      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                               Dec 02 2015, 8:41 am
      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.


      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      John A. Goodridge                                       Gregory F. Zoeller
      Evansville, Indiana                                     Attorney General of Indiana
                                                              Michael G. Worden
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Keith A. Nemer,                                         December 2, 2015
      Appellant-Petitioner,                                   Court of Appeals Case No.
                                                              82A01-1411-CR-478
              v.                                              Appeal from the Vanderburgh
                                                              Circuit Court
      State of Indiana,                                       The Honorable David D. Kiely,
      Appellee-Respondent                                     Judge
                                                              Trial Court Cause No.
                                                              82C01-0903-FA-207



      Mathias, Judge.


[1]   Keith Nemer (“Nemer”) appeals from the Vanderburgh Circuit Court’s denial

      of his petition for post-conviction relief. On appeal, Nemer argues that the post-


      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-478 | December 2, 2015     Page 1 of 10
      conviction court erred when it concluded that Nemer was not denied effective

      assistance of trial counsel.

[2]   We affirm.

                                      Facts and Procedural History


[3]   In 2010, Nemer was convicted of two counts of Class A felony dealing in

      methamphetamine and ordered to serve an aggregate thirty-four-year sentence

      in the Department of Correction. Nemer appealed his convictions, and facts

      relevant to the post-conviction proceedings were discussed in his direct appeal:


              Sometime in January 2009, Sergeant Kurt Althoff of the
              Evansville-Vanderburgh Drug Task Force received information
              from a confidential source that Nemer was making
              methamphetamine in his home. During the next two months,
              Sergeant Althoff and other Task Force officers conducted
              surveillance of Nemer’s residence. On March 2, 2009, Sergeant
              Matt Schnell of the Vanderburgh County Sherriff’s Office was
              surveilling the home and noticed an unfamiliar car parked in the
              driveway. Later, two men exited Nemer’s house and got into that
              car. Sergeant Schnell followed the vehicle to a garage where
              another man briefly approached the window of the car before it
              drove away. Officer John Townsend stopped the vehicle for a
              traffic violation and searched the two men in the car, John Autry
              and Logan Hofferman.


              The police found methamphetamine in Autry’s boot and arrested
              him. After being read his Miranda rights, Autry told Sergeant
              Althoff that he purchased approximately one gram of
              methamphetamine from Nemer earlier that day, and that he had
              purchased methamphetamine from Nemer on at least two other
              occasions. Autry told Sergeant Althoff that while he was in

      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-478 | December 2, 2015   Page 2 of 10
               Nemer’s home he saw an oval-shaped bag that he thought had
               more methamphetamine inside it. Hofferman told Sergeant
               Schnell that he did not know anything about any
               methamphetamine.


               Next, the Drug Task Force and the Vanderburgh County
               Sheriff’s Office executed a search warrant at Nemer’s residence.
               Inside, Nemer was read his Miranda rights but chose to cooperate
               with the police. He told the police that he had methamphetamine
               and that some of the chemicals used to manufacture
               methamphetamine were in the basement. When the officers
               searched the basement, they found scales, coffee filters, over $600
               in cash, and twenty grams of methamphetamine.


               The State charged Nemer with two counts of class A felony
               dealing in methamphetamine. Nemer filed a motion to suppress
               the evidence, claiming that the police did not have probable
               cause for the search warrant and that the statements he gave to
               the police were involuntary. The trial court denied his motion.
               During the trial, the evidence from the search was admitted
               without any Fourth Amendment objections from Nemer. The
               jury found Nemer guilty on both counts.


      Nemer v. State, No. 82A05-1012-CR-800, WL 3795079 (Ind. Ct. App. Aug. 25,

      2011).

[4]   Nemer appealed his convictions and alleged that the trial court erred by

      denying his motion to suppress evidence because the State’s search warrant was

      not supported by probable cause and that the statements he gave to the police

      were involuntary. Our court rejected Nemer’s arguments and affirmed his

      convictions.



