EVERLING v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] In this post-conviction appeal, Everling argues that the post-conviction court erred in finding that he was not denied effective assistance of counsel at trial. Specifically, he argues that Trial Counsel was ineffective because he did not object to the deputy prosecutor's voir dire questioning, closing argument, and a jury instruction informing the jury that to show Everling had committed Level 2 felony dealing in methamphetamine under Indiana Code section 35-48-4-1.1(a)(2), (e)(1), the State needed to prove that he possessed at least ten grams of methamphetamine and intended to deliver any amount of the drug. Finding that Trial Counsel was not ineffective, we affirm.

Facts and Procedural History

1. Background

[2] In June 2018, Everling met with his supervising probation officer who told him that he needed to complete a drug screen and that probation was going to do a home visit. Everling, who appeared nervous and was sweating, responded that a home visit would violate his constitutional rights and that he did not need to use the bathroom. His probation officer told him he had to stay until he did the screen, so he sat with his girlfriend, Tysha Cummings, in the lobby of the probation office. A security officer overheard Everling tell Cummings to “[g]o to the house and get rid of everything.” Direct Appeal (DA) Transcript Vol. 2 at 161. Everling also gave Cummings the combination to a safe.

[3] After the security officer told Everling's probation officer what he overheard, Everling was told that two probation officers would follow him home to conduct the home visit. For safety reasons, the probation officers requested police assistance while they were at Everling's home. On the way to his house, Everling drove dangerously slowly prompting the probation officers to take a different route because they feared Cummings might remove evidence before they could get there. Everling never showed up at his house.

[4] A police officer arrived at Everling's house before the probation officers and saw Cummings trying to climb in through a window.¹ The officer detained Cummings, who told him that Everling had instructed her to make sure no drugs or paraphernalia were laying around.

[5] Upon searching the home, the officers found methamphetamine on a piece of tinfoil in the oven as well as two baggies of methamphetamine in a bedroom safe. One of those bags contained 10.68 grams of the drug. Although Cummings had access to the bedroom when she lived with Everling, she did not have access to the safe. Officers also found drug paraphernalia in the home, including digital scales, plastic baggies, pipes, pens, straws, and a spoon.

[6] There were also security cameras located in the bedroom and living room. Videos recovered from the cameras showed Everling accessing the bedroom safe, exchanging baggies of drugs with a man, and giving and using drugs with another man between June 25 and 27, 2018. See DA Exhibits 63 and 64.

[7] The State charged Everling with dealing in methamphetamine as a Level 2 felony,² alleging the offense occurred between June 25 and 29, 2018.

2. Trial Proceedings and Direct Appeal

[8] During jury selection, the deputy prosecutor repeatedly discussed the elements that the State needed to prove to show Everling committed Level 2 felony dealing in methamphetamine under Indiana Code section 35-48-4-1.1(a)(2), (e)(1). See DA Tr. Vol. 1 at 188-90; DA Tr. Vol. 2 at 8, 11-12, 75-76. He told potential jurors that “[t]he amount of drug involved [being] at least ten [ ] grams goes to the possession” and that the State did not “have to prove the intent to deliver the entire amount.”³ DA Tr. Vol. 2 at 75. Trial Counsel did not object to these statements.

[9] The State proposed a preliminary instruction based on Bookwalter v. State that it only needed to prove that Everling possessed at least ten grams of the drug and intended to deliver some portion of that amount. 22 N.E.3d 735, 741-42 (Ind. Ct. App. 2014), trans. denied.⁴ The trial court denied the State's request to include that instruction but stated that the instruction correctly stated the law and might be given as a final instruction depending upon the evidence admitted at trial. The court said, “I think everyone anticipates this is the exact issue and they'll be given in final.” Id. at 108. Trial Counsel did not object or dispute the court's observations. Then, in the State's opening statement, the deputy prosecutor asserted that Everling had “possessed [ ] methamphetamine in an amount over ten [ ] grams, and he possessed that methamphetamine with the intent to deliver some or all of it to another person.” Id. at 126. Trial counsel neither objected to nor contradicted the State's characterization of the elements of the charge when he gave his opening statement.

