MEMORANDUM DECISION
Jun 24 2015, 5:48 am
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 ATTORNEYS FOR APPELLEE
Joshua Brazzel Gregory F. Zoeller
Carlisle, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua Brazzel, June 24, 2015
Appellant-Petitioner, Court of Appeals Case No.
47A05-1411-PC-524
v. Appeal from the Lawrence Superior
Court.
The Honorable William G. Sleva,
State of Indiana, Judge.
Appellee-Respondent Cause No. 47D02-1109-PC-1117
Baker, Judge.
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[1] Joshua Brazzel appeals the post-conviction relief court’s denial of his petition
for post-conviction relief. He argues that the post-conviction court erred in
finding that one of his claims was barred by res judicata and quashing
subpoenas for certain witnesses. In addition he argues that he received
ineffective assistance of post-conviction counsel, as well as ineffective assistance
of appellate counsel. Finding no error, we affirm.
Facts
[2] The facts underlying this case are as follows: On January 31, 2008, officers from
the Lawrence County Sheriff’s Department and the Bedford Police Department
executed search warrants on Brazzel’s home and storage unit. They found two
large trash bags filled with marijuana weighing a total of 3394.9 grams. In the
storage unit, they discovered several firearms and 666.6 grams of
methamphetamine. A search of a second storage unit revealed two trash bags
containing 52.5 pounds and 38.5 pounds of marijuana respectively. Brazzel was
charged with dealing in methamphetamine, a class A felony; dealing in
marijuana, a class C felony; and receiving stolen property, a class D felony. He
was convicted as charged. Brazzel v. State, No. 47A04-0907-CR-426, slip op. at
p. 1-2 (Ind. Ct. App. April 26, 2010) (Brazzel I). Brazzel was sentenced to fifty
years for the Class A felony conviction, but the trial court did not impose
sentences on the two remaining convictions.
[3] Brazzel appealed his convictions, arguing that: 1) the search warrant for his
home and storage unit were not supported by probable cause; 2) the officers
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who conducted the search exceeded the scope of the warrant; 3) the trial court
erred in instructing the jury that intent to deliver may be inferred from the
amount of drugs found; and 4) the trial court erred in its sentencing. See id. A
panel of this Court found that the post-conviction court had erred in failing to
sentence Brazzel for his convictions for possession of marijuana and receiving
stolen property; we affirmed in all other respects.
[4] On September 9, 2011, Brazzel, pro se, filed his petition for post-conviction
relief. On March 4, 2014, the State filed an answer to Brazzel’s petition, along
with a motion for summary disposition asserting the affirmative defenses of
latches, waiver, and res judicata with regard to his claims regarding ineffective
assistance of trial counsel.
[5] On May 16, 2014, Brazzel submitted a potential witness list, along with a
request for subpoenas. On May 21, 2014, the State filed an objection to the
issuance of the subpoena, renewing its motion for summary disposition. On
May 28, 2014, the post-conviction court granted Brazzel’s requests for
subpoenas for Eric Hackney, Keygan Matheny, Donny Matheny, Sophia
Keller, Andrew Phillips, and Michael Murphy.
[6] However, on August 6, 2014, the post-conviction court quashed the subpoenas
for Hackney, Keygan Matheny, Donny Matheny, Keller, and Phillips, finding
that Brazzel’s purpose in calling them was to attempt to attack the sufficiency of
the probable cause supporting the search warrants for his home and storage
unit, an issue that had been litigated and determined by this court in Brazzel I.
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The post-conviction court found against Brazzel on this issue and did not allow
him to present evidence regarding the search warrant.
[7] On August 11, 2014, the post-conviction court held an evidentiary hearing. At
the hearing, the post-conviction court noted on the record that it had denied
Brazzel’s request for subpoenas for Aaron Shouls, Phil Wigley, Dave Flynn,
and Michael Branham because Brazzel had failed to comply with post-
conviction rules by failing to submit an affidavit with his request. Brazzel
acknowledged that he had not attached affidavits and did not ask for a
continuance or an opportunity to provide affidavits. Brazzel was then allowed
to present evidence on his claims that his trial counsel and appellate counsel
were ineffective.
