Sharico Blakely v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Apr 02 2014, 8:50 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

LISA M. JOHNSON GREGORY F. ZOELLER
Brownsburg, Indiana Attorney General of Indiana

GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

SHARICO BLAKELY, )
)
Appellant-Petitioner, )
)
vs. ) No. 02A03-1308-PC-313
)
STATE OF INDIANA, )
)
Appellee-Respondent. )

APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Wendy W. Davis, Judge
Cause No. 02D04-1202-PC-20 (02D04-0609-FA-52)

April 2, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge
STATEMENT OF THE CASE

Sharico Blakely appeals the post-conviction court’s denial of his second amended

petition for post-conviction relief. Blakely raises two issues for our review:

1. Whether he received ineffective assistance of trial counsel.

2. Whether he received ineffective assistance of appellate counsel.

We affirm.

FACTS AND PROCEDURAL HISTORY

The facts underlying Blakely’s convictions for three counts of dealing in cocaine

and one count of possession of cocaine with intent to deliver, all as Class A felonies,

were set out in his direct appeal:

In May 2006, a confidential informant (“CI”) in Allen County, Indiana[,]
agreed to work with the police after drugs were recovered from his house.
The CI told police that he knew his supplier by the name of “Rico”
[Watson]. Tr. at 177. The CI gave police a general description of
Blakely’s build and vehicle, a maroon Oldsmobile.

The police had the CI contact Blakely through his cell phone
number[] to arrange for the purchase of an ounce of cocaine and to cover a
debt he owed from past deals. On May 3, 9, and 18, 2006, the police
searched the CI and his vehicle, the CI was given buy money by the police,
and he was briefed on how to execute the deals. On May 3, Blakely told
the CI to meet him at the Willow Creek Crossing Apartments. When the CI
arrived with Detective Jack Cain, he spotted Blakely and three others in a
Toyota. The CI exited his vehicle and walked over to Blakely and noticed
the female in Blakely’s vehicle was counting a substantial amount of cash.
The CI gave Blakely the buy money, and Blakely handed the CI a bag
containing “a big white piece of cocaine.” Tr. at 191. The CI returned to
Detective Cain, and the two returned to the Allen County Sheriff’s
Department where detectives searched the CI again. After the buy was
completed, Detective Stephen Haxby followed Blakely’s vehicle to a
duplex located in Pointe Center Cove. Laboratory tests confirmed that the
substance purchased by the CI was 25.87 grams of cocaine.

2
On May 9, 2006, the CI again arranged to purchase cocaine from
Blakely. Blakely, accompanied by the same three companions, was in his
maroon Oldsmobile. The CI purchased two separate bags of cocaine, and
the police undertook the same recovery procedure and confirmed that both
bags contained cocaine and that one bag weighed 22.75 grams, and the
other weighed 26.14 grams.

On May 18, 2006, the police met the CI to arrange for another
cocaine purchase. The police wired the CI and gave him cash to complete
the deal. The CI contacted Blakely to organize the purchase of a half-ounce
of cocaine and to pay the remainder due for the extra amount of cocaine the
CI received from Blakely during the previous deal. Blakely told the CI to
meet him at a gas station. This time, Blakely was in a blue minivan and
told the CI to get in the minivan. The CI gave Blakely the money, and
Blakely gave the CI the cocaine and told the CI that he would call him in
ten minutes. The police recovered the cocaine under the same procedure
and laboratory testing confirmed that the substance was 10.94 grams of
cocaine. The blue minivan returned to Pointe Center Cove. On May 22,
2006, Blakely was arrested and his vehicle and residence were searched.
The police recovered several cell phones, scales, a firearm, and more
cocaine, some of which was separated into small clear bags.

On September 26, 2006, Blakely was charged with four counts of
Class A felony dealing in cocaine, one count of Class D felony possession
of a controlled substance, and one count of Class D felony possession of
marijuana. On January 30, 2007, just prior to trial, the State dismissed the
Class D felony counts and amended the date of Count IV. Because the trial
court found the change to be of form and not substance, it accepted the
amendment over Blakely’s objection. Blakely’s case proceeded to trial,
and a jury found Blakely guilty on all counts. At sentencing, the trial court
found Blakely’s criminal history, probation revocations, and lack of
remorse were aggravating factors. The trial court sentenced Blakely to fifty
years executed for all four counts with Counts I through III running
concurrently[] and Count IV running consecutive[] to counts I through III[,]
for a total executed sentence of one hundred years.

