MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 17 2016, 6:29 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Gregory F. Zoeller Public Defender of Indiana Attorney General of Indiana John Pinnow Larry D. Allen Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Clyde L. Smith, March 17, 2016 Appellant-Petitioner, Court of Appeals Case No. 71A05-1508-PC-1136 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jerome Frese, Appellee-Respondent. Judge Trial Court Cause No. 71D03-1206-PC-25
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016 Page 1 of 8 STATEMENT OF THE CASE
[1] Appellant-Defendant, Clyde L. Smith (Smith), appeals the post-conviction
court’s denial of his petition for post-conviction relief.
[2] We affirm.
ISSUE
[3] Smith raises one issue on appeal, which we restate as follows: Whether Smith’s
trial counsel provided ineffective assistance.
FACTS AND PROCEDURAL HISTORY
[4] Smith and his wife, Juanita Smith (Juanita), adopted and raised their biological
granddaughters, A.S. (born in October of 1992) and C.S. (born in February of
1994), when the girls were respectively three and two years old. Smith
frequently played games with A.S. and C.S. in the basement of their house.
During these games, he would make the girls perform fellatio on him when he
won. To avoid exposure, Smith used the word “chocolate” as the code name
for wanting oral sex from the girls. (Appellant’s App. p. 84). Smith would take
them to the “boom boom” room in the basement and would turn the lights off
during the act. (Appellant’s App. p. 93). He would sometimes have one of the
girls look out for their grandmother, while the other performed oral sex on him.
Smith also attempted to penetrate A.S.’s vagina with his penis at least once;
however, he stopped because it was painful for her. These abuses continued for
more than two years until 2006.
Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016 Page 2 of 8 [5] At some point, when A.S. was in middle school, she told Juanita that Smith
was molesting both girls. Juanita confronted Smith, and he admitted to the
allegations. She, however, did not report the molestations and did not seek
counseling for the girls. Instead, Juanita and the girls moved out of the house
into her daughter’s nearby apartment. Two or three months later, Juanita,
A.S., and C.S., returned to the house with Smith.
[6] In September, 2011, several years after Juanita learned of the abuses, a teacher
overheard C.S. talking with a classmate about the molestations. The teacher
reported the incident, and Detective Dave Sult (Detective Sult) of the St. Joseph
County Special Victims Unit initiated an investigation. After waiving his
Miranda rights, Smith admitted to Detective Sult that he had molested the girls
for several years.
[7] On October 5, 2011, the State filed an Information charging Smith with one
Count of attempted child molesting and four Counts of child molesting, all
Class A felonies. Smith’s counsel negotiated a plea agreement that provided
that Smith would plead guilty to three of the five Counts. The trial counsel also
negotiated a maximum executed cap of sixty-five years. Smith waived his right
to appeal the sentence as long as the court sentenced him within the parameters
of the plea agreement. The trial court took the guilty plea under advisement
and ordered the preparation of a pre-sentence investigation report.
[8] On January 24, 2012, Smith pled guilty to one Count of attempted child
molesting and two Counts of child molesting, all Class A felonies. On
Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016 Page 3 of 8 February 22, 2012, the trial court held Smith’s sentencing hearing and
sentenced him to an aggregate sentence of sixty-five years.
[9] After filing and amending his petition for post-conviction relief in 2012 and
2013, both pro se and with the help of public defenders, Smith filed his last
amendment on February 12, 2015. On July 17, 2015, the post-conviction court
held an evidentiary hearing and, on July 27, 2015, denied Smith’s petition for
relief.
[10] Smith now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[11] Smith argues that his trial counsel rendered ineffective assistance. It is
generally accepted that the petitioner in a post-conviction proceeding bears the
burden of establishing grounds for relief by a preponderance of the evidence.
Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the
denial of post-conviction relief, the petitioner stands in the position of one
appealing from a negative judgment. Id. On review, we will not reverse the
judgment unless the evidence as a whole unerringly and unmistakably leads to a
conclusion opposite that reached by the post-conviction court. Id. Further, the
post-conviction court in this case entered findings of fact and conclusions
thereon in accordance with Indiana Post-Conviction Rule 1(6). Id. “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.” Id. In this review, we accept findings of fact unless
Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016 Page 4 of 8 clearly erroneous, but we accord no deference to conclusions of law. Id. The
post-conviction court is the sole judge of the weight of the evidence and the
credibility of witnesses. Id.
[12] To prevail on a claim of ineffective assistance of counsel, a petitioner must
demonstrate both that his counsel’s performance was deficient and that 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), reh’g denied, cert. denied, 534 U.S. 830
(2001). A counsel’s performance is deficient if it falls below an objective
standard of reasonableness based on prevailing professional norms. French v.
