Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018 Page 1 of 21

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

Steven H. Schutte

Deputy Public Defender

Indianapolis, Indiana 

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana 

Ian McLean

Supervising Deputy Attorney 

General 

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Jonathan McPherson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

February 12, 2018

Court of Appeals Case No.

20A03-1706-PC-1326

Appeal from the

Elkhart Superior Court

The Honorable 

Teresa L. Cataldo, Judge

Trial Court Cause No.

20D03-1508-PC-34

Kirsch, Judge.
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[1] Jonathan McPherson1(“McPherson”) was convicted, following a jury trial, 

under a now-repealed law, of two counts of Class A felony dealing in cocaine.

2

He also was convicted of Class D felony maintaining a common nuisance3 and 

Class B felony unlawful possession of a firearm by a serious violent felon

(“SVF”),

4 and he was found to be a habitual offender.5 The trial court 

sentenced McPherson to ninety-three years. On direct appeal, this court 

affirmed McPherson’s convictions, but reduced his sentence to seventy-five 

years, finding that the sentences for being a habitual offender and possessing a 

firearm as a SVF constituted an impermissible double enhancement because 

they relied on the same predicate felony conviction. McPherson v. State, No. 

20A04-1409-CR-428, 32 N.E.3d 284, at *4 (Ind. Ct. App. Apr. 28, 2015). 

McPherson filed a petition for post-conviction relief, which the post-conviction 

court denied. McPherson now appeals, raising the following restated issues:

 

1 The record before us reveals Petitioner’s name also spelled as “Jonathon” and shows a middle initial of 

“G.” State’s Ex. 201.

2

See Ind. Code § 35-48-4-1(b)(3)(iv) (2012). McPherson was convicted of two counts of dealing cocaine, each 

of which was elevated from a Class B felony to a Class A felony because the crimes were committed within 

1,000 feet of a youth program center. Indiana Code section 35-48-4-1 was amended in 2013, effective July 1, 

2014, to remove the enhancement of dealing within 1,000 feet of a youth program center. See Pub. Law 158-

2013, § 622. McPherson, however, was charged under the statute that existed at the time he committed the 

offenses.

3

See Ind. Code § 35-48-4-13(b)(2) (2011). 

4

See Ind. Code § 35-47-4-5(c) (2011).

5

See Ind. Code § 35-50-2-8(a) (2011).
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I. Whether the post-conviction court clearly erred when it found 

that McPherson did not prove that trial counsel was ineffective; 

and

II. Whether the post-conviction court clearly erred when it found

that McPherson did not prove that appellate counsel was 

ineffective.

[2] We affirm.

Facts and Procedural History6

[3] The facts of McPherson’s offenses are summarized by this court’s decision on 

direct appeal as follows:

On May 16 and May 18, 2012, McPherson sold cocaine to 

different confidential informants working with the Elkhart Police 

Department. McPherson conducted both sales at his house, 412 

Brady Street, in Elkhart. Directly across the street from 

McPherson’s house, located at 411 Brady Street, is “Cornerstone 

Ministries Boy’s and Girl’s Club.” The sign on the building 

reads:

Cornerstone Ministries Boy’s and Girl’s Club

By Sandy Ridge Mennonite Church

Meet Every Wednesday 5:30 p.m.

Ex. 9 (phone numbers omitted). Detective Tim Freel, who used 

to live in the neighborhood, explained that the Boys and Girls 

Club “would have different groups of children come in there; 

 

6 We will cite to the direct appeal using the letters “D.A.” and to the post-conviction proceedings with the 

letters “P-CR.”
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typically, on a Wednesday night they had a program called 

‘Wednesday Night Club.’” He added that children often played 

basketball outside at the Club. In addition, Detective Andrew 

Whitmyer, who participated in the surveillance of McPherson’s 

house on May 16, recalled seeing more children than usual at the 

Boys and Girls Club that day. He observed both “younger” and 

“older” kids playing and said that the activities appeared to be 

organized.

Elkhart police officers obtained and executed a search warrant 

for McPherson’s house on May 29. McPherson and his 

girlfriend were home at the time. The officers found two digital 

scales with powdery residue and baggies with cut-off corners. 

The officers also found a loaded .40 caliber semiautomatic pistol 

inside a purse, a box of .40 caliber ammunition in a tote, and a 

loaded magazine for the pistol inside the pocket of a red 

sweatshirt—all in the master bedroom that McPherson used.