Blakely v. State, No. 02A05-0704-CR-222, slip op. at *2-*4 (Ind. Ct. App. May 20,

2008) (“Blakely I”). A man named Rico Watson, who also generally fit the CI’s

description of the supplier, testified at Blakely’s trial that he was not involved in any of

the CI’s drug transactions. In particular, Watson testified that he did not know anyone in

3
Fort Wayne and that he did not fit the CI’s description of “Rico” because he had been

bald his whole life.

On direct appeal, Blakely argued that the evidence was insufficient to support his

convictions and that his sentence was inappropriate in light of the nature of the offenses

and his character. We affirmed his convictions but found his one-hundred-year sentence

inappropriate under Appellate Rule 7(B). We revised the sentence to “thirty years on all

counts, with the sentences for dealing in cocaine to run concurrently and the sentence for

possession of cocaine with intent to deliver to run consecutive to the others, for an

aggregate sentence of sixty years.” Id. at *8.

On February 15, 2012, Blakely filed a petition for post-conviction relief, and he

filed amendments to the petition on July 18 and December 12. The post-conviction court

held a hearing on Blakely’s amended petition on December 17, 2013. And on July 24,

2013, the trial court entered a lengthy order, with special findings and conclusions

thereon, denying the petition. Blakely now appeals.

DISCUSSION AND DECISION

Blakely appeals the post-conviction court’s denial of his second amended petition

for post-conviction relief. Our standard of review is clear:

[The petitioner] bore the burden of establishing the grounds for post-
conviction relief by a preponderance of the evidence. See Ind. Post-
Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d 591, 597 (Ind.
2001). Post-conviction procedures do not afford a petitioner with a super-
appeal, and not all issues are available. Timberlake, 753 N.E.2d at 597.
Rather, subsequent collateral challenges to convictions must be based on
grounds enumerated in the post-conviction rules. Id. If an issue was
known and available, but not raised on direct appeal, it is waived. Id. If it
was raised on appeal, but decided adversely, it is res judicata. Id.

4
In reviewing the judgment of a post-conviction court, appellate
courts consider only the evidence and reasonable inferences supporting the
post-conviction court’s judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind.
2006). The post-conviction court is the sole judge of the evidence and the
credibility of the witnesses. Id. at 468-69. Because he is now appealing
from a negative judgment, to the extent his appeal turns on factual issues
[the petitioner] must convince this court that the evidence as a whole leads
unerringly and unmistakably to a decision opposite that reached by the
post-conviction court. See Timberlake, 753 N.E.2d at 597. We will disturb
the decision only if the evidence is without conflict and leads only to a
conclusion contrary to the result of the post-conviction court. Id.

Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.

When appealing the denial of post-conviction relief, the petitioner stands in the

position of one appealing from a negative judgment. Overstreet v. State, 877 N.E.2d 144,

151 (Ind. 2007) (citation omitted). To prevail 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. (citation omitted).

Further, the post-conviction court in this case made findings of fact and conclusions of

law in accordance with Indiana Post-Conviction Rule 1(6). “Although we do not defer to

the post-conviction court’s legal conclusions, ‘[a] post-conviction 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. (citation omitted).

Blakely contends that he was denied the effective assistance of trial and appellate

counsel in violation of the Sixth Amendment to the United States Constitution. A claim

of ineffective assistance of counsel must satisfy two components. Strickland v.

Washington, 466 U.S. 668 (1984). First, the defendant must show deficient performance:

5
representation that 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. at 687-88. Second, the defendant must show prejudice: 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. at

694.

Issue One: Effective Assistance of Trial Counsel

Blakely first contends that his trial counsel rendered ineffective assistance.

Specifically, Blakely argues that his trial counsel failed to: (1) move to suppress an

“unduly suggestive” pre-trial identification of Blakely by the CI, Appellant’s App. at 25;

(2) object to the in-court identification of Blakely, which was purportedly tainted by the

CI’s pre-trial identification; (3) impeach Watson’s testimony; (4) discuss exculpatory

evidence in closing; and (5) object to a remark the State made in closing. He also argues

(6) that the cumulative effect of these errors warrants post-conviction relief. And Blakely

asserts that (7) his counsel was ineffective at the sentencing phase for several additional

reasons. We consider each contention in turn.

1. & 2. Identification of Suspect

The first two issues Blakely raises pertain to the CI’s pre-trial and in-court

identification of him as the CI’s cocaine supplier. As we have explained:

The identification of a defendant must comport with the standards of due
process. If an out-of-court identification procedure was unduly suggestive,
then the testimony relating to it is inadmissible. In essence, this court must
determine whether, under the totality of the circumstances, the
identification process was conducted in such a manner that it created a

6
substantial likelihood of irreparable misidentification. Our supreme court
has held that a photo array is impermissibly suggestive only where the array
is accompanied by verbal communications or the photographs in the display
include graphic characteristics that distinguish and emphasize the
defendant’s photograph in an unusually suggestive manner.