[10] After the presentation of evidence, the court provided counsel with its proposed instructions and asked if “[a]nyone wish[ed] to make any record as to the court's instructions[.]” DA Tr. Vol. 3 at 226. Trial Counsel responded that he had “no objection to the court[’]s [ ] instructions.” Id. One of the instructions read:

The enhancement for possession of a specific amount of a controlled substance does not require proof of intent to deliver that specific weight of the controlled substance. The State must prove only that the defendant possessed a specific amount of the controlled substance and intended to deliver any part of it.

DA Appendix Vol. 3 at 14.

[11] In his closing and rebuttal arguments, the deputy prosecutor's characterization of the elements of the Level 2 dealing in methamphetamine charge was in line with the trial court's instruction, and Trial Counsel did not object. In his closing, Trial Counsel argued that the State had not met its burden of proof, there were gaps in the State's evidence, Cummings was linked to the bedroom where methamphetamine was found in the safe, and the videos did not show Everling using or dealing methamphetamine. See DA Tr. Vol. 4 at 25-37. When closing arguments were concluded, the trial court read the final instructions to the jury. The jury found Everling guilty of all counts and of being a habitual offender.

[12] At sentencing, the trial court imposed an aggregate sentence of 411/212 years. On direct appeal, Everling challenged the sufficiency of the evidence for his misdemeanor possession of paraphernalia conviction and the appropriateness of his sentence under Appellate Rule 7(B). Everling's appeal was unsuccessful. See generally Everling v. State, No. 20A-CR-930 (Ind. Ct. App. Oct. 26, 2020) (mem.).

3. Post-Conviction Proceedings

[13] In his petition for post-conviction relief, Everling argued that Trial Counsel was ineffective for not objecting to the State's voir dire questioning, closing argument, and the final instruction detailing the elements required for the dealing in methamphetamine offense.

[14] At the post-conviction hearing, Trial Counsel testified that, at the time of Everling's trial, he had practiced criminal law for seven or eight years. Regarding the dealing in methamphetamine offense, he had believed the case law required the State to prove a defendant possessed at least ten grams and intended to deliver a part of the amount he possessed. He based this assessment in large part on the Bookwalter decision. Trial Counsel agreed that the statute upon which Everling's charge was based did not specifically state that a person committed Level 2 dealing in methamphetamine if he intended to deliver an amount less than that which he possessed, but he argued “that's where the Bookwalter case comes in” to inform the statutory reading. Post-Conviction (PC) Tr. at 18. While Trial Counsel acknowledged Bookwalter was a sufficiency-of-the-evidence case,⁵ he believed the opinion provided “an explanation of the statute” and “raise[d] questions of statutory construction and interpretation as well [as] legislative intent[.]” Id. at 29-30.

[15] Everling's post-conviction counsel argued that the statute required the State to prove Everling intended to deliver at least ten grams of methamphetamine, explicitly acknowledging that he was “making a statutory interpretation argument[.]” Id. at 34. He attempted to minimize Bookwalter’s significance by arguing that it was a sufficiency-of-the-evidence case and was not a precise statement of the law.⁶ After the hearing, the post-conviction court denied Everling's petition, finding that Trial Counsel was not ineffective for “fail[ing] to argue for a change in the law.” PC App. Vol. 2 at 74.

Discussion and Decision

1. Standard of Review

[16] Everling appeals from the denial of post-conviction relief, which constitutes an appeal from a negative judgment. Humphrey v. State, 73 N.E.3d 677, 681 (Ind. 2017). To prevail in such cases, “a petitioner must show that the evidence leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.” Id. In other words, we will not “reverse a denial of post-conviction relief unless ‘there is no way within the law that the court below could have reached the decision it did.’ ” Bradbury v. State, 180 N.E.3d 249, 252 (Ind. 2022) (quoting Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), reh'g denied, cert. denied), modified on reh'g, cert. denied. It is the role of the post-conviction court, not the reviewing court, to judge the evidence and the credibility of witnesses. Id. Accordingly, although we do not defer to its legal conclusions, we accept the post-conviction court's factual findings unless they are clearly erroneous. Humphrey, 73 NE.3d at 682. Where, as here, the same judge presided over the original trial and the post-conviction proceedings, the post-conviction court's “findings and judgment [are] entitled to ‘greater than usual deference[.]’ ” Hinesley v. State, 999 N.E.2d 975, 982 (Ind. Ct. App. 2013) (quoting McCullough v. State, 973 N.E.2d 62, 75 (Ind. Ct. App. 2012), trans. denied), reh'g denied, trans. denied.

