author: PYLE, Judge.

text:
    Vance R. PACE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A03-1206-PC-378.
    Court of Appeals of Indiana.
    Feb. 5, 2013.
    Rehearing Denied April 15, 2013.
    Stephen T. Owens, Public Defender of Indiana, Victoria Christ, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Vance R. Pace (“Pace”) appeals from the post-conviction court’s order denying his petition for post-conviction relief, which sought to set aside his convictions for Class B felony dealing in amphetamine and Class B felony unlawful possession of a firearm by a serious violent felon (“SVF”) based on claims of ineffective assistance of trial and appellate counsel, stemming from trial counsel’s failure to file a motion to bifurcate Pace’s jury trial on his dealing in amphetamine and SVF charges.

We reverse and remand.

ISSUE

Whether the post-conviction court erred by denying Pace’s petition for post-conviction relief.

FACTS

The facts of Pace’s crimes were set forth in the opinion from Pace’s direct appeal as follows:

On January 24, 2004, the Goshen Police Department was investigating Pace for allegations of drug dealing using both uniformed and undercover police officers. Lieutenant Shawn Turner, Captain Wade Branson, and Officer Daniel Young were following Pace in unmarked vehicles. Lieutenant Turner saw Pace drive into Win Pines Trailer Park with another person in the passenger seat. The officers lost sight of Pace’s vehicle for approximately three minutes, and then another undercover officer spotted the vehicle with only one person visible inside. Lieutenant Kirk Maggert and Sergeant David Miller, uniformed and in marked vehicles, stopped Pace’s vehicle. They removed the driver from the vehicle and found Pace lying in the back seat partially covered with clothing and feigning sleep. The officers removed Pace from the vehicle and placed him in handcuffs.
Upon searching the vehicle, the police discovered a baggie containing four smaller individually wrapped baggies that each contained one-sixteenth of an ounce of methamphetamine, a quantity known on the street as a “teenager” or “teenie.” In total, the police found 8.87 grams of methamphetamine in the vehicle. A loaded .32 caliber handgun was in the center console of the vehicle. Pace had $386 in cash on his person as well as various notes of mathematical figures, names, and specific street terminology that indicated the notes were drug related.
On January 24, 2004, the State charged Pace with dealing in methamphetamine in excess of three grams as a class A felony and SVF. On February 12, 2004, the State amended the Information to include an allegation that Pace was a habitual offender. On November 4, 2004, the State again amended the Information to reduce the dealing count to a class B felony.
The trial court bifurcated the habitual offender phase of the trial from the other two charges, and Pace did not request that the dealing charge be bifurcated from the SVF charge. The jury trial commenced on November 8, 2004. In the preliminary instructions, the trial court listed, without objection, Pace’s prior conviction for dealing cocaine as an element of the SVF charge.

Pace v. State, No. 20A03-0504-CR-158, slip op. at 2-3, 833 N.E.2d 128 (Ind.Ct.App. Aug. 2005). See also (App. 201-02). During the State’s opening argument, the prosecutor also mentioned Pace’s prior conviction for dealing in cocaine.

Prior to resting its case, the State entered into evidence — without objection from Pace — State’s Exhibit 7, which consisted of the following documents from Pace’s 1992 dealing in cocaine case under cause number 20C01-9208-CF-063: (1) the charging information charging Pace with “three counts of delivery of cocaine[;]” (2) a negotiated plea agreement; (3) a sentencing order; (4) a judgment of conviction; and (5) an abstract of judgment. (Pace’s Ex. C at 150; App. 148). In relation to these documents, Pace stipulated that he was “the same Vance R. Pace in the State of Indiana-vs-Vance Richard Pace, Cause No. 20C01-9208-CF-063.” (Pace’s Ex. F at 69; App. 108; see also Pace’s Ex. C at 150; App. 148).

The jury found Pace guilty of the dealing and SVF charges. The jury also determined that Pace was an habitual offender. During Pace’s sentencing hearing, “[t]he State moved for judgment notwithstanding the conviction on the habitual offender finding due to a technicality^]” and “[t]he trial court found that Pace was not a[n] habitual offender for purposes of sentencing.” Pace v. State, No. 20A03-0504-CR-158, slip op. at 3. See also (App. 202). The trial court imposed a ten (10) year sentence on Pace’s dealing conviction to be served consecutively to a twenty (20) year sentence on his SVF conviction. The trial court ordered the sentences to be served at the Department of Correction.

Thereafter, in 2005, Pace filed a direct appeal from his convictions, arguing that the trial court committed fundamental error when it (1) referred to Pace’s 1992 dealing in cocaine conviction when reading his SVF charging information during preliminary instructions; and (2) did not sua sponte bifurcate or sever his SVF charge from his dealing charge. Our Court affirmed Pace’s convictions, holding that there was no fundamental error. We noted that there was no statutory provision specifically requiring bifurcation of an SVF charge, and we explained that the case of Hines v. State, 794 N.E.2d 469 (Ind.Ct.App.2003), adopted on transfer by Hines v. State, 801 N.E.2d 634 (Ind.2004), reh'g denied — which “held it was error to refuse a defendant’s request to bifurcate a trial where there is an SVF charge and another unrelated felony” — was not applicable because Pace had not filed a motion for bifurcation. Pace v. State, No. 20A03-0504-CR-158, slip op. at 5; see also (App. 204). Finally, we concluded that even if the trial court had erred, any error was harmless error given the evidence presented that supported his convictions. In a concurring opinion, Judge Barnes wrote the following “to express [his] unease with the serious violent felon protocol[:]”

I note here my concern with the ability of a person, much less a juror asked to determine the guilt of a suspected drug dealer, to divorce him or herself from the fact that this defendant, presumably clothed with a presumption of innocence, previously has been convicted of being just what he is now alleged to be — a drug dealer.
I agree with the majority that the onus is on the defendant to make the request of a trial court to bifurcate, or in this case, trifurcate the proceedings. Pace did not do so and he has waived the issue. I do take slight issue with the majority’s assertion that “no error” occurred here. Op. at 1254. Strictly speaking, it was erroneous not to separate trial of the dealing charge from the serious violent felon charge. See Hines v. State, 794 N.E.2d 469, 473 (Ind.Ct.App.2003), adopted on transfer, 801 N.E.2d 634 (Ind.2004). Under the facts and circumstances present here, however, it was not fundamental error that requires reversal of Pace’s convictions.

Pace v. State, No. 20A03-0504-CR-158, slip op. at 8-9; see also (App. 207-08).

In December 2010, Pace filed a petition for post-conviction relief, arguing that he had received ineffective assistance of trial and appellate counsel. In relevant part, Pace alleged that his trial counsel, Juan Garcia, Jr. (“Attorney Garcia”), was ineffective for (1) failing to file a motion to sever or bifurcate his dealing amphetamine charge from his SVF charge; and (2) failing to object to the preliminary instruction that set out his SVF charge and informed the jury that he had a prior dealing conviction. Pace alleged that his appellate counsel, Michael Greene (“Attorney Greene”), was ineffective for, among other things, failing to file a petition for rehearing or a petition to transfer in his direct appeal proceeding to argue that the Court of Appeals had failed to follow the precedent in Hines.

The post-conviction court held a post-conviction hearing on September 19, 2011 and December 28, 2011. During the post-conviction hearing, Pace introduced into evidence the record from his trial and direct appeal, and he called Attorney Garcia and Attorney Greene as witnesses. Attorney Garcia testified that Pace had no affirmative defenses and that his trial strategy was “to make the [S]tate meet its burden of proof[.]” (Tr. 16). When asked why he did not move to separate the dealing amphetamine charge from his SVF charge, Attorney Garcia testified that he “[did not] think it would be beneficial to [Pace]” and that he did not think that Pace was prejudiced by having the two charges heard at the same time. (Tr. 17). Attorney Garcia testified that he had “assess[ed] the evidence[,]” spoke with Pace, and reasoned that he had a “better shot” of winning one trial instead of two. (Tr. 23). Attorney Garcia testified that he was aware that Pace’s prior dealing cocaine conviction would be presented to the jury as part of the trial on the two charges but testified that he did not “believe it was in Mr. Pace’s best interest to request a severance.” (Tr. 28). Attorney Garcia did, however, acknowledge that there was “no benefit” to the jury hearing that Pace had been previously convicted as a drug dealer. (Tr. 22). When asked if he was aware of the Hines case at the time he represented Pace at trial, Attorney Garcia testified that he “[did not] recall if [he] was aware of that case of not[.]” (Tr. 33).