When analyzing the propriety of the pre-trial identification
procedure here, the first issue we must address is whether the out-of-court
procedure was conducted in a fashion that led the witness to make a
mistaken identification. If it is unduly suggestive, we then address the
second question, which is whether the witness had an independent basis for
the in-court identification so as to make it admissible.

Allen v. State, 813 N.E.2d 349, 360 (Ind. Ct. App. 2004), trans. denied.

Blakely contends that trial counsel should have moved to suppress the pre-trial

identification because it was “unduly suggestive.” Appellant’s Br. at 24. But we need

not reach this issue. Even if we were to assume that the pretrial identification procedure

were unnecessarily suggestive, the admission of the in-court identification of Blakely was

proper if, under the totality of circumstances, it was supported by a basis independent

from the pretrial procedure. See Swigeart v. State, 749 N.E.2d 540, 544 (Ind. 2001). We

conclude that such is the case here.

To determine whether a witness had an independent basis for the in-court

identification, we consider the following factors:

The amount of time the witness was in the presence of the defendant; the
distance between the two; the lighting conditions; the witness’ degree of
attention to the defendant; the witness’ capacity for observation; the
witness’ opportunity to perceive particular characteristics of the perpetrator;
the accuracy of any prior description of the perpetrator by the witness; the
witness’ level of certainty at the pretrial identification; and the length of
time between the crime and the identification.

7
Id. (citation omitted). Here, the CI had purchased drugs from Blakely for more than a

year before he participated in the controlled buys on May 3, 9, and 18, 2006. At each of

the controlled buys, the two men engaged in face-to-face conversation in or near a

vehicle and were close enough to each other to exchange cash for the contraband.

Thereafter, at trial, the CI unequivocally identified Blakely as the person from whom he

had made the controlled buys. As such, the witness had an independent basis for his in-

court identification of Blakely, and any error in the pretrial identification procedure was

harmless. See id.

Still, Blakely argues that the CI’s identification of Blakely at trial is not reliable.

Before the controlled buys, the CI gave a general description of his supplier as a person

he knew only as “Rico,” an African-American male between five feet five inches and five

feet eight inches tall, weighing two hundred fifty pounds, with dreadlocks almost down to

his shoulders, between thirty-five and forty years old, and who occasionally drove a red

Oldsmobile Alero. Blakely argues that that description “bore little resemblance to

[Blakely’s] physical characteristics” because his hair was in cornrows and he was twenty-

seven years old at the time of his arrest, he is five feet eight inches tall and weighs less

than two hundred pounds. Appellant’s Br. at 24.

But this argument goes to the weight of the CI’s testimony, not its admissibility.

See Stowers v. State, 657 N.E.2d 194, 200 (Ind. Ct. App. 1995), trans. denied. And,

again, the CI’s general description of his supplier before the controlled buys was

superseded by his actual identification of Blakely as the person from whom he made the

8
controlled buys. We will not reweigh this evidence on appeal. See Lindsey, 888 N.E.2d

at 322. Blakely’s arguments must fail.

3. Impeachment of Witness

Blakely next contends that his trial counsel was ineffective because he did not

impeach Watson’s testimony at trial. In particular, Blakely argues that his trial counsel

should have used Watson’s 2005 domestic battery conviction and his employment in Fort

Wayne to impeach Watson’s testimony that he did not know anyone in town. He argues

further that counsel should have used a photo of Watson with short hair to impeach

Watson’s testimony that he had been bald all his life. We cannot agree.

First, Blakely argues that his trial counsel was ineffective because he failed to

impeach Watson on the issue of whether he knew anyone in the Fort Wayne area by

offering evidence of Watson’s 2005 domestic battery conviction. But Blakely does not

show or even argue that the victim in the domestic battery victim was a resident of Fort

Wayne or that Watson had any friendships with area residents from his employment in

Fort Wayne. And, in any event, the CI in this case was not an Indiana resident. Given

these facts, Blakely has not shown how Watson’s prior conviction is relevant.

