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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. APPELLANT PRO SE: WALKER WHATLEY Pendleton, Indiana

FILED
Jun 21 2012, 8:41 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ANGELA N. SANCHEZ Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
WALKER WHATLEY, Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 49A04-1110-PC-548

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Steven R. Eichholtz, Judge Cause No. 49G20-0803-PC-64067

June 21, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Chief Judge

Case Summary and Issues Walker Whatley was convicted of possession of cocaine within 1,000 feet of a youth program center, a Class A felony, and sentenced to thirty-five years in prison. The Indiana Supreme Court upheld his conviction and sentence in a June 8, 2010 opinion. Whatley filed a petition for post-conviction relief and an amended petition, which, following a hearing, the post-conviction court denied. Whatley, pro se, now appeals that denial and raises several issues which we consolidate, restate, and reorder as three: 1) whether the post-conviction court erred in finding no impropriety in the evidence which was presented at trial and evidence which Whatley alleges was not disclosed regarding the seized cocaine; 2) whether the post-conviction court erred in finding no error with the evidence presented at trial regarding the measurement of the distance between Whatley's home and the youth program center; and 3) whether Whatley was charged for and convicted of the proper offense. We conclude the State did not fail to disclose the material Whatley now takes issue with, and that the other issues could have been addressed on direct appeal, and as a result are precluded from our review. Therefore, we affirm. Facts and Procedural History The background facts and the majority of the procedural history of this case have been discussed by our supreme court: The facts most favorable to the conviction indicate that in March, 2008, Whatley was arrested at his home on a warrant issued in an unrelated case. During a search incident to arrest, the arresting officer discovered a bag containing 3.2459 grams of cocaine in Whatley's pocket. In relevant part, the State charged Whatley with possession of cocaine as a Class A felony. Possession of cocaine is ordinarily a Class C felony, but possession of three grams or more of cocaine within 1,000 feet of a youth program center
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elevates the offense to a Class A felony. Whatley's home, where the arrest occurred, was located approximately 795 feet from Robinson Community Church ("RCC"). Whether RCC qualifies as a "youth program center" for the purpose of triggering the elevation to a Class A felony is the central issue of this appeal. The jury found that the enhancement was supported by the evidence and the court sentenced Whatley to a term of 35 years. Whatley appealed and the Court of Appeals reversed his conviction on the grounds that RCC did not qualify as a "youth program center." The Court of Appeals found that RCC's hosting of various programs for children did not change its status as a church; thus, removing it from the ambit of the statute's intended coverage for purposes of the sentence enhancement. The Court of Appeals remanded the case with instructions to enter the conviction as a Class C felony and sentence Whatley accordingly. The State sought, and we granted, transfer. Whatley v. State, 928 N.E.2d 202, 203-04 (Ind. 2010) (citations and footnote omitted). The supreme court concluded that, based on the evidence presented, a jury could properly find that RCC was a "youth program center," and affirmed Whatley's conviction and sentence. Id. at 207. Following the supreme court's decision, Whatley filed, pro se, a petition for postconviction relief, raising several issues, and amended this petition to add another claim of error. Following a hearing thereon, the post-conviction court denied his petition.

Whatley now appeals. Additional facts will be supplied as appropriate. Discussion and Decision I. Standard of Review Post-conviction procedures provide a narrow remedy for collateral challenges to convictions based on grounds enumerated in the post-conviction rules. Wrinkles v. State, 749 N.E.2d 1179, 1187 (Ind. 2001), cert. denied, 535 U.S. 1019 (2002). To the extent an argument within the petition is the same claim made and rejected in prior proceedings, that argument is barred by the doctrine of res judicata. Wallace v. State, 820 N.E.2d
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1261, 1264 (Ind. 2005). When an argument is raised for the first time but could have been raised earlier either on direct appeal or in an earlier petition for post-conviction relief, the claim is procedurally defaulted for not having been presented timely. Id. Whatley appeals from the denial of post-conviction relief, which is a negative judgment. See Wrinkles, 749 N.E.2d at 1187. As a result, he must convince this court that the evidence "as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court." Id. at 1187-88. "This Court will disturb a post-conviction court's decision as being contrary to law only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion." Id. at 1188 (quotation and citation omitted). II. Evidentiary Challenge A. Alleged Exculpatory Evidence First, Whatley repeatedly and adamantly insists the State failed to disclose exculpatory evidence prior to trial. As discussed below, we believe his specific

arguments to be somewhat different than that the State failed to disclose exculpatory evidence, and as a result, we define and address his arguments broadly, as challenges to the propriety of both the evidence which was submitted at trial and evidence which he alleges was not disclosed. Nevertheless, we lay out the principles which would guide our review of an alleged failure to disclose exculpatory evidence. In Brady v. Maryland, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S.
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83, 87 (1963). "To prevail on a Brady claim, a defendant must establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial." Minnick v. State, 698 N.E.2d 745, 755 (Ind. 1998) (citing Brady, 373 U.S. at 87), cert. denied, 528 U.S. 1006 (1999). Evidence is material under Brady "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682 (1985). However, the State will not be found to have suppressed material evidence if it was available to a defendant through the exercise of reasonable diligence. Conner v. State, 711 N.E.2d 1238, 1246 (Ind. 1999), cert. denied, 531 U.S. 829 (2000). "Favorable evidence" includes both exculpatory evidence and impeachment evidence. See Prewitt v. State, 819 N.E.2d 393, 401 (Ind. Ct. App. 2004), trans. denied. Now to Whatley's arguments. The evidence which Whatley contends was

improperly not disclosed is any evidence which might suggest the cocaine entered into evidence at his trial was in fact cocaine from a previous conviction of his and unrelated to the present offense. This is an argument which he raised at trial to challenge the weight of the evidence presented. In the present appeal he argues that the evidence which the State presented at trial was false and deceptive, and therefore the State improperly failed to disclose exculpatory evidence

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