Pace’s appellate counsel, Attorney Greene, testified that he thought that trial counsel should have filed a motion to bifurcate the two charges and should have objected to the preliminary instruction because it “would [have] taint[ed] [the jury] if they knew [Pace] had prior [sic] been convicted of the Dealing charge [when] he [was] being tried for a new Dealing charge.” (Tr. 70). Attorney Greene explained that he did not raise an ineffective assistance of trial counsel issue in Pace’s direct appeal because he knew that an ineffective assistance of counsel claim was an issue that should be raised in a petition for post-conviction relief.

On April 25, 2012, the post-conviction court issued an order denying post-conviction relief to Pace. In relevant part, the post-conviction court determined that trial counsel’s decision not to file a motion to bifurcate Pace’s two charges was a strategic decision and that Pace had failed to meet his burden of proving that he had received ineffective assistance of trial counsel. Pace then filed a motion to correct error, which the trial court denied. Pace now appeals.

DECISION

Pace appeals from the post-conviction court’s order denying post-conviction relief on his claims of ineffective assistance of trial and appellate counsel. Our standard of review in post-conviction proceedings is well settled.

We observe that post-conviction proceedings do not grant a petitioner a “super-appeal” but are limited to those issues available under the Indiana Post-Conviction Rules. Post-conviction proceedings are civil in nature, and petitioners bear the burden of proving their grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner who appeals the denial of PCR faces a rigorous standard of review, as the reviewing court may consider only the evidence and the reasonable inferences supporting the judgment of the post-conviction court. The appellate court must accept the post-conviction court’s findings of fact and may reverse only if the findings are clearly erroneous. If a PCR petitioner was denied relief, he or she must show that the evidence as a whole leads unerringly and unmistakably to an opposite conclusion than that reached by the post-conviction court.

Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind.Ct.App.2010) (internal citations omitted), trans. denied.

Pace argues that he received ineffective assistance of trial and appellate counsel. We apply the same standard of review to claims of ineffective assistance of appellate counsel as we apply to claims of ineffective assistance of trial counsel. Williams v. State, 724 N.E.2d 1070, 1078 (Ind.2000), reh’g denied, cert, denied. A claim of ineffective assistance of trial counsel requires a showing that: (1) counsel’s performance was deficient by falling below an objective standard of reasonableness based on prevailing professional norms; and (2) counsel’s performance prejudiced the defendant such that “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Davidson v. State, 763 N.E.2d 441, 444 (Ind.2002) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh’g denied), reh’g denied, cert, denied. “A reasonable probability arises when there is a ‘probability sufficient to undermine confidence in the outcome.’ ” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “Failure to satisfy either of the two prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.Ct.App.2012) (citing French v. State, 778 N.E.2d 816, 824 (Ind.2002)).

Pace argues his trial counsel was ineffective for failing to file a motion to bifurcate his SVF charge from his dealing in amphetamine charge on the basis of the Indiana Supreme Court’s decision in Hines. Specifically, Pace asserts that “[cjounsel should have bifurcated the Serious Violent Felon count because Pace’s jury was being asked to determine whether Pace possessed with intent to deal amphetamines and would not be able to judge the evidence without bumping into Pace’s Drug Dealing conviction and charges that counsel could have easily excluded.” Pace’s Br. at 16.

The decision regarding whether to file a particular motion is a matter of trial strategy. Moore v. State, 872 N.E.2d 617, 620 (Ind.Ct.App.2007), reh’g denied, trans. denied. “ ‘[Ajbsent an express showing to the contrary, the failure to file a motion does not indicate ineffective assistance of counsel.’ ” Id. at 620-21 (quoting Glotzbach v. State, 783 N.E.2d 1221, 1224 (Ind.Ct.App.2003)). “ ‘To prevail on an ineffective assistance of counsel claim based upon counsel’s failure to file motions on a defendant’s behalf, the defendant must demonstrate that such motions would have been successful.’ ” Moore, 872 N.E.2d at 621 (quoting Wales v. State, 768 N.E.2d 513, 523 (Ind.Ct.App.2002), clarified on reh’g, 774 N.E.2d 116 (Ind.Ct.App.2002), trans. denied).

Here, the post-conviction court concluded that Pace’s trial counsel had not rendered ineffective assistance of counsel because trial counsel had made a strategic decision not to file a motion to bifurcate Pace’s trial on his dealing amphetamine and SVF charges. “It is well established that ‘trial strategy is not subject to attack through an ineffective assistance of counsel claim, unless the strategy is so deficient or unreasonable as to fall outside of the objective standard of reasonableness.’ ” Davidson, 763 N.E.2d at 446 (quoting Autrey v. State, 700 N.E.2d 1140, 1141 (Ind.1998)).

Pace argues that trial “[cjounsel’s decision to have a single trial, where evidence of Pace’s Drug Dealing conviction was admitted and argued throughout, was not the result of sound strategy designed to be protected under a Strickland analysis.” Pace’s Br. at 18. Pace points out that Hines had been decided almost one year before Attorney Garcia represented Pace at trial and that the bifurcation issue concerning an SVF charge was “not a novel procedure.” Pace’s Br. at 12. Pace suggests that his trial counsel’s decision not to bifurcate was not a reasonable strategic decision because counsel did not follow the case law of Hines, which would have required the trial court to grant the motion to bifurcate. We agree.

The issue of bifurcation in relation to a trial involving a SVF charge has been considered by our Court on various occasions. For example, in 2001, we explained that, in a trial where a defendant is charged only with being a SVF in possession of a firearm, bifurcation was “not practical, or even possible” because the defendant’s status as an SVF is an essential element of that SVF offense. Spearman v. State, 744 N.E.2d 545, 548 (Ind.Ct.App.2001), reh’g denied, trans. denied. We recognized, however, that prejudice may arise when a jury is informed that a defendant has a prior conviction as part of the evidence establishing the status element of a SVF charge, but we noted that “the focus cannot be placed solely on the question of the prejudicial effect of such evidence.” Id. at 549. We explained that, instead, “the focus should be on whether the prejudice arising from evidence of pri- or crimes outweighs the probative value of such evidence.” Id. Finally, we stated that a trial court could “mitigate the prejudicial effect of evidence of a prior conviction by excluding evidence regarding the underlying facts of the prior felony and limiting prosecutorial references thereto.” Id. at 550.

In August 2003 and January 2004, respectively, our Court and the Indiana Supreme Court addressed the bifurcation issue in the situation where a defendant faces a SVF charge and an additional felony charge. In our Court’s opinion in Hines, which was adopted by our Indiana Supreme Court, we held that the trial court had abused its discretion by denying the defendant’s motion to bifurcate his trial where the defendant was charged with a SVF charge and a felony robbery charge because “in the absence of a bifurcated proceeding, [the defendant] did not receive a fair and impartial trial.” Hines, 794 N.E.2d at 474. We explained that the defendant’s status as a serious violent felon was not an essential element of his robbery charge and was not probative of whether the defendant had committed robbery. Id. at 472. The Indiana Supreme Court agreed and held that the trial court had abused its discretion by denying the defendant’s motion to bifurcate his SVF charge from his robbery charge because “the prejudice arising from evidence necessary to sustain the defendant’s [SVF] conviction — evidence of a prior felony conviction — substantially outweighed its probative value for the robbery charge.” Hines, 801 N.E.2d at 635. The Supreme Court reversed Hines’s convictions and remanded for a new trial.

Pace’s jury trial was held in November 2004, which occurred almost one year after our Supreme Court had issued its opinion in Hines. Pace’s trial involved the charge of dealing in amphetamine and the charge of being a SVF in possession of a firearm, in which his status as a SVF was based on his 1992 conviction for dealing in cocaine. Despite being charged with a felony in addition to the SVF charge and the Supreme Court’s holding in Hines, Pace’s trial counsel, Attorney Garcia, did not file a motion to bifurcate the trial on the two charges. Attorney Garcia testified that he did not recall if he was aware of the Hines case at the time he represented Pace at trial but acknowledged that Pace’s prior dealing conviction was irrelevant and had no probative value to his charge of dealing in amphetamine. Attorney Garcia acknowledged that he could have filed a motion to separate the two charges and that there was “no benefit” to the jury hearing that Pace had been previously convicted as a drug dealer. (Tr. 22). Nevertheless, he testified that he did not file a motion because he did not think it would be beneficial to Pace and thought he had a better chance with proceeding with both charges in the same proceeding.

