MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 16 2016, 7:01 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Nathan Hummel Gregory F. Zoeller
Michigan City, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nathan Hummel, September 16, 2016
Appellant-Petitioner, Court of Appeals Case No.
75A03-1602-PC-278
v. Appeal from the Starke Circuit
Court
State of Indiana, The Honorable Kim Hall, Judge
Appellee-Respondent. Trial Court Cause No.
75C01-1508-PC-2
Najam, Judge.
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Statement of the Case
[1] Nathan Hummel was convicted of dealing in a narcotic drug, as a Class B
felony; two counts of robbery, as Class B felonies; and disarming an officer, as a
Class C felony, pursuant to a plea agreement. Hummel subsequently petitioned
for post-conviction relief, which the post-conviction court denied. He now
appeals, challenging the post-conviction court’s judgment, and he raises a single
issue for our review, namely, whether he was denied the effective assistance of
trial counsel. We affirm.
Facts and Procedural History
[2] In December 2011, the State charged Hummel with six felony counts related to
his participation in an armed robbery of a CVS pharmacy. In particular, the
State alleged that Hummel: jumped over the counter in the pharmacy and,
armed with a knife, took controlled substances from the presence of the
pharmacist and stole cartons of cigarettes; possessed with intent to deliver
morphine, methadone, oxycodone, oxycontin, Ritalin, Fentora, Nucynta, and
Avinza; and attempted to take a police officer’s gun. During a guilty plea
hearing in April 2012, Hummel pleaded guilty to dealing in a narcotic drug, as
a Class B felony; two counts of robbery, as Class B felonies; and disarming an
officer, as a Class C felony. In exchange for Hummel’s plea, the State reduced
the dealing count from a Class A felony to a Class B felony and dismissed two
of the felony counts. And the terms of the plea agreement provided for an
aggregate sentence of twenty-five years executed. The trial court entered
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judgment of conviction and sentence according to the terms of the plea
agreement.
[3] On August 18, 2015, Hummel filed a pro se petition for post-conviction relief.
In that petition, Hummel alleged that his “plea of guilty was not knowingly and
voluntarily entered into due to receiving ineffective assistance of trial
[counsel].” Appellant’s App. at 36. Following a hearing, the post-conviction
court concluded that Hummel “freely and voluntarily, after advise [sic] of
counsel who was not ineffective, pled guilty under the terms of the Plea
Agreement.” Appellant’s Br. at 23.1 This appeal ensued.
Discussion and Decision
[4] Hummel contends that his plea was not knowing, intelligent, and voluntary
because he received ineffective assistance of trial counsel.
To prevail on a claim of ineffective assistance of counsel, a
petitioner must demonstrate both that his counsel’s performance
was deficient and that the petitioner was prejudiced by the
deficient performance. Strickland v. Washington, 466 U.S. 668,
687 (1984). However, failure to satisfy either prong will cause
the claim to fail. French v. State, 778 N.E.2d 816, 824 (Ind. 2002).
“[I]f we can dismiss an ineffective assistance claim on the
prejudice prong, we need not address whether counsel’s
performance was deficient.” Lee v. State, 892 N.E.2d 1231, 1233
(Ind. 2008).
1
Hummel did not include the post-conviction court’s order in the appendix on appeal. See Ind. Appellate
Rule 50(A)(2)(b).
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Counsel’s performance is deficient if it falls below an objective
standard of reasonableness based on prevailing professional
norms. French, 778 N.E.2d at 824. Counsel is afforded
considerable discretion in choosing strategy and tactics, and we
will accord those decisions deference. Timberlake v. State, 753
N.E.2d 591, 603 (Ind. 2001). A strong presumption arises that
counsel rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. Id.
To meet the appropriate test for prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. Id. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Perez v. State,
748 N.E.2d 853, 854 (Ind. 2001).
There are two different types of ineffective assistance of counsel
claims that can be made in regards to guilty pleas: (1) failure to
advise the defendant on an issue that impairs or overlooks a
defense and (2) an incorrect advisement of penal consequences.
Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001); see also Smith v.
State, 770 N.E.2d 290, 295 (Ind. 2002). . . . The specific standard
for showing prejudice on [the first type of claim] was articulated
by our Supreme Court in Segura and requires:
a showing of a reasonable probability of success at
trial if the alleged error is one that would have
affected a defense. . . . A new trial is of course
necessary if an unreliable plea has been accepted.
But its costs should not be imposed needlessly, and
that would be the result if the petitioner cannot show
a reasonable probability that the ultimate result-
conviction-would not have occurred despite counsel’s
error as to a defense.
749 N.E.2d at 503.
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McCullough v. State, 987 N.E.2d 1173, 1176-77 (Ind. Ct. App. 2013).
[5] We agree with the State that Hummel has waived this issue for review on
appeal for failure to present a cogent argument in support of his contentions.
See Ind. Appellate Rule 46(A)(8)(a). While Hummel sets out the applicable
standard of review and cites case law relevant to his burden to prove ineffective
assistance of counsel in general, he does not state with any specificity how his
trial counsel’s performance was allegedly deficient or direct us to any evidence
in the record to support his bare contentions. See id. For instance, in his brief
on appeal, Hummel states that his trial counsel made “unprofessional errors,”
but he does not describe those alleged errors or direct us to any part of the
record to support that allegation. Appellant’s Br. at 15. And Hummel avers
that his trial counsel did not “properly advise [him] on the offen[s]e of dealing
in a narcotic” drug, but he does not explain what his trial counsel’s advice was
or how it was improper. Id. at 16. Because of the lack of cogent argument and
citation to the record or relevant authority, Hummel has waived his ineffective
assistance of trial counsel claim for our review.
[6] Affirmed.
Vaidik, C.J., and Baker, J., concur.
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