MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 10 2019, 10:33 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Curtis T. Hill, Jr. Public Defender of Indiana Attorney General of Indiana
Kristen E. Phair Justin F. Roebel Special Assistant to the State Public Supervising Deputy Attorney Defender General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Damian Justin Harris, July 10, 2019 Appellant-Petitioner, Court of Appeals Case No. 18A-PC-1835 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Respondent. Judge Trial Court Cause No. 02D05-1303-PC-82
Barnes, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019 Page 1 of 15 Statement of the Case [1] Damian Harris appeals the denial of his petition for post-conviction relief, in
which he had claimed his trial counsel had failed to present crucial mitigating
evidence at sentencing. We affirm.
Issue [2] Harris raises one issue, which we restate as: whether the post-conviction court
erred in rejecting his claim of ineffective assistance of trial counsel.
Facts and Procedural History [3] The facts of the case, as stated in Harris’ first appeal, are as follows:
[On February 21, 2000,] [w]hen Harris was just fifteen years old, he attempted to rob a locally owned market. He failed in his endeavor to obtain money; however, as Harris was exiting the market, he entered into a struggle with the owner of the market, whom Harris shot and killed. The State filed a delinquency petition based upon Harris’ acts that, if committed by an adult, would be the offenses of murder, felony murder, and attempted robbery. The State later filed a motion for waiver of juvenile jurisdiction, which the juvenile court granted. Following a jury trial in adult criminal court, Harris was found guilty of felony murder and attempted robbery.
Harris v. State, 824 N.E.2d 432, 436 (Ind. Ct. App. 2005) (“Harris 1”).
[4] At sentencing, Harris, through his attorneys, presented testimony from his
mother, his sister, a school official who knew Harris, and an official from the
youth center where Harris had been detained while his case was pending. The
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019 Page 2 of 15 witnesses discussed positive aspects of Harris’ character. Harris also offered as
exhibits his school records and an evaluation that was generated during juvenile
waiver proceedings. The sentencing court accepted the exhibits into evidence.
Harris’ counsel urged the trial court to find that Harris’ lack of a criminal record
and young age were mitigating factors and impose the minimum sentence of
forty-five years.
[5] The court agreed that Harris’ lack of a criminal history and young age were
mitigating factors. The court further concluded those factors were outweighed
by the nature and circumstances of the offense, the impact on the victim’s
family and the community, and the victim’s age. As a result, the court vacated
the attempted robbery conviction but sentenced Harris to sixty-five years for
murder, the maximum possible sentence.
[6] On appeal, a panel of this Court affirmed Harris’ conviction but determined the
trial court had: (1) erroneously cited an improper aggravating circumstance
(impact on the victim’s family and the community); and (2) erroneously
enhanced Harris’ sentence by citing aggravating factors that had not been
submitted to the jury or admitted by Harris, in violation of the holding in
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Harris 1, 824 N.E.2d at 442. The Court remanded for resentencing.
[7] On remand, the trial court held another sentencing hearing. Harris was
represented by one of the two attorneys who had represented him at the original
sentencing hearing. The court again identified Harris’ age and lack of criminal
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019 Page 3 of 15 history as mitigating factors but determined they were outweighed by the
victim’s age. The court assigned low mitigating weight to Harris’ age, telling
Harris he was “[c]learly old enough to know better, clearly old enough to
conform your conduct to the requirements of the law, and clearly old enough to
appreciate right and wrong.” Resentencing Tr. p. 45. The court also stated it
appeared Harris had planned the robbery in advance. The court imposed a
sentence of sixty-five years, the same as before.
[8] Harris appealed, arguing: (1) the trial court abused its discretion in identifying
aggravating and mitigating circumstances; and (2) his sentence was
inappropriate pursuant to Indiana Appellate Rule 7(B). A panel of this court
affirmed Harris’ sentence in a Memorandum Decision. Harris v. State, Cause
No. 02A03-0509-CR-446 (Ind. Ct. App. May 16, 2006) (“Harris 2”).
[9] Harris filed a petition for post-conviction relief in 2013 and amended it in 2017.
