Jonah Long v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

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

this Memorandum Decision shall not be

Oct 30 2018, 5:30 am

regarded as precedent or cited before any

court except for the purpose of establishing CLERK

Indiana Supreme Court

the defense of res judicata, collateral Court of Appeals

and Tax Court

estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE

Jonah Long Curtis T. Hill, Jr.

Pendleton, Indiana Attorney General of Indiana

Henry A. Flores, Jr.

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jonah Long, October 30, 2018

Appellant-Petitioner, Court of Appeals Case No.

49A02-1711-PC-2804

v. Appeal from the Marion Superior

Court

State of Indiana, The Honorable Richard

Appellee-Respondent. Hagenmaier, Master

Commissioner

Trial Court Cause No.

49G21-1610-PC-41034

Robb, Judge.

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Case Summary and Issue

[1] Following a bench trial, Jonah Long was convicted of dealing in

methamphetamine, a Class A felony, and resisting law enforcement, a Class A

misdemeanor. The trial court sentenced Long to thirty years in the Indiana

Department of Correction. On direct appeal, we affirmed Long’s conviction.

Long v. State, No. 49A04-1308-CR-392 (Ind. Ct. App. Mar. 26, 2014), trans.

denied. Thereafter, Long, pro se, filed a petition for post-conviction relief

alleging ineffective assistance of both trial and appellate counsel which was

denied by the post-conviction court. Long, still acting pro se, now appeals the

denial of post-conviction relief, raising five issues for our review which we

consolidate and restate as whether the post-conviction court erred in denying

Long’s motion for post-conviction relief. Concluding the post-conviction court

did not err, we affirm.

Facts and Procedural History

[2] We summarized the facts and procedural history of this case in Long’s direct

appeal:

On September 7, 2012, Indiana State Police Trooper Jeffrey Sego

and several other officers conducted a narcotics investigation at a

hotel in Indianapolis. Sego went to a room and knocked on the

door. He knew that Long was registered as an occupant of the

room. Kami Clemens opened the door. Clemens allowed Sego

into the room, where he saw digital scales and glass pipes.

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After speaking with Clemens, Sego advised the other officers to

be on the lookout for Long, who was driving a silver Chrysler

300. Police officer Adam Buchta was stationed near the hotel in

an unmarked car. He ran a license check on Long and learned

that Long’s license was suspended. Buchta also found a picture

of Long, which he shared with Indiana State Trooper Dean

Wildauer. Wildauer was also stationed in an unmarked car,

farther from the hotel than Buchta.

Later, Wildauer saw Long driving a silver Chrysler 300 toward

the hotel. Long turned onto the street that accessed the hotel’s

parking lot, but he failed to use his turn signal. Wildauer

informed Buchta of Long’s failure to use his turn signal.

Buchta saw Long approach the hotel. He activated his car’s

lights to signal Long to stop. Long entered the hotel’s parking

lot, “slammed [the car] into park,” and got out. Long ran away,

disregarding Buchta’s commands to stop. He ran across a street

and up a ramp to a nearby interstate highway. Buchta followed

and watched Long run across the interstate, disrupting traffic.

Long got away once he reached the other side.

Buchta returned to Long’s car and took the keys out of the

ignition. He also brought his canine to the Chrysler 300 and

walked it around the car. The canine “alerted to the odor of a

narcotic” coming from the car.

Sego searched the 300 without a warrant. He found paperwork

bearing Long’s name. He also found luggage in the trunk, and

when he searched the luggage he saw a blue can of Doritos. Sego

discovered that the bottom of the can could be unscrewed, and

inside the bottom of the can he found two clear plastic baggies

containing a substance that was later identified as

methamphetamine. There was a total of 11.6 grams of

methamphetamine in the baggies. Wildauer testified that the

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quantity of methamphetamine Sego discovered is generally

associated with a dealer rather than a user, because a user will

consume methamphetamine as soon as he or she acquires it.

Later, Long talked with his acquaintance Tony Pedigo. Long

told Pedigo he had to abandon his car at a hotel in Indianapolis

because the police arrived. He further said he fled from the

police by running across an interstate highway. Finally, Long

told Pedigo he had left methamphetamine in the car.

