MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 23 2020, 9:08 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cynthia M. Carter Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Chad Malone, July 23, 2020 Appellant-Petitioner, Court of Appeals Case No. 19A-PC-2207 v. Appeal from the Wayne Circuit Court State of Indiana, The Honorable David Kolger, Appellee-Respondent. Judge Trial Court Cause No. 89C01-1404-PC-7
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 1 of 23 Case Summary
[1] Chad Malone appeals the denial of his petition for post-conviction relief,
claiming that his trial counsel was ineffective on several grounds, including the
alleged failure to interview witnesses prior to trial and failure to proffer a jury
instruction on criminal recklessness, a lesser included offense of attempted
murder. Malone also contends that he is entitled to relief because “an
unconstitutional conflict of interest arose” when the deputy prosecutor who
tried his attempted murder case declined to recuse herself because she had
previously represented him as defense counsel in an unrelated marijuana case.
Appellant’s Brief at 33.
[2] We affirm.
Facts and Procedural History [3] In Malone’s direct appeal, this court summarized the facts regarding his
convictions on two counts of class A felony attempted murder, as follows:
One afternoon in September 2011, Valerie Grubbs had a disagreement with Carey Parkhurst and Corey Groce. Valerie told Malone about it, and they drove around looking for Carey and [Groce]. They found the pair sitting in a gray sedan in the drive-through lane of a nearby McDonald’s in Richmond. As [Grubbs] pulled her car alongside the sedan, Malone pulled out a Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 2 of 23 gun and fired six shots at Carey and [Groce]. [Grubbs] and Malone fled the scene.
Carey and [Groce] were treated for gunshot wounds at a local hospital. Carey had been shot in the chest and right arm. [Groce] had also been shot in the arm. [Groce’s] wounds required surgery in which veins from his leg were used to repair veins in his arm. Both eventually recovered, though [Groce] has numbness in his arm and limited use of his hand.
Malone v. State, No. 89A01-1302-CR-71, slip op. at 2 (Ind. Ct. App. Oct. 29,
2013). Following the shootings, the State charged Malone, who was twenty
years old at the time, with two counts of attempted murder, a Class A felony.
[4] Several days after the shooting, Malone’s mother, Tammy Tellas, agreed to be
interviewed by a Richmond police detective. Tellas told the detective that she
and Groce had been previously involved in a romantic relationship and had
lived together at some point. She recounted an incident that had occurred
several weeks earlier, where Groce burglarized her apartment, kicked in an air
conditioning unit, and injured Malone’s stepfather, Cairo Hardin.
[5] Malone was represented by three different public defenders while his case was
pending. The trial court granted a total of six continuances prior to trial, and
about two weeks before the trial was to commence, Malone retained attorney
David Jordan (trial counsel) to represent him. Trial counsel immediately
requested a continuance, stating that Malone’s family had recently acquired
funds to hire private counsel. The trial court denied this seventh request to
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 3 of 23 continue the trial and that same day, the State moved to amend the charging
information against Malone as follows:
COUNT I:
[O]n or about September 16th, 2011, in Wayne County, State of Indiana, Chad Malone did intentionally engage in a substantial step toward the commission of the criminal offense of Murder, to-wit: Chad Malone intentionally attempted to kill Corey Groce by discharging a firearm causing a bullet to strike Corey Groce about the body. . . .
COUNT II:
[O]n or about September 16th, 2011, in Wayne County, State of Indiana, Chad Malone did intentionally engage in a substantial step toward the commission of the criminal offense of Murder, to-wit: Chad Malone intentionally attempted to kill Casey Parkhurst by discharging a firearm causing a bullet to strike Casey Parkhurst about the body. . . .
Appellant’s Appendix at 102 (emphasis added). The original charging
information did not include language that Malone “intentionally” attempted to
kill the victims.
[6] Shortly after Malone retained trial counsel, Malone’s public defender provided
trial counsel with the case file that included nearly 200 exhibits, discovery
materials, and a list of nearly forty witnesses, one of which was Tellas. Among
those materials was a copy of the statement Tellas provided to the Richmond
police detective. Trial counsel reviewed Tellas’s statement and decided not to
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 4 of 23 investigate Tellas’s allegations regarding the prior burglary and battery incident.
