MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 24 2016, 10:30 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John L. Tompkins Gregory F. Zoeller
Brown Tompkins Lory & Mastrian Attorney General of Indiana
Indianapolis, Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terry Austin, August 24, 2016
Appellant-Petitioner, Court of Appeals Case No.
30A01-1511-PC-1998
v. Appeal from the Hancock Superior
Court
State of Indiana, The Honorable Terry K. Snow,
Appellee-Respondent. Judge
Trial Court Cause No.
30D01-1507-PC-1134
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 30A01-1511-PC-1998 | August 24, 2016 Page 1 of 7
Statement of the Case
[1] Terry Austin appeals the post-conviction court’s denial of his petition for post-
conviction relief. Austin raises a single issue for our review, namely, whether
the post-conviction court erred when it concluded that Austin had not received
ineffective assistance of trial counsel. We affirm.
Facts and Procedural History
[2] We discussed the facts underlying Austin’s conviction in our memorandum
decision following his direct appeal:
Austin was employed as a lieutenant and shift supervisor for the
Greenfield Police Department in 2013 and 2014. In September
2013, Austin’s brief marriage to Koleki Wright was dissolved
finalizing the contentious legal battle between the two. Wright’s
driver’s license had been suspended since January of 2013.
In December 2013, Austin used Facebook to contact
McCordsville Police Officer Shawn Brady, whose patrol area
included Wright’s residence, about Wright. Austin sent him
information about Wright’s license status, which he had obtained
through the IDACS database, her address, and her driver’s
license number. He did so even though officers are not permitted
to send IDACS information through messaging systems such as
Facebook. In that message, Austin also informed Brady that
Wright’s driver's license was suspended and offered Brady a $200
gift card for a steak dinner if Brady would initiate a traffic stop
and impound Wright’s vehicle for driving with a suspended
license. Brady did not act on Austin’s offer.
On February 18, 2014, at approximately 5:30 a.m., Wright,
whose contact information was saved on Austin’s cell phone
Court of Appeals of Indiana | Memorandum Decision 30A01-1511-PC-1998 | August 24, 2016 Page 2 of 7
under the moniker “Bitch,” sent a text message to Austin
informing him that she was traveling for work and could not
attend a hearing that the two were to attend that was scheduled
for later that day. At approximately 6:00 a.m. that same day
Austin sent a text message to his friend, Fortville Police Officer
Matt Fox, asking Fox for the cell phone number of McCordsville
Police Officer Nathan Garner, whose normal patrol route
included Wright’s residence. Austin again offered a gift card for
a $200 steak dinner to the first one to “nail her” in his message to
Fox. Tr. p. 156. After Fox replied that he loved steak, Austin
texted, “Nail her ass and it’s yours!!!!!” Appellant’s App. p. 22.
Austin then asked Fox if Garner would “hook [him] up” to
which Fox replied “Should.” Id. Austin sent Wright’s IDACS
information to Fox from his computer.
Minutes after receiving Garner’s cell phone number, Austin sent
Wright’s IDACS information to Garner, including her suspended
license status, in a text message. Austin identified himself by
name and as “GPD” in a subsequent text message and asked
Garner to call him. Id. Garner, who was on active patrol, called
Austin, who offered Garner a gift card for a $200 steak dinner if
Garner would initiate a traffic stop on Wright for driving with a
suspended license. Austin told Garner the make and model of
Wright’s vehicle and at what time he expected Wright to leave
for work. After the phone call was completed, Austin sent the
offer to Garner by text message. Garner did not act on the
information supplied by Austin, and at some point later filed a
report about the incident.
On February 26, 2014, Austin entered the Hancock County
Emergency Operations Center to obtain a print-out of the
Computer Aided Dispatch of all officer activity from the previous
night. While there, Austin spoke with IDACS coordinator Keri
Brady, Officer Shawn Brady's ex-wife. In a loud voice, Austin
told Brady that he had offered a gift card for a $200 steak dinner
to Brady’s ex-husband if he would arrest Wright and “tow her
Court of Appeals of Indiana | Memorandum Decision 30A01-1511-PC-1998 | August 24, 2016 Page 3 of 7
shit.” Tr. p. 91. Austin said that he had made the same offer to
other officers. Austin spoke loudly enough that other people in
the dispatch center overheard Austin’s comments.