2. Ineffective Assistance of Counsel

[17] Everling argues that the post-conviction court erred in finding that Trial Counsel was not ineffective. Specifically, he argues that Trial Counsel was ineffective because he did not object to the State's voir dire questioning, closing arguments, and proposed final instruction that informed the jury that it “did not have to find Everling intended to deliver at least 10 grams of methamphetamine to find him guilty” of Level 2 dealing in methamphetamine. Appellant's Brief at 17.

[18] To succeed on a claim of ineffective assistance of counsel, Everling had to show by a preponderance of the evidence that: “(1) counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms; and (2) the deficiency was so prejudicial as to create a reasonable probability the outcome would have been different absent counsel's errors.” Bradbury, 180 N.E.3d at 252 (applying the test articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), reh'g denied); see also Ind. Post-Conviction Rule 1(5) (specifying the petitioner's burden of proof). “Judicial scrutiny of counsel's performance must be highly deferential.” Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013) (quoting Strickland, 466 U.S. at 689). “The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.” Bradbury, 180 N.E.3d at 252. (quoting Yarborough v. Gentry, 540 U.S. 1, 8 (2003)).

[19] While the law requires an attorney to consider the legal precedent available at the time of representation, an attorney cannot be deemed ineffective for failing to anticipate, initiate, or effectuate changes in the law. See Reed v. State, 856 N.E.2d 1189, 1197 (Ind. 2006); Smylie v. State, 823 N.E.2d 679, 690 (Ind. 2005), cert. denied; Bieghler v. State, 690 N.E.2d 188, 201 (Ind. 1997), reh'g denied, cert. denied; Lee v. State, 91 N.E.3d 978, 987 (Ind. Ct. App. 2017), reh'g denied, trans. denied. That said, to ensure the jury is accurately instructed on the law, our Supreme Court has cautioned trial courts about borrowing language appellate courts use to reach decisions because such language may “not [necessarily] [be] proper [ ] for instructions to a jury.” Batchelor v. State, 119 N.E.3d 550, 563 (Ind. 2019) (quoting Ludy v. State, 784 N.E.2d 459, 462 (Ind. 2003)). “This is especially true when, as here, the instruction is rooted in reasoning found in a sufficiency-of-the-evidence case, not an appellate opinion approving a jury instruction[.]” Id. (internal citation omitted). Be that as it may, a jury instruction based on the language from an appellate opinion “is not improper so long as it is a correct statement of the law and does not mislead the jury.” Hamilton v. State, 233 N.E.3d 461, 479 (Ind. Ct. App. 2024), trans. denied.

[20] In this case, Everling was charged with dealing in methamphetamine as a Level 2 felony. The charging statute provided that “[a] person who ․ possesses, with the intent to[ ] deliver[,] ․ methamphetamine ․ commits dealing in methamphetamine, a Level 5 felony[.]” Ind. Code § 35-48-4-1.1(a)(2). The statute elevates the offense to a Level 2 felony if “the amount of the drug involved [was] at least ten [ ] grams[.]” I.C. § 35-48-4-1.1(e)(1). Trial Counsel did not lodge objections to the State's characterization of the elements of the statute because he believed the State's position accurately reflected the law as articulated in Bookwalter.

[21] In Bookwalter, a panel of this Court considered Bookwalter's sufficiency-of-the-evidence challenge to his conviction for dealing in a narcotic drug. 22 N.E.3d at 741-42. The statute criminalizing dealing in a narcotic drug was identical in structure to the statute at issue in this case. See id. at 741. It required the State to prove that Bookwalter “possessed, with intent to deliver, heroin, pure or adulterated, in the amount of three grams or more.” Id. (citing I.C. § 35-48-4-1(a)(2), (b)(1) (2013)). Although Bookwalter conceded that he had possessed more than three grams of heroin and delivered some amount of it, he argued that the State needed to prove that he intended to deliver three or more grams of the drug. Id. at 741-42. In determining there was sufficient evidence to support the defendant's conviction, the panel reasoned:

The enhancement was specified in a separate subsection of the statute, and does not by its terms require proof of intent to deliver a specific weight of drugs. Thus, the statute did not require that the State prove that Bookwalter intended to deliver a certain minimum amount of the drug to others. Rather, it required that Bookwalter possessed the drug, did so with intent to deliver some portion of the amount, and that the total amount possessed (“involved” in the offense) was greater than three grams.

