Esther Martin v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: January 9, 2024
• Docket: 22A-PC-02574
• Status: Published

Opinion

FILED Jan 09 2024, 8:38 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Amy E. Karozos Theodore E. Rokita John Pinnow Indiana Attorney General Lindsay Van Gorkom Indianapolis, Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Esther Martin, January 9, 2024 Appellant-Defendant, Court of Appeals Case No. 22A-PC-2574 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Appellee-Plaintiff Judge Trial Court Cause No. 20D03-2002-PC-8

Opinion by Chief Judge Altice Judge Foley concurs. Judge Riley dissents with separate opinion.

Altice, Chief Judge.

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 1 of 34 Case Summary [1] Esther S. Martin was charged in 2011 with two counts of Class A felony child

molesting. Her 2014 jury trial ended in a mistrial after a juror sent a note to the

judge asking if Martin’s mental state had been assessed. Ultimately, the trial

court found Martin incompetent to stand trial, and Martin was committed to a

state hospital for restoration efforts. In early 2015, two treating doctors at the

hospital reported that Martin had become competent to stand trial, and she was

retried to a jury in 2016, found guilty as charged, and sentenced to two

consecutive forty-year terms. On direct appeal, this court affirmed Martin’s

convictions but ordered that the sentences be served concurrently.

[2] Martin filed an amended petition for post-conviction relief (PCR), which the

court denied. Martin now appeals, claiming that her trial counsel provided

ineffective assistance (1) by failing to re-challenge Martin’s competency prior to

the 2016 trial, (2) by failing to present mitigating evidence at sentencing

pertaining to Martin’s intellectual functioning, and (3) by failing to object at

sentencing to the State’s argument that Martin’s family or community knew she

had sexual tendencies but failed to protect children from her.

[3] We affirm. 1

1 We held oral argument at the Court of Appeals Courtroom on November 16, 2023. We commend counsel on their oral and written advocacy.

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 2 of 34 Facts & Procedural History [4] Martin, born in 1984, was removed from her birth parents at around fifteen

months of age and placed in foster care with Andrew and Arlene Martin (the

Martins), who adopted Martin when she was about four years old. 2 The

Martins are Old Order Mennonite and have five children, all adopted.

[5] Martin exhibited developmental delays as a child. She attended a Mennonite

school and required special attention both academically and to address issues of

impulsivity and acting out. Martin was required to repeat the fifth grade, and

she did not continue with education past eighth grade, although that was not

uncommon in her community. Thereafter, she lived with her parents in rural

Elkhart County, helping with household chores. Martin never worked outside

the home.

[6] At some point, the Martins began providing childcare in their home to six or so

children, including the victim in this case, B.H., who began going to the

Martins’ home as a toddler. Martin was about eighteen years old at the time

and helped provide the childcare. As found in our memorandum opinion on

direct appeal:

In January 2011, B.H. told his father that Martin had been touching him inappropriately. At this time, B.H. was ten years old, and Martin was twenty-six. B.H. believed that the touching began when he was six or seven years old. B.H. said that the first

2 They also adopted Martin’s younger sister, Barbara.

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 3 of 34 occasion occurred when he was in the bathroom, and Martin came in, closed the door, and kissed his “privates.” Further similar incidents involving Martin kissing B.H.’s genitals or putting his penis in her mouth occurred once or twice a week over the next few years. B.H.’s parents reported his statements to police, who then arranged to interview Martin.

Before the [January 11, 2011] interview, Martin’s father told Detective Ryan Hubbell of the Elkhart County Sheriff’s Department that Martin communicated at the level of a twelve- year-old child. . . . Detective Hubbell went through each of the rights individually and attempted to explain them to Martin in language she would understand. . . . After initialing that she understood each of the rights and signing a waiver of her rights, Detective Hubbell began questioning Martin.

Throughout the eighty-minute-long interview, Martin consistently and repeatedly denied ever touching B.H. in a sexual manner. She did say that B.H. once tried to look up her dress and that she scolded him, and on at least one other occasion, B.H. brushed up against her and touched her and she again scolded him. . . . Martin consistently referred to penises as “pee pees,” and at one point asked Detective Hubbell why he was repeatedly talking about “peanuts.” Detective Hubbell explained that penises were the same as “pee pees.” Martin also said it made her “feel like throwing up” to think about kissing a penis.

Also during the interview, Martin said that ten to fifteen years ago she had a “problem” about wanting to touch the “pee pees” of children brought to her mother’s daycare but that she had grown out of it.

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 4 of 34 Martin v. State, No. 20A05-1605-CR-1016 (Ind. Ct. App. July 14, 2017)

(citations to record omitted). On October 7, 2011, the State charged Martin

with two counts of Class A felony child molesting related to acts with B.H.

First Trial

[7] After Martin was charged, trial counsel Thomas Leatherman (Leatherman)

referred her to clinical psychologist Gerald Wingard, PhD for psychological

testing. Dr. Wingard met with Martin in December 2011 and administered,

among other things, the Wechsler Adult Intelligence Scale – III (WAIS) to

determine her intellectual and cognitive functioning level. Results indicated

that Martin’s full scale IQ was 62, which “occurs at the Mildly Mentally

Deficient” range of intelligence. Direct Appeal Confid. Exhibits Vol. II at 4.

[8] The matter proceeded to jury trial on July 7, 2014. Prior to voir dire, the court

heard argument on Martin’s pending Motion for Special Assistance, which

asserted that Martin “functions between 4th and 8th grade levels” and requested

that Martin’s mother, Arlene, be allowed in the court room and seated close

enough to Martin so that they “can have meaningful conversations about the

process of the trial.” Direct Appeal Confid. Appendix Vol. 3 at 18. The trial court

granted the motion to the extent that it would allow someone to sit with Martin

and provide the requested assistance, although not Martin’s mother as the State

indicated the possibility of calling her as a witness.

