Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Mar 31 2014, 7:59 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER
Public Defender of Indiana Attorney General of Indiana
STEVEN H. SCHUTTE MONIKA PREKOPA TALBOT
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SAMUEL LEWIS, )
)
Appellant-Petitioner, )
)
vs. ) No. 20A03-1309-PC-348
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Terry Shewmaker, Judge
Cause No. 20C01-1108-PC-14
March 31, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Samuel Lewis (“Lewis”) appeals from the post-conviction court’s order denying
his petition for post-conviction relief, in which he sought to set aside his convictions for
four counts of Class A felony dealing cocaine and one count of Class B felony dealing
cocaine based on his claim that his trial counsel was ineffective for failing to present
mitigating evidence at trial.
We affirm.
ISSUE
Whether the post-conviction court erred by denying Lewis’s petition for
post-conviction relief.
FACTS
The facts of Lewis’s crimes were set forth in the opinion from Lewis’s direct
appeal as follows:
The Interdiction and Covert Enforcement Unit (ICE) for Elkhart County
investigates narcotics activities through controlled-buy situations and
reliance upon confidential sources. Over the course of four months
(January 2008 to May 2008), ICE officers arranged for two confidential
sources, identified as CS07–024 and CS08–07, to participate in controlled
drug buys from a man known as “Flip” (Transcript at 329, 344), who the
confidential sources later identified from a photographic array as Lewis.
Both confidential sources had personally met Lewis and knew his
appearance and voice. Both sources also provided the same phone number
for Lewis and used that number to contact him to arrange the controlled
buys.
ICE has a standard protocol for conducting controlled buys. A controlled
buy begins by meeting with the confidential source in a hidden location
where the source and the source’s car are searched. Any contraband or
money is confiscated and the source is given money that has been
photocopied to make the purchase. The source is also given a
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transmitting/recording device so that ICE officers can monitor the
transaction. The source then travels to the pre-arranged location for the buy
and is kept under visual and audio surveillance by ICE officers at all times.
After the buy is complete, ICE officers follow the source to a given location
where the source and his vehicle are again searched for contraband and
money. The source also gives ICE officers a brief account of what
occurred during the buy.
On January 14, 2008, undercover officers with ICE met with CS07–024
and arranged a controlled buy of cocaine from Lewis. The officers
followed the standard protocol for controlled buys. CS07–024 purchased
2.78 grams of cocaine from Lewis for $140.
On April 23, 2008, CS08–07 cooperated with ICE and arranged a
controlled buy of cocaine from Lewis. CS08–07 was given $400 in cash to
make the purchase. After the buy, CS08–07 gave the officers a bag that
was later determined to contain 13.27 grams of cocaine. On May 1, 2008,
CS08–07 made a second controlled buy from Lewis in the driveway of the
home on Hively Street believed to belong to Lewis. During this transaction,
CS08–07 purchased 13.05 grams of cocaine from Lewis. On May 13,
2008, CS08–07 participated in a third controlled buy from Lewis during
which CS08–07 purchased 13.45 grams of cocaine from Lewis. For each
of these controlled buys, ICE officers followed the standard protocol set
forth above.
On May 15, 2008, the ICE unit, along with the Indiana State Police SWAT
team, served a search warrant on the residence located on Hively Street in
Elkhart. Officers encountered Lewis outside of the residence. Lewis had in
his possession a cell phone with the telephone number used by both
confidential sources to arrange the controlled buys. Lewis also had over
$1900 in cash in his pocket, $320 of which matched the photocopied
money that was used during the May 13 controlled buy by CS08–07. After
being placed under arrest and advised of his Miranda rights, Lewis told the
officers that they could find cocaine in a pill bottle in the kitchen. The
officers did in fact find a total of 20.57 grams of cocaine in eight knotted,
plastic baggies in the pill bottle. When asked where he kept his extra
baggies and scales, Lewis admitted to the officers that he used a separate
home for bagging cocaine.
On May 21, 2008, the State charged Lewis with five counts of class A
felony dealing in cocaine. Count I stemmed from the cocaine found during
the search of Lewis’s residence. Counts II through V centered on each
controlled buy. On December 7, 2009, the State was granted permission to
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amend one of the charges (Count II) from a class A felony dealing offense
to a class B felony dealing offense based on the amount of cocaine being
less than three grams. A three-day jury trial commenced on December 7,
2009. At the conclusion of the evidence, the jury found Lewis guilty as
charged.
Lewis v. State, No. 20A03-1001-CR-96, slip op. at 1-2 (Ind. Ct. App. Oct. 6, 2010).
