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. 49 A 02

- 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 2 4 , 2013 MEMORANDUM DECISION

– N OT FOR PUBLICATION RILEY, Judge2 STATEMENT OF THE CASE Appellant

- Petitioner, Dennis Meyer (Meyer) , appeals the denial of his amended petition for post

- conviction relief. We affirm.
ISSUE S Meyer raises four issues, which we consolidate and restate as the f ollowing 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, Indi ana. 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 M eyer 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 M ey er tried to persuade M.R. to move into an apartment with him, the conversation became “argumentative.” [] . Ev entually, Meye r 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 f or 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 [91 1] 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 attent ion 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 p ubic 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 fe lony [I.C. § 35

- 42

- 4

- 1, 35

- 41

- 5

- 1 ]; Count III, attempted criminal deviate conduct, as a Class A f e lony [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. § 3 5

- 42

- 2

- 1] . Meyer remained in jail until his first jury trial setting on4

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 he aring and sentenced Meyer to two consecutive fifty

- year sentences for b urg lary and attempted rape. Meyer also received concurrent sentences of twenty years for attempted criminal deviate

c onduct 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 , 20 04 ). On April 28 , 20 04 , 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 t hereafter filed four addendums on July 9, 2008, October 15, 2009, May 1 7 , 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

- convicti on court issued its Order den ying post

- conviction relief. Meyer now appeals. Additional facts will be provided as necessary.

D ISCUSSION AND DECISION
I. Standard of Review5

We first state the applicable standard of review for post

- conviction rel ief. The preponderance of evidence standard applies whe n determini ng whether the petitioner has established his claims to pos t

- conviction relief. See Ind. Post

- Conviction Rule 1, § 5; see Henley v. State , 881 N.E.2d 639, 643 (Ind. 2008)

. A ppeal from a d enial of post

conviction 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 unmi stakably to a conclusion opposite that reach ed 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 la w are accorded no deference.
See i d . at 644.
II. Ineffective Assistance of T rial C ounsel Meyer argues that his trial counsel was ineffective for failing to suppress biological evidence obtained prior to his initial hearing, fail ing to object to jury instr uctions, and fail ing 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 pre judice 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 res ults of the proceedings would have been different. Johnson v. State , 832 N.E.2d 985, 996 (Ind.6

Ct. App. 2005), trans. denied

. P rejudice is measured by inquiring “whether it is ‘reasonably likely’ the result would have been different” but for counsel’s pe rformance. 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 hi s initial hearing was unreasonably delayed because he was arrested on Friday, June 9 , 2000 and his initial hearing occurred on Monday, June
1 2 , 2000. As a result, Meyer contends that a motion to suppress biological evidence obtained from him between his a rrest 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 success ful.” 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. H owever, a probable cause hearing did not occur until the following day, Saturday, Jun e 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 officer7

[ ...] 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 forty

eight hours of the arrest for a determination of probable cause. See Griffith v. State , 788 N.E.2d 835, 84 0

- 4 1 (Ind. 2003). The normal remedy for the v iolation of such a delay is the suppression of the evidence obtained during the unreasonable delay. Stafford v. State , 890 N.E.2d 7 44, 749 (Ind. Ct. App. 2008). In urging us to conclude that an unreasonable delay occurred , Meyer cites language from a re pealed 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 arrest ed makes bail before the person’ s initial hearing before a judicial officer, the i nitial 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 judici al 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 d o 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 t herefore inapp licable

. See P.L. 148

- 1995, Sec. 8, effective July 1, 1995. T he

r ecord 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 complia nt 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. denie d , 522 U.S. 1078 (1998)

. H ad 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 I nstruction 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 i s 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 perso n 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) w hich 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 th e essential elements. Therefore, Meyer has not demonstrated his trial counsel was ineffective. C

. Sentencing Meyer also contends that his trial c ounsel was ineffective because s he did not object to the trial court’s senten cing 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 di rect appeal on May 29, 2003 , and this court issued its decision affirming his conviction s on February 24 , 200 4

. O n 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 Blake ly , 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 re flected 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 en visioned to invalidate part of Indian a’ 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, i n 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 n ot 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. Ineffec tive 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. St ate , 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. See11

id

. He has not and w e therefo re conclude that Meyer has waived his claims that his appellate counsel was ineffective. See id

. Waiver notwithstanding, w e have already determined Meyer’s trial counsel was not ineffective for failing to raise issues. Where a petitioner did not rece ive 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. 200 4), trans. denied

. We therefore conclude that Meyer’s a ppellate 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