      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-478 | December 2, 2015   Page 3 of 10
[5]   On June 25, 2012, Nemer filed a petition for post-conviction relief and alleged

      that his trial counsel was ineffective. Specifically, Nemer alleged that trial

      counsel should have objected to the admission of evidence obtained from the

      search of his home that was previously the subject of a pre-trial motion to

      suppress.1


[6]   A hearing was held on Nemer’s petition for post-conviction relief on May 1,

      2014. Only Nemer and his prior trial counsel, David Lamont (“Lamont”)

      testified at the hearing. On October 13, 2014, the post-conviction court issued

      findings of fact and conclusions of law denying Nemer’s requested relief.

      Nemer now appeals.

                                             Discussion and Decision


[7]   Post-conviction proceedings are not “super appeals” through which convicted

      persons can raise issues they failed to raise at trial or on direct appeal. McCary v.

      State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings instead

      afford petitioners a limited opportunity to raise issues that were unavailable or

      unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443

      (Ind. 2002). The 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). Thus, on appeal from denial of post-conviction




      1
        Nemer also claimed in his petition for post-conviction relief that his trial counsel had been ineffective by
      failing to conduct a full fact investigation, but withdrew this issue during the post-conviction relief hearing.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-478 | December 2, 2015                Page 4 of 10
      relief, the petitioner stands in the position of one appealing from a negative

      judgment. Id. 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 than that reached by the post-conviction

      court. Id. at 643-44.


[8]   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

      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), aff’d on reh’g, 957

      N.E.2d 962. Although we do not defer to the post-conviction court’s legal

      conclusions, we review the post-conviction court’s factual findings under a

      clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or

      judge the credibility of witnesses and we will consider only the probative

      evidence and reasonable inferences flowing therefrom that support the post-

      conviction court’s decision. Id.


[9]   Nemer claims that his trial counsel was ineffective because at trial, he failed to

      renew his objection previously raised in the pre-trial motion to suppress

      evidence. Nemer also asserts in his brief that the trial court erroneously denied

      his motion to suppress because evidence of probable cause was not sufficient to

      issue the search warrant. Not only was this issue not set forth in Nemer’s

      petition for post-conviction relief, but our court determined that the issue was

      waived in Nemer’s direct appeal because trial counsel raised no objection to the

      admission of evidence at trial. Accordingly, this issue is not available for post-

      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-478 | December 2, 2015   Page 5 of 10
       conviction review because it is barred by the doctrine of res judicata. See Jervis v.

       State, 28 N.E.3d 361, 368 (Ind. Ct. App. 2015), trans. denied (citing Ben-Yisrayl v.

       State, 738 N.E.2d 253, 258 (Ind. 2000)).


[10]   Our supreme court has summarized the law regarding claims of ineffective

       assistance of trial counsel as follows:


               A defendant claiming a violation of the right to effective
               assistance of counsel must establish 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 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 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

       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-478 | December 2, 2015   Page 6 of 10
               ground of lack of sufficient prejudice. . . that course should be
               followed.


       Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citations and

       quotations omitted).


[11]   Nemer’s prior trial counsel, Lamont, filed a pre-trial motion to suppress

       evidence obtained during the search of Nemer’s home on the basis that the

       State’s search warrant was not supported by probable cause, but the trial court

       denied this motion. At trial, Nemer’s newly hired counsel, Mark Phillips

       (“Phillips”), did not object to admission of this evidence. At Nemer’s post-

       conviction hearing, Nemer did not provide testimony or an affidavit from

       Phillips regarding his trial strategy. When counsel is not called as a witness to

       testify in support of a petitioner’s arguments, the post-conviction court may

       infer that counsel would not have corroborated the petitioner’s allegations.

       Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010) (citing Culvahouse v.

       State, 819 N.E.2d 857, 863 (Ind. Ct. App. 2004)).


[12]   Because Nemer did not provide testimony or an affidavit from Phillips, we have

       no evidence to evaluate his trial strategy and performance. In its discretion, the

       post-conviction court inferred that Phillips would have testified that he

       evaluated Nemer’s suppression issues and chose not to object to the admission

       of evidence for strategic reasons. “[T]rial strategy is not subject to attack

       through an ineffective assistance of counsel claim, unless the strategy is so

       deficient or unreasonable as to fall outside of the objective standard of

       reasonableness.” Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998). Counsel is
       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-478 | December 2, 2015   Page 7 of 10
       presumed to have rendered adequate assistance, and it is Nemer’s burden to

       establish otherwise. Lamont testified at Nemer’s post-conviction hearing that

       on some occasions not objecting to the admission of evidence at trial would be

       reasonable. Nemer has not met his burden to overcome that Phillips’s trial

       strategy was unreasonable, and we conclude that Phillips was effective as trial

       counsel.