Lewis hired Rod Sniadecki (“Attorney Sniadecki”) as his counsel for trial and
sentencing. On December 30, 2009, the trial court held a sentencing hearing. During
sentencing, Attorney Sniadecki argued that Lewis was an “unusually thoughtful” and
“considerate” person who was “not otherwise predisposed to commit a criminal offense
but for state intervention.” (Direct Appeal Tr. 668-69). Attorney Sniadecki also argued
that Lewis should receive minimum, concurrent sentences. When the trial court asked
Lewis if he wanted to make a statement, Lewis testified that he had used drugs but did
not sell them. The trial court found mitigating circumstances in Lewis’s statement that he
was a drug addict and Attorney Sniadecki’s comments regarding Lewis. The trial court
found the following aggravating circumstances: (1) Lewis threatened a witness; (2)
Lewis’s “substantial” criminal history, which included six prior controlled substance
offenses, four misdemeanors, five felonies, four juvenile actions, one failure to appear,
and two probation violations; and (3) prior attempts of rehabilitation had been
unsuccessful. (Direct Appeal Tr. 672). The trial court sentenced Lewis to concurrent
sentences of forty-eight (48) years for each Class A felony conviction and twenty (20)
years for his Class B felony conviction, resulting in a total aggregate sentence of forty-
eight (48) years.
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Thereafter, Lewis filed a direct appeal from his convictions and sentence, arguing
that: (1) the trial court erred in instructing the jury; (2) the evidence was insufficient to
sustain his convictions; (3) the trial court abused its discretion by denying his motion to
continue the sentencing hearing; and (4) his forty-eight-year sentence was inappropriate.
Our Court affirmed Lewis’s convictions and sentence.
In August 2011, Lewis filed a pro se petition for post-conviction relief, alleging
that Attorney Sniadecki had rendered ineffective assistance of counsel at trial and at
sentencing by failing to present mitigating evidence at sentencing. In April 2012, Lewis,
represented by a State Deputy Public Defender, amended his post-conviction petition and
substituted his prior post-conviction claims with the claim that Lewis’s trial counsel was
ineffective for failing to sever his charges. On April 5, 2012, the trial court held a post-
conviction hearing.
Shortly after the post-conviction hearing, a different State Deputy Public Defender
entered an appearance on behalf of Lewis. On June 11, 2012, this new Deputy Public
Defender filed a motion to amend Lewis’s post-conviction petition to add the claim that
Lewis’s trial counsel was ineffective for failing to object to the aggravation of Lewis’s
sentences where Lewis was convicted of multiple sales of drugs in controlled buys. The
post-conviction court granted Lewis’s motion.
Thereafter, on December 31, 2012, Lewis, by counsel, filed a third amended post-
conviction petition, arguing, in relevant part, that his “[t]rial counsel was ineffective for
failing to prepare to present mitigating evidence at Lewis’s sentencing hearing.” (App.
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69).1 The trial court held another post-conviction hearing on April 25, 2013. During the
post-conviction hearing, Lewis called Attorney Sniadecki and Lewis’s cousin and aunt as
witnesses. He also testified on his own behalf.
Attorney Sniadecki testified that he did not recall Lewis asking him to call
witnesses for sentencing but that his normal practice was to do so if requested by his
client and if it was in the client’s interest. Lewis’s cousin testified Lewis had lived with
her for approximately one year before he was arrested and that he did not have a job at
that time. She also testified that she knew that Lewis had used drugs and that she would
not allow him to use drugs when he lived with her. Lewis’s aunt testified that she did not
know when Lewis started using drugs but that she was aware that he was arrested for the
drug offenses in this case. She also testified that she would be willing to help him when
he got out of prison. Lewis’s cousin and aunt both testified that they were not aware of
when Lewis’s trial and sentencing had occurred.
At the post-conviction hearing, Lewis no longer claimed that his drug dealing was
only a result of state intervention. Instead, he testified that he sold cocaine so that he
could help his mother who had cancer. He also testified that he would sell drugs again to
help his mother. Additionally, Lewis testified during the post-conviction hearing that
Attorney Sniadecki contacted Lewis’s mother and asked her to testify on Lewis’s behalf
at sentencing.
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Lewis’s third amended post-conviction petition also alleged that his trial counsel was ineffective for
failing to sever his charges and failing to object at sentencing to the aggravation of his sentences based on
his convictions of multiple controlled buys. On appeal, Lewis makes no argument regarding these claims.
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On August 9, 2013, the post-conviction court issued an order denying post-
conviction relief to Lewis. The post-conviction court concluded that Lewis had failed to
meet his burden of proving that he had received ineffective assistance of trial counsel.
Specifically, the post-conviction court concluded:
None of the witnesses who testified at the post[-]conviction hearing
presented any evidence or any testimony that, had it been offered at the
sentencing hearing, would have made a difference in the sentence. The
record establishes that the court did consider [Lewis’s] statement that he
was a drug addict as a mitigator. Attorney Sniadecki’s failure to call either
of the aforementioned persons to testify at the sentencing hearing does not
establish that he was ineffective[.]
(App. 92). Lewis now appeals.
DECISION
Lewis appeals from the post-conviction court’s order denying post-conviction
relief on his claim of ineffective assistance of trial counsel. Our standard of review in
post-conviction proceedings is well settled.
We observe that post-conviction proceedings do not grant a petitioner a
“super-appeal” but are limited to those issues available under the Indiana
Post-Conviction Rules. Post-conviction proceedings are civil in nature, and
petitioners bear the burden of proving their grounds for relief by a
preponderance of the evidence. Ind. Post–Conviction Rule 1(5). A
petitioner who appeals the denial of PCR faces a rigorous standard of
review, as the reviewing court may consider only the evidence and the
reasonable inferences supporting the judgment of the post-conviction court.