Trial counsel believed that the State would likely consider those circumstances
as Malone’s motive and intent for shooting Groce. Trial counsel did not
interview Tellas, Grubbs, or Hardin prior to trial.
[7] During the jury trial that commenced on December 11, 2012, the State called
both Hardin and Grubbs to testify. Grubbs testified that on the day of the
shooting, she and Malone were at an apartment building picking up some
items. While Malone was in the apartment, Grubbs waited in the car and at
some point, she saw Groce’s vehicle approach and “almost side-swipe” her car.
Trial Transcript at 610. Grubbs identified the occupants of the vehicle as
Parkhurst and Groce. Grubbs testified that she exited her vehicle, threw up her
arms and “start[ed] screaming [and] calling them names.” Id. When Malone
returned to the car, he got into the passenger seat and Grubbs then began
chasing Groce.
[8] After noticing Groce’s vehicle in a drive-through lane at a nearby McDonald’s,
Grubbs pulled up and stopped her vehicle. Malone immediately pulled out a
gun and began shooting into Groce’s car. Grubbs testified that she was aware
of some “bad blood” between Groce and Malone. Id. at 611. At that point,
trial counsel objected, and there was no further questioning regarding the
existence of any feud between Malone and Groce.
[9] At the conclusion of the three-day trial, Malone was found guilty as charged.
Thereafter, Malone was sentenced to thirty-five years on Count I and to forty
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 5 of 23 years on Count II, to be served consecutively, for an aggregate term of seventy-
five years. The trial court identified several aggravating factors, including
Malone’s criminal history, and that the offenses had been committed in the
presence of a minor. The trial court also noted that the nature and
circumstances of the crime went beyond “the minimal conduct necessary to
violate the applicable statutes,” that Malone had violated a protective order
when committing the underlying offenses, that Malone was in violation of
probation and pretrial release, and that Malone had violated the terms of his
bond by committing the underlying offenses. See id. at 872-79. The trial court
rejected Malone’s age as a mitigating factor and afforded minimal weight to
Malone’s troubled childhood as a mitigator. The trial court also concluded that
Groce’s alleged inducement or facilitation of the crimes was not a statutory
mitigating circumstance.
[10] Malone appealed to this court, claiming that his sentence was inappropriate and
that the trial court abused its discretion in denying his seventh motion for a
continuance. We affirmed Malone’s convictions and sentence in an
unpublished memorandum decision on October 29, 2013.
[11] On April 23, 2018, Malone filed an amended petition for post-conviction relief,
claiming that trial counsel was ineffective for failing to: (1) interview various
witnesses prior to trial; (2) object to the State’s amendments of the charging
information; (3) proffer a jury instruction for criminal recklessness; (4) present
adequate mitigating evidence at sentencing; and (5) object to an alleged conflict
of interest concerning the deputy prosecutor who tried Malone’s case.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 6 of 23 [12] Following a hearing on May 15, 2019, the post-conviction court entered
findings of fact and conclusions of law denying Malone’s request for relief. It
determined that trial counsel was well-prepared, employed reasonable strategies
on Malone’s behalf, and his decision not to object to the State’s amended
charging information was reasonable because the amendments merely clarified
the State’s burden of proof.
[13] The post-conviction court also noted that trial counsel had received all of the
relevant documents and materials from Malone’s previous attorneys, that
Malone failed to show how an additional continuance would have benefited
him, and that it was a reasonable strategy for trial counsel to proceed without
requesting an instruction on the lesser-included offense of criminal
recklessness. Moreover, it determined that trial counsel’s decision to not focus
on the contentious relationship between Malone and Groce was a reasonable
strategy because the State likely would have used that circumstance as evidence
of Malone’s specific intent and motive to commit the offenses.
[14] The post-conviction court concluded that the deputy prosecutor had no duty to
recuse herself from the attempted murder trial, inasmuch as her representation
of Malone as defense counsel in the prior marijuana case was wholly unrelated
to the attempted murder case, and the prior case was resolved two years before
the attempted murder offenses. Finally, the court concluded that trial counsel
was not ineffective for not investigating and presenting alleged mitigating
evidence of “juvenile brain development,” or offering evidence that Groce in
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 7 of 23 some way provoked the attack. PCR Appendix Vol. II at 147-48. Malone now
appeals.