[9] After voir dire, a juror sent a note to the judge asking if Martin’s mental state

had been assessed. The court and counsel for both parties met in chambers,

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 5 of 34 and Dr. Wingard was consulted over the phone. On Leatherman’s motion, the

court declared a mistrial and ordered competency evaluations by Gary Seltman,

M.D. and LaRissa M. Chism-Buggs, M.D., who separately evaluated Martin in

September 2014. In their respective reports, each found Martin not competent

to stand trial.

[10] Dr. Seltman’s report stated that Martin had a “poor command of the judicial

process and players involved,” “a fairly poor understanding of the

consequences” if found guilty, and “did not appear to fully appreciate the

seriousness of the charges against her.” Id. at 22. Dr. Chism-Buggs found that

Martin had “a basic appreciation of right versus wrong and can differentiate

between lying and telling the truth” and had a very basic understanding of the

charges against her, the adversarial nature of the judicial system, and of her

attorney working on her behalf, but “lack[ed] an appreciation of the

proceedings against her” such that she would be unable to assist her attorney in

her own defense. Id. at 27.

[11] In October 2014, Dr. Wingard also submitted a report to the court based on his

December 2011 testing of Martin. He reported that Martin’s results placed her

in the first percentile and that individuals in that range learn slower, tend to

misunderstand and misperceive situations and depend on others for solutions or

directions, their social interactions are immature, and their memory for specific

types of information and ability to consider consequences is usually weak.

Direct Appeal Confid. Exhibit Vol. II at 6. He opined that Martin lacked “the

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 6 of 34 necessary ability and skills to assist in her defense” and was not competent to

stand trial. Id. at 7.

Commitment

[12] In November 2014, the trial court committed Martin to the Division of Mental

Health and ordered the superintendent to certify within ninety days whether

Martin had a substantial probability of obtaining comprehension sufficient to

understand the proceedings and make a defense in the foreseeable future.

Martin was admitted to Madison State Hospital (MSH) on December 8, 2014,

for treatment and evaluation.

[13] Martin was evaluated by Vincent Porter, M.D., who created a psychiatric

treatment plan for Martin. According to MSH records, the stated “goal” for

Martin was that she “will know and have a basic understanding of conditions

for participating in her own defense,” understand the charges against her, the

potential consequences, and the trial process. PCR Confid. Exhibits Vol. 1 at 175.

The identified “objective” was that Martin would be able to “sit for and

participate in a competency evaluation on legal terms administered by the Legal

Education Facilitator/Co-facilitator scoring a 70% or above by being able to

define the definitions and/or roles of the courtroom personnel in her own

words.” Id. In December, January, and into early February 2015, Martin

participated in the Legal Education Group, where she received education about

legal terms and processes, was given homework, and was regularly evaluated to

check progress. On January 28, the facilitator of the Legal Education Group

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 7 of 34 reported that Martin had received a score of 90.2%, and she recommended that

Martin be seen for a competency evaluation.

[14] In early February 2015, Martin was evaluated by two MSH doctors – first by

Gina Benz, PsyD and, a week later, by Dr. Porter – with each concluding that

Martin’s competency had been restored. Dr. Benz administered the Evaluation

of Competency to Stand Trial-Revised (ECST-R) and reported that Martin

“presents with a good factual and rational understanding of the courtroom

proceedings, court participants, and her role in the trial” and “evidences a good

understanding of and ability to consult effectively with her counsel in her

defense.” Direct Appeal Confid. Appendix Vol. 3 at 35. In addressing Martin’s

documented limited intellectual functioning, Dr. Benz opined that “it appears

her IQ score is an underrepresentation of her abilities within the realm of being

competent to stand trial in defense of her current legal issues.” Id.

[15] Dr. Porter’s report similarly expressed skepticism about Martin’s prior IQ score,

agreeing that her intelligence was “below average” but that “her low intellect

IQ of 62 is either underestimated or does not strongly correlate with her ability

to comprehend court proceedings and legal terminology. Her memory is intact.

She is coherent and without psychosis.” Id. at 39, 40. Both doctors referred to

and relied in part on the group facilitator’s report that Martin had scored 90.2%

on a recent legal terminology test.

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 8 of 34 Second Trial

[16] The case proceeded to jury trial on January 26 and 27, 2016. 3 Prior to trial,

Leatherman filed a motion to suppress Martin’s January 2011 interview with

Detective Hubbell, arguing that Martin’s waiver of rights was not freely and

voluntarily made because, due to her mental deficiencies, she did not fully

understand the waiver of Miranda rights or understand the significance of it. At

the suppression hearing, Dr. Wingard and Martin’s parents testified for the

defense,4 and Detective Hubbell testified for the State. The trial court denied

the motion to suppress, recognizing that Martin had diminished mental

capacity but concluding that she knowingly and voluntarily waived her Miranda

rights.

[17] At trial, the State presented the testimony of Detective Hubbell, B.H., and his

parents. A redacted version of Martin’s interview with Detective Hubbell was

played for the jury. The defense called Martin’s sister, Barbara, to testify.

Following the close of evidence, the court read the following stipulation to the

jury: (1) psychologist Dr. Wingard evaluated Martin in 2011 and she “was

found to have an IQ of 62 and a diagnosis of Mild Mental Retardation,” and (2)

psychiatrist Dr. Porter evaluated her in 2015 and found her to be “higher

functioning than Mild Mental Retardation and gave a diagnosis of Low

3 The trial judge for the second trial was not the same as in the first trial. 4 The court allowed Dr. Wingard’s October 2014 report to be admitted into evidence for purposes of Martin’s IQ scores in December 2011 but struck the portion of the report in which he opined on Martin’s competency.

