MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Dec 09 2020, 8:43 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Leroy Butler Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
Jesse R. Drum
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Leroy Butler, December 9, 2020
Appellant-Petitioner, Court of Appeals Case No.
20A-PC-658
v. Appeal from the Shelby Superior
Court
State of Indiana, The Honorable David Neal
Appellee-Respondent. Riggins, Judge
Trial Court Cause No.
73D02-1904-PC-5
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-PC-658| December 9, 2020 Page 1 of 14
Case Summary
[1] Leroy Butler appeals the denial of his pro se petition for post-conviction relief,
raising the following two restated issues:
1. Did the post-conviction court err when it denied Butler’s Ind.
Trial Rule 56 motion for summary judgment?
2. Did the post-conviction court err when it determined that
Butler’s trial counsel was not ineffective for not filing a motion to
suppress?
[2] We affirm.
Facts & Procedural History
[3] On August 17, 2015, Shelbyville Police Department dispatch received an
anonymous call reporting that someone was believed to be possessing or
dealing narcotics from a green car. The caller provided the location of the
residence where the car was last seen and its license plate number. Officer
James Jones drove to the location, and the described vehicle was in the
driveway. He parked in a nearby location, while another officer watched the
car and told Officer Jones when it was leaving the residence. Officer Jones
followed the subject car, observed it fail to make a complete stop at a stop sign,
and initiated a traffic stop. Officer Jones asked the driver for identification, and
Butler identified himself. There was an active warrant for Butler’s arrest, and
Officer Jones arrested Butler. As the registered owner of the vehicle was not
present, the vehicle was towed. During a search of the vehicle, officers found
methamphetamine and a glass pipe in the passenger compartment and, in the
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trunk, officers found methamphetamine, marijuana, and a digital scale. The
State charged Butler with dealing in methamphetamine, possession of
methamphetamine, and maintaining a common nuisance.
[4] At the August 2016 jury trial, Officer Jones testified to following the car and
observing it fail to make a complete stop at a stop sign before it turned. He
described, “The way I do it is I watch their rims. If their rims do not come to a
full resting position . . . that is considered not coming to a complete stop[,]” and
“the vehicle did that” at the stop sign as it was turning south. Exhibits Vol. at
10. On cross-examination, counsel questioned Officer Jones in more detail
concerning his exact location when he saw Butler’s vehicle at the stop sign, and
Officer Jones pointed to his location on a map and said, “So I had a view
through here of the vehicle’s tires.” Id. at 57.
[5] The jury found Butler guilty of all three charges. At the sentencing hearing,
Butler stated that he had a substance-abuse problem, including drinking
alcohol. The trial court merged the possession and dealing charges and
convicted Butler of dealing in methamphetamine and maintaining a common
nuisance, sentencing him to a total of twenty years, with eighteen years to be
served in the Indiana Department of Correction and two years suspended to
probation. On direct appeal, Butler asserted that a probation condition
prohibiting him from entering any establishment that sells alcohol was
overbroad. We agreed, revised the condition, and remanded for further
proceedings. Butler v. State, No. 73A01-1609-CR-2238 (Ind. Ct. App. April 7,
2017).
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[6] On April 9, 2019, Butler, pro se, filed a petition for post-conviction relief
asserting that his trial counsel was ineffective for (1) failing to file a motion to
suppress the evidence seized during what Butler claims was an illegal, pre-
textual traffic stop, and (2) for failing to object during trial to certain testimony
of Officer Jones that Butler claimed violated a motion in limine. Butler also
alleged that his appellate counsel was ineffective for failing to raise certain
issues on appeal, including ineffective assistance of trial counsel.
[7] Butler filed a number of discovery requests and motions during the pendency of
his post-conviction petition, including a motion for declaratory judgment, a
request for judicial notice to supplement/preserve evidence, motions to compel,
a second motion for declaratory judgment, and motion for change of venue
from the judge, in which Butler asserted that the judge was “extremely biased”
against him, did not hold the State in contempt for alleged failures to comply
with discovery, and “squandered in unsavory, dilatory, impeding actions
against [his] rights to discovery per trial rules.” Appellant’s Appendix at 30. The
request for change of judge was granted, and Special Judge David N. Riggins
was appointed and assumed jurisdiction on November 12, 2019.