The post-conviction court held an evidentiary hearing on September 8, 2017.
Among other evidence, Harris presented testimony from his trial attorneys and
from Dr. Robin Kohli, a psychologist who had evaluated Harris on January 1,
2017. Next, the parties filed proposed findings of fact and conclusions thereon.
[10] On July 5, 2018, the court issued findings of fact, conclusions thereon, and a
judgment. The court determined Harris was entitled to additional jail credit
time but otherwise denied Harris’ petition. As for Harris’ claim of ineffective
assistance of trial counsel, the court concluded he did not “suffer prejudice”
from his attorney’s alleged failure to present certain mitigating evidence during
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019 Page 4 of 15 sentencing. Appellant’s App. Vol. II, p. 188. The court explained Harris had
failed to “establish a reasonable probability that [Harris] would have received a
sentence less than the maximum even if all the mitigating evidence presented in
this post-conviction proceeding had been presented at sentencing.” Id. This
appeal followed.
Discussion and Decision I. Standard of Review [11] The post-conviction process is not an opportunity for a “‘super-appeal.’”
McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002) (quoting Ben-Yisrayl v. State,
729 N.E.2d 102, 105 (Ind. 2000)). Indiana Post-Conviction Rule 1(a) sets forth
specific circumstances under which a petitioner may collaterally attack a
conviction or sentence, such as by claiming that the conviction or sentence
violates a federal or state constitutional right.
[12] A petitioner who has been denied post-conviction relief appeals from a negative
judgment and must convince the appellate court that the evidence, as a whole,
leads unerringly and unmistakably to a decision opposite that reached by the
post-conviction court. McCary, 761 N.E.2d at 391. When reviewing a denial of
post-conviction relief, we give no deference to the post-conviction court’s legal
conclusions, but to the extent the decision turns on factual determinations, our
review is deferential, and will result in reversal only when the decision is found
to be clearly erroneous. Boesch v. State, 778 N.E.2d 1276, 1280-81 (Ind. 2002).
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019 Page 5 of 15 [13] Harris argues this Court should give the post-conviction court’s findings and
conclusions less deference because the court entirely adopted the State’s
proposed findings and conclusions as its own. We disagree. Harris also
concedes the court made grammatical changes throughout the State’s proposed
findings and conclusions. We conclude the court carefully considered the
individual findings proposed by the State. See Stevens v. State, 770 N.E.2d 739,
762 (Ind. 2002) (rejecting petitioner’s claim that he was denied unbiased
adjudication of post-conviction claims; post-conviction court largely adopted
State’s proposed findings but implemented several edits and corrections).
[14] In addition, Harris notes that in one instance, the post-conviction court’s
findings and conclusions misstated Harris’ age as sixteen at the time of the
murder. The court also correctly identified Harris’ age as fifteen elsewhere in
the findings and conclusions, and any error in that regard is harmless.
2. Effectiveness of Trial Counsel [15] Harris argues his trial counsel should have presented evidence at sentencing
and/or resentencing discussing scientific information on adolescent brain
development, which he claims would have demonstrated that his capacity for
foresight, strategic thinking, and impulse control were less than that of an adult.
He further claims counsel should have discovered and presented evidence that
he: (1) had a traumatic childhood, including being beaten by his mother and
sexually abused by his older brothers, and being exposed to his mother’s violent
behavior against his father and others; and (2) was impaired at the time of the
murder due to mental illness, including conduct disorder, cannabis dependence, Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019 Page 6 of 15 and post-traumatic stress disorder resulting from physical and sexual abuse.
Harris concludes that if the sentencing court had seen this evidence, it would
have concluded he was not “a callous felon” but rather “a compromised child”
and would have imposed a shorter sentence. Appellant’s Br. p. 15.
[16] The Sixth Amendment guarantees criminal defendants a right to the assistance
of counsel. The right to counsel includes a right to effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80
L. Ed. 2d 674 (1984) (quotation omitted). When evaluating a claim of
ineffective assistance of counsel, we apply the two-part test that was first set
forth in Strickland. First, a petitioner must show that counsel’s performance was
deficient. Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013). Second, a
defendant must show that the deficient performance prejudiced the defense. Id.
