Jeremy Ryan v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

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

Memorandum Decision shall not be regarded as

Mar 31 2015, 9:31 am

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.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Stephen T. Owens Gregory F. Zoeller

Public Defender of Indiana Attorney General of Indiana

Kelly A. Kelly Michael Gene Worden

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jeremy Ryan, March 31, 2015

Appellant-Petitioner, Court of Appeals Case No. 20A03-

1408-PC-293

v. Appeal from the Elkhart Superior

Court 3

State of Indiana, The Honorable George W.

Biddlecome, Judge

Appellee-Respondent

Case No. 20D03-1304-PC-29

Mathias, Judge.

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[1] The Elkhart Superior Court denied a petition for post-conviction relief filed by

Jeremy Ryan (“Ryan”). Ryan appeals, claiming that the post-conviction court

clearly erred in rejecting Ryan’s claims that his plea of guilty to Class A felony

manufacturing methamphetamine was not knowingly, voluntarily, and

intelligently made and that he received the ineffective assistance of trial counsel.

Concluding that the post-conviction court’s decision was not clearly erroneous,

we affirm.

Facts and Procedural History

[2] On November 21, 2009, the police responded to a call of a domestic

disturbance at a home where Ryan lived with his girlfriend and her two

children. When the police searched the home, they found various items

associated with the manufacture and use of methamphetamine, including one

vessel with a liquid that contained methamphetamine and the

methamphetamine precursors ephedrine or pseudoephedrine.

[3] As a result, the State charged Ryan on November 24, 2009, with Class A felony

dealing in methamphetamine in an amount of three grams or more, two counts

of Class C felony neglect of a dependent, Class D felony domestic battery, Class

D felony strangulation, and Class A misdemeanor interfering with the reporting

of a crime.

[4] Ryan was appointed counsel and reached an agreement with the State on

March 3, 2010, whereby he agreed to plead guilty to Class A felony dealing in

methamphetamine and two counts of Class C felony neglect of a dependent. In

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exchange, the remaining charges would be dismissed, and Ryan’s sentence

would be capped at thirty-five years. A plea hearing was held on March 4, 2010,

at which Ryan was advised of his rights. Ryan indicated that he knew and

understood his rights, and that he understood the terms of his plea agreement.

Ryan, under oath, admitted to knowingly manufacturing more than three

grams of methamphetamine. The trial court accepted the plea agreement and

sentenced Ryan to thirty-five years on the Class A felony conviction, with

twenty-five years executed and ten years suspended to probation, and two

concurrent sentences of five years each on the Class C felony convictions, to be

served concurrently with the sentence on the Class A felony.

[5] On April 15, 2013, Ryan filed a pro se petition for post-conviction relief. After

the Indiana Public Defender’s office filed an appearance for Ryan, he filed an

amended petition on December 2, 2013. In this petition, Ryan claimed that his

plea was not knowingly, intelligently, and voluntarily entered because he was

misled by his trial counsel with regard to whether the State could have proved

that he manufactured more than three grams of methamphetamine. Along these

same lines, Ryan also claimed that his trial counsel was ineffective for failing to

properly advise him that he had a defense to the Class A felony charge, i.e., that

the State could not have proved that he manufactured more than three grams of

methamphetamine.

[6] The trial court held an evidentiary hearing on Ryan’s post-conviction petition

on March 4, 2014. At the hearing, Ryan called as a witness Indiana State

Laboratory chemist Kimberly Ivanyo (“Ivanyo”), who had analyzed the

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evidence submitted by the police in Ryan’s case. Of the two vials of liquid

submitted by the police, one contained methamphetamine and the precursor

ephedrine/pseudoephedrine. Ivanyo explained that she did not weigh the liquid

in the vial because the laboratory measures liquids by volume, not weight. She

also explained a conversion formula exists that can theoretically calculate the

weight of solid methamphetamine that could be obtained from a liquid

containing methamphetamine but that she did not use such a formula in Ryan’s

case.

[7] Ryan also called as a witness his trial counsel, who did not recall any specific

discussion of the weight of the methamphetamine discovered by the police. He

did, however, remember that Ryan had been very cooperative with the police,

showing them where the various items were as they searched his residence.

