MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Dec 15 2017, 9:16 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Scott Howard Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana
Angela N. Sanchez Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David W. Erickson, December 15, 2017 Appellant-Defendant, Court of Appeals Case No. 20A03-1701-PC-140 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Appellee-Plaintiff Judge Trial Court Cause No. 20D03-1603-PC-9
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017 Page 1 of 8 [1] David W. Erickson appeals from the denial of his petition for post-conviction
relief (PCR Petition) following his guilty plea to attempted murder. He asserts
that the post-conviction court erred in rejecting his claim of ineffective
assistance of trial counsel.
[2] We affirm.
Facts & Procedural History
[3] On September 13, 2007, Erickson pled guilty to attempted murder, a Class A
felony. As the factual basis, he admitted that he intended to kill T.P. and that
he attempted to do so by stabbing her with a knife. At the time, Erickson was
represented by Attorney Brent Zook.1 Subsequent to the entry of his guilty plea,
Attorney Zook asked the court to expedite a mental health examination of
Erickson by Dr. Paul Yoder, indicating the desire to have the examination done
prior to sentencing. Additionally, Erickson waived his right to be sentenced
within thirty days to accommodate the scheduling of the examination. The trial
court held a sentencing hearing on November 29, 2007, prior to which the court
reviewed Dr. Yoder’s psychological report. For purposes of sentencing,
Attorney Zook relied upon Dr. Yoder’s findings that Erickson had a reduced
ability to cope with stress and merely snapped, causing him to commit the
crime, in arguing for a twenty-five-year sentence, an extensive period of
1 Attorney Zook passed away in 2010.
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017 Page 2 of 8 probation, and treatment. At the conclusion of the hearing, the court sentenced
Erickson to forty years imprisonment.
[4] On March 7, 2016, Erickson, pro se, filed a PCR Petition alleging trial counsel
ineffectiveness. The post-conviction court held an evidentiary hearing on
October 21, 2016. On December 22, 2016, the post-conviction court issued
findings of fact and conclusions of law denying Erickson’s request for post-
conviction relief. Erickson now appeals. Additional facts will be provided as
necessary.
Discussion & Decision
[5] Erickson argues that his trial counsel rendered ineffective assistance. Because
there was no trial, Erickson’s claim relates to his trial counsel’s performance in
assisting and advising him prior to the entry of his guilty plea. Erickson asserts
that his counsel never met with him and never discussed the evidence or
possible defenses to the charge of attempted murder prior to his guilty plea.
[6] In a post-conviction proceeding, the petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. Bethea v. State, 983
N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction
relief, the petitioner stands in the position of one appealing from a negative
judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In
order to prevail, the petitioner must demonstrate that the evidence as a whole
leads unerringly and unmistakably to a conclusion opposite that reached by the
post-conviction court. Id. Although we do not defer to a post-conviction
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017 Page 3 of 8 court’s legal conclusions, we will reverse its findings and judgment only upon a
showing of clear error, i.e., “that which leaves us with a definite and firm
conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729
N.E.2d 102, 106 (Ind. 2000)).
[7] A petitioner will prevail on a claim of ineffective assistance of trial counsel only
upon a showing that counsel’s performance fell below an objective standard of
reasonableness and that the deficient performance prejudiced the petitioner. Id.
Because a petitioner must prove both deficient performance and resulting
prejudice, the failure to prove either defeats such a claim. See Young v. State,
746 N.E.2d 920, 927 (Ind. 2001).
[8] The petitioner must first demonstrate deficient performance, which is
“representation that fell below an objective standard of reasonableness,
committing errors so serious that the defendant did not have the ‘counsel’
guaranteed by the Sixth Amendment.” Bethea, 983 N.E.2d at 1138 (quoting
McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). There is a strong
presumption that trial counsel rendered adequate service. Bethea, 983 N.E.2d at
1139.
[9] With regard to the prejudice inquiry, the petitioner must establish “a reasonable
probability that, but for counsel’s errors, the result of the proceeding would
have been different.” Id. Where, as here, the defendant has entered a guilty
plea, he is entitled to relief only if he proves that (1) he would not have pled
guilty absent the ineffective assistance of counsel; and (2) there is a reasonable
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017 Page 4 of 8 probability that he would have received a more favorable result in a trial.
Segura v. State, 749 N.E.2d 496, 507 (Ind. 2001); Jeffries v. State, 966 N.E.2d 773,
779 (Ind. Ct. App. 2012), trans. denied. “A reasonable probability is one that is
sufficient to undermine confidence in the outcome.” Kubsch v. State, 934
N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668,
694 (1984)).