Based on Hines, and under the facts of this case, we conclude that a motion to bifurcate the SVF charge from the dealing charge would have been granted. See Hines, 801 N.E.2d at 635. Here, as in Hines, the prejudice arising from evidence of Pace’s prior dealing conviction substantially outweighed its probative value for the dealing in amphetamine charge. Accordingly, under the specific circumstances here, we conclude that trial counsel’s failure to file a motion to bifurcate constituted deficient performance. See Moore, 872 N.E.2d at 621 (explaining that to prevail on an ineffective assistance of counsel claim based upon counsel’s failure to file a motion on a defendant’s behalf, the defendant must demonstrate that such motions would have been successful). See also Clayton v. State, 673 N.E.2d 783, 786 (Ind.Ct.App.1996) (citing Gann v. State, 550 N.E.2d 803, 805 (Ind.Ct.App.1990)) (explaining that where counsel’s failure to act is based on ignorance of the law, the non-feasance will not be deemed strategy and may constitute ineffective assistance of counsel).

Pace, however, must also demonstrate that he was prejudiced by trial counsel’s performance. In other words, Pace must show that there is a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different. See Davidson, 763 N.E.2d at 444. A “reasonable probability” has been defined as “ ‘probability sufficient to undermine confidence in the oútcome.’ ” Grinstead, 845 N.E.2d at 1031 (quoting Strickland, 466 U.S. at 694,104 S.Ct. 2052).

Pace argues that he was prejudiced by counsel’s failure to file a bifurcation motion because the jury was allowed to hear evidence of his prior dealing cocaine conviction when determining whether he was guilty of the charge of dealing in amphetamine. Pace also contends that prejudice resulted because his counsel’s stipulation to his prior dealing conviction included evidence that would not have otherwise been presented to the jury. Specifically, the stipulation included the charging information for his prior dealing in cocaine conviction, which included charges for two other dealing in cocaine charges for which he was not convicted. Pace argues that “[t]he jury would be hard-pressed to adopt [Attorney] Garcia’s argument and exonerate Pace after they learned that Pace had been charged three times with Dealing [in cocaine] and was convicted of one Dealing count in 1992. The 1992 Dealing Cocaine count was not relevant to the instant Dealing count, yet the jury was in no way limited in their consideration of the prior felony.” Pace’s Br. at 15.

The State contends that Pace was not prejudiced by counsel’s failure to file a bifurcation motion and cites to various parts of the evidence, suggesting that the evidence was sufficient to support Pace’s convictions for dealing in amphetamine and SVF despite the references to his prior dealing in cocaine conviction.

While there is evidence sufficient to support the convictions, we cannot ignore the fact that there is a “probability sufficient to undermine confidence in the outcome” due to trial counsel’s failure to file a motion to bifurcate the proceeding on the two felony charges. Here, Pace’s convictions for dealing in amphetamine (possession with intent to deliver) and possession of a handgun by a SVF were based on constructive possession of the drugs and gun. Due to counsel’s failure to file a bifurcation motion, the jury heard multiple references to Pace being a serious violent felon and specific reference to his prior conviction as part of the trial on both charges. For example, in the preliminary instructions and during the prosecutor’s opening argument, the jury was told that Pace was a serious violent felon because he had a pri- or conviction for dealing in cocaine. Furthermore, in addition to the jury hearing that Pace had a prior dealing conviction, it also heard evidence that he had two prior dealing charges for which he was never convicted. As Judge Barnes’ so aptly stated in his concurring opinion from Pace’s direct appeal:

I note here my concern with the ability of a person, much less a juror asked to determine the guilt of a suspected drug dealer, to divorce him or herself from the fact that this defendant, presumably clothed with a presumption of innocence, previously has been convicted of being just what he is now alleged to be — a drug dealer.

Pace v. State, No. 20A03-0504-CR-158, slip op. at 8; see also (App. 207).

Given the prejudicial nature of the evidence regarding his prior dealing in cocaine conviction and dealing charges for which he was not convicted, especially in light of his dealing in amphetamine conviction, we conclude that Pace has met his burden of showing that he was prejudiced by counsel’s failure to file a motion to bifurcate. See, e.g., Gray v. State, 841 N.E.2d 1210, 1214-20 (Ind.Ct.App.2006) (reversing the denial of postconviction relief and the defendant’s convictions for SVF, murder, attempted murder, and robbery based on our holding that appellate counsel was ineffective for failing to raise a direct appeal issue challenging the denial of the defendant’s motion to bifurcate his SVF charge from his other charges), trans. denied. See also Hines, 801 N.E.2d at 634 (discussing the prejudice that arises when an SVF charge and another felony charge are heard in the same proceeding).

Because trial counsel’s performance was deficient and Pace was prejudiced by that deficient performance, the post-conviction court erred by denying post-conviction relief to Pace on his claim of ineffective assistance of trial counsel. We, therefore, reverse the denial of Pace’s petition for post-conviction relief and remand this case for a new trial.

Reversed and remanded.

ROBB, C.J., and MAY, J., concur.

      . Throughout the post-conviction proceedings, the parties use the terms "sever” and "bifurcate” when discussing trial counsel's failure to request separation of Pace’s dealing charge from his SVF charge. We note that the procedural effect of a motion to sever is different from a motion to bifurcate, as the former would result in two separate trials and the latter would result in two stages of one trial. Nevertheless, for the most part, the parties seem to use these terms interchangeably. For example, in Pace's postconviction petition, he alleges that trial counsel was ineffective for failing to file a “motion to sever or bifurcate” the dealing charge from the SVF charge. (App. 7). However, during the post-conviction hearing, Pace's post-conviction counsel seemed to predominantly use the term "sever” when questioning Pace's trial counsel regarding his decision not to separate the two charges. From our review of the record, as well as the argument on appeal, it appears clear that Pace’s post-conviction claim is based on an allegation that trial counsel was ineffective for failing to file a motion to bifurcate the trial on the dealing and SVF charges based on our Indiana Supreme Court's holding in Hines v. State, 801 N.E.2d 634 (Ind.2004), reh’g denied, and not an allegation that trial counsel was ineffective for failing to file a motion to sever under Indiana Code § 35-34-1-11. Thus, in this opinion, we will use the term bifurcate and will address Pace's ineffective assistance of trial counsel argument in terms of the failure to request bifurcation. Even if we were to review the issue as a failure to file a motion to sever, our holding would not change.

      2. Pace’s SVF charge alleged that Pace was a serious violent felon for having been convicted of Class B felony dealing in cocaine in August 1992.

      3. The dealing charge was amended from Class A felony dealing methamphetamine to a Class B felony dealing a schedule II controlled substance based on his possession of amphetamine with intent to deliver.

      4. The trial court's instruction set forth the SVF charge as follows:
      [0]n or about the 14th of January, 2004, at the County of Elkhart and State of Indiana, one VANCE R. PACE, a serious violent felon, knowingly possessed a firearm, to wit: a .32 caliber Keltec handgun, after having been convicted of a serious violent felony, to wit: Dealing Cocaine, a Class B felony, on the 17th day of December, 1992, in the Elkhart Circuit Court, Elkhartf]
      Pace’s Ex. F at 51.

      . Contrary to Pace’s suggestion, the post-conviction court did not determine that the ineffective assistance of counsel claims were unavailable for review in the post-conviction proceeding. The post-conviction court concluded that any freestanding claim on the bifurcation issue was unavailable.

      . We note that members of our Court have expressed their concern with the potential for prejudice in a trial involving a sole SVF charge due to the jury hearing about a defendant's prior conviction and label as a serious violent felon. See Spemman, 744 N.E.2d at 550-55 (Darden, J., concurring in part and dissenting in part) (stating that "[bjecause the accused is clothed with a presumption of innocence, it is antithetical to our system of jurisprudence to label one accused of a crime as a 'serious violent felon’ during proceedings to determine guilt”); Imel v. State, 830 N.E.2d 913, 920 (Ind.Ct.App.2005) (Barnes, J., concurring in result) (stating that, where a jury hears repeated references to the defendant being a serious violent felon, there is a "strong possibility that as we now charge and try these [SVF] cases, the fundamental tenant of our American system of criminal law— innocent until proven guilty — is, in my view, seriously challenged"), trans. denied.

      . Because we conclude that trial counsel rendered ineffective assistance of counsel, we need not reach the ineffective assistance of appellate counsel issue.


source: Caselaw Access Project

author: KIRSCH, Judge.

license: Public Domain

text:
    Walter E. SMITH, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 84A04-1112-CR-637.
    Court of Appeals of Indiana.
    Feb. 6, 2013.

      Victoria L. Bailey, Beech Grove, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

KIRSCH, Judge.

Walter E. Smith, Jr. (“Smith”) appeals his conviction for dealing in cocaine as a Class A felony. On appeal, Smith raises the following restated issues:

I. Whether the trial court committed reversible error when it refused to give Smith’s tendered jury instruction.
II. Whether the trial court’s scheduling of Smith’s trial entitled Smith to discharge under Indiana Rule of Criminal Procedure 4(B).
III. Whether the trial court abused its discretion when it admitted evidence obtained during a traffic stop.