Ryan had also admitted to his counsel that he had been manufacturing

methamphetamine. Ryan’s trial counsel recalled that he and Ryan agreed that a

plea agreement was in Ryan’s best interest.

[8] Ryan himself testified at the post-conviction hearing that he did not know how

much methamphetamine the police had discovered at his home but that he

believed the State had sufficient evidence to convict him based upon the advice

of his trial counsel. Ryan also testified that he believed that he was facing a

sentence of up to seventy-eight years and pleaded guilty to avoid such a lengthy

possible sentence. Ryan further stated that he learned in 2012, years after his

conviction, about a conversion formula that can be used to calculate the weight

of solid methamphetamine that could be obtained from a liquid containing

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methamphetamine. He also learned of recent developments in case law that he

thought would have made the State’s case against him difficult to prove, thus

motivating his petition for post-conviction relief.

[9] On July 29, 2014, the post-conviction court issued findings of fact and

conclusions of law denying Ryan’s petition. The court determined that, at the

time of Ryan’s plea, the State did not have to prove the amount of solid

methamphetamine and that the case law relied upon by Ryan was handed

down two years after his conviction and sentence. The post-conviction court

therefore determined that Ryan had not shown that his plea was not knowingly,

involuntarily, and intelligently made. The court further determined that Ryan’s

trial counsel was not ineffective based on the state of the law at the time of

Ryan’s plea. Ryan now appeals.

Post-Conviction Standard of Review

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

person can raise issues he did not raise at trial or on direct appeal. Fowler v.

State, 977 N.E.2d 464, 466 (Ind. Ct. App. 2012), aff’d on reh’g, 981 N.E.2d 623

(Ind. Ct. App. 2013). Instead, post-conviction proceedings afford petitioners a

limited opportunity to raise issues that were unavailable or unknown at trial

and on direct appeal. Id. Post-conviction proceedings are civil in nature, and

petitioners bear the burden of proving their grounds for relief by a

preponderance of the evidence. Id. When a petitioner appeals the denial of post-

conviction relief, he appeals from a negative judgment. Id. Consequently, we

may not reverse unless the petitioner demonstrates the evidence as a whole

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leads unerringly and unmistakably to a decision opposite that reached by the

post-conviction court. Id. We accept the post-conviction court’s findings of fact

unless they are clearly erroneous, but we do not defer to its conclusions of law.

Id.

I. Voluntariness of Ryan’s Plea

[11] Ryan first claims that the post-conviction court erred in determining that Ryan’s

plea of guilty was entered knowingly, voluntarily, and intelligently. Before

accepting a guilty plea, a trial court must determine that the defendant

understands the nature of the charges to which he is pleading, that the plea will

waive certain rights, and the range of penalties he faces. See Ind. Code § 35-35-

1-2. These statutory requirements ensure that the guilty plea “represents a

voluntary and intelligent choice.” Diaz v. State, 934 N.E.2d 1089, 1094 (Ind.

2010). “[P]ost-conviction relief is a proper vehicle for challenging a guilty plea,

and we look at all evidence before the post-conviction court that supports its

determination that a guilty plea was voluntary, knowing, and intelligent.”

Collins v. State, 14 N.E.3d 80, 85 (Ind. Ct. App. 2014). In this context,

voluntariness is dependent “on whether the defendant knowingly and freely

entered the plea[.]” State v. Moore, 678 N.E.2d 1258, 1266 (Ind. 1997).

[12] Here, Ryan does not claim that the trial court misadvised him or failed to

advise him regarding any of his rights. Instead, he claims that his plea was

based on incorrect information regarding the evidence the State had against

him, i.e., that the State could not prove the quantity of the methamphetamine

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he manufactured sufficient to support a Class A felony, i.e., three grams. See

Ind. Code § 35-48-4-1.1(b) (2008).

[13] Ryan argues, “[b]ecause the State did not provide direct evidence for the weight

of methamphetamine, an essential element of dealing as a Class A felony, it

cannot show Ryan manufactured three grams or more of methamphetamine.”

Appellant’s Br. p. 10. However, Ryan did not proceed to trial; he instead

pleaded guilty. Thus, the State was not required to present any evidence, as

Ryan admitted that he manufactured more than three grams of

methamphetamine.