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 9 of 34 Intellectual Functioning, which is a modest upgrade[.]” Direct Appeal Confid.

Appendix Vol. 3 at 90; Direct Appeal Transcript Vol. V at 68. After the close of

evidence, Leatherman requested and received permission from the court to

allow Martin to consult with her parents about whether to testify. Martin

thereafter stated on the record her decision not to testify.

[18] During closing argument, the State urged that, although Martin had lower

intellectual functioning, she knew right from wrong, took advantage of B.H.

when opportunities would arise, and exhibited self-preservation skills when

talking to Detective Hubbell, as she controlled what information she disclosed

and only released more once Detective Hubbell told her he knew about certain

incidents from her parents. Leatherman questioned B.H.’s credibility and

suggested that he took advantage of Martin because she was low functioning.

The jury found Martin, then age thirty-two, guilty as charged.

Sentencing

[19] At the sentencing hearing, Leatherman presented argument only, asserting that

mitigating circumstances existed, including the recognized mental challenges

that Martin had faced all her life. Leatherman argued that the court should also

consider as mitigating that Martin had no prior criminal history, was adopted

and raised in a strict religious community, and had family and community

support throughout the process. Direct Appeal Transcript Vol. V at 130.

Leatherman asked the court to impose a minimum sentence.

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 10 of 34 [20] The State called B.H.’s father to testify. Thereafter, the State argued that while

Martin does not have an official criminal record, there were prior incidents of

sexual misconduct of which her parents were aware. As is relevant here, the

prosecutor then stated:

There was awareness, an absolute awareness, of sexual deviant tendencies on the part of Esther Martin, and yet no one did anything to protect other children from her.

Id. at 138. The State maintained that, given the other, known incidents that

went unchecked, Martin’s lack of criminal history had “little value.” Id.

[21] The State further argued that, although Martin had a diminished mental

capacity, she was a “master manipulator” and “self-serving opportunist,”

waiting to engage in acts until adults were not present, she violated a position of

trust, and, during the time she was at MSH, she inappropriately touched a peer,

despite being specifically instructed to stay away from that person. Id. at 138,

142. The State asked the court to impose consecutive forty-year sentences.

[22] The court recognized the existence of aggravators and mitigators but found that

the aggravators “far outweighed” the mitigators. Id. at 146. The court viewed

Martin as an “opportunist,” having contact with B.H. when no one was

around. Id. at 145. The court sentenced Martin to consecutive forty-year

terms.

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 11 of 34 Direct Appeal

[23] Martin appealed, asserting two issues: (1) the trial court should not have

admitted into evidence her recorded interview with Detective Hubbell, and (2)

her sentence was inappropriate. This court found that even if her interview

with Detective Hubbell was conducted in violation of Miranda, such error was

harmless, as she never confessed during the interview, B.H. testified about

Martin’s repeated sexual abuse, and B.H.’s forensic interview was also

admitted. Martin v. State, 20A05-1605-CR-1016 (Ind. Ct. App. July 14, 2017).

A majority of the court reduced her sentenced to concurrent forty-year terms. 5

PCR Proceedings

[24] In February 2020, Martin filed a pro se petition for post-conviction relief, which

was later amended, by counsel, on May 22, 2020. Martin’s amended PCR

petition alleged that she received ineffective assistance of trial counsel on

sixteen bases, including as is relevant here: (1) Leatherman did not request a

hearing on Martin’s competency to stand trial prior to her January 2016 trial;

(2) he did not investigate and present mitigating evidence at sentencing; (3) he

did not object to the State’s argument at sentencing concerning inaction taken

by her family and community to protect children from Martin’s known

tendencies; and (4) he did not argue at sentencing that Martin should receive

credit against her sentence for the time she was confined at MSH prior to trial.

5 The dissent believed that a thirty-year sentence was appropriate given that Martin had undisputed mental limitations, “was found to be incompetent to stand trial at one time,” and had no criminal history. Id. at *5.

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 12 of 34 Martin’s PCR petition alleged that appellate counsel was also ineffective,

including for failing to assert that Martin should have received credit against her

sentence for her time at MSH.

[25] The PCR hearing began on November 1, 2021 and continued to January 4,

2022. Martin called twelve witnesses, including Dr. Wingard, Drs. Chism-

Buggs and Seltman (who found Martin incompetent in September 2014),

Leatherman, appellate counsel, Martin’s parents, her sister, a friend, and two

teachers. Martin also presented the testimony of psychologist James Cates,

Ph.D., who had reviewed Martin’s records from MSH and the evaluations of

MSH Drs. Porter and Benz. The reports of Drs. Wingard, Chism-Buggs,

Seltman, and Cates were admitted into evidence, along with Martin’s medical

records from MSH and her school records.

[26] Dr. Wingard testified that people with Martin’s level of intellectual functioning

get confused, do not have strong memory capability, and often defer to

authority such as “if something is told to them often enough, they’re going to

believe it.” PCR Transcript at 33. Drs. Chism-Buggs and Seltman addressed

their respective 2014 court-ordered evaluations of Martin in which they found

Martin not competent to stand trial. Dr. Chism-Buggs stated she did not notice

any indicators of malingering or exaggerating when she evaluated Martin. Dr.