To establish prejudice, a 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. Id. The two parts of the Strickland test
are separate and independent inquiries. Thacker v. State, 715 N.E.2d 1281, 1284
(Ind. Ct. App. 1999), trans. denied. If it would be easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, that course
should be followed. Massey v. State, 955 N.E.2d 247, 258 (Ind. Ct. App. 2011).
[17] The judge who presided over Harris’ original trial and sentencing, as well as the
resentencing hearing, also presided over the post-conviction evidentiary
hearing. Under these circumstances, we afford the post-conviction court’s
findings and judgment “greater than usual deference.” McCullough v. State, 973
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019 Page 7 of 15 N.E.2d 62, 75 (Ind. Ct. App. 2012), trans. denied. We provide such deference
because the judge is “uniquely situated” to address whether trial counsel’s
performance failed to meet the Strickland standard. Hinesley v. State, 999 N.E.2d
975, 982 (Ind. Ct. App. 2013), trans. denied.
[18] We now turn to the standards governing mitigating evidence at sentencing. In
determining an appropriate sentence, all circumstances of the particular crime
and the background of the individual offender should be considered. Thomas v.
State, 562 N.E.2d 43, 47 (Ind. Ct. App. 1990). This individualized sentencing
process requires possession of the fullest information possible concerning the
defendant’s life and characteristics. Id. In addition:
The finding of mitigating factors is not mandatory and rests within the discretion of the trial court, and the trial court is not required to accept the defendant’s arguments as to what constitutes a mitigating factor. Further, the trial court is not required to give the same weight to proffered mitigating factors as the defendant does, nor is it obligated to explain why it did not find a factor to be significantly mitigating.
Williams v. State, 997 N.E.2d 1154, 1163-64 (Ind. Ct. App. 2013) (citations
omitted). When a post-conviction petitioner claims that counsel should have
presented certain mitigating evidence, we must determine “what effect the
totality of the omitted mitigation evidence would have had on [the defendant’s]
sentence.” Coleman v. State, 741 N.E.2d 697, 702 (Ind. 2000).
[19] This appeal can be resolved on the prejudice element of the Strickland test. In
Lewis v. State, 116 N.E.3d 1144 (Ind. Ct. App. 2018), trans. denied, eighteen-year-
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019 Page 8 of 15 old Lewis participated in the robbery and murder of two people, and a jury
determined he was guilty of two counts of robbery and two counts of felony
murder. His counsel declined to present any mitigating circumstances at
sentencing, and the court imposed maximum, consecutive sentences of sixty-
five years for each count of felony murder. On direct appeal, Lewis’ counsel
declined to challenge the sentence under Indiana Appellate Rule 7(B),
determining the record was too inadequate to raise that claim.
[20] Lewis later filed a petition for post-conviction relief, alleging his trial counsel
should have argued that his young age, difficult childhood, and poor mental
health were mitigating factors. The post-conviction court denied Lewis’
petition, and he appealed. A panel of this Court determined Lewis’ trial
counsel performed deficiently, concluding the attorney “certainly should have
proffered the mitigators at sentencing.” Id. at 1157. Regardless, the Court
affirmed the post-conviction court’s judgment, concluding Lewis had failed to
demonstrate a reasonable probability that he was prejudiced by his attorney’s
poor performance. The Court explained: (1) the record failed to demonstrate
that Lewis was naïve or clueless despite his young age; (2) difficult childhoods
generally do not warrant mitigating weight; and (3) there did not appear to be a
nexus between Lewis’ mental illness and the crimes.
[21] As in Lewis, we conclude that Harris was not prejudiced by trial counsel’s
failure to present evidence related to the three mitigating factors discussed
above. Starting with Harris’ abusive childhood, we agree with the Lewis court
that evidence of a difficult childhood is not generally entitled to much
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019 Page 9 of 15 mitigating weight. 116 N.E.3d at 1155 (quotation omitted). Further, Harris’
primary source of evidence regarding his abusive childhood was Dr. Kohli’s
2017 report, wherein Harris and one of his brothers described being subjected to
sexual abuse by their older brothers and being beaten by their mother. Harris
further described seeing his mother attack his father and others with a knife.