Detective Freel read McPherson his Miranda rights and then 

began to question him. McPherson admitted to “selling drugs 

from the house,” “admitted to a firearm that was found inside the 

house,” knew that his house was directly across the street from 

the Boys and Girls Club, and admitted that the $804 in cash 

found on his person was “proceeds from drug sales.” Although 

no drugs were found during the search of McPherson’s house, 

McPherson explained that he “was currently out of drugs and 

that he was planning to . . . re-up, or purchase more drugs, so 

that he could sell those drugs later on that afternoon.” Finally, 

McPherson admitted that he had a prior felony conviction for 

dealing in cocaine and that as a result of that felony conviction, 

he could not possess a firearm.

The State charged McPherson with two counts of Class A felony 

dealing in cocaine (within 1,000 feet of youth program center) for 

the controlled buys on May 16 and 18, 2012; Class D felony 

maintaining a common nuisance for drug activities at his house 
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on or between May 16 and 29; and Class B felony unlawful 

possession of a firearm by a SVF for the firearm found during the 

May 29 search of his house. The State alleged that McPherson 

was a SVF as a result of his 1997 conviction in Elkhart County 

for Class B felony dealing in cocaine. The State also alleged that 

McPherson was a habitual offender. For the two prior unrelated 

felony convictions, the State used McPherson’s 1997 dealing-incocaine conviction as well as McPherson’s 2008 conviction in 

Elkhart County for criminal recklessness resulting in serious 

bodily injury.

McPherson’s jury trial was conducted in three phases. During 

the first phase, the jury found McPherson guilty of both dealing 

counts and maintaining a common nuisance. During the second 

phase, the jury found McPherson guilty of unlawful possession of 

a firearm by a SVF. During the third and final phase, the jury 

found that McPherson was a habitual offender.

McPherson, 32 N.E.3d 284, at *1-3 (footnotes omitted) (internal citations 

omitted). The trial court sentenced McPherson to an aggregate term of ninetythree years executed. McPherson was represented at trial by attorney Matthew 

Johnson (“trial counsel” or “Johnson”), an Elkhart County Public Defender. 

[4] On direct appeal, McPherson was represented by attorney Elizabeth Bellin 

(“appellate counsel” or “Bellin”), who raised several issues, including:7 

 

7 We have paraphrased the language of the issues presented on direct appeal. 
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(1) The habitual offender enhancement and SVF conviction 

constituted an impermissible double jeopardy enhancement 

because they relied on the same predicate felony conviction;

(2) The evidence was insufficient to prove that the “Cornerstone 

Ministries Boy’s and Girl’s Club” (“Boys and Girls Club”) was a 

youth program center, as was required to enhance the dealing 

offense from a Class B felony to a Class A felony; and

(3) The evidence was insufficient to prove that he had two prior 

unrelated felonies to support the habitual offender enhancement. 

P-CR Appellant’s App. Vol. II at 45-46. A panel of this court found sufficient 

evidence to affirm McPherson’s convictions, but agreed with McPherson that 

the trial court had erred in sentencing. We remanded the case to the trial court 

with instructions to run McPherson’s sentence for unlawful possession of a 

firearm by a SVF and his habitual offender enhancement concurrently, resulting 

in an aggregate sentence of seventy-five years. McPherson, 32 N.E.3d 284, at *4. 

[5] On October 25, 2016, McPherson filed a petition for post-conviction relief 

raising two issues. First, McPherson argued that his trial counsel was 

ineffective for not proceeding with the theory that the enhancement under the 

dealing cocaine statute—i.e., selling cocaine within 1,000 feet of a youth 

program center—was unconstitutionally vague, and that McPherson was 

prejudiced by trial counsel’s failure to raise that issue. P-CR Appellant’s App. Vol. 

II at 47. Second, McPherson argued that his appellate counsel was ineffective 

for not arguing that the statute under which McPherson was convicted was 

unconstitutionally vague, which again caused him prejudice. Id. at 51.
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[6] On January 3, 2017, the post-conviction court held an evidentiary hearing on 

McPherson’s petition. Regarding trial counsel’s representation, Johnson 

testified that he remembered the enhancement that raised McPherson’s charges

of dealing cocaine from Class B felonies to Class A felonies as being whether 

the drug deal had occurred within 1,000 feet of “a youth program center.” PCR Tr. Vol. I at 7. Johnson could not recall whether he considered mounting a 

vagueness challenge to the “youth program center” enhancement. Id. at 8. 