Discussion and Decision
I. Standard of Review
[15] Our standard of review in post-conviction proceedings is well-settled:
[P]ost-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.
Jent v. State, 120 N.E.3d 290, 92-93 (Ind. Ct. App. 2019), trans. denied (quoting
Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal citations
omitted), trans. denied).
II. Ineffective Assistance of Counsel
[16] Malone argues that he is entitled to post-conviction relief because trial counsel
was ineffective for failing to: (a) interview and present witnesses; (b) object to
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 8 of 23 the State’s amendment of the charging information; (c) proffer instructions on
the lesser-included offense of criminal recklessness; (d) present exculpatory and
mitigating evidence at sentencing; and (e) object to the deputy prosecutor’s
potential conflict of interest.
[17] The Sixth Amendment to the United States Constitution guarantees a person
accused of a crime the “right to be represented by counsel.” United States v.
Cronic, 466 U.S. 648, 655 (1984). In ineffective assistance of counsel cases,
reversal is appropriate where a defendant shows both that counsel’s
performance fell below an objective standard of reasonableness and that said
deficient performance so prejudiced the defendant as to deprive him of a fair
trial. Pennycuff v. State, 745 N.E.2d 804, 811 (Ind. 2001) (citing Strickland v.
Washington, 466 U.S. 668, 697 (1984)). There is a strong presumption that
counsel rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment. Id. Judicial scrutiny of counsel’s
performance is highly deferential and should not be exercised through the
distortions of hindsight. Id. Isolated poor strategy, inexperience, or bad tactics
do not necessarily amount to ineffectiveness of counsel. Id. When considering
ineffective assistance of counsel claims, we “judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed as of the
time of counsel’s conduct.” Id. (citing Strickland, 466 U.S. at 690). A claim that
trial counsel was ineffective may be disposed of on the prejudice inquiry alone.
Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999); Lee v. State, 91 N.E.3d
978, 984 (Ind. Ct. App. 2017), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 9 of 23 1. Potential Witnesses
[18] Malone argues that trial counsel was ineffective for failing to “do his
groundwork” by not fully investigating and interviewing several potential
witnesses prior to trial. Appellant’s Brief at 20. More specifically, Malone claims
that trial counsel’s failure to interview the potential witnesses about the
contentious relationship that he had with Groce prevented the discovery of
evidence demonstrating that Groce was not merely an “innocent” victim. Id. at
16, 27.
[19] Counsel has a duty to make reasonable investigations or to make a reasonable
decision that a particular investigation is unnecessary. Ritchie v. State, 875
N.E.2d 706, 719 (Ind. 2007). A “less than complete investigation” of a
particular witness is not deficient performance if “reasonable professional
judgments support the limitation on investigation.” Strickland, 466 U.S. at 690-
91. In those circumstances, the duty to investigate gives way to reasonable trial
strategy. See Wilkes v. State, 984 N.E.2d 1236, 1244-45 (Ind. 2013). In reviewing
counsel’s trial performance, “strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Knowles v. Mirzayance, 556 U.S. 111, 124 (2009) (citing
Strickland, 466 U.S. at 690); see also McKnight v. State, 1 N.E.3d 193, 201 (Ind.
Ct. App. 2013).
[20] In support of his claim, Malone directs us to the testimony of various witnesses
at the post-conviction hearing, which suggests that Groce provoked Malone
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 10 of 23 because of the previous home invasion and physical assault against a member
of Malone’s family. Malone claims that Tellas would have testified that she
and Groce had dated at some point, and that Groce had allegedly burglarized
her residence and had stabbed her husband (Malone’s stepfather) several
months before the shootings.
[21] Trial counsel’s defense strategy, however, focused on the lack of Malone’s
specific intent, in that his actions were not intended to cause either victim’s
death. That strategy negated the only material element of the offense that was
seriously disputed. None of the incidents the witnesses were expected to
describe directly involved Malone, and they had occurred weeks or months
prior to the shootings. Moreover, there was nothing novel about this evidence
that would have established a lack of specific intent on Malone’s part. To the
contrary, as the post-conviction court observed, such evidence could have
provided the jury with a motive for the shootings, i.e., that Groce had
previously dated Malone’s mother, burglarized her home, and stabbed his
stepfather.
[22] We also note that criminal charges relating to the shootings were pending
against Grubbs at the time of Malone’s trial. 1 Grubbs’s testimony about
Malone’s contentious relationship with Groce could very well have prompted
her to exercise her right against self-incrimination, thereby preventing that
1 Grubbs admitted that she had provided the transportation to Malone for the purpose of shooting the victims.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 11 of 23 evidence from being offered at trial. In fact, trial counsel successfully objected
to the State’s questioning of Grubbs when she was asked about the alleged
ongoing feud between Malone and Groce. Moreover, as with the proposed
testimony from Tellas, the admission of such testimony from Grubbs would
have provided the jury with Malone’s motive for shooting the victims and
would have undermined trial counsel’s lack of specific intent to kill defense.
[23] In sum, to focus on the contentious relationship between Groce and Malone
would effectively have supported the State’s theory of the case. Trial counsel
chose a reasonable defense to try to negate the specific intent element of the
charged offenses, and to that end, he made the strategic decision to not provide
the jury with any evidence of motive. Thus, trial counsel exercised a sound trial
strategy not to pursue further investigation and interview the potential witnesses
identified by Malone. Thus, we reject Malone’s claim that trial counsel was
ineffective on this basis.
2. Continuance
[24] Malone argues that trial counsel was ineffective for failing to request a
continuance after the State amended the charging information. Malone claims
that the amendments affected his substantial rights and necessarily required
additional time for trial counsel to adequately prepare for trial.
[25] The State correctly acknowledges that the purpose of a petition for post-
conviction relief is to raise issues unknown or unavailable to a defendant at the
time of the original trial and appeal. Taylor v. State, 840 N.E.2d 324, 330 (Ind.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 12 of 23 2006). If an issue was raised on direct appeal, but decided adversely to the
petitioner, it is res judicata, thus precluding its review in post-conviction
proceedings. Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006); Trueblood v. State,
715 N.E.2d 1242, 1248 (Ind. 1999). In other words, the doctrine of res judicata
prevents the repetitious litigation of that which is essentially the same dispute.
Sweeney v. State, 704 N.E.2d 86, 94 (Ind. 1998).
[26] We note that a petitioner for post-conviction relief cannot escape the effect of
claim preclusion merely by using different language to phrase an issue and
define an alleged error. State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000). Thus,
“where an issue, although differently designated, was previously considered and
determined upon a criminal defendant’s direct appeal, the State may defend
against defendant’s post-conviction relief petition on grounds of prior
adjudication or res judicata.” Cambridge v. State, 468 N.E.2d 1047, 1049 (Ind.
1984) (emphasis in original).
[27] In this case, Malone argued on direct appeal that the trial court abused its
discretion in denying his motion for a continuance “because he wished to be
represented by private counsel.” Slip op. at 4. At the post-conviction level,
Malone asserted that trial counsel was ineffective for failing to advance a proper
argument for requesting the continuance, i.e., there was a substantive change to
the charging information that would have allowed him to “properly investigate
the case and develop the criminal recklessness theory.” Appellant’s Reply Brief at
30-31.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 13 of 23 [28] Contrary to the State’s contention, we do not view Malone’s claim on post-
conviction relief as using “different language” to rephrase an issue that was
adversely decided on direct appeal. Thus, the doctrine of res judicata is
inapplicable here, and we will address Malone’s ineffective assistance of
counsel claim. See Reed, 856 N.E.2d at 1195 (holding that the doctrine of res
judicata did not bar the defendant’s claim on post-conviction relief where,
although a sentencing issue was raised on direct appeal, no argument was made
that the defendant’s sentence was improper because it was governed by the
provisions of a specific statute that limits a court’s authority to impose
consecutive sentences in certain circumstances).
[29] Ind. Code § 35-34-1-5 (d) provides that when the State amends a charging
information, the trial court “shall upon motion by the defendant order any
continuance of the proceeding which may be necessary to accord the defendant
adequate opportunity to prepare his defense.” The ultimate question is whether
the defendant “had a reasonable opportunity to prepare for and defend against
the charges.” Stafford v. State, 890 N.E.2d 744, 752 (Ind. Ct. App. 2008).
[30] In this case, the amendments removed language from the original charging
information alleging that Malone “knowingly or intentionally” attempted to kill
Groce and Parkhurst and replaced it with language alleging that Malone
“intentionally attempted to kill” Groce and Parkhurst. Appendix at 16, 102. In
accordance with Spradlin v. State, specific intent to kill is an essential element of
the crime of attempted murder. 569 N.E.2d 948, 951 (Ind. 1991). Hence, the
State’s amendments merely replaced an incorrect mens rea element with the
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 14 of 23 correct one. Additionally, the amendments added no charges against Malone,
they did not alter the time, date, or location of the alleged offenses, and the
identities of the victims were not changed. In short, the amendments were non-
substantive changes to the charging information that did not affect any of
Malone’s substantial rights.
[31] There was also no testimony from trial counsel at the post-conviction hearing
suggesting that he had relied on the State’s initial erroneously-charged mens rea
while formulating Malone’s defense. To the contrary, trial counsel possessed
all the evidence necessary to proceed with his chosen defense, even after the
amendments. Thus, Malone would not have been entitled to a continuance,
even had trial counsel requested one.
[32] For all of these reasons, we conclude that Malone has failed to demonstrate that
trial counsel was ineffective on this basis.
3. Lesser Included Offense Instructions
[33] Malone argues that trial counsel was ineffective for failing to proffer
instructions on the lesser included offense of criminal recklessness. Malone
claims that there was no strategic reason for not requesting such an instruction
and the “all or nothing defense made no sense” under these circumstances. He
maintains that the jury should have been given the option to find him guilty of
criminal recklessness.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 15 of 23 [34] The offense of murder is committed when “[a] person . . . knowingly or
intentionally kills another human being.” Ind. Code § 35-42-1-1. An individual
attempts to commit murder when he, “acting with the culpability required for
the commission of the crime,” engages “in conduct that constitutes a substantial
step toward the commission” of murder. Ind. Code § 35-41-5-1(a).
I.C. § 35-42-2-2 provides that criminal recklessness is committed when a
defendant “recklessly, knowingly or intentionally . . . inflicts serious bodily
injury on another person.” A person engages in conduct “recklessly” if he
“engages in the conduct in plain, conscious, and unjustifiable disregard of harm
that might result and the disregard involves a substantial deviation from
acceptable standards of conduct.” I. C. § 35-41-2-2(c).
[35] At the post-conviction hearing, the evidence established that Malone’s trial
counsel considered offering a criminal recklessness instruction but ultimately
decided against doing so. Trial counsel was concerned that such an instruction
would likely prompt the State to offer its own instructions for Class B felony
battery. Hence, trial counsel believed that convicting Malone of a Class B
felony offense would have “been a promising way to ensure that convictions
and sentences on Class B felonies would have [likely] . . . ensure[d] that
[Malone] was going to get a boat load of time with convictions on some lesser
includeds.” PCR Transcript at 175. Counsel also believed that “there was . . .
overwhelming evidence that [Malone] committed the B felony, so [he] didn’t
want them in because I liked where we were at . . . the time the jury got the
case.” Id. at 177-78.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 16 of 23 [36] Although Malone asserts that his trial counsel’s “all-or-nothing strategy”
regarding jury instructions was unreasonable because the jury may have been
persuaded to convict him of a lesser alternative to a Class A felony, this is
precisely the type of critical evaluation of counsel’s performance that is not
permitted. See Premo v. Moore, 562 U.S. 115, 125 (2011) (observing that
Strickland does not permit counsel’s performance to be evaluated with the
benefit of hindsight). As our Supreme Court commented in Page, “[i]t is not
sound policy for this Court to second-guess an attorney through the distortions
of hindsight.” 615 N.E.2d at 896. Hence, trial counsel’s pursuit of an acquittal
in this case, rather than taking the chance of a conviction for a serious felony,
was a reasonable strategic choice at the time. Thus, we cannot say that trial
counsel’s decision to not pursue an instruction on lesser-included offenses
amounted to ineffective assistance of counsel.
4. Alleged Mitigating Evidence
[37] Malone next claims that trial counsel was ineffective because Groce’s
provocation of the ongoing dispute with Malone should have been presented as
mitigating evidence at sentencing. Malone further contends that trial counsel
should have presented evidence that juvenile offenders have reduced culpability
for their actions because of their “attendant lack of wisdom and discernment.”
Appellant’s Brief at 29.
[38] The right to effective counsel imposes an obligation on defense attorneys to
investigate and present mitigating factors at sentencing that may reduce a
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 17 of 23 defendant’s overall sentence. Gibson v. State, 133 N.E.3d 673, 689 (Ind. 2019).
The rule in Strickland, however, has never been construed to require counsel to
investigate “every conceivable line of mitigating evidence no matter how
unlikely the effort would be to assist the defendant at sentencing.” Wiggins v.
Smith, 539 U.S. 510, 533 (2003) (citing Strickland, 466 U.S. at 689). As in all
matters of trial strategy, counsel’s decision not to investigate certain mitigating
evidence is entitled to broad judicial deference. See Gibson, 133 N.E.3d at 689.
Thus, a question of whether counsel performed deficiently in preparing for a
defendant’s sentencing hearing hinges on whether the investigation supporting
counsel’s penalty-phase strategy was reasonable, and “not whether counsel
should have presented more in mitigation.” Ritchie, 875 N.E.2d at 719.
[39] Malone suggests that the ongoing feud with Groce supported a mitigating
circumstance that the victim “induced or facilitated the offense,” under Ind.
Code § 35-38-1-7.1(b)(3). Although trial counsel testified at the post-conviction
hearing that he did not explore the issue of the victim and Malone’s prior
relationship, there was no evidence that Groce posed an immediate threat to
Malone or to any of Malone’s family members, or that Groce did anything else
to provoke the incident. Hence, we cannot say that trial counsel was ineffective
in not offering evidence at sentencing that Groce may have induced or
facilitated the commission of the offense.
[40] Malone also contends that trial counsel was ineffective for failing to present
scientific evidence or properly argue relevant case law at the sentencing hearing
regarding a juvenile offender’s lack of brain development “and [his or her]
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 18 of 23 attendant lack of wisdom and discernment.” Appellant’s Brief at 29. Malone
asserts that the trial court could have considered such evidence as a mitigating
factor that may have resulted in a reduced sentence.
[41] We initially observe that an argument at sentencing “focusing on chronological
age is a common shorthand for measuring culpability, but for people in their
teens and early twenties it is frequently not the end of the inquiry.” Ellis v. State,
736 N.E.2d 731, 736 (Ind. 2000). Indeed, there are “relatively old offenders
who seem clueless and relatively young ones who appear hardened.” Id. A
finding of age as a mitigating circumstance is an individualized determination
that turns on the facts of a particular case and is subject to the trial court’s broad
sentencing discretion, particularly when it is being advanced for an offender
who is no longer legally a juvenile. Johnson v. State, 725 N.E.2d 864, 868 (Ind.
2000).
[42] Malone directs us to Miller v. Alabama, 567 U.S. 460 (2012), where it was held
that mandatory life imprisonment without parole sentences for juvenile
offenders under eighteen years of age are categorically unconstitutional. The
Miller Court determined that sentencing courts must “take into account how
children are different” based on a number of developmental factors, like
“immaturity, impetuosity, and failure to appreciate risks and consequences.”
Id. at 477-79; see also Taylor v. State, 86 N.E.3d 157, 166 (Ind. 2017) (where our
Supreme Court, in reviewing the seventeen-year-old defendant’s life without
parole sentence, observed that children lack maturity, are vulnerable to negative
influences and pressures, and are less likely to show “irretrievable depravity”).
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 19 of 23 This rule, however, applies to the sentencing of “children,” not adults, and
nothing in the Miller rationale addresses sentencing offenders who are over the
age of eighteen at the time their offenses are committed.
