MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Aug 21 2019, 9:04 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Arturo Strickland Curtis T. Hill, Jr. New Castle, Indiana Attorney General of Indiana J. T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Arturo Strickland, August 21, 2019 Appellant-Petitioner, Court of Appeals Case No. 18A-PC-1068 v. Appeal from the Wayne Superior Court State of Indiana, The Honorable Gregory A. Horn, Appellee-Respondent. Judge Trial Court Cause No. 89D02-1412-PC-28
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019 Page 1 of 13 Case Summary
[1] Arturo Strickland, pro se, appeals the post-conviction court’s (“PC court”)
denial of his petition for post-conviction relief (“PCR”). We affirm.
Issue
[2] Strickland raises three issues on appeal, which we consolidate and restate as
whether Strickland received ineffective assistance of trial counsel.
Facts
[3] In March 2012, Strickland was charged with sexual misconduct with a minor, a
Class B felony, and with being a habitual offender after fourteen-year-old C.C.
alleged that twenty-nine-year-old Strickland forced C.C. to have sexual
intercourse with him.
[4] Strickland’s counsel proposed a jury instruction regarding attempted sexual
misconduct with a minor, which the trial court accepted. The jury convicted
Strickland of attempted sexual misconduct with a minor, a Class B felony.
After the State’s presentation of evidence on the habitual offender
enhancement, Strickland’s counsel moved for judgment on the evidence, which
the trial court granted. Strickland was sentenced to sixteen years imprisonment.
Strickland initially filed a direct appeal, then subsequently requested this Court
dismiss the appeal.
[5] On December 4, 2014 Strickland filed a PCR petition alleging ineffective
assistance of trial counsel. Strickland filed amended petitions on August 24,
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019 Page 2 of 13 2015, and October 21, 2016. On June 29, 2017, and November 30, 3017, a
hearing was held on Strickland’s PCR petition. Strickland appeared pro se.
Strickland argued that he received ineffective assistance of trial counsel for three
reasons: (1) failure of trial counsel to offer an abandonment defense; (2) failure
of trial counsel to object to jury instruction number eleven (“Instruction 11”);
and (3) failure of trial counsel to challenge Strickland’s sentence.
[6] After the hearing, the PC court entered findings of fact and conclusions of law
and denied Strickland’s PCR petition. The PC court reviewed Instruction 11,
which stated:
The Defendant has the burden of proving his defense that he reasonably believed that [C.C.] was sixteen (l6) years of age or older at the time of the occurrence. Defendant must prove this defense by a preponderance of the evidence. When I say that a party has the burden to prove an issue by a preponderance of the evidence, I mean by the greater weight of the evidence. A greater number of witnesses testifying to a fact on one side or a greater quantity of evidence introduced on one side is not necessarily of the greater weight. The evidence given upon a fact that convinces you most strongly of its truthfulness is of the greater weight.
Jury Trial Tr. Vol. II p. 81. In doing so, the PC court found that, despite
Strickland’s argument that Instruction 11 was in error, Strickland “refers to
absolutely no authority suggesting how the instruction is incorrect.”
Appellant’s App. Vol. II pp. 12-13. Accordingly, the PC court concluded that
Instruction 11 was a correct statement of law. The PC court further concluded
that Strickland’s trial counsel’s tactical approach to offer Instruction 11 was
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019 Page 3 of 13 reasonable in light of the evidence presented at trial. Furthermore, the PC court
also indicated that the evidence presented at trial did not support an instruction
for abandonment. Despite Strickland’s argument that his trial counsel failed to
object to Strickland’s sentence as above the advisory sentence, the trial court
weighed the aggravating and mitigating factors to reach that conclusion, and
found this claim was not proper for a PCR petition. Strickland now appeals.
Analysis
[7] Strickland appeals the denial of his PCR petition. Our Supreme Court has
stated:
The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. To prevail on appeal from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. [Where, as here, a post-conviction court has made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we] do not defer to the post-conviction court’s legal conclusions[.] A post-conviction court’s findings and judgment will be reversed only upon a showing of clear error – that which leaves us with a definite and firm conviction that a mistake has been made.
Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014) (internal quotations and
citations omitted). As the clearly erroneous standard “is a review for
sufficiency of evidence, we neither reweigh the evidence nor determine the
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019 Page 4 of 13 credibility of witnesses.” State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014).