[13]   Although we could dispose of Nemer’s ineffective assistance of trial counsel

       claim based on reasonable performance, Nemer also claims that he was

       prejudiced when Phillips did not object to the admission of evidence, which

       failed to preserve the issue for appellate review. Nemer contends that because

       the issue was waived, our court applied the fundamental error standard of

       review instead of the more favorable abuse of discretion standard of review.

       However, on direct appeal, our court concluded that Nemer waived the

       fundamental error argument because he only raised the issue for the first time in

       his reply brief. Our court determined, “[e]ven if we were to consider the

       [fundamental error] issue, we do not believe that the admission of the evidence

       was fundamental error.” Nemer v. State, No. 82A05-1012-CR-800, 952 N.E.2d

       888 (Ind. Ct. App. August 25, 2011).


[14]   When a petitioner brings an ineffective assistance claim based on trial counsel’s

       failure to make an objection, the petitioner must demonstrate that the trial court

       would have sustained a proper objection and that failure to object resulted in

       prejudice. Glotzbach v. State, 783 N.E.2d 1221, 1224 (Ind. Ct. App. 2003). To



       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-478 | December 2, 2015   Page 8 of 10
       determine whether an objection to the admissibility of evidence based on the

       search would have been sustained, we must look to Sergeant Althoff’s affidavit.

[15]   Nemer argues that Phillips should have objected to the admission of evidence

       from the search of Nemer’s home on the basis that the information provided in

       the affidavit to obtain the search warrant lacked probable cause. “Probable

       cause” for issuing a search warrant “is a fluid concept incapable of precise

       definition and must be decided based on the facts of each case.” Cassady v. State,

       934 N.E.2d 1181, 1188 (Ind. Ct. App. 2010), trans. denied. The task of the

       magistrate issuing the search warrant is simply to make a practical, common-

       sense decision whether, given all of the circumstances set forth in the affidavit,

       there is a fair probability that contraband or evidence of a crime will be found in

       a particular place. Jackson v. State, 908 N.E.2d 1140, 1142 (Ind. 2009).


[16]   The duty of a reviewing court is to determine whether the magistrate had a

       “substantial basis” for concluding that probable cause existed. State v. Spillers,

       847 N.E.2d 949, 953 (Ind. 2006). A “substantial basis” requires that we focus

       on whether reasonable inferences drawn from the totality of the evidence

       support the determination of probable cause, giving significant deference to the

       magistrate’s determination. Id. In determining whether an affidavit provided

       probable cause for the issuance of a search warrant, doubtful cases are to be

       resolved in favor of upholding the warrant. Perez v. State, 27 N.E.3d 1144, 1153

       (Ind. Ct. App. 2015) (citing Mehring v. State, 884 N.E.2d 371, 376-77 (Ind. Ct.

       App. 2008)).



       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-478 | December 2, 2015   Page 9 of 10
[17]   The magistrate issued the search warrant based on information in Sergeant

       Althoff’s affidavit, which he received from a confidential informant over the

       span of two months, indicating that Nemer was manufacturing

       methamphetamine in his home. On March 2, 2009, officers observed two men

       exit Nemer’s home in an unfamiliar vehicle. Officers stopped the vehicle for a

       traffic infraction, and one of the men, another confidential informant, John

       Autry, admitted to purchasing methamphetamine from Nemer that day and on

       two prior occasions. The officers also found 4.9 grams of methamphetamine in

       Autry’s boot. Based on the totality of the evidence, the magistrate had a

       substantial basis to determine that probable cause existed to issue the search

       warrant. Therefore, an objection based on the admissibility of this evidence

       would not have been sustained, and Nemer has not shown that he was

       prejudiced.

[18]   For all of these reasons, we conclude that Nemer has not established that his

       trial counsel was constitutionally ineffective for failing to object to the

       admission of evidence obtained in the search of his home at trial. Therefore, we

       affirm the post-conviction court’s order denying Nemer’s petition for post-

       conviction relief.


[19]   Affirmed.


       Baker, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-478 | December 2, 2015   Page 10 of 10