We affirm.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of June 17, 2011, Officer Brent Long (“Officer Long”), a Patrol Division Officer and a K-9 Handler with the Terre Haute Police Department who was working criminal interdiction on 1-70, initiated a traffic stop of a U-Haul truck that he observed repeatedly crossing the center lane and the right fog line. The driver of the U-Haul was identified as Smith. During the stop, Officer Long asked for assistance from Officer Matthew Carden (“Officer Carden”) and Officer Phillip Ralston (“Officer Ralston”), fellow officers who were also working criminal interdiction that evening. When Officers Carden and Ralston arrived a few minutes later, Smith was behind the U-Haul with Officer Long, who was writing him a warning. At Officer Long’s request, Officer Ralston took over the duty of writing Smith’s warning for “unsafe lane movement,” and Officer Carden began questioning Smith about where he was coming from and where he was going. Jury Tr. at 167-169, 259. Officers Carden and Ral-ston testified that Smith was extremely nervous and “sweating profusely.” Id. at 168, 261, 281. Both officers also testified that although they were in uniform and wearing bullet proof vests, neither of them was sweating that evening. Id. at 168, 262.

While Officers Ralston and Carden were performing their tasks, Officer Long got his “K-9 partner Shadow” out of the patrol car and walked Shadow around the exteri- or of Smith’s U-Haul. Id. at 169, 262. Officer Carden testified that Officer Long walked Shadow along the driver’s side of the U-Haul toward the back, and as he continued past the back on the passenger-side, “Shadow jerked his head back at that right rear corner and then started going up and down with [his] head back at that right rear corner and then started going up and down with [his] head right there at that corner.” Id. at 169-70. The U-Haul cargo area was secured by a locked padlock, and Smith stated that he did not have the key.

Officer Long returned Shadow to the patrol car, and because it was nighttime on the side of an interstate highway, the U-Haul was moved to a nearby Wal-Mart parking lot for safety reasons. Officer Ralston and another officer who arrived on the scene stayed with Smith. Meanwhile, Officers Carden and Long went to the drug task force office to obtain a search warrant for the U-Haul. Appellant’s App. at 35. Officer Long applied for the search warrant through a telephonic hearing, which was conducted by Judge David Bolk. During that hearing, Officer Long testified to the facts supporting probable cause to search the U-Haul, and Judge Bolk granted the issuance of the warrant. Thereafter, Officers Long and Carden returned to the Wal-Mart parking lot.

Pursuant to the search warrant, the officers cut the padlock to obtain access to the U-Haul’s cargo area and, once inside, found that it was only one-quarter full; it contained an arm chair in poor condition, a used “torpedo heater,” a table top with no legs, several boxes, and a plastic container. Jury Tr. at 182-83. Officer Ralston testified that the chair and heater “were junk.” Id. at 270. Officer Carden testified that, based on his training and experience, he believed he was looking at “a cover load,” i.e., items that conceal the true cargo and provide a story to legitimize the trip. Id. at 183. Behind the table top, the officers found a cardboard box with two brick-like packages wrapped in duct tape and vacuum sealed, which Officer Carden testified was consistent with how narcotics are packaged for transportation. Id. at 184, 186. The officers used a pocket knife to cut into the package and found a white, powdery substance, which was field-tested and showed the presence of cocaine. Id. at 189-90, 193. At trial, an Indiana State Police Crime Laboratory forensic scientist (“Forensic Scientist”) confirmed that the white substance was cocaine, and that one brick weighed 1001.0 grams and the other weighed 996.9 grams. Jury Tr. at 246-47; State’s Ex. 19. Smith was arrested and charged with dealing in cocaine as a Class A felony, possession of cocaine as a Class C felony, and maintaining a common nuisance as a Class D felony. Appellant’s App. at 17.

Smith filed a motion for a speedy trial pursuant to Indiana Criminal Rule 4(B)(1), and the trial court set the trial for September 27, 2011. Appellant’s App. at 27-28. Twenty days prior to that trial date, Smith filed a motion to suppress the evidence obtained as a result of the search warrant. Id. at 33-51. In his motion, Smith did not question the legality of the initial stop of Smith’s U-Haul; instead, he maintained that “[b]y extending the detention to conduct a drug dog sniff of the vehicle, [Officer Long] exceeded the scope of the original traffic stop without probable cause, or objectively reasonable articulated suspicion, thus violating the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution.” Id. at 34. “A copy of the transcript [of the telephonic hearing] and [Officer Long’s] report [of the stop were] attached [to the motion] and incorporated [t]herein by way of reference as Exhibits A and B respectively.” Id. at 33.

The suppression hearing was held on September 16, 2011, a date after which Officer Long had already been killed in the line of duty. Without Officer Long’s testimony, the State introduced evidence about the stop and its timing through the testimony of Officers Ralston and Carden. Smith introduced evidence of the timing of the stop and the K-9 search through the transcript of Officer Long’s sworn telephonic application for the warrant. Officer Ralston testified that Officer Long had started writing Smith’s warning for unsafe lane movement, but that Officer Ralston had finished writing it. Suppression Hr'g at 15, 36, 38. The officers also testified regarding the timing of their arrival at the scene and the manner in which Officer Long took Shadow around the U-Haul. Id. at 12-13. After finding that Smith was not unduly detained, the trial court denied his motion to suppress.

Four days before the scheduled trial, Smith moved to exclude evidence and strike witnesses due to the State’s belated discovery compliance. Appellant’s App. at 81-88. A hearing was held on September 26, 2011, at which Smith argued that he would like additional time to take a deposition from both the Forensic Scientist and Detective Denzil Lewis of the Vigo County Drug Task Force. Sept. 26 Hr’g at 58. The trial court allowed Smith time to depose the witnesses and moved the trial date, explaining that it was a fair result for both the defendant and the State and “would get the issue of the speedy trial addressed.” Sept. 26 Hr’g at 68.

The trial court held another hearing on September 29, 2011, during which Smith stated that he had conducted the depositions but did not yet have the transcripts. Sept. 29 Hr’g at 1. Smith also stated his intent to get an independent chemical analysis of the substance found in the U-Haul; a test Smith estimated would take two weeks. Id. at 3. Later in the hearing, Smith stated he was not ready for trial, but moved for discharge pursuant to Criminal Rule 4. Sept. 29 Hr’g at 11-12. The trial court denied Smith’s motion for discharge.

Voir dire began on October 3, 2011, and Smith’s trial continued through October 5, 2011. During trial, Smith objected to Officer Carden’s description of the initial traffic stop, contending “I don’t think this officer has established the foundation in the law to justify the stop.” Jury Tr. at 163. The State responded, <cYour honor, I think that at this point that the court, as [defense counsel] has said, already heard testimony on this, the State would rest on that hearing, that the court has already had and what was said on that.” Id. at 164. The trial court overruled Smith’s objection. Smith later entered a continuing objection to the State introducing evidence of the contents of the U-Haul, maintaining “that’s the fruits of improper stop and search.” Id. at 181. The trial court said to Smith, “[F]or economy, if you refer back to previous proceedings, I’m going to show all of those arguments incorporated by reference.” Id. When Smith objected to the State introducing evidence of the cocaine, the trial court again “incorporated previous arguments made in proceedings before th[e] court,” and overruled Smith’s objection. Id. at 185.

At the close of trial, Smith tendered a jury instruction on the presumption of innocence. The State argued that Smith’s tendered instruction was “adequately covered in other instructions.” Jury Tr. at 365. The trial court agreed with the State and declined to give the instruction. Instead, the trial court gave an instruction, which in relevant part stated, “You should attempt to fit the evidence to the presumption that the Defendant is innocent.... ” Appellant’s App. at 138,166.

Smith was found guilty of dealing in cocaine as a Class A felony, possession of cocaine as a Class C felony, and maintaining a common nuisance as a Class D felony. Jury Tr. at 472. On November 2, 2011, the trial court vacated the latter two counts on double jeopardy grounds and sentenced Smith for his Class A felony conviction to forty-five years executed in the Department of Correction. Additional facts will be added where necessary.

DISCUSSION AND DECISION

I. Jury Instructions

At the close of his trial, Smith tendered the following instruction pertaining to the presumption of innocence:

If evidence in this case is susceptible of two constructions or interpretations, each of which appears to be reasonable, and one of which points to the guilt of the Defendant and the other to his/her innocence, it is your duty, under the law, to adopt that interpretation which is consistent with the Defendant’s innocence and reject that which points to his/her guilt.

Appellant’s App. at 148. Smith’s tendered instruction cited to the Indiana Supreme Court’s decision in Robey v. State, 454 N.E.2d 1221 (Ind.1983). Id.