[14] Ryan argues, however, that his admission was based on incorrect information

and advice given to him by his trial counsel. Specifically, Ryan notes no

significant amount of solid methamphetamine was found at his home and that

the methamphetamine in the intermediate liquid mixture found at his home

was not weighed. He therefore claims that the State had insufficient evidence to

convict him of a Class A felony and that his trial counsel was ineffective for

advising him to the contrary.

[15] Ryan notes that our supreme court has held that, “in order to prove the element

of weight of drugs or controlled substances, the State must either offer evidence

of its actual, measured weight or demonstrate that the quantity of the drugs or

controlled substances is so large as to permit a reasonable inference that the

element of weight has been established.” Halsema v. State, 823 N.E.2d 668, 674

(Ind. 2005). However, the statute criminalizing the manufacture of

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methamphetamine criminalizes the manufacture of methamphetamine “pure or

adulterated.” I.C. § 35-48-4-1.1(a). At the time of Ryan’s guilty plea, this court

had repeatedly held that, when determining the amount of the drug involved,

an intermediate mixture that contained the final drug was an “adulterated”

drug. See Hundley v. State, 951 N.E.2d 575, 581 (Ind. Ct. App. 2011) (holding

that where the intermediate step is so near the end of the manufacturing process

that the final product is present in the chemical compound, that substance

qualifies as an “adulterated drug” for purposes of our manufacturing statutes),

trans. denied; Traylor v. State, 817 N.E.2d 611, 620 (Ind. Ct. App. 2004) (holding

that evidence was sufficient to establish that defendant possessed over three

grams of methamphetamine where evidence showed that defendant was in the

process of producing methamphetamine, and the product in the reaction vessel

weighed well over three grams), trans. denied.

[16] The case Ryan relies on, Buelna v. State, 20 N.E.3d 137 (Ind. 2014), disagreed

with this approach. In Buelna, the defendant was convicted of Class A felony

dealing in methamphetamine and, on appeal, challenged the sufficiency of the

evidence supporting his conviction, specifically the sufficiency of the evidence

used to support the finding that he possessed more than three grams of

methamphetamine. On appeal, this court observed that the liquid sample taken

from the vessels recovered from the defendant contained some

methamphetamine, and we therefore held the entire liquid mixture constituted

“adulterated” methamphetamine. Buelna v. State, No. 20A04-1305-CR-223,

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2014 WL 345994 (Ind. Ct. App. Jan. 30, 2014), trans. granted, opinion vacated

(citing Traylor, 817 N.E.2d at 620).

[17] On transfer, our supreme court disagreed with our holdings in Buelna, Traylor,

and Hundley and held that “adulterated” methamphetamine is the “final,

extracted product that may contain lingering impurities or has been

subsequently debased or diluted by a foreign substance—not an intermediate

mixture that has not undergone the entire manufacturing process.” Buelna, 20

N.E.3d at 142. Thus, the weight of an intermediate mixture, such as the liquid

in the containers in Buelna, “is probative of the weight enhancement only if the

State presents evidence that establishes how much finished drug the

intermediate mixture would have yielded if the manufacturing process had been

completed.” Id. In so holding, the court abrogated the earlier holdings of this

court in Hundley and Traylor.

[18] Here, Ryan claims that the State would have been unable to prove how much

finished methamphetamine his intermediate mixture would have yielded had

the manufacturing process been completed. Because his trial counsel advised

him otherwise, Ryan claims, his plea of guilty was not knowingly, voluntarily,

and intelligently entered. We disagree.

[19] At the time Ryan entered into his plea agreement, our supreme court had not

yet issued Buelna; in fact, Buelna was issued over four and one-half years after

Ryan pleaded guilty.1 Accordingly, at the time of Ryan’s plea, Hundley and

1

Ryan pleaded guilty on March 3, 2010; Buelna was not handed down until November 13, 2014.

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Traylor were still good law, and the State could have used the entire weight of

the liquid containing methamphetamine to prove that he manufactured more

than three grams of adulterated methamphetamine. Thus, at the time that Ryan

entered his plea, the advice of his trial counsel was not incorrect, and we reject

Ryan’s claim that his decision to plead guilty was not knowingly, voluntarily,

and intelligently made. See Fowler, 977 N.E.2d at 467-68 (rejecting defendant’s

claim that his plea was not voluntary and intelligent because he was not advised

of change in case law that did not occur until after defendant had pleaded guilty

and was sentenced), aff’d on reh’g, 981 N.E.2d 623 (Ind. Ct. App. 2013).