The State charged Long with dealing in methamphetamine,

possession of methamphetamine, and resisting law enforcement.

Long waived his right to a jury trial and was tried to the bench.

Id. at *1-2 (citations omitted).

[3] During the bench trial, Long’s trial counsel moved to suppress evidence

resulting from the warrantless search of Long’s vehicle. The State argued that

because a canine had alerted to the vehicle, the automobile exception to the

warrant requirement permitted officers to conduct a warrantless search. The

trial court inquired about the issue of abandonment and the parties presented

brief argument on that issue before the trial court denied Long’s motion to

suppress.

[4] Long also testified that he was in a different city on the date of the incident and

he had later learned someone else was driving his vehicle. The State objected

on hearsay grounds because Long had learned who was driving his vehicle

through the comments of a third party. Long’s trial counsel contended that

Long’s testimony should be admissible as a statement against penal interest and

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the trial court sustained the State’s objection. In Long’s offer to prove, he

testified that his girlfriend’s best friend was driving his vehicle on the date of the

incident and provided several photographs in support thereof.

[5] On July 15, 2013, the trial court found Long guilty of dealing in

methamphetamine, a Class A felony, and resisting law enforcement, a Class A

misdemeanor. On July 29, 2013, the trial court sentenced Long to thirty years

for dealing in methamphetamine and one year for resisting law enforcement

with the sentences to be executed concurrently at the Indiana Department of

Correction.

[6] On direct appeal, Long’s appellate counsel raised three issues: (1) whether the

trial court erred by denying his motion to suppress the evidence discovered

during the warrantless search of his vehicle; (2) whether the trial court erred by

excluding evidence that someone else may have committed the crimes; and (3)

whether the evidence was sufficient to sustain his conviction for dealing in

methamphetamine. Long, No. 49A04-1308-CR-392 at *2-4. A panel of this

court affirmed the trial court in all respects. Id. at *5.

[7] On September 19, 2016, Long filed a pro se petition for post-conviction relief.

An evidentiary hearing was conducted on April 21, 2017, and on October 30,

the post-conviction court issued written findings of fact and conclusions of law

denying Long’s petition. Long now appeals. Additional facts will be supplied

as necessary.

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Discussion and Decision

I. Standard of Review

[8] It is well established that post-conviction proceedings are not an opportunity for

a super-appeal. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied,

537 U.S. 839 (2002). Rather, they create a narrow remedy for subsequent

collateral challenges to convictions that must be based on grounds enumerated

in the post-conviction rules. Id. A claim of ineffective assistance of counsel is

properly presented in a post-conviction proceeding if the claim was not

presented on direct appeal and a claim of ineffective assistance of appellate

counsel is also appropriate for post-conviction review. Id. Since post-

conviction proceedings are civil in nature, a petitioner must establish his claims

by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).

[9] 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, 169 (Ind. 2001).

In reviewing the judgment of a post-conviction court, we do not reweigh the

evidence or reassess witness credibility and we consider only the evidence and

reasonable inferences supporting the judgment. Hall v. State, 849 N.E.2d 466,

468-69 (Ind. 2006). We will affirm the post-conviction court’s denial of post-

conviction relief unless the evidence leads “unerringly and unmistakably to a

decision opposite that reached by the post-conviction court.” McCary v. State,

761 N.E.2d 389, 391 (Ind. 2002).

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[10] Before proceeding to the merits of this appeal, we pause briefly to emphasize

that pro se litigants without legal training are held to the same legal standards as

licensed attorneys. Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016).

Pro se litigants must adhere to the rules of procedure and must be prepared to

accept the consequences of their failure to do so, including waiver for failure to

present cogent argument on appeal. Id. at 983–84. An appellate brief should be

prepared so that each judge, considering the brief alone and independent of the

transcript, can intelligently consider each question presented. Pluard ex rel.

