Carlton Hillman v. State of Indiana (mem. dec.)

C
MEMORANDUM DECISION
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                                           FILED
the defense of res judicata, collateral                                            Dec 28 2020, 9:55 am

estoppel, or the law of the case.                                                      CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John L. Tompkins                                         Curtis T. Hill, Jr.
Tompkins Law                                             Attorney General of Indiana
Indianapolis, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Carlton Hillman                                          December 28, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         20A-PC-350
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana                                         The Honorable Alicia A. Gooden,
Appellee-Respondent.                                     Judge
                                                         The Honorable Richard E.
                                                         Hagenmaier, Magistrate
                                                         Trial Court Cause No.
                                                         49G21-1804-PC-13016




Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-PC-350 | December 28, 2020                  Page 1 of 7
                                          Case Summary
[1]   On June 4, 2012, while executing an arrest warrant for Carlton Hillman,

      Detective Richard Wilkerson and other Indianapolis Metropolitan Police

      Department (“IMPD”) officers searched the area of 38th Street and Boulevard

      Place. During this search, Detective Wilkerson observed Hillman lying on his

      back on the front porch of a residence on Rookwood Avenue (“the Rookwood

      property”). Hillman was arrested, and IMPD officers recovered cocaine and

      heroin under a nearby chair cushion. Hillman was convicted of various drug-

      related offenses. He subsequently petitioned for post-conviction relief (“PCR”)

      arguing ineffective assistance of counsel. Specifically, Hillman claimed that his

      trial counsel should have moved to suppress evidence recovered subsequent to

      his arrest. Hillman appeals from the denial of his request for relief. We affirm.



                            Facts and Procedural History
[2]   On June 4, 2012, pursuant to an arrest warrant, Detective Wilkerson and other

      IMPD officers searched the area of 38th Street and Boulevard Place for Hillman.

      While Detective Wilkerson was briefing one of the other officers about their

      search, another detective directed Detective Wilkerson’s attention toward the

      Rookwood property. Detective Wilkerson approached the Rookwood property

      and observed Hillman lying on the floor of the enclosed porch. Hillman did not

      comply with Detective Wilkerson’s requests to show his hands. Instead,

      Hillman put his hands into his pockets and then under a nearby chair cushion

      before showing his hands to Detective Wilkerson. Hillman was arrested, and

      Court of Appeals of Indiana | Memorandum Decision 20A-PC-350 | December 28, 2020   Page 2 of 7
      IMPD officers recovered cocaine and heroin from under the chair cushion and

      items consistent with drug dealing from Hillman’s person.


[3]   On June 13, 2012, the State charged Hillman with Class A felony dealing in

      cocaine, Class C felony possession of cocaine, Class B felony dealing in

      narcotic drug, and Class D felony possession of a narcotic drug. Unbeknownst

      to trial counsel, Hillman had been an overnight guest at the Rookwood

      property several times. Trial counsel did not move to suppress evidence prior to

      trial on the basis that police lacked the authority to enter the Rookwood

      property, though counsel later claimed that she would have had she known that

      Hillman was an overnight guest. Hillman was found guilty and the trial court

      imposed an aggregate sentence of twenty years of incarceration. His

      convictions were affirmed on direct appeal. See Hillman v. State, 49A05-1305-

      CR-241 (Ind. Ct. App. Jan. 24, 2014).


[4]   On April 30, 2018, Hillman filed a PCR petition, alleging that trial counsel was

      ineffective for not filing a motion to suppress evidence recovered following his

      arrest. At the evidentiary hearing on June 21, 2019, the post-conviction court

      reviewed the evidence, including Detective Wilkerson’s trial testimony; new

      testimony from Wallace, the owner of the Rookwood property; testimony from

      trial counsel; and a photograph of the Rookwood property. Wallace testified

      that she did not believe that someone could have seen into the porch from

      anywhere outside the property and Hillman argued that the photograph of the

      Rookwood property showed that officers could not have seen him before



      Court of Appeals of Indiana | Memorandum Decision 20A-PC-350 | December 28, 2020   Page 3 of 7
      entering the property. The post-conviction court denied Hillman’s request for

      relief.



                                 Discussion and Decision
[5]   Hillman contends that the post-conviction court abused its discretion in denying

      his PCR petition. “The petitioner bears the burden of establishing his grounds

      for post-conviction relief by a preponderance of the evidence.” See Ind. Post-

      Conviction Rule 1(5). “A petitioner who has been denied post-conviction relief

      faces a rigorous standard of review on appeal.” Dewitt v. State, 

755 N.E.2d 167

,

      170 (Ind. 2001). “Because the [petitioner] is now appealing from a negative

      judgment, to the extent his appeal turns on factual issues, he 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.” Stevens v. State,

      

770 N.E.2d 739

, 745 (Ind. 2002). “In other words, the [petitioner] must

      convince this Court that there is no way within the law that the court below

      could have reached the decision it did.”