[8] At the post-conviction hearing, Alicia Cooper, Brazzel’s girlfriend, testified that
a juror spoke to her during Brazzel’s trial. She testified that she and the juror
discussed Brazzel and that the juror seemed to disapprove of Brazzel. Trial
counsel testified that he did not remember this exchange with a juror. He also
testified that if he had knowledge of any such exchange, he would have
informed the trial court to protect his client from a juror who could not be
impartial.
[9] On October 17, 2014, the post-conviction court denied Brazzel’s petition for
post-conviction relief. Brazzel now appeals.
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Discussion and Decision
[10] Brazzel argues that the post-conviction court erred when it found that his claim
regarding the probable cause underlying the search warrant for his home and
storage space was barred by res judicata. He also argues that he received
ineffective assistance of post-conviction counsel and appellate counsel.
I. Standard of Review
[11] Post-conviction proceedings are not “super appeals” through which convicted
persons can raise issues they failed to raise at post-conviction or on direct
appeal. Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012). Rather, post-
conviction proceedings afford petitioners a limited opportunity to raise issues
that were unavailable or unknown at post-conviction and on direct appeal.
Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). A post-conviction petitioner
bears the burden of establishing grounds for relief by a preponderance of the
evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). To prevail on
appeal from the denial of post-conviction relief, the 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. at 643-44.
[12] Where, as here, the post-conviction court makes findings of fact and
conclusions of law in accordance with Indiana Post–Conviction Rule 1(6), we
cannot affirm the judgment on any legal basis, but rather, must determine if the
court’s findings are sufficient to support its judgment. Graham v. State, 941
N.E.2d 1091, 1096 (Ind. Ct. App. 2011). We will not reweigh the evidence or
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judge the credibility of witnesses, and will consider only the probative evidence
and reasonable inferences flowing therefrom that support the post-conviction
court’s decision. Id.
II. Subpoenas and Res Judicata
[13] Brazzel first argues that the post-conviction court erred in denying his request
for certain subpoenas and limiting his claims to ineffective assistance of
counsel. Whether to deny or grant a party’s request for a subpoena is within
the discretion of the post-conviction court. Allen v. State, 791 N.E.2d 748, 757
(Ind. Ct. App. 2003). We review the post-conviction court’s decision to grant
or deny that request for an abuse of discretion; an abuse of discretion occurres if
the court’s decision is against the logic and effect of the facts and circumstances
before the court. Id.
[14] As noted above, the post-conviction court, on its own motion, quashed
subpoenas it had issued at Brazzel’s request, because it found that Brazzel was
attempting to retry certain issues—whether there was probable cause supporting
the search warrant for his home and storage unit and whether officers exceeded
the scope of the warrant—that were determined in Brazzel I. The post-
conviction court found that, although Brazzel was attempting to frame the issue
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as one of ineffective assistance of counsel, he was, in fact, attempting to re-
litigate the issue at the post-conviction level. PCR. App. p. 32-34.1 2
[15] In his affidavits requesting subpoenas for Hackney, Keygan Matheny, Donny
Matheny, Keller, and Phillips, Brazzel clearly indicated that his underlying
purpose for calling these witnesses was to re-litigate his claims regarding the
search warrant and re-try his case. In his request for subpoenas, Brazzel stated
that:
1. Eric Hackney was a necessary witness because he could “testify
that all the information he supplied to the police [regarding the
warrant] was second-hand, hearsay information . . . this
testimony strikes at the heart of the probable cause provided to
the court[.]” PCR. App. p. 57.
2. Keygan Matheny likewise had only second-hand knowledge.
Id. at 59.
3. Donny Matheny would testify that he told his son that Brazzel
was selling drugs, and this testimony would support Keygan
Matheny’s testimony that his knowledge was second-hand. Id.
at 61.
4. Sophia Keller’s testimony was also necessary to support
Keygan Matheny’s testimony that his knowledge was second-
hand. Id. at 63.