The trial court refused Smith’s instruction on the basis that its substance was covered by the court’s own instructions— Preliminary Instruction No. 11 and Final Instruction No. 15 — which read as follows:

You are the exclusive judges of the evidence, the credibility of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his or her ability and opportunity to observe, the manner and conduct of the witness while testifying, any interest or bias or prejudice the witness may have, any relationship with other witnesses or interested parties, and the reasonableness of the testimony of the witness considered in the light of all of the evidence in this case.
You should attempt to fit the evidence to the presumption that the Defendant is innocent and the theory that every witness is telling the truth. You should not disregard the testimony of any witness without a reason and without careful consideration. If you find conflicting testimony, you must determine which of the witnesses you will believe and which of them you will disbelieve.
In weighing the testimony to determine what or whom you will believe, you should use your own knowledge, experience and common sense gained from day-to-day living. The number of witnesses who testify to a particular fact or the quantity of evidence on a particular point need not control your determination of the truth. You should give the greatest weight to that evidence which convinces you most strongly of its truthfulness.

Appellant’s App. at 138, 166 (emphasis added). Smith asserts that the trial court abused its discretion in instructing the jury on the presumption of innocence by refusing to give his tendered instruction and, instead, using the above instruction.

Generally, the purpose of an instruction is to “inform the jury regarding the law applicable to the facts without being misleading and should enable the jury to understand the case and arrive at a just, fair, and correct verdict.” Filice v. State, 886 N.E.2d 24, 37 (Ind.Ct.App.2008), trans. denied.

Instruction of the jury is generally within the discretion of the trial court and is reviewed only for an abuse of that discretion. When reviewing the refusal to give a proposed instruction, this court considers: (1) whether the proposed instruction correctly states the law; (2) whether the evidence supports giving the instruction; and (3) whether other instructions already given cover the substance of the proposed instruction. To constitute an abuse of discretion, the instruction given must be erroneous, and the instructions taken as a whole must misstate the law or otherwise mislead the jury.

Lee v. State, 964 N.E.2d 859, 862 (Ind.Ct.App.2012) (citations omitted), trans. denied.

Smith maintains that his tendered instruction, which was quoted directly from Robey, was a correct statement of the law, was supported by evidence presented at trial, and was not covered by any of the instructions given by the trial court.” Appellant’s App. at 3. Smith cites to our recent decision in Lee as support for his position. In Lee, the defendant tendered an instruction regarding the presumption of innocence, which was identical to the instruction tendered by Smith. The trial court refused to give the instruction because it believed that other instructions adequately covered the tendered instruction. Lee, 964 N.E.2d at 862. At the close of Lee’s trial, the trial court gave the following relevant instructions:

_ You should keep an open mind. You should not form or express any conclusion or judgment about the outcome of the case until the Court submits the case to you for your deliberations.
Under the law of this State, a person charged with a crime is presumed to be innocent. To overcome the presumption of innocence, the State must prove the defendant guilty of each element of the crime charged, beyond a reasonable doubt.

Id. at 864. The jury found Lee guilty as charged.

On appeal, our court reversed Lee’s conviction after finding that the trial court’s “instructions did not adequately instruct the jury on the presumption of innocence. Indeed, the balance of the instructions cited by the State in support of its argument to the contrary is in the context of reasonable doubt.” Id. at 865. Particularly, our court “[did] not find that an instruction was given to the jury adequately explaining the jury’s duty to ‘reconcile the evidence upon the theory of the defendant’s innocence if they could do.’ ” Id. (citing Robey, 454 N.E.2d at 1222) (emphasis added).

While Lee’s convictions were reversed on appeal, the facts before us are distinguishable from Lee. In fact, the instant case is on all fours with this court’s decision in Simpson v. State, 915 N.E.2d 511 (Ind.Ct.App.2009), trans. denied (2010). There, at the close of trial, Simpson, citing to Robey as authority, tendered the following final jury instruction:

You should attempt to fit the evidence to the presumption that the Accused is innocent.
If the evidence in this case is susceptible of two (2) constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the accused, and the other to his innocence, it is your duty, under the law, to adopt the interpretation which is consistent with the Accused’s innocence, and reject that which points to his guilt.

Simpson, 915 N.E.2d at 518. The trial court refused to give the above instruction. Instead, the trial court gave an instruction identical to the one given by the trial court at the close of Smith’s trial. Simpson was convicted as charged.

On appeal, Simpson, like Smith, maintained that the trial court’s refusal to give his tendered instruction was an abuse of discretion because it did not properly inform the jury of their duty when the case is susceptible of two constructions or interpretations. Id. at 519. Our court disagreed with Simpson on the following grounds:

Simpson’s instruction is based on one of the instructions given by the trial court in Robey, which reads in pertinent part as follows:
If the evidence in this case is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the defendant, and the other to his innocence, it is your duty, under the law, to adopt that interpretation which will admit of the defendant’s innocence, and reject that which points to his guilt.
You will notice that this rule applies only when both of the two possible opposing conclusions appear to you to be reasonable. If, on the other hand, one of the possible conclusions should appear to you to be reasonable and the other to be unreasonable, it would be your duty to adhere to the reasonable deduction and to reject the unreasonable, bearing in mind, however, that even if the reasonable deduction points to defendant’s guilt, the entire proof must carry the convincing force required by law to support a verdict of guilt.
[Robey,] 454 N.E.2d at 1222.
The State contends that Simpson’s tendered instruction was “incomplete because it failed to inform the jury that they could in fact conclude that one of the two opposing conclusions was unreasonable.” The State further contends that “[o]ur Supreme Court’s holding in Robey simply required an instruction that the jury should fit the evidence to the presumption that a defendant is innocent” and that the trial court’s instruction “informed the jury as required by Robey.” We agree with the State and therefore conclude that the trial court did not abuse its discretion in refusing Simpson’s instruction. Consequently, we affirm Simpson’s convictions.

Simpson, 915 N.E.2d at 519-20 (citations omitted).

Here, exactly like the instructions given at the close of Simpson’s trial, Smith’s jurors were instructed in relevant part, ‘You should attempt to fit the evidence to the presumption that the Defendant is innocent. ...” Appellant’s App. at 138, 166. This instruction satisfied our Supreme Court’s holding in Robey that the “jury should fit the evidence to the presumption that a defendant is innocent.” Id. at 520. Pursuant to the precedents of Robey and Simpson, the trial court did not abuse its discretion in refusing to use Smith’s tendered instruction because the substance of that instruction was covered by instructions given by the court.

II. Criminal Rule 4

Smith contends that the trial court’s scheduling of his trial entitled him to discharge under Indiana Rule of Criminal Procedure 4(B). On review of a claimed violation of Criminal Rule 4, we employ two standards of review: we review the trial court’s legal conclusions de novo but exercise deference with respect to its factual findings. Otte v. State, 967 N.E.2d 540, 545 (Ind.Ct.App.2012), trans. denied. Here, both parties maintain that the appropriate standard of review is whether the trial court abused its discretion by refusing Smith’s motion for discharge.

An abuse of discretion occurs only when the trial court’s decision is clearly against the logic and effect of the facts before the court. Weis v. State, 825 N.E.2d 896, 900 (Ind.Ct.App.2005). Smith’s claim of error in this regard is based solely on Indiana Rule of Criminal Procedure 4(B), which provides, in relevant part, as follows:

If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar.

“[A] defendant must maintain a position reasonably consistent with his request for a speedy trial and must object, at his earliest opportunity, to a trial setting that is beyond the seventy-day time period.” McKay v. State, 714 N.E.2d 1182, 1189 (Ind.Ct.App.1999).

Following Smith’s motion for a speedy trial, the trial court set a trial date for September 27, 2011, which was within the seventy-day time limit. Appellant’s App. at 27, 28. The day before the trial date, however, a hearing was held on Smith’s motion to exclude evidence and strike evidence based on an allegation that the State failed to timely disclose witnesses and evidence. Id. at 81-88. As Smith noted, the typical remedy for any discovery violation would be a continuance. Sept. 26 Hr’g at 5; see Warren v. State, 725 N.E.2d 828, 832 (Ind.2000) (generally, proper remedy for discovery violation is continuance). Smith stated that he would like additional time to take Detective Lewis’s deposition and to take the deposition of the Forensic Scientist. Sept. 26 Hr’g at 58. The trial court allowed Smith time to depose the witnesses, stating: “We are still within the seventy days, if my arithmetic is right. You’ve got your speedy trial, but you’ve also got your chance to depose these potential witnesses. And then take whatever course of action you feel is appropriate.” Id. at 67.