II. Ineffective Assistance of Counsel

[20] Ryan also claims that his trial counsel was constitutionally ineffective for failing

to inform him that the State did not have enough evidence to prove the weight

of the methamphetamine Ryan had manufactured. In Timberlake v. State, our

supreme court set forth the standard governing claims of ineffective assistance

of trial counsel:

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 a probability sufficient

to undermine confidence in the outcome.

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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

ground of lack of sufficient prejudice . . . that course should be

followed.

753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations omitted).

[21] Claims of ineffective assistance of trial counsel following a guilty plea require

certain other considerations. With regard to guilty pleas, two general types of

claims of ineffective assistance of trial counsel are accepted: (1) the failure to

advise the defendant on an issue that impairs or overlooks a defense, and (2) an

incorrect advisement of penal consequences. Manzano v. State, 12 N.E.3d 321,

326 (Ind. Ct. App. 2014), trans. denied (citing Segura v. State, 749 N.E.2d 496,

500 (Ind. 2001). Ryan’s claim appears to fall within the first of these categories.

[22] In Segura, the court also explained what a petitioner must establish on a claim

of ineffective assistance of trial counsel following a guilty plea:

We conclude that Hill [v. Lockhart, 474 U.S. 52 (1985)] . . .

requires a showing of a reasonable probability of success at trial if

the alleged error is one that would have affected a defense. This

result seems preferable for several reasons. In [State v.] Van

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Cleave, [674 N.E.2d 1293 (Ind. 1996),] we identified sound

reasons for requiring that a petitioner who pleads guilty show a

reasonable probability of acquittal in order to prevail in a

postconviction attack on the conviction based on a claim of

ineffective assistance of counsel. As Hill emphasized, the State

has an interest in the finality of guilty pleas. This is in part

grounded in the cost of a new trial, and the demands on judicial

resources that are imposed by revisiting the guilty plea, but also

in concerns about the toll a retrial exacts from victims and

witnesses who are required to revisit the crime years later.

Segura, 749 N.E.2d at 503 (citations omitted). Our supreme court therefore

concluded that “[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.” Id. Thus, contrary to Ryan’s claims,2 to be successful in his

claim of ineffective assistance of trial counsel, he had to prove to the post-

conviction court that, but for his counsel’s alleged errors, he would not have

been convicted. See id.

[23] Turning now to the merits of Ryan’s claim of ineffective assistance of trial

counsel, the crux of Ryan’s argument is again that the State possessed

2

Ryan claims that we should follow the federal Seventh Circuit Court of Appeals, which disagreed with our

supreme court’s interpretation of Hill, and concluded that “a person who contends that ineffective assistance

of counsel induced him to plead guilty establishes ‘prejudice’ by demonstrating that, but for counsel’s errors,

he would have insisted on a trial.” See Manzano, 12 N.E.3d at 326 n.1 (citing Payne v. Brown, 662 F.3d 825,

828 (7th Cir. 2011)). However, the Indiana Supreme Court has determined that Hill requires a defendant to

show more than that he would not have pleaded guilty and instead must show that but for counsel’s errors,

he would not have been convicted. Segura, 749 N.E.2d at 503. Because the Seventh Circuit’s decisions on

federal law are not binding on us, we apply the standard established by our supreme court. See Manzano, 12

N.E.3d at 326 n.1 (citing Jackson, 830 N.E.2d at 921).

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insufficient evidence to convict him of manufacturing methamphetamine in a

quantity of three grams or more and that his trial counsel was ineffective for

failing to inform Ryan of this deficit in the State’s evidence. Ryan contends

that, because the State could not prove the amount of methamphetamine

involved, the most he could have been convicted of was a Class B felony, not

the Class A felony to which his trial counsel advised him to plead guilty.3

[24] In support of this claim, Ryan again relies extensively on the holding of our

supreme court in Buelna to argue that the State had no evidence regarding the

weight of the solid methamphetamine that could have been produced from the

liquid containing methamphetamine and precursors found at Ryan’s home. We

repeat, however, at the time of Ryan’s guilty plea, over four and one-half years

before Buelna, this court had held that the State could use the entire weight of

the liquid containing methamphetamine to establish the weight of “adulterated”

methamphetamine. See Hundley v. State, 951 N.E.2d at 581; Traylor, 817 N.E.2d

at 620.