[22] Dr. Kohli conceded on cross-examination that he had not interviewed Harris’
mother or sister because Harris’ post-conviction counsel had not asked him to
contact them. Harris’ mother had “vehemently” denied to Harris’ trial counsel
that Harris had been molested. PCR Tr. Vol. 2, p. 40. Further, Harris’ sister
had testified at trial that their mother “was a good mother” and that Harris was
“taught very well” growing up. Sentencing Tr. p. 41. The post-conviction
court concluded Dr. Kohli’s report was of “dubious value” due to its exclusion
of possibly unfavorable information, Appellant’s App. Vol. II, p. 185, and
would not have had much mitigating value at sentencing or resentencing. The
evidence supports the court’s determination.
[23] Next, we turn to Harris’ second proposed mitigator: his claimed mental
illnesses. When considering what, if any, mitigating weight to give to evidence
of a defendant’s mental illness, the sentencing court should consider, among
other factors: (1) the extent of the defendant’s inability to control his or her
behavior due to the disorder or impairment; (2) overall limitations on
functioning; (3) the duration of the mental illness; and (4) the extent of any
nexus between the disorder or impairment and the commission of the crime.
Krempetz v. State, 872 N.E.2d 605, 615 (Ind. 2007).
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019 Page 10 of 15 [24] In 2017, Dr. Kohli diagnosed Harris as having experienced several forms of
mental illness at the time of the murder in 2000, including post-traumatic stress
disorder, conduct disorder, and cannabis disorder. The post-conviction court
determined that if evidence of Harris’ claimed mental illnesses had been
presented at sentencing or resentencing, it would not have made a difference
because those conditions did not compel him “to decide to commit the
potentially dangerous act of armed robbery,” which led to the murder.
Appellant’s App. Vol. II, p. 185. The court determined Harris was not so
mentally impaired that it would have been impossible for him to refrain from
knowingly or intentionally killing another person. The court thus concluded
Harris’ claimed mental illnesses would have been given little, if any mitigating
weight. Viewing the evidence in the light most favorable to the judgment, we
agree. See Greer v. State, 749 N.E.2d 545, 551 (Ind. 2001) (affirming trial court’s
decision to give little mitigating weight to defendant’s PTSD diagnosis;
defendant shot a store employee during a robbery, and there was no evidence
defendant ultimately lacked the ability to distinguish right from wrong).
[25] Finally, as for the third proposed mitigator, general evidence about adolescent
brain development, Harris points out that the United States Supreme Court
stated in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1
(2005), that psychological and sociological studies have established that
juveniles tend to have diminished mental capacity in the form of an
underdeveloped sense of responsibility, vulnerability to outside pressures, and a
transitory sense of personality.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019 Page 11 of 15 [26] The Supreme Court issued Roper six months before Harris’ resentencing
hearing, and Harris’ lead trial counsel was aware of that decision at
resentencing. Even so, if counsel had presented general information about
adolescent brain function at Harris’ resentencing, we agree with the post-
conviction court that it would not have affected the sentencing outcome. Roper
discussed adolescent brain function in the context of the death penalty, which
was not at issue in Harris’ case. There is also no evidence that juvenile
immaturity played a role in Harris’ decision to commit murder. Harris’ expert
witness, Dr. Robin Kohli, conceded different adolescents may develop at
different rates, and many juveniles with impulsivity issues and abusive
childhoods go on to become “model citizens” instead of committing grievous
criminal offenses. PCR Tr. Vol. 2, p. 123.
[27] Harris further claims that, if none of the three mitigating circumstances
standing alone establishes a reasonable probability that his sentence would have
been different if they had been presented at sentencing or resentencing, then the
three factors, taken together, do meet that standard. It is well established that
errors by counsel that are not individually sufficient to prove ineffective
representation may add up to ineffective assistance when viewed cumulatively.
