Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017 Page 1 of 19

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.

APPELLANT PRO SE

Stephen Lehman

Michigan City, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Monika Prekopa Talbot

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Stephen Lehman,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

July 27, 2017

Court of Appeals Case No.

35A05-1611-PC-2603

Appeal from the Huntington 

Superior Court

The Honorable Jeffrey R. 

Heffelfinger, Judge

Trial Court Cause No.

35D01-1106-PC-13

Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 35A05-1611-PC-2603 | July 27, 2017 Page 2 of 19

Case Summary

[1] In April of 2009, Appellee-Respondent the State of Indiana (“the State”) 

charged Appellant-Petitioner Stephen M. Lehman with Class A felony dealing 

in cocaine and Class A felony dealing in a schedule I, II, or III controlled 

substance. The State also alleged that Lehman was a habitual offender. 

Lehman was found guilty of the two Class A felony counts following a jury 

trial. Lehman thereafter pled guilty to the habitual offender allegation. He was 

later sentenced to an aggregate term of forty-two years. On April 13, 2010, we 

affirmed Lehman’s convictions.

1

[2] Lehman subsequently filed a petition seeking post-conviction relief (“PCR”), 

arguing that he suffered ineffective assistance of trial counsel. Following a 

hearing on Lehman’s petition, the post-conviction court determined that 

Lehman had failed to establish that he had suffered ineffective assistance of trial 

counsel. On appeal, Lehman contends that he was denied a procedurally fair 

hearing on his PCR petition. Lehman also challenges the post-conviction 

court’s determination that he failed to establish that he suffered ineffective 

assistance of trial counsel. We affirm.

Facts and Procedural History

 

1

 Lehman did not challenge his sentence on appeal.
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[3] Our opinion in Lehman’s direct appeal, which was handed down on April 13, 

2010, instructs us to the underlying facts and procedural history leading to this 

post-conviction appeal:

In August of 2008, Huntington City Police Detective Michael 

Slagel (Detective Slagel) worked with Charles Howard 

(Howard), a confidential informant. On August 5, 2008, 

Howard contacted Detective Slagel to inform the detective that 

he had a deal set up. Detective Slagel contacted other officers to 

help with the transaction and they all met with Howard at a 

predetermined meeting place. At the meeting place, Detective 

Slagel searched Howard and his vehicle and placed an electronic 

device on him. He also handed Howard $200 to purchase drugs.

Howard, followed by the officers, traveled to 626 Court Street in 

Huntington, Indiana. The officers saw Howard pull into the 

alley at the residence and then lost visual contact. However, 

Detective Slagel was able to hear the transaction on the audio 

device and recognized both Howard and Lehman’s voice. 

Detective Slagel heard Howard and Lehman talk about weighing 

out different amounts of cocaine, and discuss a “ball,” “powder,” 

and “doing a line.” (Transcript p. 263). Huntington City Police 

Detective Cory Boxell (Detective Boxell), who also monitored 

the transaction through the audio device, heard Lehman talk 

about his upcoming appointment with his probation officer. 

When the transaction was complete, Howard left the residence 

and drove to the meeting place while being followed by the 

officers. At the meeting place, Howard handed Detective Slagel 

a clear plastic bag containing a white powdery substance. This 

substance tested positive for cocaine.

On August 20, 2008, Detective Slagel received another call from 

Howard about setting up another deal with Lehman. Again, a 

meeting was set up at a predetermined place where Howard was 

searched. He was fitted with an electronic listening device and 
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given money to buy drugs. Howard and the officers drove to 

Lehman’s residence in separate vehicles. Howard pulled into the 

alley and Huntington City Police Detective Chad Hacker 

(Detective Hacker)[2]saw Lehman walk up to Howard’s vehicle.

Detective Slagel and Officer Boxell, who were monitoring the 

audio device, heard Howard talk to Lehman about twenty

milligram pills and thirty milligram pills. When the transaction 

was completed, Howard returned to the meeting place with the 

officers in tow and gave Detective Slagel a clear plastic bag with 

ten orange twenty-milligram Adderall capsules. In the fall of 

2008, Howard died of a drug overdose.