Johnson did, however, describe to the post-conviction court the theory he 

pursued at trial as follows: 

Q. And I think you’ve already suggested your answer to this 

question, let me ask it specifically, do you remember what your 

thoughts were about whether there was a defense to the 

enhancement?

A. For the defense to the enhancement, what I -– what I 

attempted to do at trial was to show that this was more of a 

church and not youth program center, though kids went to the 

church and played basketball and such things, that it was not so 

much of a -– of a youth program center as a church. That was 

the defense that we attempted to put forward.

Q. More of a sufficiency claim then?

A. More of a sufficiency claim.

Id. at 8.

[7] Regarding the actions of appellate counsel, Bellin testified at the post-conviction 

hearing that, at the time of McPherson’s direct appeal, she was familiar with a 
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case, “Whatley v. State,” that challenged whether the enhancement of being 

within 1,000 feet of a youth program center was unconstitutionally vague under 

the United States Constitution. Id. at 12. Bellin stated that, while this question 

of constitutionality was one of the issues she researched in early 2015, she did 

not raise that issue on direct appeal because “[i]n reviewing the transcript at 

trial, Mr. McPherson’s trial counsel did not object or file any sort of motion to

dismiss based on the constitutionality of the statute itself.” Id. at 12-13. 

[8] Bellin explained, 

If trial counsel fails to object at the time of trial and/or fails to 

raise that issue in a motion to dismiss, as everyone practices 

regularly is aware of that, when you go to challenge a statute, 

specifically, you need to challenge that in a motion to dismiss. 

That would be a separate filing and would accompany a

memorandum; a separate hearing would have to be held . . . 

separate from the trial itself, and the court would have to make a 

ruling on that motion to dismiss prior to trial. That was never 

done at the trial level. The fact that his trial counsel did not do 

that at the trial level constitutes a waiver for purposes of a direct

appeal. 

Id. at 13. Bellin testified that she spoke with trial counsel and, “based on the 

evidence that was presented in the trial,” “we were looking at sufficiency.” Id. 

“[A]t no point was the vagueness brought up as a potential issue on appeal.” 

Id. Bellin noted, “At the time of Mr. McPherson’s appeal, the law for which he 

was convicted of was a valid law.” Id. at 16. Bellin also believed that a 

vagueness challenge would not be successful because a motion to dismiss had 

not been filed by trial counsel. P-CR Tr. at 13. The post-conviction court found 
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that trial counsel and appellate counsel were not deficient in their legal 

representation and denied McPherson’s petition for post-conviction relief. 

McPherson now appeals.

Discussion and Decision

[9] On appeal, McPherson contends that his trial counsel and appellate counsel 

provided ineffective assistance of counsel, and therefore, the post-conviction 

court erred by not granting him the relief of vacating his two convictions for 

Class A felony dealing and entering judgment and sentence on those 

convictions as Class B felonies. Specifically, he contends that trial counsel and 

appellate counsel should have argued, that the youth program center 

enhancement was unconstitutionally vague. 

[10] Post-conviction proceedings do not afford the petitioner an opportunity for a 

super appeal. Newton v. State, 83 N.E.3d 726, 732 (Ind. Ct. App. 2017). Rather, 

post-conviction proceedings provide the petitioner an opportunity to raise issues 

that were unknown or unavailable at the time of the original trial or the direct 

appeal. Id. The proceedings do not substitute for a direct appeal and provide 

only a narrow remedy for subsequent collateral challenges to convictions. Id

“The petitioner in a post-conviction proceeding bears the burden 

of establishing grounds for relief by a preponderance of the 

evidence.” Humphrey v. State, 73 N.E.3d 677, 681 (Ind. 2017). 

“When appealing the denial of post-conviction relief, the 

petitioner stands in the position of one appealing from a negative 

judgment.” Id. To prevail on appeal from the denial of postconviction relief, the petitioner must show the evidence leads 

“unerringly and unmistakably to a conclusion opposite that 
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reached by the post-conviction court.” Id. We do not defer to 

the post-conviction court’s legal conclusions, but “a postconviction court’s findings and judgment will be reversed only 

upon a showing of clear error—that which leaves us with a 

definite and firm conviction that a mistake has been made.” Id.

at 682.

Newton, 83 N.E.3d at 732. 

