MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule
65(D), this Memorandum Decision
Nov 10 2015, 8:27 am
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.
PRO SE APPELLANT ATTORNEYS FOR APPELLEE
Stacey Yuron Hart Gregory F. Zoeller
Carlisle, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Stacey Yuron Hart, November 10, 2015
Appellant-Defendant, Court of Appeals Case No.
82A01-1411-CR-472
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Plaintiff. Judge
Trial Court Cause No.
82C01-1407-F3-923
May, Judge.
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[1] Stacey Yuron Hart appeals his conviction of and sentence for Level 3 felony
dealing in methamphetamine, 1 Level 6 felony possession of a narcotic, 2 Class A
misdemeanor possession of paraphernalia, 3 and his adjudication as an habitual
offender. 4 He argues his trial counsel was ineffective because trial counsel did
not move to suppress certain evidence, did not object to Hart’s adjudication as
an habitual offender, and did not object to Hart’s sentence. We affirm.
Facts and Procedural History
[2] From July 15-19, 2014, C.D., a fourteen-year-old runaway, lived with Hart at
various locations in Evansville. During this time, Hart gave someone
methamphetamine in exchange for the use of a motel room and sold
methamphetamine from his car and at multiple residences. On July 19, police
picked up C.D. C.D. tested positive for methamphetamine, Xanax, marijuana,
and synthetic marijuana. Evansville Police Detective Tony Mayhew
interviewed C.D. regarding her prior whereabouts.
[3] Based on what C.D. told him, Detective Mayhew obtained a search warrant for
Hart’s vehicle. On July 24, police stopped Hart’s vehicle based on Detective
Mayhew’s warrant. The officer found a digital scale, a cigarette case containing
1
Ind. Code § 35-48-4-1.1(a)(2) (2014).
2
Ind. Code § 35-48-4-6(a) (2014).
3
Ind. Code § 35-48-4-8.3(a)(1) (2014).
4
Ind. Code § 35-50-2-8(a) (2014).
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baggie corners and tweezers, a glass pipe with residue, and small baggies with
what he believed were drugs. Testing of the substances in the baggies revealed
7.16 grams of methamphetamine, two tablets of methadone, three tablets of
hydrocodone, and five tablets of Tramadol.
[4] The State charged Hart with Level 3 felony dealing in methamphetamine, Level
6 felony possession of a narcotic drug, Class A misdemeanor possession of
paraphernalia, and Level 6 felony possession of a legend drug. 5 It alleged Hart
was an habitual offender. A jury found Hart guilty of all charges except Level 6
felony possession of a legend drug, on which the trial court directed a verdict.
The jury concluded Hart was an habitual offender based on his prior
convictions of Class D felony failure to return to lawful detention in 2002 and
Class C felony possession of a controlled substance in 2005.
[5] The trial court entered convictions and sentenced Hart to concurrent sentences
of fifteen years for Level 3 felony dealing in methamphetamine, two and a half
years for Level 6 felony possession of a narcotic, and one year for Class A
misdemeanor possession of paraphernalia. Based on his adjudication as an
habitual offender, the trial court enhanced Hart’s sentence by twenty years for
an aggregate sentence of thirty-five years.
5
Ind. Code § 35-43-10-3(1) (2014).
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Discussion and Decision
[6] Hart proceeds in his appeal pro se. 6 Pro se litigants are held to the same
standards as licensed attorneys and are required to follow procedural rules.
Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.
[7] We begin our review of a claim of ineffective assistance of counsel with a strong
presumption “that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Ward
v. State, 969 N.E.2d 46, 51 (Ind. 2012) (internal citation omitted). Trial counsel
has wide latitude in selecting trial strategy and tactics, which will be subjected
to deferential review. Id. “[A] defendant must offer strong and convincing
evidence to overcome this presumption.” Saylor v. State, 765 N.E.2d 535, 549
(Ind. 2002).
[8] An ineffective assistance challenge requires a defendant to establish both
deficient performance and resulting prejudice. Pontius v. State, 930 N.E.2d
1212, 1219 (Ind. Ct. App. 2010), trans. denied. Performance is deficient when
trial counsel’s representation falls below an objective standard of reasonableness
causing errors sufficiently serious to amount to a denial of the defendant’s Sixth
Amendment right to counsel. Wesley v. State, 788 N.E.2d 1247, 1252 (Ind.
2003). Prejudice is established when “there is a reasonable probability that, but
6
When he filed his appeal, Hart had counsel, who filed an appellate brief. Counsel withdrew and Hart was
granted permission to file a pro se brief.
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for counsel’s unprofessional errors, the result of the proceeding would be
different.” Id. If defendant does not establish prejudice, we need not evaluate
trial counsel’s performance. Pontius, 930 N.E.2d at 1219.
[9] Demonstrating ineffective assistance of counsel often requires “going beyond
the trial record to show what the investigation, if undertaken, would have
produced,” Slusher v. State, 823 N.E.2d 1219, 1223 (Ind. Ct. App. 2005),
because the prejudice prong is satisfied only when there is a reasonable
probability the outcome would have been affected by the error. Id. However,
when such a challenge is raised on direct appeal, we are limited to a review of
the trial record. Pontius, 930 N.E.2d at 1219. Additionally, Hart’s direct appeal
of his claim of ineffective assistance of counsel precludes raising the issue again
if he pursues post-conviction relief. See Conner v. State, 711 N.E.2d 1238, 1244
(Ind. 1999) (“when this Court decides an issue on direct appeal, the doctrine of
res judicata applies, thereby precluding its review in post-conviction
proceedings”).