Pluard v. Patients Comp. Fund, 705 N.E.2d 1035, 1038 (Ind. Ct. App. 1999),

trans. denied. We “will not search the record to find a basis for a party’s

argument” nor will we “search the authorities cited by a party in order to find

legal support for its position.” Thomas v. State, 965 N.E.2d 70, 77 n.2 (Ind. Ct.

App. 2012), trans. denied. And we must not become an “advocate for a party, or

address arguments that are inappropriate or too poorly developed or expressed

to be understood.” Basic, 58 N.E.3d at 984.

II. Ineffective Assistance of Counsel

[11] The standard for ineffective assistance of counsel is the same standard for both

trial and appellate counsel. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013).

We review claims of ineffective assistance of counsel under the two-prong test

set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim

of ineffective assistance of counsel, the petitioner must show his counsel’s

performance was deficient and the lack of reasonable representation prejudiced

him. Id. at 687.

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[12] To satisfy the first prong, the petitioner must show counsel’s representation fell

below an objective standard of reasonableness and counsel committed errors so

serious petitioner did not have the “counsel” guaranteed by the Sixth

Amendment of the United States Constitution. Garrett, 992 N.E.2d at 718-19.

To satisfy the second prong, the petitioner must show a reasonable probability

that, but for counsel’s errors, the result of the proceeding would have been

different. Id. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. These two prongs are

separate and independent inquiries. Manzano v. State, 12 N.E.3d 321, 326 (Ind.

Ct. App. 2014), trans. denied, cert. denied, 135 S.Ct. 2376 (2015). Therefore, “if it

is easier to dispose of an ineffectiveness claim on one of the grounds instead of

the other, that course should be followed.” Talley v. State, 736 N.E.2d 766, 769

(Ind. Ct. App. 2000).

[13] Counsel is afforded “considerable discretion in choosing strategy and tactics,

and we will accord those decisions deference.” Timberlake, 753 N.E.2d at 603.

And we recognize a strong presumption counsel rendered adequate legal

assistance. Id. In order to overcome this strong presumption, a petitioner must

offer “strong and convincing evidence.” Smith v. State, 822 N.E.2d 193, 202

(Ind. Ct. App. 2005), trans. denied.

A. Judicial Bias

[14] Long first argues both his trial and appellate counsel were ineffective for failing

to raise the issue of judicial bias. Concluding Long waived the issue on post-

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conviction relief, and that Long has failed to demonstrate prejudice even if

properly presented, we disagree.

[15] Because “[t]he law presumes that a judge is unbiased and unprejudiced[,]”

merely asserting judicial bias does not make it so. Smith v. State, 770 N.E.2d

818, 823 (Ind. 2002). “Such bias and prejudice exists only where there is an

undisputed claim or where the judge expressed an opinion of the controversy

over which the judge was presiding.” Id. Adverse rulings are not sufficient of

themselves to establish bias or prejudice. Resnover v. State, 507 N.E.2d 1382,

1391 (Ind. 1987). To rebut this presumption, a defendant “must establish from

the judge’s conduct actual bias or prejudice that places the defendant in

jeopardy.” Smith, 770 N.E.2d at 823.

[16] As evidence of judicial bias, Long relies almost exclusively on the trial court sua

sponte raising the issue of whether the abandonment exception supported the

warrantless search of Long’s vehicle. The underlying facts reveal officers

attempted to conduct a traffic stop on Long’s vehicle but Long disregarded their

attempt and proceeded into a hotel’s parking lot, “slammed [the car] into park,”

and ran away, further disregarding oral commands to stop. Long, No. 49A04-

1308-CR-392 at *1. Officers discontinued a foot-pursuit once Long crossed

interstate traffic and then walked a canine around Long’s vehicle which

“alerted to the odor of a narcotic[.]” Id. A subsequent warrantless search of the

vehicle revealed 11.6 grams of methamphetamine. Long’s trial counsel moved

to suppress the evidence obtained from the warrantless search. At the

suppression hearing, the State argued, relying on our supreme court’s opinion

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in State v. Hobbs, 933 N.E.2d 1281 (Ind. 2010), that a canine’s alert on Long’s

vehicle provided an exception to the warrant requirement. Eventually, the trial

court inquired:

The Court: Why is nobody talking about the

abandonment issue?