During the September 29, 2011 hearing, which fell on the seventieth day, Smith stated that he had conducted the depositions but did not yet have the transcripts. Sept. 29 Hr’g at 1. Smith then stated, “[YJour honor ... if you ask me the question, are you know prepared to go to trial, [sic] I would candidly say, your honor, not really.” Id. at 3. Smith blamed his lack of preparedness on the State’s delay in providing certification that the substance seized was cocaine. Smith argued that without that certification, he did not know whether to do his own chemical test of the substance. The trial court was not persuaded, stating, “[T]he allegation was that it was cocaine all along. You had the substance, you had it available, with nothing more than a motion you could have had a portion of this for your own analysis.” Id. at 7. Later in the hearing, Smith again stated he was not ready for trial, but moved for discharge pursuant to Criminal Rule 4. Id. at 10-12.

The trial court denied Smith’s motion based on the following reasoning:

Today is the seventieth day.... I gave you an opportunity to start trial today, you wanted to do depositions. I gave you the opportunity to do depositions, and you did them.... But, you have also declined my offer to begin the trial today, because you did not feel that you would be ready. I’ve not heard enough justification to warrant discharge.... [L]et the record reflect that I did not agree with you on continuing beyond today. I gave you the opportunity to start trial today, you did not want to do so. Now I acceded to your request for more time and put the trial off. That’s what the record shows.

Id. at 12-14 (emphasis added).

The trial court initially set Smith’s trial date within seventy days. Thereafter, the trial court attempted to stay within that seventy-day time frame. Ultimately, Smith stated that he was not ready for trial, and the trial court acceded to this request to delay the trial. Despite moving for discharge, Smith did not maintain a position reasonably consistent with his request. See McKay, 714 N.E.2d at 1188-89 (“defendant must maintain a position reasonably consistent with his request for a speedy trial”). The trial court concluded, and we concur, that any delay past the seventieth day was chargeable to Smith. The trial court did not abuse its discretion in refusing to discharge Smith pursuant to Criminal Rule 4(B).

III. Admission of Evidence

Finally, Smith contends that the trial court abused its discretion in admitting, over his objection, the cocaine evidence gathered from the U-Haul truck he was driving. Appellant’s Br. at 13. Specifically, Smith maintains that Officer Carden’s testimony at trial did not “establish the foundation in law to justify the stop.” Appellant’s Br. at 13 (quoting Jury Tr. at 163). Citing to Washington v. State, 784 N.E.2d 584, 586 (Ind.Ct.App.2003), Smith contends that while there was foundational evidence regarding the traffic violation at the suppression hearing, no such evidence was admitted at trial. As such, Smith argues that without a proper basis for the stop, the trial court abused its discretion in failing to exclude evidence obtained as a result of that stop. Smith, however, fails to remind this court that the cocaine was, in fact, seized pursuant to a valid search warrant — a fact that was explained to the jury prior to the State introducing the evidence of the cocaine. Jury Tr. at 173-74. As such, we find that Smith’s issue is more properly framed as whether the trial court abused its discretion in admitting the cocaine evidence because the search warrant was not supported by probable cause.

A search warrant is presumed valid, and the burden is upon the challenger to rebut the presumption. Britt v. State, 810 N.E.2d 1077, 1080 (Ind.Ct.App.2004); Rios v. State, 762 N.E.2d 153, 156-57 (Ind.Ct.App.2002). The Fourth Amendment of the United States Constitution protects citizens against unreasonable searches and seizures of persons and property by requiring a warrant based on probable cause. Moore v. State, 827 N.E.2d 631, 637 (Ind.Ct.App.2005), trans. denied. “Probable cause exists when an officer has knowledge of facts and circumstances that would lead a reasonably prudent person to believe that a crime has been committed.” Id. “The decision to issue the warrant should be based on the facts contained in the affidavit and the rational and reasonable inferences drawn therefrom.” Redden v. State, 850 N.E.2d 451, 461 (Ind.Ct.App.2006), trans. denied.

“In determining whether an application for a search warrant is supported by probable cause, the issuing magistrate must determine whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Britt, 810 N.E.2d at 1081 (citing Query v. State, 745 N.E.2d 769, 771 (Ind.2001) (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), reh’g denied)). Great deference is accorded the magistrate’s determination by the reviewing court. Id. This Court does not undertake a de novo determination of probable cause, but reviews the record to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Id.

Here, during a telephonic hearing, Officer Long presented the facts that supported probable cause for a search warrant; the hearing was transcribed, and Smith attached a copy of this document to his motion to suppress as Exhibit B. Appellant’s App. at 37-51. Officer Long testified that: (1) he was a regular member of the Terre Haute Police Department and a K-9 handler, id. at 45; (2) on June 17, 2011, he initiated a traffic stop on 1-70 on a U-Haul truck after he observed the vehicle crossing the center lane on the left, and crossing the fog line on the right several times, id. at 45-46; (3) he identified Smith by his Ohio driver’s license, id. at 46; (4) he advised Smith of the reason for the stop and requested information for the truck rental, id.; (5) he requested that Smith step back to Officer Long’s vehicle while he wrote a warning for the violation of unsafe lane movement, id. at 45; (6) during this contact, he noted Smith was sweating profusely and pacing in circles, id. at 46-47; (7) Smith said he was moving his friend’s aunt’s belongings from Texas to Ohio, id. at 47; (8) Smith said he was following his friend, but Officer Long observed no other vehicles that appeared to be traveling with Smith, id. at 47-48; (9) Officer Long requested assistance from Officers Ralston and Carden, who arrived minutes later, id. at 48; (10) once the officers arrived, Officer Ralston continued to complete the warning ticket, id.; (11) meanwhile, Officer Long walked his K-9 partner Shadow around the U-Haul, and the dog “indicated” on the vehicle, id. at 48; (12) Shadow is certified in the detection of marijuana, cocaine, and other drugs, id. at 48-49. Based on this testimony, Judge Bolk found probable cause supported the issuance of a warrant.

Prior to trial, Smith filed a motion to suppress the evidence obtained pursuant to the warrant. In his motion, he did not question Officer Long’s reason for the initial stop; instead, he alleged that “[b]y extending the detention to conduct a drug dog sniff of the vehicle, [Officer Long] exceeded the scope of the original traffic stop without probable cause.” Id. at 34. During the suppression hearing, Officers Ralston and Carden provided testimony that was consistent with the testimony Officer Long had given during the telephonic hearing for the warrant. The trial court denied Smith’s motion to suppress the evidence after finding that Smith was not unduly detained. The trial court reasoned as follows:

With respect to this particular issue, I have also spent [a] considerable amount of time reading cases that relate to these kinds of stops. And I’ve been doing that now for over ten years. And continue to do it, and I’ve looked at these cases. I understand what you are asking the court do. But, let me tell you how I see it at this point. It appears to me that that there was testimony that the officers were working as a team, that they considered 1-70 to be dangerous. That this stop occurred at night and it was in a known corridor where drug trafficking occurs. And the testimony that I heard was that Officer Long requested, first of all, indicated to his team members that he was about, that he was making a stop of this U-Haul and subsequently asked for backup which was appropriate in the context. And that they appeared within minutes. And the testimony that I heard was a minute or two. When the officers arrived they observed Officer Long interacting with the defendant on the hood of the vehicle, writing out what appeared to be a warning. And then, that Officer Ralston began completing that task during which time, Officer Long got the K-9 Shadow to conduct a dog sniff search. And before the warning was completed, the dog indicated on the U-Haul vehicle. That’s the testimony that I heard. And all this happened in a relatively short period of time. I think well within the confínes of requirements of not only in the United States Constitution, but the Indiana Constitution. For those reasons, I find the stop to be reasonable, the search to be reasonable, the request for a warrant to be reasonable and show that the motion to suppress is denied.

Suppression Hr’g at 97-99.

We agree with the trial court’s sound reasoning. Here, Officer Long’s testimony during the telephonic hearing revealed that he stopped Smith for unsafe lane movement. See Navarro v. State, 855 N.E.2d 671, 673 (Ind.Ct.App.2006) (Navarro was stopped for unsafe lane movement). While still completing the warning, fellow officers arrived at the scene. While Officer Ralston was completing the written warning, Officer Long took Shadow, a trained narcotics dog, around the U-Haul truck. See Myers v. State, 889 N.E.2d 1154, 1158 (Ind.2005), cert, denied, 547 U.S. 1148, 126 S.Ct. 2295, 164 L.Ed.2d 814 (2006) (dog sniffs are not “searches” requiring probable cause under the Fourth Amendment). Shadow made an indication to the presence of drugs in the vehicle. Finding probable cause for the search, Judge Bolk issued a warrant. At the suppression hearing, Smith did not dispute the validity of the stop; instead, he argued that the length of the stop was unconstitutional, and therefore, the evidence seized following that stop should be suppressed. The trial court was unconvinced and denied Smith’s motion to suppress. At trial, Smith again objected to the introduction of the cocaine evidence, to which the trial court responded, “All right, I’m going to show continuing objection by defense counsel, and incorporate previous arguments made in proceedings before this court. Show the objection overruled_” Jury Tr. at 185. Other than the arguments made at the suppression hearing, Smith has offered no evidence to suggest that the stop was unreasonable, the length of the stop was unreasonable or that the search warrant was not supported by probable cause. The trial court did not abuse its discretion in admitting at trial the cocaine evidence that was seized pursuant to a valid search warrant.