[43] Two additional cases, Roper v. Simmons, 543 U.S. 551, 569 (2005), and Graham
v. Florida, 560 U.S. 48, 68 (2011), discuss various scientific studies concerning
the cognitive development of adolescent youth. In neither of those cases did the
Court set forth firm rules as to how such evidence should be considered for
mitigation purposes in criminal proceedings. Moreover, the limited holdings
and rationales advanced in Miller, Roper, and Graham, have no obvious
applicability in Malone’s case, given that Malone was nearly twenty-one years
old when he committed the charged offenses.
[44] Even so, the trial court had substantial information before it at the sentencing
hearing showing Malone’s developmental state and culpability. Specifically,
the psychological evaluation that assessed Malone’s competency to stand trial
was attached to the presentence investigation report. During the evaluation,
Malone told the interviewer that when he noticed Groce, “I’m shooting ‘em. I
could’ve killed him. I wanted to scare them.” Pre-sentence Report at 24. When
Malone was asked if he knew he could face legal consequences for his behavior,
he stated, “I didn’t care,” and attempted to blame his behavior, at least in part,
on his substance abuse. Id. Malone further stated that, after the shooting, he
fled the scene and absconded to Indianapolis, where he remained until he
surrendered to police.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 20 of 23 [45] In sum, there is no evidence suggesting that Malone had diminished culpability
and that his actions were directly traceable to his youth. Simply put, there was
no compelling reason for the trial court to conclude that Malone’s age was a
significant mitigator that warranted a lesser sentence. Hence, defense counsel’s
lack of argument pursuant to Miller, Graham, and Roper was reasonable and,
therefore, did not constitute the ineffective assistance of counsel.
5. Conflict of Interest
[46] Malone next argues that he is entitled to post-conviction relief because trial
counsel did not object to the deputy prosecutor’s potential conflict of interest in
this case, inasmuch as the record shows that she had represented Malone as
defense counsel in an unrelated criminal case two years before the instant
offenses occurred.
[47] To establish that counsel performed deficiently by failing to raise an objection at
trial, the defendant must show that had defense counsel made the objection, the
trial court “would have had no choice but to sustain it.” Taylor v. State, 689
N.E.2d 699, 705 (Ind. 1997); Kimbrough v. State, 911 N.E.2d 621, 640 (Ind. Ct.
App. 2009). As for instances relating to conflicts of interest in criminal settings,
our Supreme Court has held that
[A] lawyer must be disqualified if it is shown that the controversy involved in the pending case is substantially related to a matter in which the lawyer previously represented another client. The test must be applied to the facts of each case to determine whether the issues in the prior and present cases are essentially the same or are closely interwoven therewith. Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 21 of 23 Johnson v. State, 675 N.E.2d 678, 682 (Ind. 1996). Additionally, this court has
determined that “[a]n actual conflict of interest arises where a prosecutor places
himself in a situation inherently conducive to dividing his loyalties between his
duties to the State and his personal interests.” Swallow v. State, 19 N.E.3d 396,
399 (Ind. Ct. App. 2014). The primary concern in this analysis is “whether the
prosecuting attorney gained any confidential information through their prior
association” with a defendant and whether that information subsequently
“provided assistance to the prosecution.” Johnson, 675 N.E.2d at 682.
[48] In this case, it is undisputed that the deputy prosecutor in the attempted murder
case had previously represented Malone in a prior unrelated marijuana
possession case. Malone has not established any link or connection between
the two different criminal prosecutions. Moreover, both Malone and trial
counsel acknowledged at the post-conviction relief hearing that no confidential
information obtained from the prosecution of the marijuana case was ever
placed before the jury during the attempted murder trial, and there was no
allegation that the deputy prosecutor learned anything in the prior case that
aided her prosecution of Malone for the instant offenses. Hence, there was no
basis for her recusal, and the trial court would not have sustained trial counsel’s
objection on the grounds that a conflict of interest existed, even if one had been
made. Therefore, Malone’s claim of ineffective assistance of counsel on this
basis, fails.
[49] Judgment affirmed.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 22 of 23 Bailey, J. and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 23 of 23