[The State]: Well, because we already have State v. Hobbs,

that I didn’t need to go into the abandonment

issue. And we have a —

The Court: Better —

[The State]: — either way.

The Court: Isn’t it a better issue?

[The State]: I think, I think we have it either way.

Trial Transcript, Volume I at 99.

[17] With this background, the post-conviction court found:

In this matter, the trial court never sought to adduce evidence,

but instead, [Long]’s complaint to find bias or prejudice is in the

trial court directing questions to the Party-Attorneys. [Long]

argues, without citation to authority that the trial courts’ [sic]

mere inquiry as to applicability of the doctrine of abandonment

constitutes bias or prejudice on behalf of the State. However, the

cases he points to regarding bias and prejudice primarily deal

with the court’s questions to witnesses, or other matters which in

some way reflect on the specific conduct or demeanor of the trial

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judge. Though [sic] his case law, [Long] presents no compelling

authority to establish that the [trial] court’s questioning to party-

attorneys is prohibited. Moreover, [Long] fails to establish that

the judge’s suppression questioning was designed for some other

purpose than to have the parties make argument on what seemed

a pertinent area of law. [Long’s] failure to develop a cogent

argument or provide adequate citation to authority or portions of

the record generally results in waiver of [the] issue. These

claim[s] ha[ve] been waived.

Appellant’s Appendix, Volume 2 at 23-24 (citations omitted).

[18] We agree with the post-conviction court that Long’s claims that trial and

appellate counsel rendered ineffective assistance in failing to raise the issue of

judicial bias are waived for lack of cogency. See Ross v. State, 877 N.E.2d 829,

833 (Ind. Ct. App. 2007), trans. denied. Indeed, aside from a perfunctory

assertion the trial court was biased because it inquired into an issue which was

potentially favorable to the State, Long’s petition for post-conviction relief fails

to advance a cogent argument as to why the trial court’s inquiry demonstrated

actual bias or how the inquiry placed him in jeopardy. Smith, 770 N.E.2d at

823. On direct appeal, we concluded “[t]he trial court sua sponte raised the

issue of abandonment and gave both parties a chance to address it.” Long, No.

49A04-1308-CR-392 at *2, n.1. And we continue to view the trial court’s

inquiry as merely an opportunity for both parties to make an argument on the

issue of abandonment.

[19] Waiver notwithstanding, even assuming the trial court’s inquiry into the

abandonment exception demonstrated bias and trial counsel’s performance was

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therefore deficient in failing to object, Long has still failed to demonstrate

prejudice because the evidence was otherwise admissible under the automobile

exception. The “automobile exception” to the warrant requirement allows

police to search a vehicle without obtaining a warrant if they have probable

cause to believe evidence of a crime will be found in the vehicle. Carroll v.

United States, 267 U.S. 132, 153-54 (1925). This doctrine is grounded in two

notions: 1) a vehicle is readily moved and therefore the evidence may disappear

while a warrant is being obtained, and 2) citizens have lower expectations of

privacy in their vehicles than in their homes. California v. Carney, 471 U.S. 386,

391 (1985). One reason for this diminished expectation of privacy in a car and

its contents is that cars travel along public highways and are subject to pervasive

government regulation. Cady v. Dombrowski, 413 U.S. 433, 441 (1973). Most

cases addressing the automobile exception arise in the context of an arrest or an

investigatory stop of a motorist that gives rise to probable cause, but the

exception is grounded in the mobility of the vehicle and its location in a public

area.

[20] As the Supreme Court explained in Carney, the automobile exception applies to

vehicles that are readily mobile and are found in non-residential areas. 471

U.S. at 392-93. Thus, an operable vehicle found in a residential area may not

be searched under this exception, but one located in a non-residential area,

whether by reason of a traffic stop or not, is subject to the exception. The

theory underlying the exception for vehicles is that the vehicle is “being used for

transportation.” Id. at 394.