Seltman estimated that he had conducted around 500 competency evaluations,

and, of those, he found in about 95% of cases that the individual was

competent. He explained that, in concluding that Martin was not competent,

he felt that she did not fully appreciate the seriousness of the charges, did not

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 13 of 34 understand the consequences, and did not understand “what’s going on with

the process.” Id. at 160. His testimony noted that intellectual disabilities are

not treatable through medication or psychiatric treatment.

[27] Dr. Cates, who possessed experience working with Old Order Mennonite and

Amish populations, stated in his report that Martin’s diminished mental

capacity combined with the Mennonite background and cultural practices all

contributed to limitations in Martin’s ability to participate in her own defense.

He criticized the treatment Martin received at MSH, viewing it as being “drilled

basically” on memorization of words and their meanings. Id. at 75.

[28] Dr. Cates’s report addressed the MSH records, including Legal Education

Group’s participation records. He observed that there was no way to confirm

whether Martin actually “met the [required] 70% retention criteria” and

highlighted that on February 5, 2015 – which was after her February 2

evaluation by Dr. Benz but before Dr. Porter’s evaluation – Martin recalled

only 58% of terms with no prompts and 25% still required five verbal prompts.

PCR Confid. Exhibits Vol. 1 at 44. Dr. Cates pointed out that, despite these

scores, Dr. Porter subsequently relied, in part, on the facilitator’s report that

Martin had achieved a 90.2% score on definitions.

[29] Dr. Cates also noted that Dr. Porter utilized “the McGarry criteria,” which

involved asking Martin a series of questions to ascertain her understanding of

legal matters, and that the American Academy of Psychiatry’s 2007 Practice

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 14 of 34 Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial

characterized the McGarry criteria as weak and unreliable.

[30] As to Dr. Benz, Dr. Cates observed that she did not administer any screening

test of intellectual functioning yet opined that Martin’s intelligence was higher

than the 62 IQ score. Dr. Cates pointed out that although Dr. Benz

administered a recognized competency assessment instrument, ECST-R, she

did not report the specific scores.

[31] Dr. Cates testified about his own meeting with Martin on May 21, 2021, during

which he administered a variety of assessments, including the ECST-R

evaluation that Dr. Benz had used. In contrast to her conclusions, Dr. Cates

determined that Martin’s scores reflected “a severe impairment in her ability to

consult with counsel, and significant difficulty engaging in rational

understanding of courtroom proceedings” and “a moderate impairment in her

factual understanding of the courtroom.” Id. at 50. When Dr. Cates tested

Martin with the same legal terms that the MSH Legal Education Group had

used, Martin knew about half of the thirty terms. Dr. Cates viewed these results

as “dismal, at best.” Id. at 53.

[32] Dr. Cates’s report opined that MSH failed to use available tools to determine

Martin’s competency and instead relied on “outdated measures and clinical

inference alone” to declare she had been restored to competency. Id. at 54. He

concluded that Martin’s competency was never restored and she was re-tried

although equally as incompetent as she was at the time of the first trial.

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 15 of 34 [33] Each of Martin’s parents testified that they saw no improvement in Martin’s

functioning or capabilities upon her release from MSH. Two teachers testified

to Martin’s struggles at school and, when asked about Martin’s strengths as a

student, each responded, “Recess.” PCR Transcript at 129, 132. Martin’s sister

and a childhood friend each discussed Martin’s lower functioning, need for

assistance, and childlike behavior.

[34] Leatherman testified that he had been an attorney for approximately fifty years,

with his practice focused primarily on criminal and domestic cases. Although

he had tried thousands of cases and handled many child molestation cases over

the years, he recalled having only one other case in which the defendant’s

competency was at issue. He testified that after he received the two MSH

reports stating that Martin’s competency had been restored, he did not contact

those doctors, and he did not reach back out to Drs. Seltman or Chism-Buggs,

although he did have one or more telephone conversations with Dr. Wingard.

[35] Leatherman stated that he argued for mitigating circumstances at sentencing

but did not call witnesses because

[n]o one informed me that they had any witnesses that they wanted me to call. I wasn’t made aware of any information we could provide to the Court that I thought would be helpful that [the court] didn’t already have.

***

If I had been advised that there was some witness that wanted to provide some information about [Martin] that I thought would

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 16 of 34 be helpful, I would have indeed called her or called the witness. But I was not provided with any. And I couldn’t think – [Martin] didn’t have a job outside of her home. Her parents have already testified. We had her school records. . . . [W]e had her intelligence issues, and that was all in front of the Court.

Id. at 52.

[36] As to the State’s argument at sentencing that there was an awareness by others

of Martin’s sexual deviant tendencies yet no one did anything to protect

children from her, Leatherman acknowledged that generally sentencing is to be

based on the individual defendant but he was not particularly concerned about

the State arguing a “collective kind of guilt.” Id. at 54.

[37] The parties submitted proposed findings and conclusions, and on October 5,

2022, the PCR court issued a sixteen-page order, which determined that neither

trial nor appellate counsel was ineffective. 6 As is relevant to the current claims

of ineffective assistance of trial counsel, the court’s order found:

33. Petitioner opines that counsel should have been aware that she lacked the ability to understand the proceedings and assist in her defense in January 2016 because she had already been determined incompetent to stand trial in January 2015 based on low cognitive function. However, later in 2015, two doctors at [MSH] found that Petitioner did understand courtroom proceedings, had the ability to consult effectively with her counsel, and did not currently demonstrate mental health

6 The PCR court issued an Amended Abstract of Judgment to reflect jail credit plus good time credit for the 69 days spent at MSH for restoration efforts.