Id. at 742.

[22] On appeal, Everling argues that we should engage in statutory interpretation and find that “[t]he interpretation of the statute in Bookwalter[,] argued by the [deputy] prosecutor[,] and given in” a final instruction, was incorrect. Appellant's Br. at 23. However, for purposes of determining whether Trial Counsel performed deficiently by failing to object to the State's characterization of the statute, we need not and do not comment on whether Bookwalter correctly interpreted its statute. Instead, we must only determine whether Trial Counsel's reliance on Bookwalter’s interpretation of an analogous statute was reasonable.

[23] While Bookwalter was a sufficiency-of-the-evidence case, our Court interpreted the dealing in a narcotic drug statute and found that it required a person to possess a certain amount of the drug “with the intent to deliver some portion of the amount[.]” 22 N.E.3d at 742. Because the statutes were analogous, it was reasonable for Trial Counsel to believe Indiana Code section 35-48-4-1.1(a)(2), (e)(1) would be similarly construed, and he did not perform deficiently by failing to object and argue that the elements of the offense should have been interpreted differently.⁷ See Lee, 91 N.E.3d at 987 (finding the post-conviction court did not err when it found a defendant's trial attorney was not ineffective for failing to object to a jury instruction which stated the defendant could be convicted of attempted murder as an accomplice without the specific intent to kill because “Indiana courts had not yet held” the contrary when he was tried). As such, Everling has not shown that the post-conviction court erred in finding Trial Counsel was not ineffective and, consequently, denying Everling's petition for post-conviction relief.

Conclusion

[24] For the foregoing reasons, we affirm the judgment of the post-conviction court.

[25] Affirmed.

FOOTNOTES

1.   Cummings lived with Everling but did not have a key with her because she had just been released after serving a stint in jail.

2.   Ind. Code § 35-48-4-1.1(a)(2), (e)(1). While not relevant to this appeal, the State also charged Everling with possession of methamphetamine, possession of paraphernalia, and alleged he was a habitual offender.

3.   The trial court's practice was to have the attorneys conduct voir dire with all potential jurors in the courtroom, so “they[ ] [were] all [t]here” for this questioning and commentary. Post-Conviction (PC) Tr. at 21.

4.   We note that Bookwalter decided an issue related to the State's proposed instruction at Everling's trial, as well as an issue of statutory construction regarding the syringe-possession statute. 22 N.E.3d at 739-41. Bookwalter was later superseded by statute as to the latter issue only. See Knutson v. State, 103 N.E.3d 700, 703 (Ind. Ct. App. 2018) (noting that the General Assembly responded to Bookwalter by amending the syringe-possession statute).

5.   As discussed below, language drawn from appellate sufficiency-of-the-evidence cases are rarely appropriate for use in jury instructions. See Batchelor v. State, 119 N.E.3d 550, 563 (Ind. 2019).

6.   See supra note 5.

7.   Everling argues that “a claim of ineffective assistance of counsel based on counsel's failure to argue statutory interpretation that is clear on its face may amount to deficient performance.” Appellant's Br. at 20. In support of his argument, he cites Reed, which holds that an attorney's performance is deficient if he “fail[s] to raise an issue of first impression where a plain reading of the statute demonstrate[s] [the client] is entitled to immediate relief[.]” 856 N.E.2d at 1197 (stating that attorneys have an obligation to vindicate their clients’ “interests under existing statutory provisions”). Yet, at the time of Everling's trial, the Bookwalter court had ascribed a different meaning to the analogous language in the dealing in a narcotic drug statute than what he now posits the language means. Thus, we cannot say that a plain reading of Indiana Code section 35-48-4-1.1(a)(2), (e)(1) would have entitled Everling to immediate relief.

DeBoer, Judge.

Bradford, J., and Weissmann, J., concur.