After that conversation ended, Brady reported Austin’s conduct
as a possible IDACS violation. Brady spoke to someone with the
Indiana State Police and determined that Wright’s information
had been run through IDACS seventeen times between July 20,
2013[,] and February of 2014. Brady also contacted Greenfield
Police Detective Randy Ratliff, who was in charge of all internal
investigations for that department. Ratliff then informed his
chain of command about Austin’s actions and contacted the
Indiana State Police.
In March 2014, Indiana State Police Detective Amy Johnson was
assigned to investigate Austin’s actions. Detective Johnson
obtained records from Ratliff and the report that Garner had filed
after the incident. She interviewed Austin on March 24, 2014,
and[,] after he was advised of his rights and signed a waiver, he
admitted that he offered a $200 gift card to the first officer to
arrest Wright. Austin maintained that he had not done anything
wrong by making the offer. The State charged Austin with
bribery and official misconduct and the jury found him guilty of
both felony offenses.
Austin v. State, No. 30A04-1412-CR-589, 2015 WL 3965688 at *1-*2 (Ind. Ct.
App. June 26, 2015). We affirmed Austin’s convictions on appeal.
[3] Thereafter, Austin filed his petition for post-conviction relief. In his petition,
Austin alleged that he had received ineffective assistance of trial counsel. In
particular, Austin argued that his trial counsel’s failure to file a motion to
suppress the text messages obtained from his cell phone pursuant to a search
Court of Appeals of Indiana | Memorandum Decision 30A01-1511-PC-1998 | August 24, 2016 Page 4 of 7
warrant was ineffective assistance. After an evidentiary hearing, the post-
conviction court denied Austin’s petition, finding in part that Austin’s counsel
had a reasonable strategy for not filing a motion to suppress that evidence. This
appeal ensued.
Discussion and Decision
[4] Austin appeals the post-conviction court’s denial of his petition for post-
conviction relief. Our standard of review in such appeals 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.
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.
Court of Appeals of Indiana | Memorandum Decision 30A01-1511-PC-1998 | August 24, 2016 Page 5 of 7
Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.
[5] On appeal, Austin argues that his trial counsel rendered ineffective assistance
when he did not file a motion to suppress the text messages the State had
obtained from his cell phone pursuant to a search warrant. Generally, a claim
of ineffective assistance of counsel must satisfy two components. Strickland v.
Washington, 466 U.S. 668 (1984). First, the criminal defendant must show
deficient performance: 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
criminal 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. Notably, “[r]easonable strategy” of trial counsel “is not subject to judicial
second guesses.” Pryor v. State, 973 N.E.2d 629, 632 (Ind. Ct. App. 2012).
[6] Austin’s trial counsel made a reasonably strategic decision not to file a motion
to suppress the text messages obtained from Austin’s cell phone. At the
evidentiary hearing on Austin’s petition for post-conviction relief, Robert Elsea,
Austin’s trial counsel, testified that he consciously did not seek to suppress the
text messages because
the vast majority of the evidence in regards to . . . what Terry had
alleged[ly] . . . said to other officers . . . was discovered prior to
getting the actual text messages off of his phone. [S]o as far as
the search warrant, as it pertained to this case, I didn’t think quite
honestly that it was particularly critical to keep the actual texts of
Court of Appeals of Indiana | Memorandum Decision 30A01-1511-PC-1998 | August 24, 2016 Page 6 of 7
what he set out in light of the amount of direct evidence that was
go[ing] to come from several different people that those
communications were made.
P-C Tr. at 29. Indeed, much of the State’s evidence against Austin were
Austin’s own statements to investigating officers after Austin waived his
Miranda rights. The post-conviction court expressly credited Elsea’s testimony
when it found that Elsea had a reasonable trial strategy for not filing a motion
to suppress.
[7] Accordingly, the court’s finding that Elsea had a reasonable trial strategy not to
file the motion to suppress is supported by the evidence. We will not second
guess a trial counsel’s reasonable trial strategy. Pryor, 973 N.E.2d at 632.
Austin cannot demonstrate that his trial counsel’s performance fell below an
objective standard of reasonableness. And, given Austin’s statements heard by
witnesses at the dispatch center, as well as his own admission, Austin cannot
show prejudice. Under either and both prongs of Strickland, Austin cannot
demonstrate ineffective assistance of counsel. The judgment of the post-
conviction court is affirmed.
[8] Affirmed.
Vaidik, C.J., and Baker, J., concur.
Court of Appeals of Indiana | Memorandum Decision 30A01-1511-PC-1998 | August 24, 2016 Page 7 of 7