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 17 of 34 symptoms or intellectual deficits that would interfere with her ability to participate in her defense at that time. In other words, the reports indicated that Petitioner had been restored to competency. . . . Furthermore, a low IQ does not necessarily indicate an inability to comprehend legal proceedings. . . . No contemporaneous evidence existed that cast doubt on Petitioner’s competence at that time. To the contrary, the evidence was that Petitioner was then competent to stand trial in January 2016. This is true even in light of Dr. Cates’ testimony at the post conviction hearing regarding tests he had performed in 2021. Dr. Cates simply presented another opinion based on different test results that were not available to counsel in 2016 . . . Members of Petitioner’s family and friends testified at the post conviction hearing as to Petitioner’s “child likeness” struggles in school, inability to manage funds or go grocery shopping and poor reading. None of these amounted to evidence supporting that Petitioner was incompetent to stand trial. Counsel’s failure to further investigate whether Petitioner was competent to stand trial and seek another competency evaluation between Petitioner’s release from [MSH] and her January 2016 trial did not amount to ineffective assistance of counsel.

42. Petitioner avers that trial counsel was ineffective at sentencing for failing to investigate and present mitigating evidence[.] . . . Petitioner admitted that her counsel argued the existence of mitigating circumstances at sentencing, however, contends he should have gone further and presented witnesses and exhibits on her behalf. . . . Petitioner [] argues that had counsel investigated further, he may have discovered an expert such as Dr. Cates, who could have reviewed the prior competency evaluations completed by [MSH] and testified from a different perspective. Trial counsel testified at the post conviction hearing that no one ever informed him of any witnesses they wanted to call, Petitioner did not have a job

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 18 of 34 outside the home, that her parents had already testified, and her intelligence issue[s] were already before the Court. In other words, there was nothing left for anyone to say. Counsel had no reason to investigate further. The decision not to call a witness whose testimony is cumulative does not constitute ineffective assistance of counsel.

43. Petitioner asserts that her trial counsel was also ineffective for failing to object to the State’s argument at sentencing . . . that Petitioner’s family and community failed to protect children from Petitioner even when they had awareness of sexual deviant tendencies on the part of Petitioner. . . . Petitioner contends that the sentence imposed would have been different had trial counsel objected to this line of argument. The record reflects that this argument was one of many aggravating factors presented to and already known by the Court. This one circumstance would not have made any difference as to the sentence.

PCR Appendix at 120-121, 125-27. The PCR court rejected Martin’s claim that,

even if the errors did not individually rise to the level of ineffective assistance of

counsel, the cumulative effect amounted to ineffective assistance.

[38] Martin now appeals. Additional information will be provided below as needed.

Discussion & Decision Standard of Review

[39] Post-conviction proceedings are not a “super appeal.” Barber v. State, 141

N.E.3d 35, 41 (Ind. Ct. App. 2020), trans. denied. They provide a narrow

remedy to raise issues that were not known at the time of trial or were

unavailable on direct appeal. Id. The petitioner must establish her claims by a

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 19 of 34 preponderance of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner

who has been denied relief faces a rigorous standard of review. Dewitt v. State,

755 N.E.2d 167, 169 (Ind. 2001).

To prevail, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. When reviewing the post- conviction court’s order denying relief, we will not defer to the post-conviction court’s legal conclusions, and the 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. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses.

Barber, 141 N.E.3d at 41 (internal quotations and citations omitted).

[40] To prevail on a claim of ineffective assistance of counsel, the petitioner must

show that (1) counsel’s performance was deficient, and (2) counsel’s

performance prejudiced the defendant. Id. at 42.

A counsel’s performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. To meet the 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Failure to satisfy either prong will cause the claim to fail. When we consider a claim of ineffective assistance of counsel, we apply a strong presumption . . . that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. [C]ounsel’s performance is presumed effective, and a

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 20 of 34 defendant must offer strong and convincing evidence to overcome this presumption.

Id. (internal citations and quotations omitted).

1. Competency

[41] Martin argues that Leatherman provided ineffective assistance because he failed

to request another competency evaluation prior to the 2016 trial. A defendant

is not competent to stand trial when she is unable to understand the proceedings

and assist in the preparation of her defense. Id. at 42; see also Dusky v. United

States, 362 U.S. 402, 402 (1960) (to be competent, defendant must have a

“sufficient present ability to consult with h[er] lawyer with a reasonable degree

of rational understanding … [and] a rational as well as factual understanding of

the proceedings against h[er]”).

[42] If a trial court is provided with “reasonable grounds for believing that the

defendant lacks the ability to understand the proceedings and assist in the

preparation of a defense,” the court must set a hearing to address competency.

Ind. Code § 35-36-3-1(a). The right to a competency hearing upon motion is

not absolute, however. Barber, 141 N.E.3d at 43. Such a hearing is required

only when a trial judge is confronted with evidence creating a reasonable or

bona fide doubt as to a defendant’s competency. Id. The presence of indicators

sufficient to require the court to conduct a hearing under I.C. § 35-36-3-1 must

be determined upon the facts of each case. Mast v. State, 914 N.E.2d 851, 856

(Ind. Ct. App. 2009), trans. denied. “A trial judge’s observations of a defendant

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 21 of 34 in court are an adequate basis for determining whether a competency hearing is

necessary; such a determination will not be lightly disturbed.” Id.

[43] Here, the PCR court determined that, at the time of Martin’s January 2016

trial, “[n]o contemporaneous evidence existed that cast doubt on Martin’s

competence,” and, thus, Leatherman did not provide deficient performance by

not requesting a competency hearing prior to the second trial. PCR Transcript at

121. Martin argues that this finding was clearly erroneous because such

evidence did exist at that time, which should have caused Leatherman to

investigate and ultimately challenge the reports of restored competency. If he

had requested a competency hearing, Martin maintains that there is a

reasonable probability Martin would have been found incompetent.