“Rather, we ‘consider only the evidence that supports that judgment and the
reasonable inferences to be drawn from that evidence.’” Id. (quoting Ben-Yisrayl
v. State, 738 N.E.2d 253, 258-59 (Ind. 2000), cert. denied, 534 U.S. 1164, 122 S.
Ct. 1178 (2000)).
[8] Strickland contends that he received ineffective assistance of trial counsel in
several regards. To prevail on a claim of ineffective assistance of counsel, a
petitioner must demonstrate both that: (1) his or her counsel’s performance was
deficient, and (2) the petitioner was prejudiced by the deficient performance.
Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)), reh’g denied, cert.
denied, 534 U.S. 830, 122 S. Ct. 73 (2001). The failure to satisfy either prong
will cause the claim to fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.
2006). Ineffective assistance of counsel claims, thus, can be resolved by a
prejudice analysis alone. Id.
[9] An attorney’s performance is deficient if it falls below an objective standard of
reasonableness based on prevailing professional norms. Woodson v. State, 961
N.E.2d 1035, 1041 (Ind. 2012). A strong presumption arises that counsel
rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment. McCullough v. State, 973 N.E.2d 62, 74
(Ind. Ct. App. 2012), trans. denied. “[A] defendant must offer strong and
convincing evidence to overcome this presumption.” Id. Isolated poor strategy,
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019 Page 5 of 13 inexperience, or bad tactics does not necessarily constitute ineffective assistance
of counsel. Id.
[10] In order to demonstrate prejudice, “the defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Weisheit v.
State, 109 N.E.3d 978, 983 (Ind. 2018) (quoting Strickland, 466 U.S. at 694, 104
S. Ct. 2052).
A. Strickland’s Defense
[11] Strickland first argues that he received ineffective assistance of trial counsel
because his trial counsel failed to provide him with a defense. Strickland
appears to contend that his trial counsel should have set forth the defense of
abandonment and that trial counsel’s failure to do so meant Strickland received
ineffective assistance of counsel. At the trial, the State played Strickland’s
interview with police in which Strickland claimed that he and C.C. were
together in Strickland’s room when C.C. asked Strickland if he would have
sexual intercourse with C.C. while Strickland was positioned behind C.C.
Strickland indicated that he attempted to do so; however, Strickland was unable
to do so due to C.C.’s size. At the PCR hearing, Strickland’s trial counsel
indicated that he did not believe the abandonment defense applied to
Strickland’s case.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019 Page 6 of 13 [12] Strickland’s defense of abandonment rests on his assertion that, although he
stopped short of completing the sexual act due to C.C.’s size, he could have
persisted and “completed” the act but chose not to because C.C. felt like a
family member to him. Appellant’s Br. p. 18. Strickland contends that his trial
counsel’s error was demonstrated by trial counsel’s motion for a lesser included
instruction, wherein trial counsel indicated that there was “evidence present to
the effect that the Defendant abandoned an attempt at the crime charged. . . .”
Appellant’s App. Vol. II p. 30. According to Strickland, therefore, his trial
counsel should have also requested an instruction on abandonment.
[13] To prevail on a claim of ineffective assistance for failure to tender a jury
instruction, the defendant “must prove that he was entitled to the defense and
that he was prejudiced when the jury was not instructed on the defense.” Potter
v. State, 684 N.E.2d 1127, 1135 (Ind. 1997). “The decision of whether or not to
present a defense can be considered a matter of trial strategy and will not be
lightly second guessed.” Whitener v. State, 696 N.E.2d 40, 43 (Ind. 1998).
[14] At the PCR hearing, Strickland’s trial counsel indicated that he did not offer an
abandonment defense because Strickland claimed to have abandoned the act, at
least in part, because he felt he was unable to complete the act due to C.C.’s
size. For the defense of abandonment to apply, there are several “temporal
prerequisites” that must be met; moreover, the abandonment must be both
“voluntary and complete, and the defendant must successfully and voluntarily
prevent commission of the underlying crime.” Jones v. State, 87 N.E.3d 450, 457
(Ind. 2017). “For abandonment to be voluntary, the decision to withdraw from
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019 Page 7 of 13 the effort to commit the underlying crime must originate with the accused.” Id.