I. Trial Counsel

[11] McPherson contends that he was sentenced under the unconstitutional youth 

program center enhancement, and therefore, the post-conviction court erred in 

concluding that “[he] should continue to serve the enhanced sentence despite 

that fact.” Appellant’s Br. at 5. McPherson asserts, “Because the post-conviction 

court’s legal conclusion is erroneous, the lower court’s ruling should be 

reversed.” Id. The issue before us, however, is not whether the sentencing 

enhancement should apply. Instead, we must decide whether the postconviction court erred in finding that (1) trial counsel was not ineffective for not 

arguing that the enhancement was unconstitutionally vague, and (2)

McPherson was not prejudiced by trial counsel’s failure to raise a vagueness 

claim. 

[12] To prevail on a claim of ineffective assistance of trial counsel, a petitioner must 

prove that (1) his or her counsel’s performance was deficient, i.e., counsel made 

errors so serious that counsel was not functioning as the “counsel” guaranteed 

to defendant by the Sixth and Fourteenth Amendments, and (2) petitioner was 

prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 
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687 (1984); Black v. State, 54 N.E.3d 414, 424 (Ind. Ct. App. 2016), trans. denied. 

Counsel’s performance is deficient if it falls below an objective standard of 

reasonableness based on prevailing professional norms. Black, 54 N.E.3d at 

424. To meet the appropriate test for prejudice, the petitioner must show that 

there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. Id. “A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.” 

Id. “Moreover, because a petitioner must prove both deficient performance and 

prejudice in order to succeed, the failure to prove either element defeats the 

claim.” Myers v. State, 33 N.E.3d 1077, 1089 (Ind. Ct. App. 2015), trans. denied.

[13] “When considering a claim of ineffective assistance of counsel, a ‘strong 

presumption arises that counsel rendered adequate assistance and made all 

significant decisions in the exercise of reasonable professional judgment’”; a 

defendant must offer strong and convincing evidence to overcome this 

presumption. Black, 54 N.E.3d at 424-25 (quoting Morgan v. State, 755 N.E.2d 

1070, 1073 (Ind. 2001)). Evidence of isolated poor strategy, inexperience, or 

bad tactics will not support a claim of ineffective assistance of counsel. Id. The 

post-conviction court must assess trial counsel’s decisions objectively, in view of 

what a “reasonably competent attorney” could have chosen to do or not do 

under the circumstances. Harrington v. Richter, 562 U.S. 86, 110 (2011). 

“Representation is constitutionally ineffective only if it ‘so undermined the 

proper functioning of the adversarial process’ that the defendant was denied a 

fair trial.” Id. (quoting Strickland,466 U.S. at 686). “Just as there is no 
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expectation that competent counsel will be a flawless strategist or tactician, an 

attorney may not be faulted for a reasonable miscalculation or lack of foresight 

or for failing to prepare for what appear to be remote possibilities.” Id. 

[14] To support his claim that trial counsel was ineffective for not raising the issue 

that the youth program center enhancement was unconstitutionally vague,

McPherson relies exclusively on Whatley v. Zatecky, 833 F.3d 762 (7th Cir. 

2016). Whatley was arrested at his father’s home on a warrant for an unrelated 

charge. Whatley, 833 F.3d at 765. The arresting officer discovered a bag 

containing just over three grams of cocaine in Whatley’s pocket. Id. At that 

time, possession of that amount of cocaine was a Class C felony, with a 

sentencing range of two to eight years. Id. Whatley’s crime was enhanced to a 

Class A felony after police found that Whatley’s father’s home was located 

approximately 795 feet from the Robinson Community Church (“Church”)—a 

venue that witnesses testified was a youth program center. A “youth program 

center” was defined as any “building or structure that on a regular basis provides 

recreational, vocational, academic, social, or other programs or services for 

persons less than eighteen (18) years of age.” Id. at 765 (quoting Ind. Code § 

35-41-1-29(a) (emphasis added) (2011)).

8

 Whatley was convicted of a Class A 

felony, in part, on evidence that included testimony of the Church’s pastor that, 

 

8 The definition of “youth program center” is now found in Indiana Code section 35-31.5-2-357(a) (2012). 

The recodification from section 35-41-1-29 to section 35-31.5-2-357 was effective on July 1, 2012. 
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in any given week, the church hosted a number of events targeted to persons 

under the age of eighteen. Id. at 765. 