[44] In support, Martin points out that her limited intellectual functioning is

undisputed, she was found to be incompetent in 2014, and Dr. Seltman’s

September 2014 report, which found that Martin would have a “fairly

significant difficulty assisting in her own defense,” stated that “this difficulty is

not likely to be responsive to psychiatric treatment.” Direct Appeal Confid.

Appendix Vol. 3 at 22. Furthermore, Martin argues, the MSH records –

specifically her scores in the Legal Education Group – reflect a lack of

appreciable improvement during her stay and that Leatherman should have

recognized the suspect nature of the reported 90.2% score on January 28

because it was not consistent with Martin’s other group participation records

before and after that date. Martin argues that, despite having this available

information, Leatherman failed to contact any of the doctors. She also urges

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 22 of 34 that Leatherman should have noted that, although the two MSH doctors opined

that Martin’s IQ was higher than previously reported, neither administered an

intelligence test to Martin. Martin maintains that, given these various failures,

Letherman’s performance was deficient. We do not agree.

[45] Martin was committed to MSH with the intended goal of restoration of

competency. After around seventy days there, Drs. Benz and Porter each

issued a report in February 2015 finding that Martin had been restored to

competency. Dr. Benz reported that Martin “has made significant progress in

her legal education classes [], receiving a passing score (90%) on the legal

education assessments” and opined that Martin’s tested IQ with Dr. Wingard

possibly had underestimated her abilities. Id. at 31. Dr. Benz’s sources

included a review of Martin’s records at MSH, consultation with MSH staff on

Martin’s unit, previous assessments of her, and a clinical interview with Martin

that included administering to Martin: (1) Mini Mental Status Exam and (2)

ECST-R, which includes a systematic screening for feigned incompetency.

Although not outlining specific test scores, Dr. Benz reviewed in detail her

findings, including that Martin “evidences a good factual understanding of the

trial process and proceedings against her,” “demonstrates a good understanding

of the courtroom participants,” and “does not show any self-defeating

motivation or poor reasoning that would interfere with her ability to participate

in her defense.” Id. at 34.

[46] Dr. Porter’s report was based, in part, on his interaction with and treatment of

Martin since her admission in December 2014, a review of Martin’s unit chart

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 23 of 34 progress notes, and the group facilitator’s report of a 90.2% score on a recent

test of legal terminology. He also interviewed Martin and asked her a series of

forensic questions to ascertain her understanding of basic legal matters. Like

Dr. Benz, he opined that Martin’s low IQ did not correlate with her ability to

comprehend court proceedings and legal terminology and concluded that

Martin “will be able to assist her counsel” with her defense. Id. at 40.

[47] Martin would have us find that Leatherman’s performance was deficient for

failing to question the validity of those two reports, urging that counsel should

have dug into the supporting records and perhaps located a countering expert

opinion, such as Dr. Cates. While all of that could have been done, we are

unwilling to find that an objective standard of reasonableness based on

prevailing professional norms required it to be done. We agree with the State

that, given the two 2015 competency reports, “no reasonable attorney would

have believed there was a need to re-challenge Martin’s competency.” Appellee’s

Brief at 27. Accordingly, we find, as did the PCR court, that Leatherman did

not provide deficient performance by failing to seek a competency hearing

before the second trial. Her ineffective assistance of counsel claim based on

failure to request a competency hearing fails.

2. Sentencing- Mitigating Evidence

[48] Martin contends that – although Leatherman argued at sentencing about the

existence of mitigating circumstances, including Martin’s limited intellectual

functioning – he performed deficiently by “failing to present available evidence

of [her] intellectual disability.” Appellant’s Brief at 46. Our Supreme Court has Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 24 of 34 observed that the dispositive question in cases challenging whether counsel

should have presented additional mitigating evidence is “what effect the totality

of the omitted mitigation evidence would have had on [the] sentence.” Coleman

v. State, 741 N.E.2d 697, 702 (Ind. 2000).

[49] Martin contends that Drs. Seltman and Chism-Buggs “had relevant and

favorable information about Martin’s intellectual limitations,” yet Leatherman

failed to contact them. Appellant’s Brief at 46, 50. Martin also suggests that

Leatherman should have obtained the MSH records and recognized that the

competing incompetent/competent doctor reports “were red flags warranting

further investigation,” which would have led counsel “to consult with an expert

like Dr. Cates” to rebut the opinions of Drs. Porter and Benz that Martin’s IQ

was higher than Dr. Wingard had found it to be. Id. at 50.

[50] Leatherman testified at the PCR hearing that he did not call any witnesses at

sentencing because he “wasn’t made aware of any information . . . that [he]

thought would be helpful that [the court] didn’t already have.” PCR Transcript

at 52. For instance, Leatherman explained that there was no outside

employment history to pursue, and her intelligence issues were already known

by the court. The PCR court determined that Leatherman did not provide

deficient performance, as Martin’s intelligence issues were already before the

court, and “there was nothing left for anyone to say.” PCR Appendix at 126.

[51] We too find that Leatherman’s performance was not deficient as the trial court

was well aware of Martin’s intellectual challenges. In addition to her parents

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 25 of 34 and Dr. Wingard testifying at the suppression hearing about her limited mental

functioning, Detective Hubbell testified that Martin’s parents told him that she

functioned as a twelve-year-old. At trial, the parties’ stipulation concerning her

IQ was read to the jury. The trial court’s comments at the sentencing hearing

recognized her “diminished mental capacity” and identified it as a mitigating

circumstance, although concluding that such did not outweigh the aggravators.

Direct Appeal Transcript Vol. V at 145.