On April 2, 2009, the State charged Lehman with Count I, 

dealing in cocaine, a Class A felony, I.C. § 35-48-4-1; and Count 

II, dealing in a schedule I, II, or III controlled substance, a Class 

A felony, I.C. § 35-48-4-2. The next day, the State amended this 

charging information by adding an habitual substance offender 

Count, I.C. § 35-50-2-10. On July 9 and 10, 2009, a jury trial was 

conducted. At the close of the evidence, the jury returned a 

guilty verdict on Counts I and II. Thereafter, Lehman pled guilty 

to the habitual substance offender charge. On August 11, 2009, 

during the sentencing hearing, the trial court sentenced Lehman 

to concurrent sentences of thirty-six years each on Counts I and 

II, and enhanced the sentence on Count I by six years because of 

the habitual substance adjudication. Lehman’s aggregate 

sentence amounted to forty-two years.

Lehman v. State, 926 N.E.2d 35, 36-37 (Ind. Ct. App. 2010), trans. denied. 

Lehman challenged his convictions on appeal, arguing that the trial court 

 

2

 At some point between August 20, 2008, and the date of the post-conviction hearing, Detective Hacker was 

promoted to Chief of Police. He will therefore be referred to as “Chief Hacker” throughout the remainder of 

this memorandum decision. 
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abused its discretion by admitting certain evidence during trial. We affirmed 

Lehman’s convictions.

[4] On June 15, 2011, Lehman filed a pro-se PCR petition. Lehman, by counsel, 

filed an amended PCR petition on May 15, 2015. In this amended petition, 

Lehman claimed that he received ineffective assistance from his trial counsel, 

Scott Harter (“Attorney Harter”). The post-conviction court held a three-day 

hearing June 21, June 23, and September 20, 2016, at which Lehman 

represented himself. On October 27, 2016, the post-conviction court issued an 

order denying Lehman’s PCR petition. This appeal follows.

Discussion and Decision

[5] Post-conviction procedures do not afford the petitioner with a super-appeal. 

Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a 

narrow remedy for subsequent collateral challenges to convictions, challenges 

which must be based on grounds enumerated in the post-conviction rules. Id. 

A petitioner who has been denied PCR appeals from a negative judgment and 

as a result, faces a rigorous standard of review on appeal. Dewitt v. State, 755 

N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942 (Ind. Ct. App. 

1999), trans. denied. 

[6] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 

745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his 

claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); 
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Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, 

a petitioner must convince this court that the evidence, taken as a whole, “leads 

unmistakably to a conclusion opposite that reached by the post-conviction 

court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without 

conflict and leads to but one conclusion, and the post-conviction court has 

reached the opposite conclusion, that its decision will be disturbed as contrary 

to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. 

The post-conviction court is the sole judge of the weight of the evidence and the 

credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). 

We therefore accept the post-conviction court’s findings of fact unless they are 

clearly erroneous but give no deference to its conclusions of law. Id.

I. Procedurally Fair Hearing on PCR Petition

[7] In arguing that he was denied a procedurally fair hearing on his PCR petition, 

Lehman appears to claim that he was not permitted to present newly-discovered 

evidence which he believed would necessitate a new trial. 

“[N]ew evidence will mandate a new trial only when the 

defendant demonstrates that: (1) the evidence has been 

discovered since the trial; (2) it is material and relevant; (3) it is 

not cumulative; (4) it is not merely impeaching; (5) it is not 

privileged or incompetent; (6) due diligence was used to discover 

it in time for trial; (7) the evidence is worthy of credit; (8) it can 

be produced upon a retrial of the case; and (9) it will probably 

produce a different result at retrial.” Taylor v. State, 840 N.E.2d 

324, 329-30 (Ind. 2006) (quoting Carter v. State, 738 N.E.2d 665, 

671 (Ind. 2000)). “This Court analyzes these nine factors with 

care, as the basis for newly discovered evidence should be 
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received with great caution and the alleged new evidence 

carefully scrutinized.” Id. at 330 (internal quotations omitted). 

The burden of showing that all nine requirements are met rests 

with the petitioner for post-conviction relief. Webster v. State, 699 

N.E.2d 266, 269 (Ind. 1998).

Kubsch v. State, 934 N.E.2d 1138, 1145 (Ind. 2010).