[15] The Seventh Circuit reversed Whatley’s Class A felony conviction.9 The Court 

recognized that due process requires that a criminal statute give a person an 

opportunity to conform his conduct to the law, a requirement that applies with 

equal force to the conduct used to enhance a sentence. Whatley, 833 F.3d at 

784. Focusing on the enhancement’s requirement that programs and services 

must be provided on a “regular basis,” the Seventh Circuit concluded: 

The Indiana courts failed to narrow the statute by adding an 

intent element, by limiting application to the core cases of 

facilities such as YMCAs or Boys and Girls Clubs, or by 

providing any objective standard to the meaning of “regular.” 

There was no “reasonable basis for the state court to deny relief.” 

As applied to Whatley, the statute delegated to the police, the 

prosecutor and the jury the task of determining what conduct was 

proscribed. No one in Whatley’s position could have known that 

the Robinson Community Church would fall within the 

definition simply because it hosted a handful of children’s events 

each week and otherwise bore no indicia of the children’s 

activities within.

 

9 The Seventh Circuit held, “We therefore reverse and remand the judgment, with instructions to grant the 

writ of habeas corpus ordering that, within sixty days, Whatley either be released or that he be re-sentenced 

under the Class C felony statute. If he is re-sentenced, he must, of course, be given credit for the time he 

served under the Class A felony conviction.” Whatley v. Zatecky, 833 F.3d 762, 784-85 (7th Cir. 2016).
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Whatley, 833 F.3d at 784. Noting that a criminal law should not be so vague 

that “it fails to give ordinary people fair notice of the conduct it punishes, or so 

standardless that it invites arbitrary enforcement,” the Seventh Circuit held that 

the enhancement’s definition of “youth program center” was unconstitutional 

because it “forbade conduct in terms so vague that persons of ordinary 

intelligence must necessarily guess at the statute’s meaning and differ as to its 

application.” Whatley, 833 F.3d at 766, 782. In granting Whatley relief, the 

Seventh Circuit stated: “It is the particular language of the Indiana statute that 

is at issue here, and more importantly the unique circumstances of its 

application to Whatley." Id. at 782.

[16] The instant case is distinguishable from Whatley. Unlike Whatley, who may or 

may not have known there was a church that provided youth center programs

near his father’s home, here, the building in question was right across the street 

from McPherson’s home, a mere sixty-eight feet away.

10

 D.A. Tr. at 263. 

Printed on the building, in big black letters, were the words, “Cornerstone 

Ministries Boy’s and Girl’s Club, Meet Every Wednesday 5:30 p.m.” D.A. 

State’s Ex. 9. Detective Tim Freel, who himself lived in the subject 

neighborhood, testified at trial that the Boys and Girls Club “would have 

different groups of children come in there; typically, on a Wednesday night they 

had a program called ‘Wednesday Night Club.’” D.A. Tr. at 391. McPherson

 

10 The affidavit in support of McPherson’s warrantless arrest stated that the distance between the house and 

the Boys and Girls Club was approximately seventy-five feet. D.A. Appellant’s App. Vol. IV at 156.
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sold cocaine to a confidential informant on Wednesday, May 16, 2012. Id. at 

392. 

[17] Detective Freel also testified:

Mr. McPherson admitted to selling drugs from the house. Mr. 

McPherson admitted to a firearm that was found inside the 

house. Mr. McPherson acknowledged to me that he was aware 

that the house was directly across the street from the Boys and 

Girls Club, which was also connected to a city park. 

Id. at 382. Even if trial counsel had raised the issue that the enhancement was 

unconstitutionally vague as applied to the facts before the court, it would have 

been difficult for the trial court to conclude that as to McPherson, who admitted 

he lived across the street from the Boys and Girls Club, the enhancement 

forbade conduct in terms so vague that he had to guess whether the locale of his 

drug sales was within 1,000 feet of a building that qualified as a youth program 

center. 

[18] Moreover, McPherson committed his dealing offenses in May 2012 and was 

tried to a jury in June 2014. Whatley had challenged the constitutionality of the 

enhancement as applied to him prior to McPherson’s trial; however, in 2014, a 

resolution in favor of Whatley did not seem likely. At the time of McPherson’s 

trial, Whatley was serving a sentence imposed in 2008 for his conviction for 

possession of cocaine enhanced to a Class A felony because he possessed the 

cocaine within 1,000 feet of a youth program center. Our court, on direct 

appeal, finding that faith-based activities at the Church did not turn the Church 
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into a youth program center, reversed and remanded the case for entry of a 

conviction as a Class C felony and sentencing consistent with a Class C felony 

conviction. Whatley v. State, 906 N.E.2d 259, 263 (Ind. Ct. App. May 21, 

2009), trans. granted. On transfer, our Supreme Court held that the youth 

program center enhancement was not unconstitutionally vague as applied to 

Whatley and affirmed his Class A felony conviction. Whatley v. State, 928 

N.E.2d 202, 206 (Ind. 2010). Whatley’s motion for re-trial was dismissed as 

untimely on June 22, 2010, and our court affirmed the dismissal. Whatley v. 