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[21] In State v. Hobbs, the case cited by the State in support of admitting the

evidence, officers positioned themselves across from a restaurant where officers

were aware the defendant, who was wanted on an outstanding felony arrest

warrant, was employed. 933 N.E.2d at 1284. Officers observed the defendant

emerge from the restaurant, place something in his vehicle, and return inside.

Officers then entered the restaurant and arrested the defendant. The defendant

refused to consent to a search of his vehicle and the officers conducted a canine

sniff which resulted in a positive alert and a warrantless search. The defendant

was charged in connection with marijuana and paraphernalia found inside his

vehicle. Sua sponte, the trial court ruled the evidence was illegally seized

because even though the canine alert provided probable cause to search the

vehicle, this was insufficient to justify a warrantless search. On the State’s

appeal, we reversed, holding the warrantless search of the vehicle was

permissible under the automobile exception and the subsequent seizure

therefore did not violate the Fourth Amendment or Article 1, Section 11 of the

Indiana Constitution. State v. Hobbs, 915 N.E.2d 197 (Ind. Ct. App. 2009).

[22] On transfer, our supreme court looked to Carroll and its progeny before

reasoning:

The defendant contends he “was not in any position to control

any aspect of the vehicle.” But the automobile exception does

not require that there be an imminent possibility the vehicle may

be driven away. Maryland v. Dyson, 527 U.S. 465, 466-67 (1999).

Under the exception, an operational vehicle is inherently mobile,

whether or not a driver is behind the wheel or has ready access.

With probable cause, this inherent mobility is enough to conduct

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a warrantless search under the automobile exception. Nothing in

the record indicates that [the defendant]’s vehicle was not

operational. Because [the defendant]’s admittedly mobile vehicle

was in the parking area of a restaurant, it was subject to the

automobile exception and no warrant was required to search the

vehicle if the officers had probable cause to believe it contained

evidence of a crime.

Officers are not authorized to detain a person stopped under

reasonable suspicion of a crime for a longer period than is

required to resolve the suspicion. Illinois v. Caballes, 543 U.S.

405, 407 (2005). But here [the defendant] was arrested with

probable cause supported by a warrant for a previous unrelated

crime. He was not detained based on suspicion of the crimes

charged in this case, and his detention was not prolonged at all

by the call for the dog or the subsequent search and seizure.

The automobile exception requires probable cause to believe the

vehicle contains evidence of a crime. The officers’ own

observations of [the defendant] entering the vehicle and placing

something inside gave probable cause to believe the contents of

the car were possessed by [the defendant]. The subsequent dog

sniff provided probable cause that the vehicle contained illicit

drugs. Neuhoff v. State, 708 N.E.2d 889, 891 (Ind. Ct. App. 1999).

It is well settled that a dog sniff is not a search protected by the

Fourth Amendment. Caballes, 543 U.S. at 409. Accordingly, no

degree of suspicion is required to summon the canine unit to the

scene to conduct an exterior sniff of the car or to conduct the sniff

itself.

In sum, [the defendant]’s car was an operational vehicle in a

public place; the dog sniff was not conducted under

circumstances where [the defendant] was unconstitutionally

seized, and the dog sniff provided probable cause that the car

contained evidence of a crime. There therefore was no Fourth

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Amendment violation in the search of [the defendant]’s car or the

seizure of the contraband found in the car.

933 N.E.2d at 1286-87 (some citations omitted).

[23] We find the facts presented here sufficiently analogous to those of Hobbs as to

control on the issue of the automobile exception. Officers’ observations of

Long driving his vehicle removed any doubt as to whether the vehicle was

operational and therefore “subject to the automobile exception and no warrant

was required to search the vehicle if the officers had probable cause to believe it

contained evidence of a crime.” Hobbs, 933 N.E.2d at 1286. This observation

also gave officers probable cause to believe the contents of the vehicle were

possessed by Long. And once a canine “alerted to the odor of a narcotic,”

Long, No. 49A04-1308-CR-392 at *1, officers possessed probable cause that the

vehicle contained illicit drugs. Neuhoff, 708 N.E.2d at 891. As in Hobbs,

because Long’s vehicle was operational in a public place, the canine search

occurred under circumstances where Long was not unconstitutionally seized,

and the canine sniff produced probable cause to believe the vehicle contained

evidence of a crime, a warrantless search did not violate the Fourth

Amendment. 933 N.E.2d at 1286-87.