[8] Review of the record reveals that Lehman’s purpose for calling Chief Hacker to 

testify during the post-conviction hearing was to impeach Chief Hacker’s trial 

testimony. During the post-conviction hearing, Lehman called his brother, 

Scott Thornsberry, as a witness. Lehman sought to elicit testimony from 

Thornsberry indicating that he had conducted his own investigation and had 

concluded that Chief Hacker’s trial testimony indicating that he was able to 

identify Lehman from a distance on the date of the second controlled buy could 

not have been truthful. Chief Hacker testified in detail at trial about his 

involvement in the controlled buys and was thoroughly cross-examined by 

Attorney Harter. During the post-conviction hearing, Lehman merely 

attempted to impeach Chief Hacker’s trial testimony by re-asking Chief Hacker 

some of the same questions as he was asked during trial. The post-conviction 

court granted Lehman significant leeway in questioning Chief Hacker before 

concluding Lehman’s line of questioning. Upon review, we conclude that 

Lehman has failed to establish that all nine requirements set forth in Kubsch

were met or that he was denied a procedurally fair hearing. 
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II. Ineffective Assistance of Trial Counsel

[9] The right to effective counsel is rooted in the Sixth Amendment to the United 

States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The 

Sixth Amendment recognizes the right to the assistance of counsel because it 

envisions counsel’s playing a role that is critical to the ability of the adversarial 

system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S. 

668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness 

must be whether counsel’s conduct so undermined the proper function of the 

adversarial process that the trial court cannot be relied on as having produced a 

just result.” Strickland, 466 U.S. at 686.

[10] A successful claim for ineffective assistance of counsel must satisfy two 

components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first 

prong, the petitioner must establish that counsel’s performance was deficient by 

demonstrating that counsel’s representation “fell below an objective standard of 

reasonableness, committing errors so serious that the defendant did not have 

the ‘counsel’ guaranteed by the Sixth Amendment.” Id. We recognize that 

even the finest, most experienced criminal defense attorneys may not agree on 

the ideal strategy or most effective way to represent a client, and therefore, 

under this prong, we will assume that counsel performed adequately and defer 

to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 

(Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of 

bad judgment do not necessarily render representation ineffective. Id. 
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[11] Under the second prong, the petitioner must show that the deficient 

performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner 

may show prejudice by demonstrating that there is “a reasonable probability 

(i.e. a probability sufficient to undermine confidence in the outcome) that, but 

for counsel’s errors, the result of the proceeding would have been different.” Id. 

A petitioner’s failure to satisfy either prong will cause the ineffective assistance 

of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently, 

“[a]lthough the two parts of the Strickland test are separate inquires, a claim 

may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 

(Ind. 2006) (citing Williams, 706 N.E.2d at 154).

[12] Lehman complains that Attorney Harter provided ineffective assistance by: (A) 

depriving him of representation free from conflict, (B) failing to conduct an 

investigation into the sufficiency of the State’s evidence, (C) failing to challenge 

the sufficiency of the probable cause affidavit or arrest warrant, (D) failing to 

investigate a potential alibi defense, and (E) failing to call certain potential 

witnesses at trial. We will discuss each in turn.

A. Whether Attorney Harter Provided Ineffective Assistance 

by Failing to Provide Lehman with Representation Free from 

Conflict

[13] Lehman asserts that Attorney Harter provided ineffective assistance by failing 

to provide him with representation free from conflict. In support of this 

argument, Lehman asserts that prior to trial, he and Attorney Harter 

experienced a breakdown of the attorney-client relationship. The breakdown 
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stemmed from Lehman’s belief that Attorney Harter had failed to inform him 

of Howard’s death in a timely fashion. However, Attorney Harter testified 

during the post-conviction hearing that although there was a temporary 

breakdown of the attorney-client relationship, the relationship was subsequently 

mended to the point where Attorney Harter was able to work with Lehman to 

effectively prepare for trial. 