Second, Blakely has not shown that he was prejudiced by his trial counsel’s failure

to impeach Watson regarding his hair. Blakely contends that the outcome of the trial

would have been different if his trial counsel had impeached Watson’s testimony that he

had been bald all his life by showing a photo of Watson with “short” hair. Appellant’s

Br. at 30. But the photo of Watson shows only that he had a dark line around the top of

his head suggesting that he may have had extremely short hair on the back side of his

9
head only. Blakely has not shown that Watson ever had or was able to wear his hair in

dreadlocks or cornrows, and, before the controlled buys, the CI had described his supplier

as wearing his hair in dreadlocks. The CI later testified that during the controlled buys

the supplier’s hair had been cut off. At the time of his arrest a few days after the third

controlled buy, Blakely was wearing his hair in cornrows. Blakely cannot show that

Watson’s testimony would have been impeached based on the length of his hair or that

the result of his proceeding would have been different had his counsel raised this

purported issue.

4. Exculpatory Evidence

Blakely next argues that his trial counsel was deficient because he did not present

and argue certain allegedly exculpatory evidence. Specifically, he contends that his trial

counsel should have presented evidence that Blakely’s height and weight did not match

the CI’s description, that Blakely never had a brother though the supplier had told the CI

that his brother had died, and that the officer who participated in the arrest did not

observe any scars or injuries on Blakely’s arm although it had been wrapped in a towel

during one of the controlled buys. Blakely argues that, if his trial “counsel had presented

the available exculpatory evidence, he could have shown the jury facts which were

inconsistent with Blakely’s guilt.” Appellant’s Br. at 35.

With regard to evidence on the identity of the supplier, again, before the controlled

buys the CI gave a general description of his supplier as an African-American male he

knew as “Rico” who was between five feet five inches and five feet eight inches tall,

weighed two hundred fifty pounds, wore dreadlocks almost down to his shoulders, and

10
was between thirty-five and forty years old. Blakely has not shown that the CI’s

description was so off the mark that Blakely’s trial would have turned out differently if

his counsel had shown and argued the discrepancies. And, in any case, the jury was able

to see those discrepancies for itself.

Nor has Blakely shown that the outcome of his trial would have been different if

his attorney had offered evidence that Blakely never had a brother. The CI testified only

that his supplier had told him that his brother had died. The CI did not testify that he

knew or had met the CI’s brother. As such, any evidence or argument regarding the

existence or death of Blakely’s brother would have had no effect on Blakely’s trial.

Finally, regarding the alleged injury to Blakely’s arm, the CI testified that he had

seen Blakely with a towel wrapped around his arm about three weeks before the arrest.

But he had not seen Blakely’s arm and did not know for certain why it was wrapped in a

towel. The CI did not identify Blakely by any distinguishing features on his arm.

Testimony or argument that the arresting officer did not observe any injury to Blakely’s

arm at the time of the arrest three weeks later would have been of little if any value at

trial. Blakely has not shown that he was prejudiced by his trial counsel’s failure to

present or argue this allegedly exculpatory evidence.

5. State’s Misleading Argument

Blakely next contends that his trial counsel was ineffective because he did not

object or respond to a misleading comment the State made during closing argument.

Specifically, he argues that the State misled the jury when it argued:

11
You saw Rico Watson here, by the way, didn’t you? Rico Watson came in
to testify. He didn’t have any problem coming in to testify. You’d think if
a real drug dealer—do you think that they would actually make an
appearance in court? Seriously? No, because Rico Watson wasn’t the drug
dealer.

Trial Transcript at 528. Blakely argues that that part of the State’s closing was

“inaccurate, misleading, and prejudicial” because it “left the jury with the impression that

Rico Watson came to court voluntarily when the State had the power to compel his

testimony with a subpoena.” Appellant’s Br. at 36. He also asserts that “there was no

evidence that Watson came to court voluntarily instead of being subpoenaed.” Id.

In support, Blakely cites, without analysis or explanation, a Utah decision, State v.

King, 248 P.3d 984, 994 (Utah Ct. App. 2010). But that opinion provides neither binding

authority nor support for Blakely’s contention. In any event, here, the evidence as a

whole shows that the CI identified Blakely as his supplier after buying cocaine from him

for more than one year, including three controlled buys the month of Blakely’s arrest.

The phone number the CI used to reach his supplier was found in Blakely’s possession,

and the CI testified that the supplier from the three controlled buys was Blakely. While

the State’s implication during closing that Watson had testified voluntarily was

unsupported by evidence at trial, given the overall evidence supporting Blakely’s

conviction, we cannot say that the outcome of his trial would have been different if his

trial counsel had objected to that statement. As such, Blakely has not shown that he was

prejudiced by his trial counsel’s failure to object to the prosecutor’s statement.