Motion to Suppress
[10] Hart argues his trial counsel was ineffective because he did not file a motion to
suppress the evidence found in Hart’s car. He claims the motion to suppress
would have been successful because “the information [used to justify the search
warrant] was stale and hearsay changed [sic] information from original
statement given to police officer while under the influence of several different
drugs that Detective used to get a search warrant.” (Br. of Appellant at 6.)
However, Hart does not point to evidence that suggests C.D. was intoxicated at
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the time she gave her statement to Detective Mayhew nor did he cite authority
holding five-day-old information was stale, such that a motion to suppress
would have been successful.
[11] Passage of time between the information provided for a search warrant and the
date the search warrant is executed does not make the evidence stale if there is
evidence of ongoing criminal activity. See Mehring v. State, 884 N.E.2d 371,
378-79 (Ind. Ct. App. 2008) (holding evidence ten months and nineteen days
old was not stale because the evidence was one of an ongoing crime), reh’g
denied, trans. denied. C.D. told Detective Mayhew on July 19 that she rode in
Hart’s car from July 15 to July 19, during which time he sold
methamphetamine multiple times. Hart has not demonstrated the motion, if
made, would have been granted. Nor has he demonstrated that the granting of
such motion would have changed the outcome of his case because there was
sufficient independent evidence to prove he committed his crimes, such as
C.D.’s testimony and Hart’s own admissions. See Slusher, 823 N.E.2d at 1223
(Ind. Ct. App. 2005) (ineffective assistance of counsel claim not successful when
defendant cannot demonstrate that, but for counsel’s error, the outcome of the
proceedings would have been different).
Habitual Offender
[12] The version of Ind. Code § 35-50-2-8(b) effective at the time of Hart’s crimes
states:
(b) A person convicted of murder or of a Level 1 through
Level 4 felony is a habitual offender if the state proves
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beyond a reasonable doubt that:(1) the person has been
convicted of two (2) prior unrelated felonies; and
(2) at least one (1) of the prior unrelated felonies is not a
Level 6 felony or a Class D felony.
[13] Hart argues his trial counsel was ineffective because “[t]he State failed to prove
the Defendant was sentenced to more than one dealing” offense and counsel
did not object. (Br. of Appellant at 8.) The State presented evidence Hart was
convicted of Class D felony failure to return to lawful detention in 2002 and
Class C felony possession of a controlled substance in 2005. That is sufficient
to prove Hart was an habitual offender. Hart has not demonstrated his trial
counsel was ineffective because counsel would have been unsuccessful in
making such an objection. See Slusher, 823 N.E.2d at 1223 (Ind. Ct. App. 2005)
(ineffective assistance of counsel claim not successful when defendant cannot
demonstrate that, but for counsel’s error, the outcome of the proceedings would
have been different).
Sentencing
[14] Hart argues his trial counsel was ineffective “for not objecting to the trial courts
[sic] enhancement of Defendants [sic] sentence being over the advisory.” (Br.
of Appellant at 9.) He claims the trial court erred because it did not consider
mitigating circumstances such as Hart’s “completion of college, a certificate in
construction builders trade, Defendant was employed, Defendant pays child
support on three of his four children, Defendant is serv-safe certified, Defendant
hasn’t had a felony conviction in over (9) years, [and] the Defendant showed
remorse.” Id. He also claims the trial court “mis-used the Defendants [sic]
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prior criminal history by not using it as a whole but individually naming off (13)
charges which (9) of the (13) was [sic] misdemeanors and (7) of the (13) was
[sic] over (10) year old.” Id.
[15] The trial court is not required to find mitigating factors or give them the same
weight that the defendant does. Flickner v. State, 908 N.E.2d 270, 273 (Ind. Ct.
App. 2009). However, a court abuses its discretion if it does not consider
significant mitigators advanced by the defendant and clearly supported by the
record. Anglemyer, 868 N.E.2d at 490. Once aggravators and mitigators have
been identified, the trial court has no obligation to weigh those factors against
each other. Id. at 491.
[16] Further, Hart has not demonstrated his trial counsel was ineffective during his
sentencing hearing; the trial court could consider not only counsel’s argument
but also the information in the Pre-Sentencing Investigation, and the trial court
was not required to weigh the aggravators and mitigators as Hart does.
Therefore, we conclude the outcome at trial would not have been different but
for counsel’s alleged errors. See Slusher, 823 N.E.2d at 1223 (Ind. Ct. App.
2005) (ineffective assistance of counsel claim not successful when defendant
cannot demonstrate that, but for counsel’s error, the outcome of the
proceedings would have been different).
Conclusion
[17] Hart has not demonstrated his trial counsel was ineffective because counsel did
not file a motion to suppress, object to his adjudication as an habitual offender,
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or object to an “enhanced” sentence. Accordingly, we affirm his convictions
and sentences.
[18] Affirmed.
Crone, J., and Bradford, J., concur.
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