[52] Given this record, we agree with the State that “[t]here is no reason to infer that

the trial court would have given greater weight to those circumstances if

additional evidence of her diminished capacity had been presented at

sentencing.” Appellee’s Brief at 30. While counsel could have provided more

evidence of Martin’s mental functioning, there is a presumption that counsel

rendered effective assistance, and we are not persuaded that additional evidence

about Martin’s recognized intellectual limitations would have had any

appreciable effect on the sentence imposed. Thus, the PCR court properly

denied relief to Martin on this claim.

3. Sentencing – Alleged Improper Aggravator

[53] Lastly, Martin asserts that Leatherman provided ineffective assistance by failing

to object to the State’s argument at sentencing that Martin’s family and

community were aware of her sexual deviant tendencies yet failed to protect

children from her, and instead, protected their own. Martin argues that the

proper focus at sentencing is on the defendant, the crimes for which she is

convicted, her background, and her personal culpability and that, here, the Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 26 of 34 State’s argument was trying to punish Martin for failures of her family and/or

community. As such, it was an invalid aggravating circumstance, to which

Leatherman should have objected.

[54] At the PCR hearing, Leatherman testified that he did not object because (1) he

was not overly concerned about the argument, and (2) in his experience,

objecting during opposing counsel’s argument had not been worthwhile or

successful. The PCR court found that the community-awareness argument

“was one of many” made by the State and that this one alleged aggravating

circumstance “would not have made a difference as to the sentence.” PCR

Appendix at 127.

[55] Martin contends that the trial court obviously relied on the State’s improper

argument, given that it remarked, “So the family knew that she had a

predisposition to this, and they allowed her to have the care and custody over

the control of these children.” Direct Appeal Transcript Vol. V at 146. Martin

urges that the trial court’s “improper reliance on collective punishment” during

the sentencing hearing undermines confidence in the validity of the sentence.

Appellant’s Brief at 54.

[56] We are unconvinced, however, that Leatherman rendered ineffective assistance

by failing to object. As the State observes, the argument was likely responsive

to Martin’s mitigating argument at sentencing that her family and community

had supported her throughout the whole process and were present at the

sentencing hearing. Moreover, while the trial court did mention the

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 27 of 34 family/community’s complicity, it did not expressly identify such as an

aggravator, and rather identified the aggravating circumstances as: the victim’s

young age, the offense occurred over a period of years, Martin violated a

position of trust, and she had a history of inappropriate sexual behavior.

Accordingly, we find that the post-conviction court did not err when it found

that Leatherman did not provide ineffective assistance by not objecting to the

State’s argument about Martin’s family and community not protecting children

from her.

Conclusion

[57] While Martin argues that, even if the individual alleged errors did not

separately amount to ineffective assistance, Leatherman’s representation as a

whole constituted deficient performance that prejudiced her, as she “would not

have gone to trial in 2016, let alone been convicted, if counsel had performed

effectively.” Reply Brief at 24. We find, however, that Leatherman’s

representation was consistent with professional norms and, as the State

observes, “preserved a record that resulted in significant relief” on direct appeal.

Appellee’s Brief at 36. For the reasons discussed herein, Martin has not met her

burden to show that the post-conviction court clearly erred in denying her

petition.

[58] Judgment affirmed.

Foley, J., concurs.

Riley, J., dissents with separate opinion.

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 28 of 34 Riley, Judge, dissenting.

[59] I respectfully part ways with the majority’s affirmance of the post-conviction

court’s opinion, as I conclude that Leatherman’s representation was

inconsistent with prevailing professional norms and resulted in ineffective

assistance when he failed to seek a competency hearing before Martin’s second

trial.

[60] “It has long been accepted that a person whose mental condition is such that he

lacks capacity to understand the nature and object of the proceedings against

him, to consult with counsel, and to assist in preparing his defense may not be

subjected to trial.” Drope v. Missouri, 420 U.S. 162, 171 (1975). In order to be

competent to stand trial, a defendant must have a “sufficient present ability to

consult with h[er] lawyer with a reasonable degree of rational understanding []

[and] a rational as well as factual understanding of the proceedings against

h[er].” Dusky v. United States, 362 U.S. 402, 402 (1960). “Mental competency

is not a static condition and is to be determined at the time of trial.” Edwards v.

State, 902 N.E.2d 821, 827 (Ind. 2009).

[61] Unlike the majority and the post-conviction court, I find that an abundant

amount of contemporaneous evidence exists which, viewed against the

backdrop of Martin’s prior psychological and psychiatric testing, casts a bona

fide doubt on Martin’s competency at the time of her second trial in January

2016. After Martin’s first trial ended in a mistrial and she was found to be

incompetent to stand trial, Martin was admitted at MSH for restoration efforts

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 29 of 34 pursuant to an order for MSH to certify within ninety days whether Martin had

a substantial probability of obtaining comprehension sufficient to understand

the proceedings and to formulate a defense in the foreseeable future. Despite

Dr. Wingard’s report, which placed Martin’s IQ at 62 with an extremely low

adaptive functioning percentile, and even though intellectual disability

manifests itself during childhood and remains static throughout life whereas

mental disability can be improved by medications, MSH placed Martin in legal

education classes, drilling her weekly on legal definitions and terms.