The appellate court must accept the post-conviction court’s findings of fact
and may reverse only if the findings are clearly erroneous. If a PCR
petitioner was denied relief, he or she must show that the evidence as a
whole leads unerringly and unmistakably to an opposite conclusion than
that reached by the post-conviction court.
Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal citations
omitted), trans. denied.
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A claim of ineffective assistance of trial counsel requires a showing that: (1)
counsel’s performance was deficient by falling below an objective standard of
reasonableness based on prevailing professional norms; and (2) counsel’s performance
prejudiced the defendant such that “‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’”
Davidson v. State, 763 N.E.2d 441, 444 (Ind. 2002) (quoting Strickland v. Washington,
466 U.S. 668, 687 (1984)), reh’g denied, cert. denied. “Failure to satisfy either of the
two prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind. Ct.
App. 2012) (citing French v. State, 778 N.E.2d 816, 824 (Ind. 2002)), trans. denied.
Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry
alone. French, 778 N.E.2d at 824.
Lewis alleges that his trial counsel was ineffective for failing to present mitigating
evidence at sentencing.2 Specifically, Lewis asserts that his trial counsel “failed to
present any evidence with which he could have argued for a more lenient sentence for
Lewis.” (Lewis’s Br. 4). He also contends that his counsel was ineffective for failing to
contact or present testimony from his cousin and aunt, which he claims would have been
mitigating evidence.
Lewis’s claim that his trial counsel failed to present any mitigating evidence is
without merit. Indeed, the record, which was admitted as an exhibit in the post-
2
The State contends that Lewis has waived review of this specific ineffective assistance of counsel
claim because he failed to include it in his final amended post-conviction petition. We, however,
disagree. As discussed in the facts above, Lewis—in his December 2012 third amended post-conviction
petition—specifically argued that his “[t]rial counsel was ineffective for failing to prepare to present
mitigating evidence at Lewis’s sentencing hearing.” (App. 69).
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conviction proceeding, reveals that Lewis’s trial counsel advocated for Lewis to receive
minimum and concurrent sentences. Furthermore, the trial court found mitigating
circumstances in “Lewis’s statement to the court that he is a drug addict and comments
by Lewis’s counsel that Lewis is a thoughtful and considerate person who is not
predisposed to commit criminal offenses.” Lewis, No. 20A03-1001-CR-96, slip op. at 7.
Moreover, Lewis testified during the post-conviction hearing that Attorney Sniadecki
contacted Lewis’s mother and asked her to testify on Lewis’s behalf at sentencing. “We
certainly cannot and will not find [Lewis’s] trial counsel ineffective for failing to do
something that he did, in fact, do.’” Perry v. State, 904 N.E.2d 302, 309 (Ind. Ct. App.
2009) (finding trial counsel was not ineffective for failing to argue defendant’s mental
health as a mitigator during sentencing where trial counsel did raise the issue during
sentencing), trans. denied.
Additionally, Lewis cannot show that his trial counsel was deficient or that he was
prejudiced when his trial counsel did not call Lewis’s cousin or aunt as witnesses at the
sentencing hearing. Attorney Sniadecki testified that he did not recall Lewis asking him
to call witnesses for sentencing but that his normal practice was to do so if requested by
his client and if it was in the client’s interest. Lewis presented no evidence in this post-
conviction proceeding to show that his trial counsel had any knowledge of Lewis’s aunt
or cousin or Lewis’s desire to call them as witnesses. Thus, he has failed to show that his
trial counsel’s performance was deficient.
Further, Lewis has failed to show he was prejudiced by his trial counsel’s failure
to call Lewis’s aunt and cousin as witnesses at sentencing. As the post-conviction court
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found, Lewis has failed to show that these witnesses’ testimony would have made a
difference in Lewis’s sentence. Because Lewis has failed to show that his trial counsel’s
performance was deficient or that he was prejudiced, his claim of ineffective assistance of
counsel fails. See, e.g., Alvarado v. State, 686 N.E.2d 819, 822-23 (Ind. 1997) (holding
that petitioner failed to show he was prejudiced by his counsel’s failure to present
witnesses at petitioner’s sentencing hearing because petitioner failed to show how the
witnesses testimony would have changed the sentencing outcome); Johnson v. State, 832
N.E.2d 985, 1005 (Ind. Ct. App. 2005) (holding that petitioner failed to demonstrate that
he received ineffective assistance of counsel because he did not provide any evidence as
to how the result of his sentencing hearing would have been different if his counsel
would have argued more or different mitigating circumstances), trans. denied.
Lewis had the burden to establish that he was entitled to post-conviction relief by a
preponderance of the evidence. Ind. Post–Conviction Rule 1(5). Lewis, however, failed
to present evidence to support or establish his post-conviction claim. Because Lewis
failed to establish his claim of ineffective assistance of trial counsel, we affirm the post-
conviction court’s denial of his petition for post-conviction relief.
Affirmed.
MATHIAS, J., and BRADFORD, J., concur.
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