State, 937 N.E.2d 1238, 1242 (Ind. Ct. App. 2010). The post-conviction court’s 

denial of Whatley’s petition for relief was affirmed in Whatley v. State, No. 

49A04-1110-PC-548, 969 N.E.2d 634 (Ind. Ct. App. June 21, 2012). Whatley’s 

petition for transfer was denied on October 11, 2012. The same month as 

McPherson’s trial in the present case, the federal district court denied Whatley’s

request for habeas corpus relief. Whatley v. Zatecky, 2014 WL 2511585, at *1 

(S.D. Ind. June 4, 2014). The enhancement was not found to be 

unconstitutionally vague until the Seventh Circuit handed down its decision on 

August 15, 2016, two years after McPherson’s trial. A finding of ineffective 

assistance of counsel requires consideration of only legal precedent available to 

counsel at the time of counsel’s representation of the accused. Sweeney v. State, 

886 N.E.2d 1, 8 (Ind. Ct. App. 2008), trans. denied, cert. denied, 555 U.S. 1003 

(2008). Given the facts before us, it was not professionally incompetent for trial 

counsel to forego a motion to dismiss on the basis that the enhancement was 

unconstitutionally vague.
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[19] Finally, the affidavit in support of McPherson’s “warrantless arrest” set forth 

that McPherson sold crack cocaine to the confidential informant at his home, 

which was approximately “75 feet from The Boys and Girls Club located at 411 

Brady Street, Elkhart, Indiana, which was having a social activity going with 

multiple children present during the controlled buy, and is also located 

approximately 200 Feet from a City of Elkhart Public Park known as The Tot 

Lot . . ..” D.A. Appellant’s App. Vol. IV at 156. McPherson admitted that he 

knew the Boys and Girls Club was connected to a city park. D.A. Tr. Vol. II at 

382. As the State notes, “Competent counsel would have been entitled to

consider the extent to which a motion to dismiss, even if it could have been 

persuasive, would have simply resulted in an amended information on equallyenhanced charges,” i.e., McPherson was dealing cocaine within 1,000 feet of a 

city park. Appellee’s Br. at 24 (citing Ind. Code § 35-38-4-1(b)(3)(B)(ii) (2011)). 

Based on this information, it would not have been professionally incompetent 

for McPherson to forego a motion to dismiss on the basis that the enhancement 

was unconstitutionally vague. Having found that trial counsel’s performance 

was not deficient, we need not reach the prejudice prong. Accordingly, we 

conclude that the post-conviction court did not err in finding that McPherson

did not receive ineffective assistance of trial counsel.

II. Appellate Counsel

[20] McPherson also contends that his appellate counsel provided ineffective 

assistance by failing to raise on direct appeal the issue that the youth program 

center enhancement was unconstitutionally vague. The standard of review for 
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a claim of ineffective assistance of appellate counsel is identical to the standard 

for trial counsel. Walker v. State, 988 N.E.2d 1181, 1190 (Ind. Ct. App. 2013)

(citing Lowery v. State, 640 N.E.2d 1031, 1048 (Ind. 1994), cert. denied, 512 U.S. 

992 (1995)), trans. denied. The petitioner must establish deficient performance 

by appellate counsel resulting in prejudice. Id. Ineffective assistance of 

appellate counsel claims generally fall into three basic categories: (1) denial of 

access to an appeal; (2) waiver of issues; and (3) failure to present issues well.

Henley v. State, 881 N.E.2d 639, 644 (Ind. 2008). 