[14] Lehman points to nothing in the trial record which would even suggest that 

Attorney Harter did not zealously represent Lehman at trial. Likewise, 

Lehman has failed to establish that there is a reasonable probability that, but for 

this temporary pre-trial breakdown of the attorney-client relationship, the result 

of Lehman’s trial would have been different. As such, Lehman has failed to 

prove that he was prejudiced by the temporary pre-trial breakdown of his 

relationship with Attorney Harter. See Reed, 866 N.E.2d at 769.

B. Whether Attorney Harter Provided Ineffective Assistance 

by Failing to Conduct an Investigation into the Sufficiency of 

the State’s Evidence

[15] Lehman asserts that Attorney Harter provided ineffective assistance by failing 

to conduct an adequate investigation into the sufficiency of the State’s evidence. 

Specifically, Lehman asserts that Attorney Harter failed to adequately 

investigate whether the State’s evidence sufficiently outlined the procedures 

utilized by police during the controlled buys. Lehman also asserts that 

Attorney Harter failed to adequately investigate the sufficiency of the State’s 

evidence to prove that he committed his acts within 1000 feet of a public park 
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or that each of the controlled buys involved the sale of more than three grams of 

drugs.

1. Evidence Relating to the Procedures Followed in Conducting the Controlled 

Buys

[16] We have long outlined the proper procedures for conducting a controlled buy as 

follows:

A controlled buy consists of searching the person who is to act as 

the buyer, removing all personal effects, giving him money with 

which to make the purchase, and then sending him into the 

residence in question. Upon his return he is again searched for 

contraband. Except for what actually transpires within the 

residence, the entire transaction takes place under the direct 

observation of the police. They ascertain that the buyer goes 

directly to the residence and returns directly, and they closely 

watch all entrances to the residence throughout the transaction.

Mills v. State, 177 Ind. App. 432, 434, 379 N.E.2d 1023, 1026 (1978).

[17] The facts of this case demonstrate that despite Lehman’s assertion to the 

contrary, the police officers followed the procedure set forth in Mills when 

conducting the controlled buys. After being searched, Howard was under either 

direct visual or audio supervision by the officers involved. Attorney Harter 

thoroughly cross-examined the officers about their observations and the 

procedures employed. Lehman does not explain what more Attorney Harter 

could have reasonably done to challenge the State’s evidence. As such, 

Lehman has failed to establish either that Attorney Harter’s actions in this 
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regard fell below an objective standard of reasonableness or that he was 

prejudiced by Attorney Harter’s actions.

2. Evidence Relating to Distance from Public Park

[18] Lehman asserts that Attorney Harter provided ineffective assistance by failing 

to complete an independent investigation into whether Lehman’s criminal acts 

occurred within 1000 feet of a public park. At trial, the parties stipulated that 

Lehman’s residence was within 1000 feet of Yeoman Park. A map created by 

the Huntington County Surveyor’s Office prior to trial clearly demonstrated 

that both the entire residence located at 626 Court Street and the alley behind 

the residence are located within 1000 feet of Yeoman Park. 

[19] Lehman seems to base his assertion that Attorney Harter provided ineffective 

assistance on the fact that it was never revealed in which room in the residence 

that the first controlled buy occurred in. However, it is important to note that 

what room of the residence that the controlled buy actually occurred in is 

irrelevant as the entire residence is located within 1000 feet of the park. The 

second controlled buy occurred in the alley behind the residence, which is also 

located within 1000 feet of the park.

[20] Lehman has failed to show what more Attorney Harter could have done, short 

of hiring an independent surveyor to measure the distance, to investigate the 

distance from the residence to the park. Such approach, however, hardly seems 

reasonable given the fact that the survey was completed by an uninterested 

entity and the record is completely devoid of any suggestion that the survey is 
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inaccurate. Because Lehman has failed to point to any evidence suggesting that 

the survey stipulated to by the parties was inaccurate or that there is any 

question as to whether the residence in question is located within 1000 feet of 

Yeoman Park, Lehman has failed to prove that he suffered any prejudice in this 

regard.3

[21] Furthermore, despite Lehman’s assertion to the contrary, we are unpersuaded 

that Attorney Harter provided ineffective assistance by failing to raise certain 

unmeritorious defenses which related to the distance between the residence and 

the park. We disagree. 