[10] Erickson claims that his trial counsel failed to advise him of the defense of
involuntariness—i.e., that he had a viable defense of automatism. As explained
by our Supreme Court, “[a]utomatism has been defined as the existence in any
person of behaviour of which he is unaware and over which he has no
conscious control.” McClain v. State, 678 N.E.2d 104, 106 (Ind. 1997)
(quotations and citations omitted). This state involves a person who “though
capable of action, is not conscious of what he is doing.” Id. (quotations and
citation omitted). Automatism can manifest itself in a range of conduct,
including “somnambulism (sleepwalking), hypnotic states, fugues, metabolic
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Dec 15 2017, 9:16 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Scott Howard Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana
Angela N. Sanchez Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David W. Erickson, December 15, 2017 Appellant-Defendant, Court of Appeals Case No. 20A03-1701-PC-140 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Appellee-Plaintiff Judge Trial Court Cause No. 20D03-1603-PC-9
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017 Page 1 of 8 [1] David W. Erickson appeals from the denial of his petition for post-conviction
relief (PCR Petition) following his guilty plea to attempted murder. He asserts
that the post-conviction court erred in rejecting his claim of ineffective
assistance of trial counsel.
[2] We affirm.
Facts & Procedural History
[3] On September 13, 2007, Erickson pled guilty to attempted murder, a Class A
felony. As the factual basis, he admitted that he intended to kill T.P. and that
he attempted to do so by stabbing her with a knife. At the time, Erickson was
represented by Attorney Brent Zook.1 Subsequent to the entry of his guilty plea,
Attorney Zook asked the court to expedite a mental health examination of
Erickson by Dr. Paul Yoder, indicating the desire to have the examination done
prior to sentencing. Additionally, Erickson waived his right to be sentenced
within thirty days to accommodate the scheduling of the examination. The trial
court held a sentencing hearing on November 29, 2007, prior to which the court
reviewed Dr. Yoder’s psychological report. For purposes of sentencing,
Attorney Zook relied upon Dr. Yoder’s findings that Erickson had a reduced
ability to cope with stress and merely snapped, causing him to commit the
crime, in arguing for a twenty-five-year sentence, an extensive period of
1 Attorney Zook passed away in 2010.
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017 Page 2 of 8 probation, and treatment. At the conclusion of the hearing, the court sentenced
Erickson to forty years imprisonment.
[4] On March 7, 2016, Erickson, pro se, filed a PCR Petition alleging trial counsel
ineffectiveness. The post-conviction court held an evidentiary hearing on
October 21, 2016. On December 22, 2016, the post-conviction court issued
findings of fact and conclusions of law denying Erickson’s request for post-
conviction relief. Erickson now appeals. Additional facts will be provided as
necessary.
Discussion & Decision
[5] Erickson argues that his trial counsel rendered ineffective assistance. Because
there was no trial, Erickson’s claim relates to his trial counsel’s performance in
assisting and advising him prior to the entry of his guilty plea. Erickson asserts
that his counsel never met with him and never discussed the evidence or
possible defenses to the charge of attempted murder prior to his guilty plea.
[6] In a post-conviction proceeding, the petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. Bethea v. State, 983
N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction
relief, the petitioner stands in the position of one appealing from a negative
judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In
order to prevail, the petitioner must demonstrate that the evidence as a whole
leads unerringly and unmistakably to a conclusion opposite that reached by the
post-conviction court. Id. Although we do not defer to a post-conviction
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017 Page 3 of 8 court’s legal conclusions, we will reverse its findings and judgment only upon a
showing of clear error, i.e., “that which leaves us with a definite and firm
conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729
N.E.2d 102, 106 (Ind. 2000)).
[7] A petitioner will prevail on a claim of ineffective assistance of trial counsel only
upon a showing that counsel’s performance fell below an objective standard of
reasonableness and that the deficient performance prejudiced the petitioner. Id.
Because a petitioner must prove both deficient performance and resulting
prejudice, the failure to prove either defeats such a claim. See Young v. State,
746 N.E.2d 920, 927 (Ind. 2001).
[8] The petitioner must first demonstrate deficient performance, which is
“representation that fell below an objective standard of reasonableness,
committing errors so serious that the defendant did not have the ‘counsel’
guaranteed by the Sixth Amendment.” Bethea, 983 N.E.2d at 1138 (quoting
McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). There is a strong
presumption that trial counsel rendered adequate service. Bethea, 983 N.E.2d at
1139.