1
Brazzel first argues that the post-conviction court erred by determining that these issues were res judicata
because the State did not assert res judicata. This is simply not true. The State asserted that these issues were
barred by res judicata when it moved for summary disposition. See PCR App. p. 86.
2
Brazzel also argues that he was denied due process when the post-conviction court issued an order quashing
the subpoenas a week before his hearing. He points to no legal authority, and we find none, that suggests the
post-conviction court was not within its authority in doing so.
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5. Andrew Phillips’s testimony was necessary to show that the
confidential informant information supporting the search
warrant was “subterfuge.” Id. at 65.
Brazzel maintains that the post-conviction court’s failure to allow him to
subpoena the above witnesses was an abuse of discretion.
[16] It is well established that, if an issue was raised and determined on direct
appeal, it is res judicata and not subject to consideration for post-conviction
relief. Holt v. State, 656 N.E.2d 495, 496 (Ind. Ct. App. 1995). Here, it could
not be clearer that this Court resolved Brazzel’s claims regarding the probable
cause supporting the search warrant in Brazzel I. No. 47A04-0907-CR-426, slip
op. at p. 6. Therefore, to the extent that Brazzel was attempting to re-litigate the
issue of whether probable cause supported the search warrant for his home and
storage unit, the post-conviction court did not err in determining that this issue
was res judicata.
[17] To the extent that Brazzel was attempting to argue that his trial counsel was
ineffective for failing to call or depose witnesses at the suppression hearing prior
to his trial, Brazzel has failed to make an adequate record to allow us to address
this issue. Brazzel’s affidavits provide us with nothing more than his statement
regarding what he hoped each witness might say. Furthermore, he failed to
preserve the issue by making an offer of proof regarding what each of these
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witnesses might testify to and has therefore waived it. Dowdell v. State, 720
N.E.2d 1146, 1150 (Ind. 1999). 3 4 5
II. Ineffective Assistance of Trial Counsel
[18] Brazzel next argues that he received ineffective assistance of trial counsel. He
maintains that trial counsel was ineffective: 1) for failing to inform the post-
conviction court about communications between a juror and his girlfriend,
Alicia Cooper; and 2) for failing to request that the prosecutor in the case be
disqualified due to a conflict of interest.6 Our Supreme Court has instructed:
A defendant claiming a violation of the right to effective assistance of
counsel must establish the two components set forth in Strickland v.
Washington, 466 U.S. 668 (1984). First, the defendant must show that
counsel’s performance was deficient. This requires a showing that
counsel’s representation fell below an objective standard of
reasonableness and that the errors were so serious that they resulted in
a denial of the right to counsel guaranteed the defendant by the Sixth
3
Although Brazzel did make an offer to prove at the post-conviction hearing that was refused by the post-
conviction court, nothing kept him from filing an offer in writing after the hearing or requesting a hearing on
the matter. However, we do opine the best practice would have been for the post-conviction court to allow
Brazzel to make an offer to prove at the post-conviction hearing.
4
Brazzel acknowledged that he did not submit affidavits with his request for subpoenas for Shouls, Wigley,
Flynn, and Branham and had failed to comply with post-conviction rules. He did not ask for a continuance
or an opportunity to provide affidavits.
5
Brazzel also argues that he was denied due process of law under the Fifth and Fourteenth Amendments to
the United States Constitution. This argument centers around the post-conviction court’s refusal to hear his
offer of proof at the hearing or to allow him to present evidence regarding the witnesses mentioned above.
Again, we note that nothing prevented Brazzel from filing an offer in writing after the hearing or requesting a
hearing on the matter. Therefore, Brazzel did not exhaust his remedies in this matter and we do not find that
he was denied due process.
6
As noted above, Brazzel also argues that trial counsel was ineffective for failing to properly litigate the
suppression hearing prior to his trial because he failed to call certain witnesses. Again, we note that Brazzel
failed to provide us with an adequate record to consider his claim.
