defendant’s sentence affirmed on direct appeal in June 2004. 

Consequently, we conclude that Meyer has not shown that the objection to his sentence 

would have been sustained if his trial counsel had objected to his sentencing based upon 

Blakely. The post-conviction court did not err in concluding that Meyer’s trial counsel 

was not ineffective. 

II. Ineffective Assistance of Appellate counsel

Meyer also argues that his appellate counsel was ineffective for failing to raise on 

direct appeal the same issues that he contends that his trial counsel should have 

challenged. However, Meyer’s argument consists of a reference to his arguments that 

trial counsel’s assistance was ineffective and a citation to the entirety of his petitions for 

post-conviction relief and four addenda. It is not sufficient to merely refer to a prior 

argument in the brief. Benefiel v. State, 716 N.E.2d 906, 914 n.2 (Ind. 1999), reh’g 

denied, cert. denied, 531 U.S. 830 (2000). To avoid waiver, Meyer must actually argue 

in his brief how the post-conviction court erred and why his counsel was ineffective. See 
11

id. He has not and we therefore conclude that Meyer has waived his claims that his 

appellate counsel was ineffective. See id. 

Waiver notwithstanding, we have already determined Meyer’s trial counsel was 

not ineffective for failing to raise issues. Where a petitioner did not receive ineffective 

assistance of trial counsel, he can neither show deficient performance nor resulting 

prejudice as a result of his appellate counsel’s failure to raise the same arguments on 

appeal. See Davis v. State, 819 N.E.2d 863, 870 (Ind. Ct. App. 2004), trans. denied. We 

therefore conclude that Meyer’s appellate counsel was not ineffective.

CONCLUSION

Based on the foregoing, we conclude that Meyer did not receive ineffective 

assistance of trial or appellate counsel.

Affirmed.

BRADFORD, J. and BROWN, J. concur