Id. [6]

  The right to effective counsel is rooted in the Sixth Amendment to the United

      States Constitution. Taylor v. State, 

840 N.E.2d 324

, 331 (Ind. 2006). “‘The

      Sixth Amendment recognizes the right to the assistance of counsel because it

      envisions counsel’s playing a role that is critical to the ability of the adversarial

      system to produce just results.’”

Id. (quoting Strickland v.

Washington, 

466 U.S. 668

, 685 (1984)). “‘The benchmark for judging any claim of ineffectiveness

      must be whether counsel’s conduct so undermined the proper functioning of the

      Court of Appeals of Indiana | Memorandum Decision 20A-PC-350 | December 28, 2020   Page 4 of 7
      adversarial process that the trial cannot be relied on as having produced a just

      result.’”

Id. (quoting Strickland, 466

U.S. at 686). When reviewing claims of

      ineffective assistance of counsel, we start with the strong presumption that

      counsel rendered adequate legal assistance. 

Stevens, 770 N.E.2d at 746

. To

      rebut this strong presumption, petitioner must show that: (1) counsel’s

      performance fell below an objective standard of reasonableness based on the

      prevailing professional norms; and (2) there is a reasonable probability that, but

      for counsel’s errors, the result of the proceeding would have been different.

      Timberlake v. State, 

753 N.E.2d 591

, 603 (Ind. 2001) (citing Strickland, 466 U.S.

      at, 687–88, 694). “A reasonable probability is one sufficient to undermine

      confidence in the outcome.”

Id. “Isolated mistakes, poor

strategy,

      inexperience, and instances of bad judgment do not necessarily render

      representation ineffective.”

Id. Further, if we

are to judge whether a lower

      court abused its discretion, we must evaluate the factual context surrounding

      the issue, and will only “second guess” a fact-finding court when it responds to

      that factual context in an unreasonable manner. Tapia v. State, 

753 N.E.2d 581

,

      585 (Ind. 2001).


[7]   Hillman claims that the post-conviction court erred by finding that he did not

      suffer ineffective assistance of trial counsel. We disagree. Detective

      Wilkerson’s testimony established that he and other officers were summoned to

      the Rookwood property during their attempt to execute an arrest warrant for

      Hillman by another officer’s flashlight gesturing. Because Wilkerson and other

      officers were in the area to find Hillman, it was reasonable for Detective


      Court of Appeals of Indiana | Memorandum Decision 20A-PC-350 | December 28, 2020   Page 5 of 7
      Wilkerson to assume that the other officer was indicating that Hillman was on

      the property. Hillman does not contest the validity of the search warrant. The

      United States Supreme Court has held that for “Fourth Amendment purposes,

      an arrest warrant founded on probable cause implicitly carries with it the

      limited authority to enter a dwelling in which the suspect lives when there is

      reason to believe the suspect is within.” Payton v. New York, 

445 U.S. 573

, 574

      (1980). Officers reasonably inferred, after observing Hillman on the front

      porch, that he was staying at the Rookwood property at the time. Thus, the

      post-conviction court was within its discretion to conclude that officers were

      justified in entering the property regardless of whether Hillman should have

      been afforded an extra level of constitutional protection by virtue of his status as

      an overnight guest at the dwelling. The post-conviction court, therefore,

      properly determined that Hillman was not prejudiced by his trial counsel’s

      failure to move to suppress the evidence recovered following his arrest.


[8]   We are likewise unconvinced by Hillman’s allegation that the post-conviction

      court improperly disregarded evidence which he claims proves that police could

      not have seen Hillman on the porch before entering the property. The post-

      conviction court was under no obligation to credit this evidence and apparently

      did not. So long as there is a reasonable evidentiary justification for the post-

      conviction court’s decision to deny Hillman’s claim of ineffective assistance of

      counsel, we will affirm. See McCary v. State, 

761 N.E.2d 389

, 391 (Ind. 2002)

      (stating that a petitioner who has been denied post-conviction relief appeals

      from a negative judgment must convince the appellate court that the evidence


      Court of Appeals of Indiana | Memorandum Decision 20A-PC-350 | December 28, 2020   Page 6 of 7
      as a whole leads unerringly and unmistakably to a decision opposite that

      reached by the post-conviction court). In this case, contrary to evidence cited

      by Hillman, the officers approached Hillman after an officer personally

      observed his presence on the porch. Hillman’s claims that the officer could not

      have done so without entering the porch amounts to nothing more than an

      invitation to reweigh the evidence, which we will not do. See Cheney v. State, 

488 N.E.2d 739

, 741 (Ind. Ct. App. 1986).


[9]   The judgment of the post-conviction court is affirmed.


      Kirsch, J., and May, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 20A-PC-350 | December 28, 2020   Page 7 of 7

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