In ‘rare circumstances,’ split COA reverses denied PCR petition for man convicted of drug crime he didn’t commit

Although neither trial nor appellate counsel proved ineffective in a man’s drug-related case, a split Court of Appeals of Indiana has reversed the denial of the defendant’s petition for post-conviction relief after finding he was convicted of a crime he did not actually commit.

After being apprehended for driving a stolen vehicle in Elkhart, Paul Newcomb Jr. was found in possession of a full array of methamphetamine precursors.

Specifically, officers found on Newcomb’s person a glass pipe with burnt residue and a plastic baggie with white residue that was later determined to be meth, among other things. Meanwhile, an officer searching the vehicle found items used in the manufacture of meth, including instant cold packs, bottles of lighter fluid, a bottle of drain opener, a bag of salt, lithium batteries, coffee filters, pliers and a plastic bottle.

Newcomb acknowledged that he knew what the items were and “said they were for a friend,” but he refused to reveal the friend’s identity. He was ultimately charged and convicted in a bench trial of Class B felony dealing in meth by manufacturing and admitted to being a habitual substance offender.

Although there was no active meth lab, the state argued Newcomb “was in the process of obtaining ingredients” and “had all the necessary ingredients” for manufacturing meth. The Elkhart Superior Court also acknowledged that Newcomb had “everything ready to manufacture methamphetamine,” concluding that a sentence would be imposed for the Class B felony of manufacturing.

Newcomb was sentenced to 16 years, enhanced by eight years due to his status as a habitual substance offender.

On direct appeal, Newcomb argued there was insufficient evidence to support his manufacturing conviction, pointing to the unopened materials in the car and noting that the manufacturing process had not even begun at that point. But his appeal failed at the Court of Appeals, and the Indiana Supreme Court denied transfer.

Newcomb then filed a post-conviction relief petition that resulted in the trial court granting him partial relief. Specifically, the trial court concluded Newcomb had not been advised of his right to a jury trial on the allegation that he is a habitual substance offender.

Back at the Court of Appeals, a split panel on Wednesday reversed the denial in the case of Paul Dean Newcomb, Jr. v. State of Indiana, 22A-PC-318, ordering that a lesser conviction be entered against Newcomb on remand.

The majority began by noting that both Newcomb’s trial and appellate counsel each argued the dealing by manufacturing offense was not supported by sufficient evidence.

“Such arguments were unavailing, and, at some point, counsel gave up,” Judge L. Mark Baily wrote. “Newcomb’s argument of ineffectiveness distills to a claim of abandonment of advocacy.”

The appellate court then determined that although Newcomb admittedly possessed precursors, there was no evidence that he had begun to manufacture meth. It pointed out that even though Newcomb indicated he knew what the items in the vehicle were, he did not admit to knowing their express purpose or that he and his “friend” had ever engaged in manufacture.

“There simply is no ‘proof of the underlying crime’ or ‘other actor’ to whom Newcomb could have been an accomplice,” Bailey wrote. “Indeed, at the sentencing hearing, the trial court, prosecutor, and defense counsel seemed to be aligned with the position that manufacturing had not begun.”

To the extent that defense counsel “strenuously argued” that the state had not proven the commission of a Class B felony, the COA said it was “hard-pressed” to say that his performance was deficient. It likewise found that Newcomb’s appellate counsel performed adequately, at bottom, but that one issue remained: Newcomb was convicted of a crime he did not commit.

“We are constrained to follow the rules of post-conviction procedure. That said, the appellant has attempted at every stage of the trial and appellate proceedings to comply with the relevant rules and draw attention to a wrongful conviction,” Bailey concluded. “In these rare circumstances of fundamental error raised in the context of ineffective assistance of counsel but demonstrated as a matter of law, we reverse the partial denial of Newcomb’s petition for post-conviction relief. We remand with instructions to vacate the conviction for Dealing in Methamphetamine, enter a conviction for Possession of Precursors with Intent to Manufacture, conduct proceedings upon the habitual substance offender allegation, and sentence Newcomb accordingly.”

Senior Judge Edward Najam joined Bailey’s majority opinion.

But Chief Judge Cale Bradford dissented from the conclusion that Newcomb presented a claim of fundamental error, “couched in allegations of ineffective assistance of trial and appellate counsel.”

“In presenting his arguments on appeal, Newcomb asserts only that he received ineffective assistance from both his trial and appellate counsel. Newcomb did not present a claim of fundamental error. The Indiana Supreme Court recently reiterated that it disfavors sua sponte rulings,” Bradford wrote, pointing to Conley v. State, 183 N.E.3d 276, 283 (Ind. 2022).

“I therefore must dissent with the majority’s conclusion that vacation of Newcomb’s underlying conviction was appropriate,” the chief judge concluded.