Herbert v. State

TORIN HERBERT Appellant-Petitioner,

v.STATE OF INDIANA Appellee-Respondent.

No. 79A02-1010-PC-1080

COURT OF APPEALS OF INDIANA

September 6, 2011

Pursuant to Ind.Appellate Rule 65(D), this

Memorandum Decision 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.

ATTORNEY FOR APPELLANT:

STEVEN KNECHT

Lafayette, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

J.T. WHITEHEAD

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE TIPPECANOE SUPERIOR COURT

The Honorable Randy J. Williams, Judge

Cause No. 79D01-0910-PC-5

MEMORANDUM DECISION - NOT FOR PUBLICATION

RILEY, Judge

STATEMENT OF THE CASE

Appellant-Petitioner, Torin Herbert (Herbert), appeals the post-conviction court's denial of his petition for post-conviction relief.

We affirm.

ISSUE

Herbert raises one issue on appeal, which we restate as follows: Whether the post-conviction court erred in finding that his trial counsel did not render him ineffective assistance.

FACTS AND PROCEDURAL HISTORY

In our 2008 Opinion, we outlined the facts of this case as follows:

[A]round 6:30 p.m. on January 18, 2007, Tippecanoe County Sheriff's Deputy Andrew Heath was patrolling in his marked police cruiser when he noticed a car with windows tinted so darkly that he could not tell "who was in the vehicle or how many." Indiana Code [s]ection 9-19-19-4(c) provides,

A person may not drive a motor vehicle that has a:

(1) windshield;

(2) side wing;

(3) side window that is part of a front door; or

(4) rear back window

that is covered by or treated with sunscreening material or is tinted to the extent or manufactured in a way that the occupants of the vehicle cannot be easily identified or recognized through that window from the outside of the vehicle. However, it is a defense if the sunscreening material applied to those windows has a total solar reflectance of visible light of not more than twenty-five percent (25%) as measure on the nonfilm side and light transmittance of at least thirty percent (30%) in the visible light range.

Based on the darkness of the car's window tint, Deputy Heath initiated a traffic

stop.

Deputy Heath shone his spotlight on the car. As he approached the driver's side, he "still could [not] tell who was in the vehicle." Deputy Heathasked Herbert, the driver, to roll down the rear window so that he "could tell if anybody was on the inside of the vehicle at the rear seat just so [he] could see what that person was doing." Deputy Heath asked Herbert for his driver's license and registration and asked the two passengers for identification. Deputy Heath asked all three persons to exit the car and requested the assistance of a narcotics detection canine. Officer Albert Dermello and his canine responded to Deputy Heath's request.

Deputy Heath asked Herbert if he had any "dangerous weapons on him." Herbert said no. Deputy Heath then asked Herbert if he had "any illegal narcotics or contraband in the vehicle[.]" Herbert initially said no, but once Deputy Heath advised him that a narcotics detection canine "would be walked around his vehicle[,]" Herbert admitted that "there was a little bit of weed under the driver's seat." Officer Demello's canine indicated the presence of contraband on the driver's side of the car. Officer Demello reached under the driver's seat and found a bag containing 108.27 grams of marijuana. Herbert was arrested and transported to the county jail, where an officer strip-searched him and found a bag containing 17.7 grams of cocaine between his buttocks.

The State charged Herbert with [C]lass A felony dealing in cocaine, [C]lass A felony possession of cocaine, [C]lass D felony dealing in marijuana, [C]lass D felony possession of marijuana, and [C]lass D felony maintaining a common nuisance. Herbert filed a motion to suppress the drug-related evidence, which the trial court denied. A jury trial commenced on October 23, 2007. Herbert made a continuing objection to the drug-related evidence based on the arguments raised in his motion to suppress. The trial court overruled the objection. On October 24, 2007, the jury found Herbert guilty as charged. On November 16, 2007, the trial court merged the possession counts with the dealing counts and sentenced Herbert to thirty-three years.

Herbert v. State, 891 N.E.2d 67, 68 (Ind. Ct. App. 2008), trans. denied (internal citations omitted).

On November 20, 2007, Herbert appealed his conviction, arguing that the trial court had abused its discretion in admitting evidence seized from the traffic stop and excluding testimony of one of Herbert's witnesses regarding the tinting of his car windows. With respect to his first argument, Herbert contended that Deputy Heath should not have askedhim whether he had any dangerous weapons, illegal narcotics, or contraband without any reasonable suspicion that he possessed such items. He argued that this question was improper, so the resulting search was illegal and the trial court should have excluded the evidence obtained as a result. In our subsequent Opinion, we affirmed the trial court's decision and held that it was reasonable under the Indiana Constitution for police officers to ask motorists already legitimately stopped for traffic offenses whether they were in possession of any illegal contraband, provided such questioning did not materially extend the length of the stop. Id. at 73.

On October 7, 2009, Herbert petitioned for post-conviction relief alleging, among other claims, that his trial counsel had been ineffective in failing to argue that the police officers had unconstitutionally extended the length of time of the traffic stop by searching his car with the narcotics detection canine. On February 18, 2010, the post-conviction court held a hearing, and on September 3, 2010, it issued findings of fact and conclusions of law. In its findings of fact and conclusions of law, the post-conviction court denied Herbert's petition for post-conviction relief based on the premise that his counsel had merely chosen a different trial strategy, which does not qualify as ineffective assistance of counsel. The post-conviction court also found that the attorney's actions had not prejudiced Herbert's defense.

Herbert now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

On appeal, Herbert asks us to review whether his trial counsel provided him with ineffective assistance when he failed to argue that the police officers had inappropriatelydelayed Herbert's stop. Herbert argues that the canine search did delay his stop, such a delay violated his constitutional rights, and his counsel's failure to raise that issue prejudiced the outcome of his post-conviction hearing. Herbert supports this conclusion by noting that if his attorney had raised the issue of the prolonged stop, the trial court would have suppressed the evidence of the search and there would not have been any evidence remaining to support his conviction.

The assistance of counsel is a right that is guaranteed to all criminal defendants by the Sixth Amendment to the United States Constitution and Article I, section 13 of the Indiana Constitution. In order to establish ineffective assistance of counsel, though, a defendant must fulfill both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh'g denied. Specht v. State, 838 N.E.2d 1081, 1087 (Ind. Ct. App. 2005), trans. denied. First, the defendant must prove that his or her counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms, and, second, that there is a reasonable probability that, but for counsel's failure to meet prevailing professional norms, the result of the proceeding would have been different. Armstrong v. State, 932 N.E.2d 1263, 1268 (Ind. Ct. App. 2010). "Because all criminal defense attorneys will not agree on the most effective way to represent a client, 'isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily...