Jonathan McPherson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

FILED

this Memorandum Decision shall not be Feb 12 2018, 9:13 am

regarded as precedent or cited before any CLERK

Indiana Supreme Court

court except for the purpose of establishing Court of Appeals

and Tax Court

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Stephen T. Owens Curtis T. Hill, Jr.

Public Defender of Indiana Attorney General of Indiana

Steven H. Schutte Ian McLean

Deputy Public Defender Supervising Deputy Attorney

Indianapolis, Indiana General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jonathan McPherson, February 12, 2018

Appellant-Defendant, Court of Appeals Case No.

20A03-1706-PC-1326

v. Appeal from the

Elkhart Superior Court

State of Indiana, The Honorable

Appellee-Plaintiff. Teresa L. Cataldo, Judge

Trial Court Cause No.

20D03-1508-PC-34

Kirsch, Judge.

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[1] Jonathan McPherson1 (“McPherson”) was convicted, following a jury trial,

under a now-repealed law, of two counts of Class A felony dealing in cocaine.2

He also was convicted of Class D felony maintaining a common nuisance3 and

Class B felony unlawful possession of a firearm by a serious violent felon

(“SVF”),4 and he was found to be a habitual offender.5 The trial court

sentenced McPherson to ninety-three years. On direct appeal, this court

affirmed McPherson’s convictions, but reduced his sentence to seventy-five

years, finding that the sentences for being a habitual offender and possessing a

firearm as a SVF constituted an impermissible double enhancement because

they relied on the same predicate felony conviction. McPherson v. State, No.

20A04-1409-CR-428, 32 N.E.3d 284, at *4 (Ind. Ct. App. Apr. 28, 2015).

McPherson filed a petition for post-conviction relief, which the post-conviction

court denied. McPherson now appeals, raising the following restated issues:

1

The record before us reveals Petitioner’s name also spelled as “Jonathon” and shows a middle initial of

“G.” State’s Ex. 201.

2

See Ind. Code § 35-48-4-1(b)(3)(iv) (2012). McPherson was convicted of two counts of dealing cocaine, each

of which was elevated from a Class B felony to a Class A felony because the crimes were committed within

1,000 feet of a youth program center. Indiana Code section 35-48-4-1 was amended in 2013, effective July 1,

2014, to remove the enhancement of dealing within 1,000 feet of a youth program center. See Pub. Law 158-

2013, § 622. McPherson, however, was charged under the statute that existed at the time he committed the

offenses.

3

See Ind. Code § 35-48-4-13(b)(2) (2011).

4

See Ind. Code § 35-47-4-5(c) (2011).

5

See Ind. Code § 35-50-2-8(a) (2011).

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I. Whether the post-conviction court clearly erred when it found

that McPherson did not prove that trial counsel was ineffective;

and

II. Whether the post-conviction court clearly erred when it found

that McPherson did not prove that appellate counsel was

ineffective.

[2] We affirm.

Facts and Procedural History6

[3] The facts of McPherson’s offenses are summarized by this court’s decision on

direct appeal as follows:

On May 16 and May 18, 2012, McPherson sold cocaine to

different confidential informants working with the Elkhart Police

Department. McPherson conducted both sales at his house, 412

Brady Street, in Elkhart. Directly across the street from

McPherson’s house, located at 411 Brady Street, is “Cornerstone

Ministries Boy’s and Girl’s Club.” The sign on the building

reads:

Cornerstone Ministries Boy’s and Girl’s Club

By Sandy Ridge Mennonite Church

Meet Every Wednesday 5:30 p.m.

Ex. 9 (phone numbers omitted). Detective Tim Freel, who used

to live in the neighborhood, explained that the Boys and Girls

Club “would have different groups of children come in there;

6

We will cite to the direct appeal using the letters “D.A.” and to the post-conviction proceedings with the

letters “P-CR.”

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typically, on a Wednesday night they had a program called

‘Wednesday Night Club.’” He added that children often played

basketball outside at the Club. In addition, Detective Andrew

Whitmyer, who participated in the surveillance of McPherson’s

house on May 16, recalled seeing more children than usual at the

Boys and Girls Club that day. He observed both “younger” and

“older” kids playing and said that the activities appeared to be

organized.

Elkhart police officers obtained and executed a search warrant

for McPherson’s house on May 29. McPherson and his

girlfriend were home at the time. The officers found two digital

scales with powdery residue and baggies with cut-off corners.

The officers also found a loaded .40 caliber semiautomatic pistol

inside a purse, a box of .40 caliber ammunition in a tote, and a

loaded magazine for the pistol inside the pocket of a red

sweatshirt—all in the master bedroom that McPherson used.

Detective Freel read McPherson his Miranda rights and then

began to question him. McPherson admitted to “selling drugs

from the house,” “admitted to a firearm that was found inside the

house,” knew that his house was directly across the street from

the Boys and Girls Club, and admitted that the $804 in cash

found on his person was “proceeds from drug sales.” Although

no drugs were found during the search of McPherson’s house,

McPherson explained that he “was currently out of drugs and

that he was planning to . . . re-up, or purchase more drugs, so

that he could sell those drugs later on that afternoon.” Finally,

McPherson admitted that he had a prior felony conviction for

dealing in cocaine and that as a result of that felony conviction,

he could not possess a firearm.

The State charged McPherson with two counts of Class A felony

dealing in cocaine (within 1,000 feet of youth program center) for

the controlled buys on May 16 and 18, 2012; Class D felony

maintaining a common nuisance for drug activities at his house

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on or between May 16 and 29; and Class B felony unlawful

possession of a firearm by a SVF for the firearm found during the

May 29 search of his house. The State alleged that McPherson

was a SVF as a result of his 1997 conviction in Elkhart County

for Class B felony dealing in cocaine. The State also alleged that

McPherson was a habitual offender. For the two prior unrelated

felony convictions, the State used McPherson’s 1997 dealing-in-

cocaine conviction as well as McPherson’s 2008 conviction in

Elkhart County for criminal recklessness resulting in serious

bodily injury.

McPherson’s jury trial was conducted in three phases. During

the first phase, the jury found McPherson guilty of both dealing

counts and maintaining a common nuisance. During the second

phase, the jury found McPherson guilty of unlawful possession of

a firearm by a SVF. During the third and final phase, the jury

found that McPherson was a habitual offender.

McPherson, 32 N.E.3d 284, at *1-3 (footnotes omitted) (internal citations

omitted). The trial court sentenced McPherson to an aggregate term of ninety-

three years executed. McPherson was represented at trial by attorney Matthew

Johnson (“trial counsel” or “Johnson”), an Elkhart County Public Defender.

[4] On direct appeal, McPherson was represented by attorney Elizabeth Bellin

(“appellate counsel” or “Bellin”), who raised several issues, including:7

7

We have paraphrased the language of the issues presented on direct appeal.

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(1) The habitual offender enhancement and SVF conviction

constituted an impermissible double jeopardy enhancement

because they relied on the same predicate felony conviction;

(2) The evidence was insufficient to prove that the “Cornerstone

Ministries Boy’s and Girl’s Club” (“Boys and Girls Club”) was a

youth program center, as was required to enhance the dealing

offense from a Class B felony to a Class A felony; and

(3) The evidence was insufficient to prove that he had two prior

unrelated felonies to support the habitual offender enhancement.

P-CR Appellant’s App. Vol. II at 45-46. A panel of this court found sufficient

evidence to affirm McPherson’s convictions, but agreed with McPherson that

the trial court had erred in sentencing. We remanded the case to the trial court

with instructions to run McPherson’s sentence for unlawful possession of a

firearm by a SVF and his habitual offender enhancement concurrently, resulting

in an aggregate sentence of seventy-five years. McPherson, 32 N.E.3d 284, at *4.

[5] On October 25, 2016, McPherson filed a petition for post-conviction relief

raising two issues. First, McPherson argued that his trial counsel was

ineffective for not proceeding with the theory that the enhancement under the

dealing cocaine statute—i.e., selling cocaine within 1,000 feet of a youth

program center—was unconstitutionally vague, and that McPherson was

prejudiced by trial counsel’s failure to raise that issue. P-CR Appellant’s App. Vol.

II at 47. Second, McPherson argued that his appellate counsel was ineffective

for not arguing that the statute under which McPherson was convicted was

unconstitutionally vague, which again caused him prejudice. Id. at 51.

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[6] On January 3, 2017, the post-conviction court held an evidentiary hearing on

McPherson’s petition. Regarding trial counsel’s representation, Johnson

testified that he remembered the enhancement that raised McPherson’s charges

of dealing cocaine from Class B felonies to Class A felonies as being whether

the drug deal had occurred within 1,000 feet of “a youth program center.” P-

CR Tr. Vol. I at 7. Johnson could not recall whether he considered mounting a

vagueness challenge to the “youth program center” enhancement. Id. at 8.

Johnson did, however, describe to the post-conviction court the theory he

pursued at trial as follows:

Q. And I think you’ve already suggested your answer to this

question, let me ask it specifically, do you remember what your

thoughts were about whether there was a defense to the

enhancement?

A. For the defense to the enhancement, what I -– what I

attempted to do at trial was to show that this was more of a

church and not youth program center, though kids went to the

church and played basketball and such things, that it was not so

much of a -– of a youth program center as a church. That was

the defense that we attempted to put forward.

Q. More of a sufficiency claim then?

A. More of a sufficiency claim.

Id. at 8.

[7] Regarding the actions of appellate counsel, Bellin testified at the post-conviction

hearing that, at the time of McPherson’s direct appeal, she was familiar with a

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case, “Whatley v. State,” that challenged whether the enhancement of being

within 1,000 feet of a youth program center was unconstitutionally vague under

the United States Constitution. Id. at 12. Bellin stated that, while this question

of constitutionality was one of the issues she researched in early 2015, she did

not raise that issue on direct appeal because “[i]n reviewing the transcript at

trial, Mr. McPherson’s trial counsel did not object or file any sort of motion to

dismiss based on the constitutionality of the statute itself.” Id. at 12-13.

[8] Bellin explained,

If trial counsel fails to object at the time of trial and/or fails to

raise that issue in a motion to dismiss, as everyone practices

regularly is aware of that, when you go to challenge a statute,

specifically, you need to challenge that in a motion to dismiss.

That would be a separate filing and would accompany a

memorandum; a separate hearing would have to be held . . .

separate from the trial itself, and the court would have to make a

ruling on that motion to dismiss prior to trial. That was never

done at the trial level. The fact that his trial counsel did not do

that at the trial level constitutes a waiver for purposes of a direct

appeal.

Id. at 13. Bellin testified that she spoke with trial counsel and, “based on the

evidence that was presented in the trial,” “we were looking at sufficiency.” Id.

“[A]t no point was the vagueness brought up as a potential issue on appeal.”

Id. Bellin noted, “At the time of Mr. McPherson’s appeal, the law for which he

was convicted of was a valid law.” Id. at 16. Bellin also believed that a

vagueness challenge would not be successful because a motion to dismiss had

not been filed by trial counsel. P-CR Tr. at 13. The post-conviction court found

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that trial counsel and appellate counsel were not deficient in their legal

representation and denied McPherson’s petition for post-conviction relief.

McPherson now appeals.

Discussion and Decision

[9] On appeal, McPherson contends that his trial counsel and appellate counsel

provided ineffective assistance of counsel, and therefore, the post-conviction

court erred by not granting him the relief of vacating his two convictions for

Class A felony dealing and entering judgment and sentence on those

convictions as Class B felonies. Specifically, he contends that trial counsel and

appellate counsel should have argued, that the youth program center

enhancement was unconstitutionally vague.

[10] Post-conviction proceedings do not afford the petitioner an opportunity for a

super appeal. Newton v. State, 83 N.E.3d 726, 732 (Ind. Ct. App. 2017). Rather,

post-conviction proceedings provide the petitioner an opportunity to raise issues

that were unknown or unavailable at the time of the original trial or the direct

appeal. Id. The proceedings do not substitute for a direct appeal and provide

only a narrow remedy for subsequent collateral challenges to convictions. Id

“The petitioner in a post-conviction proceeding bears the burden

of establishing grounds for relief by a preponderance of the

evidence.” Humphrey v. State, 73 N.E.3d 677, 681 (Ind. 2017).

“When appealing the denial of post-conviction 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 the evidence leads

“unerringly and unmistakably to a conclusion opposite that

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reached by the post-conviction court.” Id. We do not defer to

the post-conviction court’s legal conclusions, but “a post-

conviction court’s findings and judgment will be reversed only

upon a showing of clear error—that which leaves us with a

definite and firm conviction that a mistake has been made.” Id.

at 682.

Newton, 83 N.E.3d at 732.

I. Trial Counsel

[11] McPherson contends that he was sentenced under the unconstitutional youth

program center enhancement, and therefore, the post-conviction court erred in

concluding that “[he] should continue to serve the enhanced sentence despite

that fact.” Appellant’s Br. at 5. McPherson asserts, “Because the post-conviction

court’s legal conclusion is erroneous, the lower court’s ruling should be

reversed.” Id. The issue before us, however, is not whether the sentencing

enhancement should apply. Instead, we must decide whether the post-

conviction court erred in finding that (1) trial counsel was not ineffective for not

arguing that the enhancement was unconstitutionally vague, and (2)

McPherson was not prejudiced by trial counsel’s failure to raise a vagueness

claim.

[12] To prevail on a claim of ineffective assistance of trial counsel, a petitioner must

prove that (1) his or her counsel’s performance was deficient, i.e., counsel made

errors so serious that counsel was not functioning as the “counsel” guaranteed

to defendant by the Sixth and Fourteenth Amendments, and (2) petitioner was

prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668,

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687 (1984); Black v. State, 54 N.E.3d 414, 424 (Ind. Ct. App. 2016), trans. denied.

Counsel’s performance is deficient if it falls below an objective standard of

reasonableness based on prevailing professional norms. Black, 54 N.E.3d at

424. To meet the appropriate test for prejudice, the petitioner must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. Id. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.”

Id. “Moreover, because a petitioner must prove both deficient performance and

prejudice in order to succeed, the failure to prove either element defeats the

claim.” Myers v. State, 33 N.E.3d 1077, 1089 (Ind. Ct. App. 2015), trans. denied.

[13] “When considering a claim of ineffective assistance of counsel, a ‘strong

presumption arises that counsel rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment’”; a

defendant must offer strong and convincing evidence to overcome this

presumption. Black, 54 N.E.3d at 424-25 (quoting Morgan v. State, 755 N.E.2d

1070, 1073 (Ind. 2001)). Evidence of isolated poor strategy, inexperience, or

bad tactics will not support a claim of ineffective assistance of counsel. Id. The

post-conviction court must assess trial counsel’s decisions objectively, in view of

what a “reasonably competent attorney” could have chosen to do or not do

under the circumstances. Harrington v. Richter, 562 U.S. 86, 110 (2011).

“Representation is constitutionally ineffective only if it ‘so undermined the

proper functioning of the adversarial process’ that the defendant was denied a

fair trial.” Id. (quoting Strickland,466 U.S. at 686). “Just as there is no

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expectation that competent counsel will be a flawless strategist or tactician, an

attorney may not be faulted for a reasonable miscalculation or lack of foresight

or for failing to prepare for what appear to be remote possibilities.” Id.

[14] To support his claim that trial counsel was ineffective for not raising the issue

that the youth program center enhancement was unconstitutionally vague,

McPherson relies exclusively on Whatley v. Zatecky, 833 F.3d 762 (7th Cir.

2016). Whatley was arrested at his father’s home on a warrant for an unrelated

charge. Whatley, 833 F.3d at 765. The arresting officer discovered a bag

containing just over three grams of cocaine in Whatley’s pocket. Id. At that

time, possession of that amount of cocaine was a Class C felony, with a

sentencing range of two to eight years. Id. Whatley’s crime was enhanced to a

Class A felony after police found that Whatley’s father’s home was located

approximately 795 feet from the Robinson Community Church (“Church”)—a

venue that witnesses testified was a youth program center. A “youth program

center” was defined as any “building or structure that on a regular basis provides

recreational, vocational, academic, social, or other programs or services for

persons less than eighteen (18) years of age.” Id. at 765 (quoting Ind. Code §

35-41-1-29(a) (emphasis added) (2011)).8 Whatley was convicted of a Class A

felony, in part, on evidence that included testimony of the Church’s pastor that,

8

The definition of “youth program center” is now found in Indiana Code section 35-31.5-2-357(a) (2012).

The recodification from section 35-41-1-29 to section 35-31.5-2-357 was effective on July 1, 2012.

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in any given week, the church hosted a number of events targeted to persons

under the age of eighteen. Id. at 765.

[15] The Seventh Circuit reversed Whatley’s Class A felony conviction.9 The Court

recognized that due process requires that a criminal statute give a person an

opportunity to conform his conduct to the law, a requirement that applies with

equal force to the conduct used to enhance a sentence. Whatley, 833 F.3d at

784. Focusing on the enhancement’s requirement that programs and services

must be provided on a “regular basis,” the Seventh Circuit concluded:

The Indiana courts failed to narrow the statute by adding an

intent element, by limiting application to the core cases of

facilities such as YMCAs or Boys and Girls Clubs, or by

providing any objective standard to the meaning of “regular.”

There was no “reasonable basis for the state court to deny relief.”

As applied to Whatley, the statute delegated to the police, the

prosecutor and the jury the task of determining what conduct was

proscribed. No one in Whatley’s position could have known that

the Robinson Community Church would fall within the

definition simply because it hosted a handful of children’s events

each week and otherwise bore no indicia of the children’s

activities within.

9

The Seventh Circuit held, “We therefore reverse and remand the judgment, with instructions to grant the

writ of habeas corpus ordering that, within sixty days, Whatley either be released or that he be re-sentenced

under the Class C felony statute. If he is re-sentenced, he must, of course, be given credit for the time he

served under the Class A felony conviction.” Whatley v. Zatecky, 833 F.3d 762, 784-85 (7th Cir. 2016).

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Whatley, 833 F.3d at 784. Noting that a criminal law should not be so vague

that “it fails to give ordinary people fair notice of the conduct it punishes, or so

standardless that it invites arbitrary enforcement,” the Seventh Circuit held that

the enhancement’s definition of “youth program center” was unconstitutional

because it “forbade conduct in terms so vague that persons of ordinary

intelligence must necessarily guess at the statute’s meaning and differ as to its

application.” Whatley, 833 F.3d at 766, 782. In granting Whatley relief, the

Seventh Circuit stated: “It is the particular language of the Indiana statute that

is at issue here, and more importantly the unique circumstances of its

application to Whatley." Id. at 782.

[16] The instant case is distinguishable from Whatley. Unlike Whatley, who may or

may not have known there was a church that provided youth center programs

near his father’s home, here, the building in question was right across the street

from McPherson’s home, a mere sixty-eight feet away.10 D.A. Tr. at 263.

Printed on the building, in big black letters, were the words, “Cornerstone

Ministries Boy’s and Girl’s Club, Meet Every Wednesday 5:30 p.m.” D.A.

State’s Ex. 9. Detective Tim Freel, who himself lived in the subject

neighborhood, testified at trial that the Boys and Girls Club “would have

different groups of children come in there; typically, on a Wednesday night they

had a program called ‘Wednesday Night Club.’” D.A. Tr. at 391. McPherson

10

The affidavit in support of McPherson’s warrantless arrest stated that the distance between the house and

the Boys and Girls Club was approximately seventy-five feet. D.A. Appellant’s App. Vol. IV at 156.

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sold cocaine to a confidential informant on Wednesday, May 16, 2012. Id. at

392.

[17] Detective Freel also testified:

Mr. McPherson admitted to selling drugs from the house. Mr.

McPherson admitted to a firearm that was found inside the

house. Mr. McPherson acknowledged to me that he was aware

that the house was directly across the street from the Boys and

Girls Club, which was also connected to a city park.

Id. at 382. Even if trial counsel had raised the issue that the enhancement was

unconstitutionally vague as applied to the facts before the court, it would have

been difficult for the trial court to conclude that as to McPherson, who admitted

he lived across the street from the Boys and Girls Club, the enhancement

forbade conduct in terms so vague that he had to guess whether the locale of his

drug sales was within 1,000 feet of a building that qualified as a youth program

center.

[18] Moreover, McPherson committed his dealing offenses in May 2012 and was

tried to a jury in June 2014. Whatley had challenged the constitutionality of the

enhancement as applied to him prior to McPherson’s trial; however, in 2014, a

resolution in favor of Whatley did not seem likely. At the time of McPherson’s

trial, Whatley was serving a sentence imposed in 2008 for his conviction for

possession of cocaine enhanced to a Class A felony because he possessed the

cocaine within 1,000 feet of a youth program center. Our court, on direct

appeal, finding that faith-based activities at the Church did not turn the Church

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into a youth program center, reversed and remanded the case for entry of a

conviction as a Class C felony and sentencing consistent with a Class C felony

conviction. Whatley v. State, 906 N.E.2d 259, 263 (Ind. Ct. App. May 21,

2009), trans. granted. On transfer, our Supreme Court held that the youth

program center enhancement was not unconstitutionally vague as applied to

Whatley and affirmed his Class A felony conviction. Whatley v. State, 928

N.E.2d 202, 206 (Ind. 2010). Whatley’s motion for re-trial was dismissed as

untimely on June 22, 2010, and our court affirmed the dismissal. Whatley v.

State, 937 N.E.2d 1238, 1242 (Ind. Ct. App. 2010). The post-conviction court’s

denial of Whatley’s petition for relief was affirmed in Whatley v. State, No.

49A04-1110-PC-548, 969 N.E.2d 634 (Ind. Ct. App. June 21, 2012). Whatley’s

petition for transfer was denied on October 11, 2012. The same month as

McPherson’s trial in the present case, the federal district court denied Whatley’s

request for habeas corpus relief. Whatley v. Zatecky, 2014 WL 2511585, at *1

(S.D. Ind. June 4, 2014). The enhancement was not found to be

unconstitutionally vague until the Seventh Circuit handed down its decision on

August 15, 2016, two years after McPherson’s trial. A finding of ineffective

assistance of counsel requires consideration of only legal precedent available to

counsel at the time of counsel’s representation of the accused. Sweeney v. State,

886 N.E.2d 1, 8 (Ind. Ct. App. 2008), trans. denied, cert. denied, 555 U.S. 1003

(2008). Given the facts before us, it was not professionally incompetent for trial

counsel to forego a motion to dismiss on the basis that the enhancement was

unconstitutionally vague.

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[19] Finally, the affidavit in support of McPherson’s “warrantless arrest” set forth

that McPherson sold crack cocaine to the confidential informant at his home,

which was approximately “75 feet from The Boys and Girls Club located at 411

Brady Street, Elkhart, Indiana, which was having a social activity going with

multiple children present during the controlled buy, and is also located

approximately 200 Feet from a City of Elkhart Public Park known as The Tot

Lot . . ..” D.A. Appellant’s App. Vol. IV at 156. McPherson admitted that he

knew the Boys and Girls Club was connected to a city park. D.A. Tr. Vol. II at

382. As the State notes, “Competent counsel would have been entitled to

consider the extent to which a motion to dismiss, even if it could have been

persuasive, would have simply resulted in an amended information on equally-

enhanced charges,” i.e., McPherson was dealing cocaine within 1,000 feet of a

city park. Appellee’s Br. at 24 (citing Ind. Code § 35-38-4-1(b)(3)(B)(ii) (2011)).

Based on this information, it would not have been professionally incompetent

for McPherson to forego a motion to dismiss on the basis that the enhancement

was unconstitutionally vague. Having found that trial counsel’s performance

was not deficient, we need not reach the prejudice prong. Accordingly, we

conclude that the post-conviction court did not err in finding that McPherson

did not receive ineffective assistance of trial counsel.

II. Appellate Counsel

[20] McPherson also contends that his appellate counsel provided ineffective

assistance by failing to raise on direct appeal the issue that the youth program

center enhancement was unconstitutionally vague. The standard of review for

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a claim of ineffective assistance of appellate counsel is identical to the standard

for trial counsel. Walker v. State, 988 N.E.2d 1181, 1190 (Ind. Ct. App. 2013)

(citing Lowery v. State, 640 N.E.2d 1031, 1048 (Ind. 1994), cert. denied, 512 U.S.

992 (1995)), trans. denied. The petitioner must establish deficient performance

by appellate counsel resulting in prejudice. Id. Ineffective assistance of

appellate counsel claims generally fall into three basic categories: (1) denial of

access to an appeal; (2) waiver of issues; and (3) failure to present issues well.

Henley v. State, 881 N.E.2d 639, 644 (Ind. 2008).

[21] “‘[T]he decision of what issues to raise is one of the most important strategic

decisions to be made by appellate counsel.’” Walker, 988 N.E.2d at 1190-91

(citing Reed v. State, 856 N.E.2d 1189, 1196 (Ind. 2006)). For countless years,

experienced advocates have “emphasized the importance of winnowing out

weaker arguments on appeal and focusing on one central issue if possible, or at

most a few key issues.” Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997), cert.

denied, 525 U.S. 1021 (1998) (citation and quotation marks omitted). “Thus,

when reviewing these types of claims, we should be particularly deferential to

appellate counsel’s strategic decision to exclude certain issues in favor of other

issues more likely to result in a reversal.” Walker, 988 N.E.2d at 1191. As a

result, “[i]neffective assistance is very rarely found in cases where a defendant

asserts that appellate counsel failed to raise an issue on direct appeal.” Reed,

856 N.E.2d at 1196.

[22] McPherson contends that appellate counsel Bellin was ineffective by not

challenging on direct appeal the constitutionality of the youth program center

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enhancement. During the post-conviction hearing, Bellin testified that, at the

time of McPherson’s direct appeal, she was familiar with a case that raised the

issue of whether the youth program center enhancement was unconstitutionally

vague. P-CR Tr. Vol. I at 12. She said that she had examined constitutionality

as one of the issues to raise in McPherson’s direct appeal; however, in

reviewing the trial transcript, she found that trial counsel “did not object or file

any sort of motion to dismiss based on the constitutionality of the statute itself.”

Id. at 12-13. Bellin explained that, because trial counsel did not raise the

constitutionality issue in a motion to dismiss, the issue was waived for direct

appeal. Id. at 13.

[23] The State and Bellin are correct, “Generally, the failure to file a proper motion

to dismiss raising the Constitutional challenge waives the issue on appeal.”

Pittman v. State, 45 N.E.3d 805, 815 (Ind. Ct. App. 2015) (citing Payne v. State,

484 N.E.2d 16, 18 (Ind. 1985); see also Rhinehardt v. State, 477 N.E.2d 89, 93

(Ind. 1985) (holding that defendant did not preserve claim that a statute was

unconstitutionally vague where he did not raise the issue prior to trial by a

timely and proper motion to dismiss)). However, in some cases, our court has

“considered challenges to the constitutionality of statutes even where the

defendant failed to file a motion to dismiss.” Pittman, 45 N.E.3d at 815 (citing

Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008). In evaluating

whether appellate counsel performed deficiently by not raising the

constitutionality issue on appeal, we apply the following test: (1) whether the

unraised issue is significant and obvious from the face of the record and (2)

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whether the unraised issue is “clearly stronger” than the raised issues. Henley,

881 N.E.2d at 645.

[24] Here, Bellin had to decide which issues would be the most successful on direct

appeal. After considering the various options, Bellin argued: (1) McPherson’s

habitual offender enhancement and SVF conviction were an impermissible

double enhancement because they were based on the same prior felony; (2) the

evidence was insufficient to prove that McPherson dealt cocaine within 1,000

feet of a youth program center; and (3) evidence is insufficient to support his

habitual offender enhancement because the State did not prove that he was the

one who committed the prior unrelated felonies. McPherson, 32 N.E.3d 284, at

*1. Bellin succeeded in proving her first issue, and our court remanded the

case, ordering the trial court to “run McPherson's sentence for unlawful

possession of a firearm by a SVF concurrently, resulting in a new aggregate

sentence of seventy-five years.” Id. Here, Bellin researched the unraised issue

of the enhancement’s constitutionality, even though that issue was not obvious

from the face of the record. Further, because it was uncertain whether the

appellate court would entertain the arguably waived issue of constitutionality,

the issue of double enhancement was a stronger issue. In fact, Bellin reduced

McPherson’s sentence by eighteen years. Under these facts and circumstances,

the decision of McPherson’s appellate counsel to not assert an appellate claim

that the enhancement was unconstitutionally vague did not constitute

ineffective assistance of appellate counsel. Having found that trial counsel’s

performance was not deficient, we need not reach the prejudice prong.

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Accordingly, we conclude that the post-conviction court did not err in finding

that McPherson did not receive ineffective assistance of appellate counsel.

[25] The post-conviction court did not clearly err in rejecting McPherson’s claims of

ineffective assistance of trial and appellate counsel. Accordingly, we affirm the

judgment of the post-conviction court denying McPherson’s petition for post-

conviction relief.

[26] Affirmed.

[27] Bailey, J., and Pyle, J., concur.

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