[21] “‘[T]he decision of what issues to raise is one of the most important strategic 

decisions to be made by appellate counsel.’” Walker, 988 N.E.2d at 1190-91 

(citing Reed v. State, 856 N.E.2d 1189, 1196 (Ind. 2006)). For countless years, 

experienced advocates have “emphasized the importance of winnowing out 

weaker arguments on appeal and focusing on one central issue if possible, or at 

most a few key issues.” Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), cert. 

denied, 525 U.S. 1021 (1998) (citation and quotation marks omitted). “Thus, 

when reviewing these types of claims, we should be particularly deferential to 

appellate counsel’s strategic decision to exclude certain issues in favor of other 

issues more likely to result in a reversal.” Walker, 988 N.E.2d at 1191. As a 

result, “[i]neffective assistance is very rarely found in cases where a defendant 

asserts that appellate counsel failed to raise an issue on direct appeal.” Reed,

856 N.E.2d at 1196.

[22] McPherson contends that appellate counsel Bellin was ineffective by not 

challenging on direct appeal the constitutionality of the youth program center 
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018 Page 19 of 21

enhancement. During the post-conviction hearing, Bellin testified that, at the 

time of McPherson’s direct appeal, she was familiar with a case that raised the 

issue of whether the youth program center enhancement was unconstitutionally 

vague. P-CR Tr. Vol. I at 12. She said that she had examined constitutionality 

as one of the issues to raise in McPherson’s direct appeal; however, in 

reviewing the trial transcript, she found that trial counsel “did not object or file 

any sort of motion to dismiss based on the constitutionality of the statute itself.” 

Id. at 12-13. Bellin explained that, because trial counsel did not raise the 

constitutionality issue in a motion to dismiss, the issue was waived for direct 

appeal. Id. at 13. 

[23] The State and Bellin are correct, “Generally, the failure to file a proper motion 

to dismiss raising the Constitutional challenge waives the issue on appeal.” 

Pittman v. State, 45 N.E.3d 805, 815 (Ind. Ct. App. 2015) (citing Payne v. State, 

484 N.E.2d 16, 18 (Ind. 1985); see also Rhinehardt v. State, 477 N.E.2d 89, 93 

(Ind. 1985) (holding that defendant did not preserve claim that a statute was 

unconstitutionally vague where he did not raise the issue prior to trial by a 

timely and proper motion to dismiss)). However, in some cases, our court has

“considered challenges to the constitutionality of statutes even where the 

defendant failed to file a motion to dismiss.” Pittman, 45 N.E.3d at 815 (citing 

Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008). In evaluating 

whether appellate counsel performed deficiently by not raising the 

constitutionality issue on appeal, we apply the following test: (1) whether the 

unraised issue is significant and obvious from the face of the record and (2) 
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-PC-1326 | February 12, 2018 Page 20 of 21

whether the unraised issue is “clearly stronger” than the raised issues. Henley, 

881 N.E.2d at 645. 

[24] Here, Bellin had to decide which issues would be the most successful on direct 

appeal. After considering the various options, Bellin argued: (1) McPherson’s

habitual offender enhancement and SVF conviction were an impermissible 

double enhancement because they were based on the same prior felony; (2) the 

evidence was insufficient to prove that McPherson dealt cocaine within 1,000

feet of a youth program center; and (3) evidence is insufficient to support his 

habitual offender enhancement because the State did not prove that he was the 

one who committed the prior unrelated felonies. McPherson, 32 N.E.3d 284, at 

*1. Bellin succeeded in proving her first issue, and our court remanded the

case, ordering the trial court to “run McPherson's sentence for unlawful 

possession of a firearm by a SVF concurrently, resulting in a new aggregate 

sentence of seventy-five years.” Id. Here, Bellin researched the unraised issue 

of the enhancement’s constitutionality, even though that issue was not obvious 

from the face of the record. Further, because it was uncertain whether the 

appellate court would entertain the arguably waived issue of constitutionality, 

the issue of double enhancement was a stronger issue. In fact, Bellin reduced

McPherson’s sentence by eighteen years. Under these facts and circumstances, 

the decision of McPherson’s appellate counsel to not assert an appellate claim 

that the enhancement was unconstitutionally vague did not constitute 

ineffective assistance of appellate counsel. Having found that trial counsel’s 

performance was not deficient, we need not reach the prejudice prong. 
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Accordingly, we conclude that the post-conviction court did not err in finding 

that McPherson did not receive ineffective assistance of appellate counsel.

[25] The post-conviction court did not clearly err in rejecting McPherson’s claims of 

ineffective assistance of trial and appellate counsel. Accordingly, we affirm the 

judgment of the post-conviction court denying McPherson’s petition for postconviction relief.

[26] Affirmed.

[27] Bailey, J., and Pyle, J., concur.