[24] Therefore, because the evidence obtained from Long’s vehicle was admissible

on a basis other than abandonment, Long has failed to demonstrate a

reasonable probability that, but for counsel’s errors, the result of the proceeding

would have been different. Garrett, 992 N.E.2d at 719. For this same reason,

Long failed to demonstrate ineffective assistance of appellate counsel for failing

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to raise the issue of judicial bias as fundamental error. See Allen v. State, 749

N.E.2d 1158, 1168-69 (Ind. 2001) (holding that because claimed errors by trial

counsel did not in themselves warrant relief, claims of ineffective assistance of

appellate counsel for failure to raise the alleged errors by trial counsel would

also fail), cert. denied, 535 U.S. 1061 (2002); Benefield v. State, 945 N.E.2d 791,

805 (Ind. Ct. App. 2011) (holding that where an appellant has failed to prove

ineffective assistance of trial counsel, a finding of fundamental error on appeal

is excluded).

B. Admission of Commingled Evidence

[25] Next, Long argues his trial counsel rendered ineffective assistance for failing to

object to the admission of certain evidence on “appropriate grounds.”

Appellant’s Brief at 29. In order to prove ineffective assistance of counsel due

to the failure to object, Long must prove that an objection would have been

sustained if made and that he was prejudiced by the failure. Timberlake v. State,

690 N.E.2d 243, 259 (Ind. 1997), cert. denied, 525 U.S. 1073 (1999).

[26] During Long’s trial, the State sought to admit evidence seized from a vehicle

and a hotel room as State’s Exhibit Number 2. Trial Tr., Vol. I at 104. Long’s

trial counsel objected to the admission of the evidence based on a “continuing

objection that [the evidence was] seized illegally.” Id. at 105.

[27] The exhibit was admitted over objection, but Long’s trial counsel then engaged

in the following questioning with the sponsoring witness:

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[Trial Counsel]: Your Honor, if I can ask just a clarifying

question on the Exhibit Number 2.

[The Court]: Okay.

[Trial Counsel]: Trooper, Exhibit Number 2 actually contains

more than just the Doritos container, it has

some pipes, a scale –

[Trooper Sego]: Yes.

[Trial Counsel]: --- in it. Those items were not found in the

vehicle; is that correct?

[Trooper Sego]: Correct. Yes, ma’am.

[Trial Counsel]: They were found in the hotel room?

[Trooper Sego]: On a dresser in a hotel room.

[Trial Counsel]: That where [sic] Ms. Clemens was located?

***

[Trooper Sego]: Yes.

Id. at 106. Thereafter, the State proceeded to move for the admission of State’s

Exhibit Number 4, a lab report “entered by stipulation by the parties with a

caveat that there is a – it include [sic] a scale and two glass pipes which is [sic]

not at issue in this case.” Id. at 107. Long argues that because the exhibits

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contained evidence not at issue in this case, his trial counsel was ineffective for

not also objecting on grounds that the evidence was improperly commingled

with other evidence.

[28] The post-conviction court found:

From the record it is clear that the State’s witnesses commingled

and heat sealed the paraphernalia items recovered from the motel

room, along with the Methamphetamine recovered from [Long]’s

car.

The Indiana Supreme Court has noted “[w]e generally presume

that in a proceeding tried to the bench a court renders its

decisions solely on the basis of relevant and probative evidence.”

Coleman v. State, 558 N.E.2d 1059, 1062 (Ind. 1990). This

longstanding principle has been termed “the judicial-temperance

presumption.” The Court is convinced that a detailed trial record

was made which allowed the trial court to readily comprehend

what evidence was offered against [Long]. The clarity of the

record allowed the trial court to disregard the extraneous

paraphernalia. In this instance, the Court similarly applies the

judicial-temperance presumption in favor of the trial court’s

ability to disregard admittedly irrelevant evidence.