State, 778 N.E.2d 816, 824 (Ind. 2002). To meet the appropriate test for
prejudice, the petitioner must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different. Id. Failure to satisfy either prong will cause the claim to fail.
Id.
[13] Smith first claims that his trial counsel’s performance was deficient because the
trial counsel did not present mitigating evidence beyond Smith’s lack of
criminal history.
[14] To support his argument, Smith cites to Wiggins v. Smith,
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 17 2016, 6:29 am
this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Gregory F. Zoeller Public Defender of Indiana Attorney General of Indiana John Pinnow Larry D. Allen Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Clyde L. Smith, March 17, 2016 Appellant-Petitioner, Court of Appeals Case No. 71A05-1508-PC-1136 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jerome Frese, Appellee-Respondent. Judge Trial Court Cause No. 71D03-1206-PC-25
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016 Page 1 of 8 STATEMENT OF THE CASE
[1] Appellant-Defendant, Clyde L. Smith (Smith), appeals the post-conviction
court’s denial of his petition for post-conviction relief.
[2] We affirm.
ISSUE
[3] Smith raises one issue on appeal, which we restate as follows: Whether Smith’s
trial counsel provided ineffective assistance.
FACTS AND PROCEDURAL HISTORY
[4] Smith and his wife, Juanita Smith (Juanita), adopted and raised their biological
granddaughters, A.S. (born in October of 1992) and C.S. (born in February of
1994), when the girls were respectively three and two years old. Smith
frequently played games with A.S. and C.S. in the basement of their house.
During these games, he would make the girls perform fellatio on him when he
won. To avoid exposure, Smith used the word “chocolate” as the code name
for wanting oral sex from the girls. (Appellant’s App. p. 84). Smith would take
them to the “boom boom” room in the basement and would turn the lights off
during the act. (Appellant’s App. p. 93). He would sometimes have one of the
girls look out for their grandmother, while the other performed oral sex on him.
Smith also attempted to penetrate A.S.’s vagina with his penis at least once;
however, he stopped because it was painful for her. These abuses continued for
more than two years until 2006.
Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016 Page 2 of 8 [5] At some point, when A.S. was in middle school, she told Juanita that Smith
was molesting both girls. Juanita confronted Smith, and he admitted to the
allegations. She, however, did not report the molestations and did not seek
counseling for the girls. Instead, Juanita and the girls moved out of the house
into her daughter’s nearby apartment. Two or three months later, Juanita,
A.S., and C.S., returned to the house with Smith.
[6] In September, 2011, several years after Juanita learned of the abuses, a teacher
overheard C.S. talking with a classmate about the molestations. The teacher
reported the incident, and Detective Dave Sult (Detective Sult) of the St. Joseph
County Special Victims Unit initiated an investigation. After waiving his
Miranda rights, Smith admitted to Detective Sult that he had molested the girls
for several years.
[7] On October 5, 2011, the State filed an Information charging Smith with one
Count of attempted child molesting and four Counts of child molesting, all
Class A felonies. Smith’s counsel negotiated a plea agreement that provided
that Smith would plead guilty to three of the five Counts. The trial counsel also
negotiated a maximum executed cap of sixty-five years. Smith waived his right
to appeal the sentence as long as the court sentenced him within the parameters
of the plea agreement. The trial court took the guilty plea under advisement
and ordered the preparation of a pre-sentence investigation report.
[8] On January 24, 2012, Smith pled guilty to one Count of attempted child
molesting and two Counts of child molesting, all Class A felonies. On
Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016 Page 3 of 8 February 22, 2012, the trial court held Smith’s sentencing hearing and
sentenced him to an aggregate sentence of sixty-five years.
[9] After filing and amending his petition for post-conviction relief in 2012 and
2013, both pro se and with the help of public defenders, Smith filed his last
amendment on February 12, 2015. On July 17, 2015, the post-conviction court
held an evidentiary hearing and, on July 27, 2015, denied Smith’s petition for
relief.
[10] Smith now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[11] Smith argues that his trial counsel rendered ineffective assistance. It is
generally accepted that the petitioner in a post-conviction proceeding bears the
burden of establishing grounds for relief by a preponderance of the evidence.
Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the
denial of post-conviction relief, the petitioner stands in the position of one
appealing from a negative judgment. Id. On review, we will not reverse the
judgment unless the evidence as a whole unerringly and unmistakably leads to a
conclusion opposite that reached by the post-conviction court. Id. Further, the
post-conviction court in this case entered findings of fact and conclusions
thereon in accordance with Indiana Post-Conviction Rule 1(6). Id. “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.” Id. In this review, we accept findings of fact unless
Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016 Page 4 of 8 clearly erroneous, but we accord no deference to conclusions of law. Id. The
post-conviction court is the sole judge of the weight of the evidence and the
credibility of witnesses. Id.