[22] Lehman claims that Attorney Harter should have argued that he was only 

temporarily within the 1000-foot radius of the park. He also claims that 

Attorney Harter should have argued that there was no evidence that any 

children were present at the time the controlled buys occurred. The evidence at 

trial demonstrated that Lehman lived in the residence in question. The 

evidence at trial also demonstrated that Lehman’s residence, which again was 

within 1000 feet of the park, is surrounded by other residential buildings. As 

the State correctly notes, the likelihood of children being present in a residential 

area during the night hours is very high. Lehman has therefore failed to prove 

either that Attorney Harter performed below the accepted professional norm or 

 

3

 We note that Lehman’s reliance on Doty v. State, 730 N.E.2d 175 (Ind. Ct. App. 2000), is unavailing 

because, unlike the instant matter, in Doty the State failed to prove that the entire home in which the criminal 

activity occurred was within 1000 feet of the school property.
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that he suffered any prejudice as a result of Attorney Harter’s representation. 

Additionally, because the parties stipulated that Lehman’s residence was within 

1000 feet of the park, Attorney Harter cannot be found to have provided 

ineffective assistance for failing to request that the trial court instruct the jury 

about how to determine whether Lehman’s residence was within 1000 feet of 

the park. 

3. Evidence Relating to Amount of Drugs Sold

[23] At trial, Attorney Harter stipulated to the admissibility of the certificates of 

analysis which showed the weight of the drugs Howard received from Lehman 

during the controlled buys. The certificates demonstrated that the weight of the 

drugs from the first controlled buy was 3.47 grams and the weight of the drugs 

from the second controlled buy was 3.12 grams. The decision to stipulate to the 

admissibility of the certificates was a tactical decision which we will not second 

guess. See Smith, 765 N.E.2d at 585. Further, nothing in the record even 

suggests that Attorney Harter’s decision in this regard fell below an objective 

standard of reasonableness. In addition, Lehman has presented no evidence 

indicating that the findings documented in the certificates were inaccurate or 

that an independent investigation would have generated different results. 

Lehman, therefore, has failed to prove that he suffered prejudice by Attorney 

Harter’s stipulation to the admissibility of the certificates.
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C. Whether Attorney Harter Provided Ineffective Assistance 

by Failing to Challenge the Sufficiency of the Probable Cause 

Affidavit and Arrest Warrant

[24] Lehman also asserts that Attorney Harter provided ineffective assistance by 

failing to challenge the sufficiency of the probable cause affidavit and arrest 

warrant. In making this assertion, Lehman claims that the affidavit for 

probable cause “lacked the sufficiency of evidence required to determine 

whether the magistrate had a ‘substantial basis’ for concluding that probable 

cause existed and [trial] counsel failed to investigate the minimum information 

necessary to establish probable cause.” Appellant’s Br. p. 42. Specifically, 

Lehman argues that Attorney Harter erred by relying on the facts set forth by 

the State and failing to conduct an independent investigation into whether (1) 

Howard was a reliable witness and (2) the controlled buys actually occurred. In 

support, Lehman relies on this court’s opinion in Helton v. State, 886 N.E.2d 107 

(Ind. 2008), in which the court concluded that trial counsel provided ineffective 

assistance by failing to file a pre-trial motion to suppress evidence which was 

obtained pursuant to an allegedly inadequate search warrant. Lehman’s 

reliance on this opinion is misplaced, however, because the Indiana Supreme 

Court subsequently vacated and overruled the opinion. See Helton v. State, 907 

N.E.2d 1020 (Ind. 2009).

[25] Furthermore, it is important to note that unlike in Helton, the State did not 

discover any additional evidence as a result of the allegedly inadequate probable 

cause affidavit or arrest warrant. 
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The illegality of the arrest, if in fact it was illegal, is of 

consequence at this stage of the proceedings, only if it is 

determined that evidence was obtained in consequence thereof 

and admitted at the trial. Layton v. State (1968), 251 Ind. 205, 

209, 240 N.E.2d 489, 491; Farmer v. State (1971), Ind., 275 

N.E.2d 783, 785. An illegal arrest does not destroy [a] valid 

conviction. Wells v. State (1971), 256 Ind. 161, 267 N.E.2d 371, 

373; and does not amount to a denial of due process. Dickens v. 

State (1970), 254 Ind. 388, 260 N.E.2d 578, 579.