Appellant’s App., Vol. 2 at 27-28. The court then concluded:

10. The record clearly explains that trial evidence was

mistakenly commingled. This court is persuaded that clear

evidence was presented at trial as to what items supported

a finding that [Long] was guilty of dealing in

Methamphetamine. Given the clarity of the record, the

Post-Conviction court applies the judicial-temperance

presumption, and concludes that the commingled items of

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paraphernalia were disregarded by the trial court in

deciding that [Long] was guilty.

Id. at 33-34.

[29] On appeal, Long argues the post-conviction court applied “the wrong standard,

the judicial-temperance presumption doctrine, in its decision to deny relief.”

Appellant’s Br. at 33. Instead, Long contends the correct standard was whether

he “was denied effective assistance as required by Strickland.” Id. at 34.

However, viewed in context, the post-conviction court indeed applied the

correct standard, basing its conclusion on Long’s failure to establish prejudice—

a conclusion with which we agree.

[30] The record clearly reflects that the parties stipulated the evidence recovered

from the hotel room was not at issue in this case. Long’s trial counsel engaged

in questioning of the State’s witness, Trooper Sego, clearly designed to notify

the trial court of where each piece of evidence originated and that the evidence

had been mistakenly commingled. As the post-conviction court noted, it is

well-established that where, as here, the case is tried before the court, a trial

judge is presumed to disregard improper evidence in reaching its decision.

Konopasek v. State, 946 N.E.2d 23, 28 (Ind. 2011). And there is nothing in the

record indicating that the trial court considered or relied upon the mistakenly

commingled evidence in reaching its judgment. Therefore, we conclude that

Long has failed to establish he was prejudiced by his counsel’s failure to

explicitly object to the evidence on grounds that it was improperly commingled.

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C. Hearsay Evidence

[31] Next, Long claims he received ineffective assistance of counsel because, despite

knowledge of Long’s intent to testify that someone else had driven his car on

the date in question, his trial counsel “failed to make any effort whatsoever to

summon the witness to trial to testify in person; therefore, Long could not rely

on Rules 804s [sic] ‘statement against interest’ hearsay exception[.]”

Appellant’s Br. at 35. The post-conviction court concluded the issue was

decided on direct appeal and was therefore res judicata. On appeal from the

denial of his post-conviction petition, Long claims the post-conviction court

erred “by failing to review this issue under the proper legal standard” because

he had not raised the issue of ineffective assistance of trial counsel on direct

appeal. Id. at 37. The State argues the post-conviction court correctly decided

this issue as res judicata.

[32] The doctrine of res judicata bars a later suit when an earlier suit

resulted in a final judgment on the merits, was based on proper

jurisdiction, and involved the same cause of action and the same

parties as the later suit. As a general rule, when a reviewing

court decides an issue on direct appeal, the doctrine of res

judicata applies, thereby precluding its review in post-conviction

proceedings. The doctrine of res judicata prevents the repetitious

litigation of that which is essentially the same dispute. And, a

petitioner for post-conviction relief cannot escape the effect of

claim preclusion merely by using different language to phrase an

issue and define an alleged error. [W]here an issue, although

differently designated, was previously considered and determined

upon a criminal defendant’s direct appeal, the State may defend

against defendant’s post-conviction relief petition on grounds of

prior adjudication or res judicata.

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Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006) (citations and quotation

omitted).

[33] On direct appeal, we concluded:

Long testified during his case-in-chief. He asserted that someone

else drove his car on the day in question. During preliminary

questioning by the State, Long conceded that his alleged

knowledge of the purported driver’s identity was based on what

the purported driver had told him. The State objected to any

further testimony on the purported driver’s identity, claiming it

was based on inadmissible hearsay. The court sustained the

objection. Next, Long submitted an offer to prove, in which he

provided the purported driver’s name and submitted photographs

of that person and of him for comparison. The State offered

three photographs of the purported driver as part of the offer to

prove. At the close of the offer, the court stated with respect to

the photographs, “I'm not looking at any of them.”