Affirmed.

MATHIAS, J., and CRONE, J., concur.

      . See Ind.Code § 35-48-4-1.

      . Officer Long was shot and killed in the line of duty on July 11, 2011. Suppression Hr'g at 6; http://www.terrehaute.in.gov/departments/ pd (last visited Jan. 22, 2013).

      . The record before us contains the transcripts from various hearings. We cite to the following: the transcript of the jury trial as Jury Tr.; the transcript of the September 16, 2011 suppression hearing as Suppression Hr'g; the transcript of the hearing held September 26, 2011 as Sept. 26 Hr'g; and the transcript of the September 29, 2011 hearing as Sept. 29 Hr'g.

      . Because we decide this issue on the fact that the tendered instruction was covered by other instructions given to the jury, we do not address, as this court did in Simpson, whether the instruction was "incomplete because it failed to inform the jury that they could in fact conclude that one of the two opposing conclusions was unreasonable.” Simpson v. State, 915 N.E.2d 511, 520 (Ind.Ct.App.2009), trans. denied (2010).

      . Smith does not make a separate, cogent argument regarding the Indiana Constitution and treats it the same as the Federal Constitution, therefore he has waived any appeal based on Article I, Section 11 of the Indiana Constitution. See Micheau v. State, 893 N.E.2d 1053, 1059 n. 8 (Ind.Ct.App.2008), trans. denied (2009).


author: BARNES, Judge. RILEY, Judge,

text:
    STATE of Indiana, Appellant-Plaintiff, v. William COATS, Appellee-Defendant.
    No. 49A02-1206-CR-526.
    Court of Appeals of Indiana.
    Feb. 7, 2013.

      Gregory F. Zoeller, Attorney General of Indiana, Andrew A. Kobe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
    Darren Bedwell, Indianapolis, IN, Attorney for Appellee.
   OPINION

BARNES, Judge.

Case Summary

The State appeals the trial court’s denial of its motion to commit William Coats to the Indiana Division of Mental Health and Addiction (“DMHA”). We affirm.

Issue

The State raises one issue, which we restate as whether the trial court properly denied the State’s motion to commit Coats to the DMHA for competency restoration services.

Facts

On April 15, 2010, the State charged Coats, who was born in 1943, with Class D felony sexual battery against his granddaughter. Coats had been diagnosed with Alzheimer’s disease, and Goats’s counsel filed a motion to determine Coats’s competency to stand trial. The trial court assigned two doctors to examine Coats. Both doctors diagnosed Coats with dementia. Noting that dementia is a progressive disease, both doctors found that Coats would not improve over time and that there was little chance of Coats being restored to competency.

At a hearing on February 7, 2012, the trial court found that Coats was incompetent and “will not return to competency.” Tr. p. 6; see also Appellant’s App. p. 31. The trial court noted that Coats was residing with his wife and was not a public safety risk at that time. The State requested that Coats be committed to the DMHA, but the trial court denied the motion.

On February 29, 2012, the State filed a written request that Coats be committed to the DMHA pursuant to Indiana Code Section 35-36-3-1. The State argued that Coats’s commitment was required due to the trial court’s finding that Coats was incompetent. On March 20, 2012, Coats filed a motion to dismiss the charges due to his incompetency. Coats argued that, since he could not be returned to competency, his commitment would result in a violation of his constitutional rights.

At another hearing on June 15, 2012, Coats’s counsel again argued that Coats was incompetent and could not be restored to competency. Coats’s counsel asked that the charges be dismissed. The State again asked that Coats be committed to the DMHA. The trial court denied both motions and reset the matter for another hearing in three months. The trial court granted the State’s motion to certify the order for interlocutory appeal, and this court accepted jurisdiction pursuant to Indiana Appellate Rule 14(B).

Analysis

The issue is whether the trial court properly denied the State’s motion to commit Coats to the DMHA. According to the State, the trial court failed to follow the relevant competency statutes when it denied the State’s request to commit Coats. Coats argues that his commitment would violate his constitutional rights.

“Statutes control the appropriate way to determine a defendant’s competency and, if necessary, to commit the defendant and provide restoration services.” Curtis v. State, 948 N.E.2d 1143 (Ind.2011). “In the interpretation of statutes, the trial court’s ‘goal is to determine and give effect to the intent of the legislature in promulgating it.’ ” Ryan v. State, 900 N.E.2d 43, 44-45 (Ind.Ct.App.2009) (quoting Porter Dev., LLC v. First Nat’l Bank of Valparaiso, 866 N.E.2d 775, 778 (Ind.2007)). Our primary resource for this determination is the language used by the legislature. Id. Thus, “our interpretation begins with an examination of the statute’s language.” Id. “We presume that the words of an enactment were selected to express their common and ordinary meanings.” Id. “Where the statute is unambiguous,” we “read each word and phrase in this plain, ordinary, and usual sense, without having to resort to rules of construction to decipher meanings.” Id. Statutory interpretation is a question of law reserved for the court and is reviewed de novo. Shaffer v. State, 795 N.E.2d 1072, 1076 (Ind.Ct.App.2003). De novo review allows us to decide an issue without affording any deference to the trial court’s decision. Id.

The State sought to have Coats committed to the DMHA pursuant to Indiana Code Chapter 35-36-3, which governs comprehension to stand trial. Indiana Code Section 35-36-3-1 provides that, if the trial court finds the defendant lacks the ability to understand the proceedings and assist in the preparation of his or her defense, the trial court:

shall delay or continue the trial and order the defendant committed to the division of mental health and addiction. The division of mental health and addiction shall provide competency restoration services or enter into a contract for the provision of competency restoration services by a third party in the:
(1) location where the defendant currently resides; or
(2) least restrictive setting appropriate to the needs of the defendant and the safety of the defendant and others.

Within ninety days, the superintendent of the institution where the defendant is committed must certify to the trial court whether the defendant has a “substantial probability” of attaining competency “within the foreseeable future.” Ind.Code § 35-36-3-3(a); see also Curtis, 948 N.E.2d at 1153. If a “substantial probability does not exist,” the DMHA “shall initiate regular commitment proceedings under IC 12-26.” I.C. § 35-36-3-3(b). If there is a substantial probability, the DMHA has six months from the original admission or initiation of services to continue providing competency restoration services. Id.; Curtis, 948 N.E.2d at 1153. At the end of those six months, if the defendant has still not attained competency, the DMHA must initiate regular commitment proceedings. I.C. § 35-36-3^4.

The trial court here found that Coats was incompetent, and the State does not dispute that finding. The State argues, however, that once an incompetency finding was made, the trial court was statutorily required to commit Coats to the DMHA. Instead, the trial court found that Coats would not return to competency and denied the request to commit him. The State contends that the statutory framework does not allow the trial court to make a determination as to whether Coats can be returned to competency; rather, that decision is left to the DMHA. Coats argues that the State’s interpretation of the statute conflicts with Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). According to Coats, in light of the trial court’s finding that he cannot be returned to competency, his commitment for competency restoration services would violate his equal protection and due process rights.

We begin by discussing the United States Supreme Court’s opinion in Jackson. There, the defendant was charged with two robberies but was found to be incompetent. He was committed to the Department of Mental Health until the Department could certify that he was “sane.” Jackson, 406 U.S. at 719, 92 S.Ct. at 1848. Defendant’s counsel contended that the trial court’s order amounted to a life sentence without ever being convicted of a crime because the defendant would never be competent. The Indiana statutory scheme at that time made “no statutory provision for periodic review of the defendant’s condition by either the court or mental health authorities.” Id. at 720, 92 S.Ct. at 1849.

The Supreme Court noted that the statute did not make the likelihood of the defendant’s improvement a relevant factor and that the record established that the defendant’s chances of “ever meeting the competency standards” were “at best minimal, if not nonexistent.” Id. at 727, 92 S.Ct. at 1852. Further, the defendant’s long-term commitment under the competency statute subjected him “to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses....” Id. at 730, 92 S.Ct. at 1854. As a result, the Court concluded that the defendant’s commitment deprived him of his equal protection rights under the Fourteenth Amendment. The Court also held:

[A] person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal.

Id. at 738, 92 S.Ct. at 1858 (footnote omitted).