Pennycuff v. State, 745 N.E.2d 804, 816-17 (Ind. 2001).
[28] As the trial court noted at sentencing and resentencing, Harris murdered a
person who was over sixty-five years of age. Further, the failed robbery was not
a spur of the moment event; Harris planned it in advance. Against those
factors, the trial court accepted Harris’ relatively young age and his lack of a
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019 Page 12 of 15 criminal record as mitigating factors but gave them low weight. If the trial
court had received evidence at sentencing or resentencing as to Harris’ difficult
childhood and alleged mental illnesses, plus general information about
adolescent brain development, we cannot conclude there is a reasonable
possibility that those factors, in the aggregate, would have affected the
sentencing outcome. The trial court, which carefully considered Harris’
sentence twice, emphasized that Harris was old enough to know right from
wrong, and none of the additional evidence would have established that Harris
was incapable of understanding that murder is wrong or preventing himself
from committing that offense. In summary, we agree with the post-conviction
court that there is not a reasonable possibility that the court would have
imposed a lesser sentence had it been informed of evidence related to the three
mitigating factors cited by Harris. See French v. State, 778 N.E.2d 816, 826-27
(Ind. 2002) (attorney’s alleged errors, viewed cumulatively did not amount to
prejudice to defendant; evidence was such that alleged errors would not have
changed outcome).
[29] Harris argues in the alternative that if his trial counsel had placed the previously
unrevealed evidence into the record during resentencing, then the Harris 2 court
would have found his sixty-five-year sentence inappropriate pursuant to Indiana
Appellate Rule 7(B) and ordered the trial court to reduce it. Indiana’s appellate
courts may revise a sentence authorized by statute if, “after due consideration of
the trial court’s decision, the Court finds that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” Id. The
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019 Page 13 of 15 principle role of such review is the attempt to leaven the outliers. Abd v. State,
120 N.E.3d 1126, 1137 (Ind. Ct. App. 2019) (quotation omitted), trans. denied.
The defendant bears the burden to persuade the reviewing court that the
sentence imposed is inappropriate. Id. at 1137-38.
[30] The Harris 2 court determined the nature of the offense was troubling, noting
that Harris planned the armed robbery in advance. Another negative
circumstance is that Harris shot the victim, instead of being a mere accomplice
or conspirator. Cf. Brown v. State, 10 N.E.3d 1, 5 (Ind. 2014) (maximum
sentences for robbery and two counts of murder was inappropriate; among
other factors, Brown was accomplice rather than shooter). As for the character
of the offender, the Harris 2 court further determined Harris’ age was not
grounds for sentence reduction, echoing the trial court’s determination that
Harris was old enough to understand the seriousness of the offense of murder
and to conform with the requirements of the law.
[31] Harris cites Lewis v. State, 759 N.E.2d 1077 (Ind. Ct. App. 2001), trans. denied, in
support of his claim, but that case is distinguishable. Lewis was convicted of
confinement and battery, for which he received maximum, concurrent
sentences. A panel of this Court determined several aggravating factors found
by the trial court were inappropriate. Next, applying a prior version of
Appellate Rule 7(B), the Court considered the remaining aggravating factors,
determined Lewis’ sentence was manifestly unreasonable, and remanded for
resentencing. In support of its determination, the Court concluded it could not
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019 Page 14 of 15 say the trial court “would necessarily weigh” the proper factors the same way,
once the improper factors had been removed. Id. at 1087.
[32] The Harris 2 court, unlike the Lewis court, had the benefit of the trial court’s
reconsideration of aggravating and mitigating factors on resentencing. We
conclude Harris has failed to demonstrate a reasonable probability that the
Harris 2 court’s analysis would have changed if Harris’s trial counsel had
presented evidence relevant to the three additional claimed mitigating
circumstances. As a result, he has not demonstrated that the evidence, as a
whole, leads unerringly and unmistakably to a decision opposite that reached
by the post-conviction court.
Conclusion [33] For the reasons stated above, we affirm the judgment of the post-conviction
court.
[34] Affirmed.
Vaidik, C.J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019 Page 15 of 15