Long made no effort to establish that the purported driver was

unavailable to testify, so Rule 804 did not permit the admission

of Long’s evidence.

Long, No. 49A04-1308-CR-392 at *3-4 (citations to transcript omitted).

[34] We acknowledge that, at least on first glance, this issue does not appear to be

res judicata because the basis for our decision on direct appeal was that “Long

made no effort to establish that the purported driver was unavailable to testify,”

id. at *4, and Long asserts this as the basis for his claim of ineffective assistance

of trial counsel on post-conviction relief. However, upon further inspection, we

agree with the post-conviction court’s disposition of this issue.

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[35] The requirement of reliability is embodied within the statements against interest

hearsay exception, as reliability is the ultimate justification for this exception.

Bryant v. State, 794 N.E.2d 1135, 1142-43 (Ind. Ct. App. 2003), trans. denied;

Ind. Evidence Rule 804(b)(3). To qualify under this hearsay exception, the

statement against interest must be incriminating on its face. Jervis v. State, 679

N.E.2d 875, 878 (Ind. 1997). On Long’s direct appeal, after acknowledging

trial counsel’s failure to establish unavailability, we proceeded to explain:

Furthermore, Long said the purported driver merely stated that

he drove the car on the day in question. Long did not testify that

the person told him he was driving the car at the time the police

initiated the traffic stop, or that the person told him he fled from

the police on foot, or that the person told him he was the owner

of the methamphetamine. Without more, the mere statement

that the person drove the car at some point on the day in question

is not incriminating on its face. We also note that the purported

driver made his statement to Long rather than to a disinterested

witness, which undermines the statement’s credibility. See Bryant

v. State, 794 N.E.2d 1135, 1143 (Ind. Ct. App. 2003) (alleged

confession was not statement against interest where statement

did not match the circumstances of the crime at issue, was

uncorroborated, and was made to the defendant), trans. denied.

The court did not abuse its discretion in excluding Long’s

evidence on the identity of the purported driver.

Long, No. 49A04-1308-CR-392 at *4. Therefore, even if trial counsel had

demonstrated the purported driver was unavailable to testify, Long’s hearsay

testimony was still inadmissible as a statement against interest under Indiana

Evidence Rule 804(b)(3). Accordingly, res judicata acts to bar Long’s attempt

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at relitigating that which is essentially the same dispute. Sweeney v. State, 704

N.E.2d 86, 94 (Ind. 1998), cert. denied, 527 U.S. 1035 (1999).

[36] Even if the issue is not res judicata, Long has again failed to demonstrate

prejudice. Two officers testified that they saw Long driving his vehicle and

Long’s acquaintance, Pedigo, testified that Long had told him that he was

driving the vehicle, which contained methamphetamine, and that he fled once

officers approached. The trial court allowed Long to testify that he was out of

town on the date in question and that he left his vehicle at his girlfriend’s house.

The hearsay testimony Long sought to admit was simply that he had learned

that someone else was driving his vehicle. Therefore, even if unavailability had

been properly established and Long was permitted to present the hearsay

testimony through the applicable exception, we are unconvinced there was a

reasonable probability that, but for trial counsel’s alleged error, the result of the

proceeding would have been different. Garrett, 992 N.E.2d at 719.

D. Cumulative Issues

[37] Finally, Long argues the cumulative errors of trial and appellate counsel entitle

him to a new trial. We have determined that all of Long’s claims that he

received ineffective assistance of trial and appellate counsel are without merit,

and “[t]rial irregularities which standing alone do not amount to error do not

gain the stature of reversible error when taken together.” Kubsch v. State, 934

N.E.2d 1138, 1154 (Ind. 2010). Therefore, as with each individual claim, Long

is not entitled to relief on his claim of cumulative error.

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Conclusion

[38] The post-conviction court did not err in concluding Long is not entitled to post-

conviction relief on his claims that he received ineffective assistance of trial and

appellate counsel. Accordingly, we affirm.

[39] Affirmed.

Baker, J., and May, J., concur.

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