The statutes at issue here do not raise the same concerns that the court addressed in Jackson. The current competency statutes require a report to the trial court within ninety days regarding whether the defendant has a substantial probability of attaining competency. I.C. § 35-36-3-3(a). If a substantial probability does not exist, the DMHA must institute regular commitment proceedings. I.C. § 35-36-3-3(b). If a substantial probability does exist, the DMHA must again report to the trial court within six months of the original admission or initiation of competency restoration services. Id. If the defendant does not attain competency during those six months, the DMHA must institute regular commitment proceedings. I.C. § 35-36-3-4. Coats makes no argument that the ninety day and six month reporting requirements in the current statutory scheme exceed the “reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.” Jackson, 406 U.S. at 738, 92 S.Ct. at 1858. Thus, the concerns addressed by Jackson are not evident here.

It is clear that the competency statute required the trial court to commit Coats to the DMHA for competency restoration services once the trial court found Coats incompetent. See I.C. § 35-36-3-3. However, it is also clear that, in this case, those competency restoration services would be ineffective given Coats’s progressive dementia. Our supreme court addressed the competency statutes in Curtis v. State, 948 N.E.2d 1143 (Ind.2011). There, the defendant was diagnosed with dementia, and one doctor concluded that he would “never be restored” to competency and another concluded that it was “unlikely” he would be restored to competency. Curtis, 948 N.E.2d at 1146. The trial court stated that the defendant would “never become competent,” but the trial court then denied the State’s request to commit him to the DMHA and denied the defendant’s motion to dismiss the charges. Id.

The defendant appealed the denial of his motion to dismiss. In discussing the defendant’s due process rights, our supreme court noted that the statutory procedures “establish a comprehensive method that balances the various interests at stake.” Id. at 1153. “Involuntary commitment is a clear deprivation of the defendant’s liberty that can be justified only on the basis of legitimate state interests.” Id.

The State has dual interests in committing an incompetent defendant: (1) to restore the accused to competency due to the “right of the public and the defendant to the prompt disposition of criminal charges pending against him” and (2) to protect the defendant “against being required to answer to charges that she lacks the capacity to understand or assist her attorney in defending against.”

Id. at 1154 (quoting State v. Davis, 898 N.E.2d 281, 289 (Ind.2008)). “Of course, the State’s interests cannot be realized if there is a finding that a defendant cannot be restored to competency.” Id. Noting that the trial court had never found the defendant incompetent nor committed him, our supreme court held: “There is no viable fundamental-fairness argument when [the defendant] has not been involuntarily committed and when there has been no appropriate finding that he will never be restored to competency.” Id. at 1154.

This court’s opinion in State v. J.S., 987 N.E.2d 831 (Ind.Ct.App.2010), trans. denied, is also relevant here. There, a sixteen-year-old juvenile had multiple social and developmental disorders. The State filed a delinquency petition alleging that the juvenile had committed various sex offenses, and the trial court eventually found that he was incompetent. The trial court then dismissed the delinquency petition.

The appeal concerned the dismissal of the delinquency petition, not the failure to commit the juvenile. This court noted that, although the trial court did not make a finding regarding whether the juvenile would regain competency, the record showed that he was “unlikely to regain competency before he reaches the age of eighteen, if ever.” J.S., 937 N.E.2d at 834. After reviewing the circumstances and the purposes of the juvenile justice system, this court held that “it is clear that J.S. is receiving the care, protection, treatment, and rehabilitation that he needs.” Id. at 835. This court found that the juvenile court’s decision to dismiss the delinquency petition did not unduly endanger the public.

Although neither Curtis nor J.S. addressed the exact situation and issues here, both emphasized the purposes of the relevant statutes. Our supreme court has also emphasized the purposes of the competency statutes in Davis, where it noted:

Justification for the commitment of an incompetent accused is found in the State’s interest in the restoration of the accused to competency because of the right of the public and the defendant to the prompt disposition of criminal charges pending against him, Strunk v. United States, 412 U.S. 434, 439 n. 2, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973), and the protection of the accused against being required to answer to charges that she lacks the capacity to understand or to assist her attorney in defending against. Drope [v. Missouri, 420 U.S. 162,171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)]. Commitment of an accused thus focuses on the State’s interest in the accused’s restoration to competency and necessarily entails a finding of probability that the accused can be so restored.

Davis, 898 N.E.2d at 289.

Here, the trial court expressly found that restoration to competency is improbable and unlikely, and the report supports that finding. Although the better practice in most cases is to follow the statutory commitment procedures, given Coats’s progressive dementia and the trial court’s finding that he will not be restored to competency, the purposes of the competency restoration process cannot be met by following those procedures here. It is clear that Coats’s dementia will progress, and there simply is no hope nor medical reason to believe that competency will be restored. The discussion in Curtis informs and instructs us that “the State’s interests cannot be realized if there is a finding that a defendant cannot be restored to competency.” Curtis, 948 N.E.2d at 1154. We conclude that the trial court properly denied the State’s motion to commit Coats.

Conclusion

The trial court properly denied the State’s motion to commit Coats to the DMHA. We affirm.

Affirmed.

BAKER, J., concurs.

RILEY, J., dissents with opinion.

RILEY, Judge,

dissenting.

I respectfully dissent from the majority’s decision to affirm the trial court’s denial of the State’s motion to commit Coats to the Department of Mental Health and Addiction (DMHA). The statutory scheme does not allow the trial court discretion over the statutory commitment procedures. If the trial court finds that a defendant lacks the ability to understand the proceedings and assist with the preparation of his defense, “it shall delay or continue the trial and order the defendant committed” to the DMHA. Ind.Code § 35-36-3-l(b) (emphasis added). Consequently, the statute does not give the trial court discretion to decline to order commitment even where it concludes that the defendant could never be returned to competency.

In support of its conclusion, the majority latches on to one sentence in Curtis v. State, 948 N.E.2d 1143 (Ind.2011). There, the supreme court noted that the State’s dual interests of competency restoration and protection of the accused “cannot be realized if there is a finding that a defendant cannot be restored to competency.” Id. at 1159. From this premise, the majority reasons that if “the purposes of the competency restoration process cannot be met” there is no need to follow the statutory commitment procedures. Op. at *1278. Yet, it is a stretch to conclude that the process itself must be abandoned where the trial court has determined that the defendant lacks competency.

Indeed, that result is expressly foreclosed by I.C. § 35-36-3-l(b), which requires the trial court to take the additional step of ordering commitment following its determination that the defendant lacks competency. Following commitment, the DMHA superintendent or authorized third party contractor has ninety days to observe and provide treatment to an incompetent defendant. I.C. § 35-36-3-3. If there is a substantial probability that the defendant will attain the ability to understand and assist with his defense, DMHA has up to six months to provide further competency restoration services. I.C. § 35-36-3-3(b). However, if substantial probability does not exist, whether at the outset or after a six month interim provision of competency restoration services, DMHA must institute regular commitment proceedings under I.C. art. 12-26. I.C. § 35 — 36—B—3(b); -4.

The majority concedes as much. Its admission that “[ajlthough the better practice in most cases is to follow the statutory commitment procedures” is nothing more than a concession that procedures should be followed. Op. *1278. Indeed, there are compelling reasons why this is so. Foremost is the clear duties assigned to the trial court and the DMHA. The trial court determines whether the defendant is incompetent in the first instance, but the statutory scheme entrusts the ultimate determination on competency to the superintendent, who has not only the skills to make such observations but also the time within which to do so. In sum, the express statutory directive and the comprehensive nature of the statutory commitment scheme overcome even those cases where a progressive illness renders no hope nor medical reason to believe competency will be restored. I would therefore reverse the trial court’s denial.

      . Coats does not appeal the denial of his motion to dismiss.

      . We also note Coats's argument that the denial of the motion to commit Coats under the competency restoration statute does not prevent the prosecutor from bringing regular commitment proceedings under Indiana Code Chapter 12-26-7. That chapter applies to the commitment of an individual alleged to be mentally ill and either dangerous or gravely disabled whose commitment is expected to last more than ninety days. I.C. § 12-26-7-1. The chapter contains a list of those that may file regular commitment procedures, including a health officer, police officer, friend, relative, spouse, or guardian of the individual, the superintendent of the facility where the individual is present, or the prosecuting attorney under certain circumstances. I.C. § 12— 16-7-2. Those circumstances are not present here, and the State correctly notes that the prosecuting attorney would be unable to file for a regular commitment. However, the temporary commitment procedures do not have the same requirements as to who may file. See I.C. § 12 — 26—6—2(b) (noting that a petitioner must be at least eighteen years old). Thus, if appropriate, a prosecutor could file for temporary commitment.