(quotations omitted). “That decision must in no way be attributable to extrinsic
factors that increase the probability of detection or make more difficult the
accomplishment of the criminal purpose.” Id. Because the abandonment
defense requires proof of all elements for the defense to apply, “the State need
only disprove one element beyond a reasonable doubt.” Id.
[15] The abandonment defense did not apply to the facts of Strickland’s case. Even
if the primary reason Strickland did not pursue further action with C.C. was
because C.C. felt like a family member to Strickland, Strickland also
acknowledges, even in his brief to this Court, that he partially did not complete
the act due to C.C.’s size. See Appellant’s Br. p. 18. Accordingly, extrinsic
factors contributed to Strickland’s decision not to complete the sexual act with
C.C., and the defense of abandonment does not apply. Strickland, therefore,
cannot establish that he was prejudiced. The PC court’s denial of this claim
was not clearly erroneous.
B. Jury Instruction
[16] Strickland next argues that he received ineffective assistance of trial counsel
because his trial counsel failed to object to a jury instruction which Strickland
contends misstated the law. Specifically, Strickland takes issue with Instruction
11, which stated:
The Defendant has the burden of proving his defense that he reasonably believed that [C.C.] was sixteen (l6) years of age or older at the time of the occurrence. Defendant must prove this
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019 Page 8 of 13 defense by a preponderance of the evidence. When I say that a party has the burden to prove an issue by a preponderance of the evidence, I mean by the greater weight of the evidence. A greater number of witnesses testifying to a fact on one side or a greater quantity of evidence introduced on one side is not necessarily of the greater weight. The evidence given upon a fact that convinces you most strongly of its truthfulness is of the greater weight.
Jury Trial Tr. Vol. II p. 81. Indiana Code 35-42-4-9(c), which outlines the
elements of sexual misconduct with a minor, states that: “It is a defense that the
accused person reasonably believed that the child was at least sixteen (16) years
of age at the time of the conduct.” 1
[17] Our understanding of Strickland’s argument is that, had his trial counsel
objected to Instruction 11 as it was presented, and specifically, to the portion
that indicated, “defendant has the burden to prove his defense,” the trial court
would have been required to sustain the objection and omit the instruction.
Appellant’s Br. p. 14. We disagree with this statement and, to the extent that
Strickland is making a different argument, his argument is waived for failure to
make a cogent argument.
1 The version of Indiana Code Section 35-42-4-9(a)(1) in effect when Strickland’s offense was committed, stated: A person at least eighteen (18) years of age who, with a child at least fourteen (14) years of age but less than sixteen (16) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits sexual misconduct with a minor, a Class C felony. However, the offense is: (1) a Class B felony if it is committed by a person at least twenty-one (21) years of age
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019 Page 9 of 13 A defendant’s reasonable belief his victim is sixteen or older is a defense under the explicit terms of the statute. Such a defense admits all the elements of the crime but proves circumstances that excuse the defendant from culpability. Moon v. State, 823 N.E.2d 710, 715 (Ind. Ct. App. 2005), reh’g denied, trans. denied. The “mistaken belief” defense in Ind. Code § 35-42-4-9 does not negate an element of the crime; rather, if believed, the defense reduces [the defendant’s] culpability for acts he committed. See id. at 714. Therefore, the burden to prove the defense may properly be placed on the defendant. Id. The State has the burden of proving all elements of a charged crime beyond a reasonable doubt, but the burden of proving a defense may be placed on the defendant if proving the defense does not require him to negate an element of the crime. Id. When a defense addresses only the defendant’s culpability, the defendant may be assigned the burden to prove the defense by a preponderance of evidence. Id. at 715.
Weaver v. State, 845 N.E.2d 1066, 1069 (Ind. Ct. App. 2006).
[18] Here, Strickland’s counsel proposed an instruction regarding whether
Strickland reasonably believed that C.C. was sixteen years at the time of the
alleged offense; however, this was not the instruction the trial court used. The
instruction that Strickland’s trial counsel proposed was very similar to the one
offered in Moon v. State, 823 N.E.2d at 714.