Williams v. State, 261 Ind. 385, 386-87, 304 N.E.2d 311, 313 (1973). In this 

case, Lehman’s guilt was not established by the probable cause affidavit or 

arrest warrant alone. Rather, he was convicted following a jury trial during 

which Attorney Harter thoroughly cross-examined the witnesses. The jury, 

acting in its position as the trier-of-fact, had the opportunity to assess the 

credibility of the State’s witnesses and the weight of the State’s evidence. Upon 

review, we conclude that Lehman has failed to establish either that Attorney 

Harter’s actions in this regard fell below an objective standard of reasonableness 

or that he was prejudiced by Attorney Harter’s actions.4

 

4

 To the extent that Lehman’s challenge can be interpreted as a challenge to the sufficiency of the evidence to 

sustain his convictions, we note that any such challenge has been waived because it was known and available 

but not raised on direct appeal. See Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001) (providing that “[i]f 

an issue was known and available, but not raised on direct appeal, it is waived”).
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D. Whether Attorney Harter Provided Ineffective Assistance 

by Failing to Investigate a Potential Alibi Defense

[26] Lehman asserts that Attorney Harter provided ineffective assistance by failing 

to investigate a potential alibi defense. Specifically, Lehman argues that 

Attorney Harter should have presented the alibi defense that he was working at 

the time of the August 5, 2008 controlled buy. Attorney Harter testified during 

the post-conviction hearing, however, that he contacted Lehman’s thenemployer prior to trial and was unable to confirm that Lehman was working at 

the time of the August 5, 2008 controlled buy. Attorney Harter indicated that 

he could not “think of anything else that [he] could have done to investigate 

[the potential] alibi” because he “just could not place him there at the time.” 

PCR Tr. Vol. III, p. 110. Attorney Harter’s testimony indicates that he did, in 

fact, investigate the potential alibi defense presented by Lehman. As such, 

Attorney Harter cannot be found to have provided ineffective assistance for 

allegedly failing to do so.

E. Whether Attorney Harter Provided Ineffective Assistance 

by Failing to Call Certain Potential Witnesses at Trial

[27] Lehman last asserts that Attorney Harter provided ineffective assistance by 

failing to call certain potential witnesses at trial. Specifically, Lehman claims 

that these potential witnesses could have called his identity as the individual 

who sold drugs to Howard into question.

[28] Lehman claims that had Attorney Harter called his brother, i.e., Thornburg, as 

a witness at trial, Thornburg would have testified that he did not believe Chief 
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Hacker could have identified Lehman during the second controlled buy. 

Lehman also claims that had Attorney Harter called his then-roommate, Dustin 

Johnson, as a witness at trial, Johnson would have testified that he and Lehman 

had agreed that there were to be no drugs in their residence because they were 

both on probation and that he never saw Lehman in possession of drugs. 

Lehman’s mother, Sue, would have testified as to her familiarity with Lehman’s 

voice and whether she believed the voice on the recordings belonged to 

Lehman. Lehman’s ex-girlfriend, Jessica Lautzenhiser, would have testified 

that she saw Howard speak to an individual named Joshua Karst on August 5, 

2008. However, it is worth noting that Lehman does not present any evidence 

indicating that Lautzenhiser would have testified that Howard did not also 

meet with Lehman on that date.

[29] As Lehman’s trial counsel, it was appropriate for Attorney Harter to make the 

tactical decision whether to call each of the above-mentioned individuals to 

testify during trial. It seems reasonable that Attorney Harter could have 

determined that, given the strength of the State’s case, these individuals would 

not have made credible witnesses or would only have been able to speculate, 

rather than testify to any specific facts. As we stated above, we will defer to 

Attorney Harter’s strategic and tactical decisions. See Smith, 765 N.E.2d at 585. 

Lehman, therefore, has failed to establish that Attorney Harter provided 

deficient performance in this regard.

Conclusion
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[30] In sum, we conclude that Lehman has failed to prove that the post-conviction 

court erroneously denied his PCR petition. Accordingly, we affirm the 

judgment of the post-conviction court.

[31] The judgment of the post-conviction court is affirmed. 

May, J., and Barnes, J., concur.