12
6. Cumulative Effect of Alleged Errors

Blakely also argues that the cumulative effect of the errors discussed above

rendered his trial counsel’s performance ineffective. Because we conclude that Blakely

has not demonstrated his trial counsel was ineffective for any of the reasons he alleges, he

cannot show ineffective assistance based on the cumulative effect of any alleged errors.

See Kubsch v. State, 934 N.E.2d 1138, 1154 (Ind. 2010).

7. Sentencing

Blakely next contends that his trial counsel was ineffective at the sentencing phase

because he failed to: advise Blakely about proper decorum during sentencing; conduct

any investigation into mitigating circumstances; present any evidence of mitigating

circumstances; point out to the sentencing court mitigating circumstances in the PSI; or

point out that the probation department had recommended a forty-year sentence. Again,

we cannot agree with Blakely.

Even if we were to assume for the sake of argument that Blakely’s trial counsel

was ineffective at the sentencing phase in any or all of the ways he alleges, Blakely has

not shown that he was prejudiced as a result. First, Blakely cannot cite any authority that

would have required the trial court give any weight to any of his perceived mitigating or

aggravating circumstances. Second, we reduced Blakely’s sentence in his direct appeal.

See Blakely I, No. 02A05-0704-CR-222, at *8. We agree with the State that there is no

reason for this court to now believe that Blakely’s reduced sentence “would ultimately

have been less than the sixty years this Court reduced his sentence to” in light of

Blakely’s present concerns. Appellee’s Br. at 25; see McCann v. State, 854 N.E.2d 905,

13
909 (Ind. Ct. App. 2006) (citation omitted). Therefore, Blakely cannot show that he was

prejudiced by his counsel’s performance at this phase of the proceedings.

Issue Two: Effective Assistance of Appellate Counsel

We next consider Blakely’s argument that he was denied the effective assistance

of appellate counsel. In particular, he contends that his counsel on direct appeal

inadequately argued that the evidence was insufficient to support one of his convictions

and failed to argue that the sentences on all four counts had to be concurrent. We address

each argument in turn.

Blakely first argues that his counsel on direct appeal was ineffective because he

did not adequately argue the insufficiency of evidence to support his conviction for

possession of cocaine with intent to deliver, as a Class A felony.1 Specifically, he points

out that he did not have actual or exclusive possession of the cocaine, and he lists specific

arguments that his counsel should have made to show that the State failed to prove

constructive possession of the contraband. The State counters that Blakely’s counsel on

direct appeal “adequately set forth the law in this area[.]” Appellee’s Brief at 29. We

agree with the State.

Claims of inadequate presentation of certain issues, as contrasted with the denial

of access to an appeal or waiver of issues, are the most difficult for defendants to advance

and reviewing tribunals to support. Henley v. State, 881 N.E.2d 639, 653 (Ind. 2008)

(citation omitted). “And this is so because such claims essentially require the reviewing

1
Blakely does not challenge his appellate counsel’s performance with regard to his convictions
on the first three counts of dealing in cocaine, as Class A felonies.

14
court to reexamine and take another look at specific issues it has already adjudicated to

determine ‘whether the new record citations, case references, or arguments would have

had any marginal effect on their previous decision.’” Id. (quoting Bieghler v. State, 690

N.E.2d 188, 195 (Ind. 1997)).

Here, Blakely contends that his counsel on direct appeal did not adequately argue

the insufficiency of evidence to support his conviction for possession of cocaine with

intent to deliver, as a Class A felony, because he failed to note four pieces of specific

evidence. But our review of Blakely’s brief on direct appeal shows that Blakely’s

counsel adequately argued the question of exclusive possession. We cannot say that the

additional pieces of evidence cited by Blakely here would have had any marginal effect

on this court’s decision in the direct appeal. See id. While Blakely may argue in post-

conviction that his appellate counsel failed to adequately argue sufficient evidence on

direct appeal, to the extent Blakely is again challenging the sufficiency of evidence to

support his conviction for Count IV res judicata bars further review in these proceedings.

See id. at 644. Blakely has not shown the ineffective assistance of his appellate counsel

regarding the sufficiency of evidence on Count IV.

Finally, Blakely contends that his counsel on direct appeal was ineffective because

his counsel did not challenge the trial court’s imposition of consecutive sentences.

Blakely argues that, under Beno v. State, 581 N.E.2d 922 (Ind. 1991), all four of

Blakely’s sentences should have been ordered to be served concurrently. In Beno, our

supreme court held that it was improper to impose consecutive sentences for multiple

15
convictions for drug-dealing where the convictions were based on nearly identical state-