[8] On December 12, 2019, Butler filed a motion for summary judgment, asserting
that he was entitled to judgment as a matter of law on the ineffective assistance
of trial counsel and appellate counsel claims that he raised in his petition for
post-conviction relief. He asserted that the material facts not in dispute
included “the arresting officer’s false probable cause affidavit [] which the
officer illegally utilized to perform a pretextual traffic stop upon Butler.” Id. at
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37. He designated evidence, including his own two affidavits, the State’s
interrogatory responses, and a “Motion for Judicial Estoppel” that he had filed.
Id. at 44.
[9] On February 21, 2020, the court held a post-conviction hearing, at which Butler
presented the following evidence: (1) portions of the trial transcript, namely
Officer Jones’s testimony and the prosecutor’s rebuttal argument; (2), Officer
Jones’s dash-cam video 1; and (3) testimony of his trial counsel, Adam James. 2
The dash-cam video was played on the 72-inch screen in the courtroom. After
watching the video, the post-conviction court stated, “It’s so blurry its hard for
me to see anything[,]” and it determined that the video was “inconclusive” as to
whether Butler stopped. Transcript at 11. The court read the offered and
admitted trial testimony of Officer Jones, who testified that he watched the
wheels or rims of Butler’s vehicle roll and not come to a complete stop.
[10] James testified that, prior to trial, he deposed Officer Jones and watched the
dash-cam video. James acknowledged that Butler asked him to file a motion to
suppress but that, based on Officer Jones’s deposition testimony and the video,
he thought a motion to suppress would not be successful, and he “didn’t want
to file what [he] thought would be [a] frivolous motion to suppress.” Id. at 26.
1
Butler did not have the video but the prosecutor had a copy at the hearing, agreed for it to be played, and
did not object to its admission.
2
Butler had not subpoenaed James for the hearing, but rather than continue the hearing, and with the
agreement of the State, the court contacted James, who now was employed as a county prosecutor, and
asked him to come to the courtroom to testify. The State did not object to that course of action.
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[11] After receiving testimony and hearing argument, the post-conviction court
addressed Butler’s motion for summary judgment. The court explained,
“Summary judgment is not necessarily an appropriate motion for post-
conviction relief[,]” and, further, “[s]ummary judgment is like a shortcut so you
don’t have to have a hearing. . . . We’re having the hearing. So, I’m gonna
deny your motion for summary judgement because it’s not necessary.” Id. at
32. The court took Butler’s petition for post-conviction relief under advisement
and issued an order later that day denying relief.
[12] It found that James’s decision to not file a motion to suppress was reasonable,
stating, in pertinent part:
A view of the [] video is inconclusive due to the distance and
blurriness of the video. Had the Motion to Suppress been filed in
this court, this court would have denied it. The discrepancy
between Butler and Jones [sic] version of events is not
appropriate as a matter of law for suppression but instead was a
matter of credibility for the jury to consider.
Moreover, Butler was wanted on a warrant at the time of the
stop. . . . This court does not believe the law allows suppression
of identity, even if the stop was unlawful. Therefore, once
Butler’s identity was established, the warrant was properly
executed and items discovered would have been subject to lawful
search incident to arrest and/or inventory.
Appellant’s Appendix at 13. The post-conviction court determined that James did
not provide ineffective assistance by not filing a motion to suppress. With
regard to Butler’s claim that his trial counsel was ineffective for failure to object
to a claimed violation of a motion in limine, the court found that Butler failed
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to present any evidence on the issue and failed to make a cogent argument, and,
accordingly, “fails in his burden.” Id.
[13] Similarly, concerning Butler’s post-conviction claim that his appellate counsel
was ineffective, the court found that “again, [Butler] presented no evidence or
argument in support[,]” but noted that Butler’s testimony at the hearing “hinted
that after speaking with his appellate counsel he understood why she didn’t
raise the issue of ineffective assistance of [trial] counsel, instead leaving it to be
raised in a PCR petition.” Id. The post-conviction court determined that Butler
“has failed to meet his burden on this claim too.” Id. The court denied the
petition for post-conviction relief, 3 and Butler now appeals.
Discussion & Decision
[14] In order to prevail on a petition for post-conviction relief, a petitioner must
establish his claims by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5); Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). The post-
conviction court is the sole judge of the weight of the evidence and the
credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
[15] When appealing from the denial of a petition for post-conviction relief, a
petitioner must convince this court that the evidence, taken as a whole, “leads
3
In its order, the court recognized the “passionate plea” that Butler had made about his situation in prison
and his efforts at reform, and it congratulated Butler on his progress, suggesting that “such progress is best
noted and appreciated in a Petition to Modify Sentence” and “it really has no place for consideration in a
Petition for Post-Conviction relief.” Appellant’s Appendix at 13.