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Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. To establish prejudice, a
defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Counsel is afforded considerable discretion in choosing strategy and
tactics, and we will accord those decisions deference. A strong
presumption arises that counsel rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment. The Strickland Court recognized that even the finest, most
experienced criminal defense attorneys may not agree on the ideal
strategy or the most effective way to represent a client. Isolated
mistakes, poor strategy, inexperience, and instances of bad judgment
do not necessarily render representation ineffective. The two prongs of
the Strickland test are separate and independent inquiries. Thus, [i]f it
is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice ... that course should be followed.
Timberlake v. State, 753 N.E.2d at 603.
[19] Brazzel first argues that trial counsel was ineffective for failing to inform the
post-conviction court about improper communications that occurred between
Cooper and a juror. Cooper testified at the post-conviction hearing that an
impaneled female juror approached her and asked her to lunch. PCR Tr. p. 22.
Cooper testified that, although she refused the juror’s invitation, the juror
discussed Cooper’s relationship with Brazzel and seemed to have a negative
opinion of him. Id. Brazzel argues that trial counsel knew about this
interaction and should have reported it to the trial court.
[20] However, at the evidentiary hearing, trial counsel testified that, if he had been
told about such a communication, he would have reported it to the trial court.
Id. at 92. Indeed, during Brazzel’s trial, a similar allegation was brought to the
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trial court’s attention and trial counsel expressed concern about the impartiality
of the juror, who was excused. PCR. App. 6. The post-conviction court clearly
noted that he did not find Cooper’s testimony to be credible, and that he did
find trial counsel to be credible. Brazzel’s argument is merely a request to judge
the credibility of the witnesses and reweigh the evidence, which we will not do.
Therefore, this argument fails.
[21] Brazzel next argues that trial counsel was ineffective for failing to request that
the prosecutor in the case be disqualified due to a conflict of interest. 7 He points
out that the prosecutor, at one time, was a “juvenile referee” in a custody battle
between Cooper and Donny Matheny. Appellant’s Br. p. 38. Brazzel argues
that the prosecutor knew the “key players” in the instant case and could have
obtained information from them. Id. However, Brazzel has not explained what
kind of information the prosecutor could have gleaned from the custody case
that would have been relevant to his trial. This argument also fails.8
7
Brazzel also argues that trial counsel was ineffective for representing both himself and Cooper. Trial
counsel’s representation of Cooper is entirely irrelevant as trial counsel did not begin representation of
Cooper until after Brazzel’s first sentencing hearing.
8
Brazzel also contends that he was denied due process when the post-conviction court did not allow him to
present evidence regarding this alleged conflict of interest. However, the court found that Brazzel was not
attempting to elicit evidence in questioning the prosecutor, but to discover evidence. The post-conviction
court gave Brazzel the opportunity to present evidence by asking what information he wished to elicit from
the prosecutor, and only stopped the questioning when Brazzel stated that he did not know what information
he was seeking. PCR Tr. p. 32-35.
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II. Ineffective Assistance of Appellate Counsel
[22] Brazzel also contends that he received ineffective assistance of appellate
counsel. He maintains that appellate counsel was ineffective when he
submitted to this Court an appendix in which the pagination ran off the page.
Ineffective assistance of appellate counsel claims generally fall into three
categories: 1) denial of access to an appeal; 2) waiver of issues; and 3) failing to
prevent issues well. Henley v. State, 881 N.E.2d 639, 644 (Ind. 2008). The
standard for evaluating claims of ineffective assistance of counsel at the
appellate level is the same two-prong Strickland standard used for trial counsel.
466 U.S. at 668; Allen v. State, 749 N.E.2d 1158, 1166–67 (Ind. 2001).
Therefore, Brazzel must prove that appellate counsel performed deficiently and
that he was prejudiced as a result. Id.
[23] Brazzel has failed to show that appellate counsel’s actions prejudiced him. This
Court decided to hear the merits of his direct appeal, despite any mistakes in the
pagination of this appendix. Therefore, this argument fails.
[24] The judgment of the post-conviction court is affirmed.
Najam, J., and Friedlander, J., concur.
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