[9] With regard to the prejudice inquiry, the petitioner must establish “a reasonable
probability that, but for counsel’s errors, the result of the proceeding would
have been different.” Id. Where, as here, the defendant has entered a guilty
plea, he is entitled to relief only if he proves that (1) he would not have pled
guilty absent the ineffective assistance of counsel; and (2) there is a reasonable
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017 Page 4 of 8 probability that he would have received a more favorable result in a trial.
Segura v. State, 749 N.E.2d 496, 507 (Ind. 2001); Jeffries v. State, 966 N.E.2d 773,
779 (Ind. Ct. App. 2012), trans. denied. “A reasonable probability is one that is
sufficient to undermine confidence in the outcome.” Kubsch v. State, 934
N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668,
694 (1984)).
[10] Erickson claims that his trial counsel failed to advise him of the defense of
involuntariness—i.e., that he had a viable defense of automatism. As explained
by our Supreme Court, “[a]utomatism has been defined as the existence in any
person of behaviour of which he is unaware and over which he has no
conscious control.” McClain v. State, 678 N.E.2d 104, 106 (Ind. 1997)
(quotations and citations omitted). This state involves a person who “though
capable of action, is not conscious of what he is doing.” Id. (quotations and
citation omitted). Automatism can manifest itself in a range of conduct,
including “somnambulism (sleepwalking), hypnotic states, fugues, metabolic
disorders, and epilepsy and other convulsions or reflexes.” Id.
[11] In support of his claim that automatism was a viable defense, Erickson points to
his own statements made weeks or months after the crime in which he claimed
that he blacked out at the moment of the attack. He contends that Dr. Yoder’s
psychological evaluation further supports his defense because Dr. Yoder
concluded that he lacked intent to commit the crime. In so arguing, Erickson
ignores or mischaracterizes the record. At most, the record supports the
conclusion that Erickson acted without extensive premeditation and later
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017 Page 5 of 8 blocked the brutal moment of the crime from his memory. Neither of these
circumstances, however, supports a claim that he did not act voluntarily at the
time he committed the crime.
[12] When arrested shortly after the crime, Erickson gave a detailed description of
his actions before, during, and immediately thereafter. At no point did he claim
that he had blacked out. To the contrary, he was clearly capable of recalling
and recounting the events of the night and his actions. Erickson detailed his
interactions with his wife through text messages and phone conversations and
how he became upset. He also detailed how he took three-year-old T.P. by the
hair and buttocks and threw her on the floor and then retrieved a knife from the
kitchen and stabbed her in the abdomen. Erickson recalled seeing organs
protruding from T.P.’s abdomen and how he then placed her in the bathtub.
Erickson explained that he retrieved another knife before leaving the apartment
and that he intended to kill himself, which suggests he was aware of the gravity
of the crime he had just committed. Given the detail Erickson provided soon
after he committed the offense, his brief blackout, which claim arose only after
he had been incarcerated for some time, reflects, at most, only a loss of memory
after the crime, not his state of mind at the time he committed the crime.
[13] Likewise, Erickson mischaracterizes Dr. Yoder’s report. Dr. Yoder did not
conclude, as Erickson suggests, that Erickson lacked the specific intent to kill
T.P. at the time of the crime. Dr. Yoder merely observed that there was no
evidence of significant premeditated intent to kill “at least prior to the ‘heat of
the moment.’” Exbibit Vol. 2, Exhibit E at 23. Dr. Yoder also acknowledged
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017 Page 6 of 8 that Erickson’s belated claim of a blackout was inconsistent with his earlier
statements to police. While he could not rule out the possibility of a blackout,
Dr. Yoder noted that Erickson performed a complex series of actions in moving
through several different rooms in the apartment during his attack on T.P. Dr.
Yoder indicated that a “rage related blackout would be more plausible” if the
attack had been a spontaneous occurrence in one room only while next to the
knives at the time he was arguing with his wife on the phone. Exhibit Vol. 2,
Exhibit E at 12. Dr. Yoder opined that Erickson’s later claim of a blackout
“might suggest a more complex form of amnesia if there is other data to support
such a conclusion.” Id. It does not appear, however, that Dr. Yoder found
such other evidence for that conclusion.
[14] Erickson’s claim essentially boils down to an asserted inability to recall the
events long after the crime, not a claim that he was involuntarily unable to
consciously control or be aware of his actions as he performed them. In short,
Erickson has failed to establish that under the facts of this case, automatism was
a viable defense to the charge of attempted murder. Thus, Erickson cannot
establish that trial counsel was ineffective for failing to recognize and advise
him of such defense.
[15] The post-conviction court did not err in denying Erickson’s request for post-
conviction relief based on his claim of ineffective assistance of counsel.
[16] Judgment affirmed.
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017 Page 7 of 8 May, J. and Vaidik, C. J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017 Page 8 of 8