Attorney for Appellant

Mark A. Thoma

Deputy Public Defender

Fort Wayne, Indiana

Attorneys for Appellee

Jeffrey A. Modisett

Attorney General of Indiana

Andrew L. Hedges

Deputy Attorney General 

Indianapolis, Indiana

	IN THE

	INDIANA SUPREME COURT

PHILLIP LEE,

	Appellant (Defendant below),

	v.

STATE OF INDIANA,

	Appellee (Plaintiff below).

)

)	Supreme Court No.

)	02S00-9703-CR-228

)

)	

)

)

)

	APPEAL FROM THE ALLEN SUPERIOR COURT

	The Honorable Kenneth R. Scheibenberger, Judge

	Cause No. 02D0-49608-CF-381

	ON DIRECT APPEAL

	May 6, 1998

SULLIVAN,  Justice.

	Defendant Phillip Lee was convicted of Dealing In Cocaine,1 a class A felony, and of being a habitual offender.2  He was sentenced to a total executed term of 80 years.  On appeal, defendant contends that he was denied the effective assistance of counsel to which

he is constitutionally entitled.  U.S. Const. amend VI; Ind. Const. art. I, § 13.

	We have jurisdiction over this direct appeal because the longest single sentence

exceeds fifty years.  Ind. Const. art. VII, § 4; Ind.Appellate Rule 4(A)(7); Buie v. State, 633 N.E.2d 250, 252 (Ind. 1994).

	Background

	On April 30, 1996, after being caught selling cocaine, a confidential informant met with a detective in the Allen County Police Department for the purpose of cooperating with

the police.  The informant believed he could make a buy of cocaine from defendant and the

detective drove him to the location where the controlled buy3 took place.  At trial, tThe informant testified at trial that he bought cocaine from defendant.  The detective testified at trial

that he monitored the transaction electronically as it occurred.  A jury thereafter found

defendant guilty of dealing cocaine and of being a habitual offender.  

	Discussion

	Defendant’s sole issue on appeal is whether he was provided the effective assistance

of trial counsel.  We analyze claims of ineffective assistance of counsel according to the

two-part test established in Strickland v. Washington, 466 U.S. 668 (1984).  See, e.g., Canaan v. State, 683 N.E.2d 227, 229 (Ind. 1997); Lowery v. State, 640 N.E.2d 1031, 1041 (Ind. 1994).  First,  defendant must show that, in light of all the circumstances, counsel’s

performance was outside the wide range of professionally competent assistance.  Canaan, 683 N.E.2d at 229 (citing Lowery, 640 N.E.2d at 1041).  In order to make such a showing, defendant must demonstrate that counsel’s performance was unreasonable under prevailing

professional norms.  Id.  Second, the defendant must show adverse prejudice as a result of the deficient performance.  Id.  This requires a demonstration that counsel’s performance was so prejudicial that it deprived the defendant of a fair trial.  Id.  There is a strong pre sumption that counsel rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.  Bellmore v. State, 602 N.E.2d 111, 123 (Ind. 1992).  An appellant must present strong and convincing evidence to rebut that presumption. 

Duncan v. State, 514 N.E.2d 1252, 1253 (Ind. 1987). 

	In asserting his claim of ineffective assistance of trial counsel, defendant contends

that it was deficient performance for trial counsel not to present witnesses at trial who could have corroborated defendant’s alibi defense.4   Defendant suggests that the jury relied on the confidential informant in convicting defendant and if trial counsel had presented defendant’s

alibi evidence, the informant’s credibility could have been eroded5 and there would have been a reasonable probability that the outcome would have been different.  

	Defendant has failed to demonstrate that trial counsel was ineffective.6  As noted, we presume that counsel rendered adequate assistance and find nothing to rebut the application

of that presumption here.  The State presented two eyewitnesses to the crime at trial — the

confidential informant and an undercover police officer — who identified defendant as the

individual dealing cocaine.  (T.R. at 113; 140.)  The defendant’s ineffective assistance claim is not supported by

any testimony from trial counsel and no alibi witnesses have been identified. 7  When coupled with the presumption of competence, the existence and testimony of the two

eyewitnesses is sufficient to overcome the unsupported claim of ineffective assistance of

counsel. 

	The failure to identify any alibi witnesses is particularly fatal to defendant’s claim. 

“When ineffective assistance of counsel is alleged and premised on the attorney’s failure to present witnesses, it is incumbent upon the petitioner to offer evidence as to who the

witnesses were and what their testimony would have been.”  Lowery, 640 N.E.2d at 1047 (citing Wallace v. State, 553 N.E.2d 456 (Ind. 1990)).  See Short v. State, 539 N.E.2d 939, 943-44 (Ind. 1989) (where defendant claimed trial counsel was ineffective for failing to

investigate adequately and present defendant’s alibi defense, but did not “set forth which

witnesses were not subpoenaed or what they would have said to corroborate his alibi testi

mony”).  In his brief, defendant cites to two cases in which this Court found trial counsel to

be ineffective for failing to present alibi witnesses at trial.  Williams v. State, 508 N.E.2d 1264 (Ind. 1987); Thomas v. State, 251 Ind. 546, 242 N.E.2d 919 (1969).8  We find both cases to be distinguishable from the circumstances of this case.  In Williams (appeal from the denial of post-conviction relief) and Thomas (direct appeal), the defendant provided the Court with the names of alibi witnesses which trial counsel was allegedly aware of and also

presented the Court with alibi testimony.  In this case, defendant has failed to do either.  See Smith v. State, 511 N.E.2d 1042, 1044-45 (Ind. 1987) (where defendant testified at post- conviction that witnesses would testify to his whereabouts the night of the crime but that the

witnesses were not present at the post-conviction hearing, we determined that defendant’s

“testimony that these witnesses were available is not sufficient to overcome [defendant’s]

burden of persuasion that counsel was ineffective for failure to present the witnesses”).

	Conclusion

	We affirm the judgment of the trial court.

SHEPARD, C.J., and SELBY, and BOEHM, JJ., concur.

DICKSON, J., concurs in result.