[25] Thus, the advice of Ryan’s trial counsel was not incorrect at the time it was

given. Nor can we fault his trial counsel for failing to anticipate our supreme

3

Ryan also claims that the other pending charges would have been considered part of a single episode of

criminal conduct, thereby limiting his total sentence to thirty years. See Appellant’s Br. p. 12-13. In his

petition for post-conviction relief, however, Ryan did not present a claim of ineffective assistance of trial

counsel based on the failure of his counsel to advise him that the charges might be considered a single

episode of criminal conduct. We therefore will not consider this as a separate claim of ineffective assistance

of trial counsel. See Hollowell v. State, 19 N.E.3d 263, 270 (Ind. 2014) (noting that court on appeal will not

consider claim not presented in petition for post-conviction relief). Furthermore, Ryan cites no authority and

provides no analysis supporting his position that his convictions would have been considered a single episode

of criminal conduct. See Lyles v. State, 834 N.E.2d 1035, 1050 (Ind. Ct. App. 2005) (noting that a party waives

an issue for purposes of appeal where the party fails to develop a cogent argument or provide adequate

citation to authority), trans. denied.

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court’s holding in Buelna. See Kendall v. State, 886 N.E.2d 48, 52 (Ind. Ct. App.

2008) (noting that an attorney is not required to anticipate changes in the law in

order to be effective).

[26] Ryan claims that Buelna does not represent a change in the case law because the

State has always been required to prove the weight of the drug involved. See

Halsema, 823 N.E.2d at 674. He therefore argues that no proof of the weight of

the methamphetamine is at issue here because the State Laboratory chemist

testified that she did not weigh the liquid and did not use a conversion formula

to determine how much solid methamphetamine could be produced from the

liquid found at Ryan’s home.

[27] However, this does not mean that had Ryan elected to go to trial, the State

could not have weighed the liquid, which at the time could have been

considered “adulterated” methamphetamine.4 See Traylor, 817 N.E.2d at 620.

Given that three grams is an extremely small quantity,5 it was not unreasonable

for Ryan’s trial counsel to advise him that the State could have convicted him

of a Class A felony at that time.6

4

The fact that Ivanyo testified that the laboratory does not weigh liquids and that liquids are typically

measured by volume instead of weight does not mean that liquids cannot be weighed. See Traylor, 817

N.E.2d at 619 (noting that State's forensic scientist determined that liquid in a reaction vessel weighed 23.72

grams).

5

Three grams is equivalent to 0.1058 ounce, or 0.0066 pound. See Lewis V. Judson, Weights and Measures

of the United States (1976), available at: http://physics.nist.gov/Pubs/SP447/sp447.pdf; see also Com. v.

Montoya, 984 N.E.2d 793, 801 (Mass. 2013) (citing Alschuler, The Failure of Sentencing Guidelines: A Plea for

Less Aggregation, 58 U. Chi. L. Rev. 901, 937 (1991) (noting that five grams is weight of two pennies or five

paper clips)).

6

We have been unable to find any exhibit in the record before us that demonstrates precisely how much

methamphetamine-containing liquid was in the vessel found in Ryan’s home. However, based on the

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[28] We emphasize that it was not the State’s burden at the post-conviction hearing

to show it had sufficient evidence to convict Ryan; it was Ryan’s burden on

post-conviction to show that his counsel was ineffective. Given the evidence

that the State possessed, which included one vial of a liquid containing

methamphetamine, and the state of the law at the time of Ryan’s plea, we

cannot say that Ryan’s counsel was ineffective for advising Ryan to plead

guilty.

Conclusion

[29] The post-conviction court did not err in concluding that Ryan failed to establish

that his plea was not knowingly, voluntarily, and intelligently made. Similarly,

the post-conviction court did not err in concluding that Ryan failed to establish

that he received the ineffective assistance of trial counsel.

[30] Affirmed.

Najam, J., and Bradford, J., concur.

testimony, it appears that it was much more than 0.6 teaspoon, which is the approximate volume of three

grams of water. See Commonly Used Metric System Units, available at:

http://lamar.colostate.edu/~hillger/common.html.

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