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unerringly and unmistakably to a decision opposite that reached by the post-
conviction court.” Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). “It is only
where the evidence is without conflict and leads to but one conclusion, and the
post-conviction court has reached the opposite conclusion, that its decision will
be disturbed as contrary to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct.
App. 2004), trans. denied.
I. Motion for Summary Judgment
[16] Butler challenges the post-conviction court’s denial of his T.R. 56 motion for
summary judgment, arguing that the State “failed to present any evidence to
rebut Butler’s designated evidence establishing that he did not run a stop
sign[.]” Appellant’s Brief at 22 (internal quotation marks omitted).
[17] Although post-conviction proceedings are civil, see Ind. Post-Conviction Rule
1(1)(5), the Indiana Supreme Court “established the special procedures set out
in the Indiana Post-Conviction Rules to facilitate review of criminal convictions
and sentences[,]” and the remedy provided under P-C.R. 1 “takes the place of
all other common law, statutory, or other remedies heretofore available for
challenging the validity of the conviction or sentence and shall be used
exclusively in place of them.” P-C.R. 1(1)(b); Van Meter v. State, 650 N.E.2d
1138, 1138 (Ind. 1995). Our Indiana Supreme Court has explained that
Indiana’s Trial Rules “generally only govern procedure and practice in civil
cases” and that the Court has considered their applicability in post-conviction
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proceedings where the Post-Conviction Rules “are silent.” Corcoran v. State, 845
N.E.2d 1019, 1021 (Ind. 2006).
[18] The post-conviction rules expressly provide for summary disposition. P-C.R.
1(1)(4)(g) states:
The court may grant a motion by either party for summary
disposition of the petition when it appears from the pleadings,
depositions, answers to interrogatories, admissions, stipulations
of fact, and any affidavits submitted, that there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.
The State argues that “[b]ecause the Post-Conviction Rules are not silent about
summary disposition, and in fact conflict with Trial Rule 56(C), Trial Rule
56(C) does not apply in post-conviction proceedings,” and, therefore, the post-
conviction court properly denied Butler’s summary judgment motion.
Appellant’s Brief at 15.
[19] Regardless of whether Butler was allowed to file for summary disposition under
T.R. 56, his claim fails. That is, under either rule – P-C.R. 1(1)(4)(g) or T.R. 56
– Butler has failed to show that that there was no genuine issue of material fact
and that he was entitled to judgment as a matter of law. The main fact that he
represented in his motion as being undisputed – that he did stop at the stop sign
– was expressly disputed in the probable cause affidavit and by Officer Jones in
his deposition, where he stated that he observed Butler fail to completely stop.
The State’s responses to interrogatories, which Butler designated in support of
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his motion, were consistent with that position. Accordingly, summary
disposition was not warranted. See State v. Gonzalez-Vazquez, 984 N.E.2d 704,
709 (Ind. Ct. App. 2013) (observing that, where post-conviction petitioner
sought summary judgment on his ineffectiveness claim, “it would be an
extremely rare occasion upon which a petitioner would be able to show an
absence of an issue of material fact and further show his entitlement to
judgment as a matter of law without a hearing and the presentation of
evidence”), trans. denied. The post-conviction court did not err when it denied
Butler’s motion for summary judgment.
II. Ineffective Assistance of Trial Counsel
[20] Butler’s primary argument on appeal is that the traffic stop was pretextual and
illegal and that his counsel was ineffective for not filing a motion to suppress
the seized evidence.4 Ineffective assistance of counsel claims are governed by
the two part test established by Strickland v. Washington, 466 U.S. 668 (1984).
According to this test, [Butler] must first establish that his trial
counsel’s performance was deficient. To demonstrate deficient
performance, [Butler] must show that his trial counsel’s
representation fell below an objective standard of reasonableness
and that the errors were so serious that they resulted in a denial
of [Butler’s] Sixth Amendment right to counsel. Second, [Butler]
must demonstrate that the deficient performance prejudiced his
4
Although Butler raised in his petition the argument that trial counsel was also ineffective for failing to object
to certain testimony, he did not address that claim at the hearing, and the post-conviction court found that he
waived it. Butler does not challenge that determination on appeal, and any claim regarding a failure to object
is waived.
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defense. In order to establish prejudice, [Butler] must show that
there is a reasonable probability that, but for his trial 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.
Moore v. State, 872 N.E.2d 617, 620 (Ind. Ct. App. 2007) (quoting Glotzbach v.