[12] To prevail on a claim of ineffective assistance of counsel, a petitioner must
demonstrate both that his counsel’s performance was deficient and that 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), reh’g denied, cert. denied, 534 U.S. 830
(2001). A counsel’s performance is deficient if it falls below an objective
standard of reasonableness based on prevailing professional norms. French v.
State, 778 N.E.2d 816, 824 (Ind. 2002). To meet the appropriate test for
prejudice, the petitioner must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different. Id. Failure to satisfy either prong will cause the claim to fail.
Id.
[13] Smith first claims that his trial counsel’s performance was deficient because the
trial counsel did not present mitigating evidence beyond Smith’s lack of
criminal history.
[14] To support his argument, Smith cites to Wiggins v. Smith, 539 U.S. 510 (2003).
The Wiggins court held that trial counsel’s failure to expand investigation of the
defendant’s dysfunctional background—severe physical and sexual abuses the
defendant had suffered at the hands of his mother and while under the care of a
Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016 Page 5 of 8 series of foster parents—beyond a presentence investigation report and social
services records fell short of the prevailing professional standards. Id. at 534.
Counsel’s conduct was also unreasonable in light of the evidence trial counsel
uncovered in the social services records—evidence that would have led a
reasonably competent attorney to investigate further. Id.
[15] This court previously addressed the issue of trial counsel’s failure to investigate
and present to the court potentially mitigating circumstances in the context of a
child molesting case in McCarty v. State, 802 N.E.2d 959 (Ind. Ct. App. 2004).
The McCarty court similarly held that trial counsel’s failure to investigate the
defendant’s background for sentencing purposes fell short of the prevailing
professional standards. Id. at 964. Had trial counsel spent more time with the
defendant in preparing for the guilty plea and sentencing hearings, he might
well have observed manifestations of the defendant’s mental retardation and
sought more detailed information regarding his family history, sexual
victimization as a teenager, and potential for successful rehabilitation. Id.
[16] Both the Wiggins and McCarty courts recognized that when a trial counsel
identifies a red flag in the client’s background, counsel should inquire deeper to
avoid counsel’s performance from falling short of the prevailing professional
norms. However, the present case is different from both Wiggins and McCarty
because we do not have such red flags here. The record does not reveal any
manifestations of Smith’s mental retardation, severe physical or sexual abuses
in his formative years, or other extreme circumstances that could have put a
reasonably competent attorney on guard and warranted a further investigation
Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016 Page 6 of 8 into Smith’s background. The only detail that the record reveals is that Smith
was going through “a lot of things” due to the death of his mother. (Appellant’s
Ex. 2, p. 6). While tragic in its own way, the death of Smith’s mother does not
make his background or circumstances extreme. Other than that, Smith lived a
normal life; he had a loving wife, a job, a house, and two beautiful adopted
girls.
[17] Smith further asserts that his trial counsel should have contacted the victims
and “[found] out their opinion on what the appropriate sentence [should be].”
(Appellant’s Br. p. 6). We disagree and note that a decision regarding what
witnesses to call is a matter of trial strategy which an appellate court will not
second-guess. Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998). As such, based
on our review of the record, we conclude that trial counsel’s performance did
not fall below an objective standard of reasonableness based on the prevailing
professional norms.
[18] Smith finally argues he was prejudiced because he would have received a lesser
sentence if the two victims were allowed to testify at the sentencing hearing.
We disagree because the post-conviction judge, who was the same judge that
sentenced Smith, after hearing the testimonies of A.S. and C.S. at the post-
conviction hearing, clearly stated that their testimonies would not have
produced a different result. See Hinesley v. State, 999 N.E.2d 975, 982 (Ind. Ct.
App. 2013), trans. denied (a post-conviction court’s findings and judgment
should be entitled to greater than usual deference when the post-conviction
judge is the same judge who conducted the original trial) (internal quotation
Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016 Page 7 of 8 marks omitted). The post-conviction court added that the testimonies only
demonstrated how deeply victimized the girls were; he would have discounted
C.S.’s testimony “absolutely entirely” because C.S. felt that Smith should not
go to jail at all. (Tr. p. 164). As such, we hold that there is no reasonable
probability that the sentencing court would have imposed a lesser sentence
under the circumstances.
CONCLUSION
[19] Based on the foregoing, we hold the post-conviction court properly denied
Smith’s petition for post-conviction relief.
[20] Affirmed.
[21] Najam, J. and May, J. concur
Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016 Page 8 of 8