[19] In Moon, the trial court rejected the defendant’s proposed jury instruction and,
instead, offered an instruction to the jury that defined the crime of sexual
misconduct with a minor, which stated: “It is a defense that the defendant
reasonably believed that [J.V.] was sixteen years of age or older. If the
defendant proved this by a preponderance of the evidence, you must find the
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019 Page 10 of 13 defendant not guilty of sexual misconduct with a minor. . . .” Id. This Court
held that the trial court’s instruction “was a correct statement of law because
the mistaken belief defense in Indiana Code § 35-42-4-9 does not negate an
element of the crime. . . .” Id.
[20] As the mistaken belief defense does not negate an element of the offense, there
is “no error in assigning to [Strickland] the burden to prove his reasonable belief
by a preponderance of [the] evidence, nor is there error in the trial court’s
corresponding instruction to the jury.” Id. Accordingly, Strickland cannot
prove prejudice because the trial court would not have been required to sustain
an objection to the instruction. See Overstreet v. State, 877 N.E.2d 144, 155 (Ind.
2007) (holding “in order to prevail on a claim of ineffective assistance due to the
failure to object, the defendant must show an objection would have been
sustained if made”). Strickland did not receive ineffective assistance of trial
counsel because his trial counsel did not object to the trial court’s Instruction
11. The PC court’s conclusion is not clearly erroneous.
C. Strickland’s Sentence
[21] Finally, Strickland argues that he received ineffective assistance of trial counsel
with regard to his sentence. Specifically, we understand Strickland’s argument
to be that he received ineffective assistance of counsel because trial counsel
failed to propose certain mitigating factors. To the extent Strickland is arguing
that his sentence is inappropriate or that the trial court abused its discretion in
sentencing Strickland, this issue should have been raised on direct appeal and
not at this stage. See Collins v. State, 817 N.E.2d 230, 232 (Ind. 2004) (“[A]n Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019 Page 11 of 13 issue known and available but not raised on direct appeal may not be raised in
post-conviction proceedings”). Accordingly, we only address Strickland’s
argument regarding trial counsel’s decision to not propose certain mitigators.
[22] At the PCR hearing, Strickland asked his counsel why he did not propose
several mitigators, including that: (1) “there was no death”; (2) “there was no
permanent physical impairment”; 2 (3) “there [were] no weapons involved”; (4)
“there was no evidence of deliberation or premeditation;” (5) Strickland’s
criminal history was not extensive and involved no crimes of violence; 3 (6)
Strickland was suffering from multiple mental disorders; (7) Strickland “had
good family support”; and (8) “the unique and unexplained circumstances
surrounding the charged crime tended to show that the alleged crime was not
likely to reoccur.” 4 PCR Tr. pp. 17-18.
[23] Even if trial counsel should have raised these mitigators, Strickland is unable to
establish prejudice because Strickland has not demonstrated that the trial court
would have accepted the proposed mitigators or that Strickland’s sentence
would have turned out differently as a result. A trial court is not obligated to
2 The pre-sentence investigation report (“PSI”) indicates that, according to C.C.’s mother, C.C. is in treatment and on medication due to the offense. 3 The PSI indicates that Strickland’s criminal history includes convictions for leaving the scene of an accident, Class B misdemeanor; minor consuming alcoholic beverage, Class C misdemeanor; battery, Class A misdemeanor; minor consuming alcoholic beverage, Class C misdemeanor; driving while suspended, Class A misdemeanor; two counts of forgery, Class C felonies; theft, Class D felony; driving while suspended, Class A misdemeanor; domestic battery, Class A misdemeanor; dealing in a schedule II controlled substance, Class B felony; and a probation violation. 4 Strickland has not indicated what those circumstances are.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019 Page 12 of 13 accept a defendant’s claim as to what constitutes a mitigating factor. Rascoe v.
State, 736 N.E.2d 246, 249 (Ind. 2000). A claim that the trial court failed to
find a mitigating factor requires the defendant to establish that the mitigating
evidence is both significant and clearly supported by the record. Anglemyer v.
State, 868 N.E.2d 482, 493 (Ind. 2007). Strickland has not done either.
Accordingly, the PC Court’s conclusion is not clearly erroneous.
Conclusion
[24] Strickland did not receive ineffective assistance of trial counsel; therefore, the
PC court’s denial of his petition for PCR is not clearly erroneous. We affirm.
[25] Affirmed.
Crone, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019 Page 13 of 13