State, 783 N.E.2d 1221, 1224 (Ind. Ct. App. 2003)), trans. denied.
[21] Counsel is afforded considerable discretion in choosing strategy and tactics, and
a strong presumption arises that counsel rendered adequate assistance. Oberst v.
State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010), trans. denied. We will not
lightly speculate as to what may or may not have been an advantageous trial
strategy, as counsel should be given deference in choosing a trial strategy that,
at the time and under the circumstances, seems best. Perry v. State, 904 N.E.2d
302, 308 (Ind. Ct. App. 2009), trans. denied. Isolated omissions or errors, poor
strategy, or bad tactics do not necessarily render representation ineffective.
McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012), trans. denied.
[22] Butler contends that his trial counsel was ineffective for not filing a motion to
suppress. Appellant’s Brief at 14. The decision of whether to file a particular
motion is generally a matter of trial strategy, and, absent an express showing to
the contrary, the failure to file a motion does not indicate ineffective assistance
of counsel. Glotzbach, 783 N.E.2d at 1224. Specifically, we have held that
“‘[t]o prevail on an ineffective assistance of counsel claim based upon counsel’s
failure to file motions on a defendant’s behalf, the defendant must demonstrate
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that such motions would have been successful.’” Moore, 872 N.E.2d at 621
(quoting Wales v. State, 768 N.E.2d 513, 523 (Ind. Ct. App. 2002), on reh’g, 774
N.E.2d 116, trans. denied).
[23] Here, at the post-conviction hearing, James acknowledged that he and Butler
had discussed the possibility of filing a motion to suppress, but James explained
that, after deposing Officer Jones and watching the video that was blurry and
essentially inconclusive, he decided not to file “what [he] thought would be [a]
frivolous motion to suppress.” Transcript at 26. The partial trial transcript
admitted at the post-conviction hearing reflected that James posed questions to
Officer Jones on cross-examination that inquired where exactly Officer Jones
was located at the time that Butler’s car arrived at the stop sign and appeared to
be calculated to raise doubts on the officer’s assertion that he saw the rims of
Butler’s vehicle not come to a complete stop. The record also suggests that
James’s closing argument included that Butler stopped at the stop sign and that
the officer could not see it. 5 On this record, Butler has failed to carry his burden
of showing that James’s decision – to not file a motion to suppress – was not a
matter of trial strategy. See Glotzbach, 783 N.E.2d at 1225 (trial counsel’s
decision not to file a motion to suppress photo array was matter of trial strategy
5
James’s closing argument is not in the record before us, but the prosecutor’s rebuttal argument is, having
been offered by Butler at the post-conviction hearing and admitted without objection, and such rebuttal
argument indicates that the State responded to suppression-type arguments that had been made by Butler’s
counsel.
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and not ineffective assistance where counsel’s cross-examination at trial asked
questions aiming to raise doubt about the legitimacy of the photo array).
[24] Moreover, the post-conviction court (a special judge who assumed jurisdiction
after Butler’s motion for change of venue from the judge) stated that “[h]ad the
Motion to Suppress been filed in this court, this court would have denied it”
because the matter hinged on witness credibility, i.e. Butler’s version versus
Officer Jones’s version. Appellant’s Appendix at 13. In sum, the record before us
does not show that a motion to suppress would have been granted. See Oberst,
935 N.E.2d at 1257 (trial counsel was not ineffective for not filing a motion to
suppress a confession, where defendant’s claim that his confession was
involuntary due to intoxication was in conflict with the detective’s version,
which was that Oberst did not appear to be intoxicated, and counsel was
present at the confession and observed defendant and his ability to answer
questions).
[25] For these reasons, we conclude that Butler has failed to establish by a
preponderance of the evidence that his trial counsel was ineffective for not filing
a motion to suppress. 6 We therefore affirm the denial of Butler’s petition for
post-conviction relief.
6
Butler raised a claim of ineffective assistance of appellate counsel in his petition for post-conviction relief,
which the post-conviction court determined had been waived. Butler does not expressly challenge this
determination on appeal and only generally offers the claim that “trial and appellate counsel were both
ineffective for failing to argue suppression in court or on appeal.” Appellant’s Brief at 21. We find that he has
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[26] Judgment affirmed.
Riley, J. and May, J., concur.
failed to make a cogent argument or cite to authority and has waived any claim that his appellate counsel was
ineffective. Ind. Appellate Rule 46(A)(8).
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