[62] During Martin’s 70-day residency at MSH—which was 20 days shorter than the

trial court’s order envisioned—Martin’s legal education records do not support

that she ever demonstrated an ‘understanding’ of the basic legal terminology in

which she was drilled, as required by the competency standard enunciated in

Dusky. The records show that Martin’s ability to define words varied from

week to week. During her first session on December 17, 2014, Martin could not

independently identify a single word and required up to two verbal prompts to

define the legal term. A week later, on December 24, 2014, Martin could

partially define two terms and required prompts for other words, but no longer

had any recollection of certain terms from the previous session. On December

31, 2014, the session revisited the words taught to Martin during the first

session, but she was unable to define the terms again. On January 9, 2015,

Martin could provide a partial definition of ‘judge’ but struggled with

explaining the other terms. The following week, on January 16, 2015, Martin

required several prompts from facilitators to define legal terminology. On

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 30 of 34 January 21, 2015, Trimble instructed Martin to identify the roles of the players

in the courtroom on a drawing, which Martin was unable to do. Yet, despite

Martin showing a very limited amount of recall and no understanding, on

January 28, 2015, Martin received a score of 90% on the legal terminology

testing administered by Trimble. The following day, on January 29, 2015,

despite having purportedly just passed a legal education test with a score of

90%, Martin had another legal education class at which she knew only six or

seven of the legal terms without prompting and required several verbal prompts

for the other words. As a result, and solely relying on this passing test score,

Drs. Bentz and Porter found Martin competent to stand trial.

[63] As Martin’s parents had advised that Martin ‘can memorize,’ but also

cautioned that she has little understanding of how to use words and their

meanings effectively in any useful manner, and based on her weekly lack of

progression in the legal education classes, it can be reasonably inferred that the

90% test score is more reflective of her power to temporarily memorize, while

her recall is almost non-existent as indicated by the rapid decline in knowledge

retention between class sessions and after she was released from MSH. During

the second trial, even Martin’s counsel remarked that he was unsure whether

Martin understood the proceedings she was involved in. From the time of

Martin’s IQ testing in 2011 until Dr. Cates’ testing in 2021 for purposes of the

post-conviction proceedings, Martin’s intellectual functioning did not change.

Dr. Cates’ results— which were consistent with Dr. Wingard’s findings—

confirmed the depth of Martin’s intellectual deficits. When Dr. Cates replicated

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 31 of 34 the legal education assessment conducted by MSH, Martin, after having

experienced a full jury trial and one partial trial, “had very little factual

understanding of courtroom procedures.” (Tr. Vol. II, p. 95). Even though Drs.

Bentz and Porter expressed doubt about Dr. Wingard’s assessment of Martin’s

IQ, Drs. Bentz and Porter never conducted an intellectual and adaptive

functioning test but merely relied on a legal terminology test which only

measured Martin’s ability to memorize definitions but not her ability to

understand.

[64] Despite being aware of Martin’s severe mental deficiencies, evaluations by two

independent psychiatrists resulting in findings of incompetency to stand trial

due to those deficiencies, and one of those doctor’s written assertion that

Martin’s limitations were not likely to respond to psychiatric treatment,

Leatherman took no steps to consider whether, by the time she went to trial in

2016, Martin was competent to be tried. Rather, he took Drs. Bentz’s and

Porter’s evaluation and determination of competency at face value and forged

ahead with the trial, opening Martin up to allegations from the State that she

was a master manipulator.

[65] Commencing with a juror instigating the finding that Martin was incompetent

to stand trial by handing a note to the trial judge questioning her competency

during the first trial, there were numerous red flags waving prominently in front

of counsel throughout these proceedings. Leatherman nonetheless closed his

eyes and ignored them. Despite Dr. Wingard’s determination of Martin’s

intellectual disability prior to her first trial, it was a layperson who suspected

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 32 of 34 Martin’s mental state, rather than the professional whose job it was to safeguard

her interests. During MSH’s attempted ‘restoration’ of Martin’s intellectual

abilities to gain an understanding of the legal process, it was obvious that,

although Martin had memorization capabilities to a certain extent, these

abilities declined rapidly once she was no longer ‘drilled.’ By the time of the

second trial, it can be reasonably inferred that, in the absence of constant

drilling and repetition, Martin had resorted back to her initial intellectual

baseline.

[66] While I would agree with the majority that under normal circumstances the

objective standard of reasonableness based on prevailing professional norms

would not require “counsel [to] have dug into the supporting records and

perhaps located a countering expert opinion” given the two 2015 competency

reports by Drs. Bentz and Porter, here, those normal circumstances ceased to

exist as soon as the juror handed the trial court the note questioning Martin’s

mental abilities. See Slip Op. p. 24. Even though counsel had pursued an

evaluation by Dr. Wingard and had read his competency evaluation of Martin

as having “a very significant intellectual disability,” Leatherman, as Martin’s

counsel, failed to recognize its importance and the presence of a possible legal

defense, and instead had to be guided by a layperson in advocating for Martin.

(Def’s Exh. A, p. 3). At that point, Leatherman was placed on notice that

Martin’s intellectual disability might become a prominent issue in the

proceedings—a notice that came to fruition with Martin’s first mistrial based on

her incompetence to stand trial. Even though Leatherman was very aware of

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 33 of 34 Martin’s intellectual disability, he did not question the rather—surprising and

sudden—high passing score on MSH’s legal terminology test, nor did he

examine the underlying supporting documents, challenge Drs. Bentz’s and

Porter’s conclusions, or contact the experts who had declared Martin

incompetent for her first trial. All this came to a culmination at the second trial,

when Leatherman himself questioned Martin’s understanding of the

proceeding. Leatherman’s actions were not a matter of trial strategy.

Leatherman had evidence of Martin’s severe intellectual disability and there

were strong reasonable inferences that, at the time of the second trial, Martin,

even if she showed an initial understanding, was no longer competent given her

rapid decline in recalling the definitions of the legal terms after her drilling

classes ended. The record is rife with warning signs that Martin’s competency

to stand trial should have been placed in doubt based on her intellectual

disability, yet, despite all these indications, Leatherman failed to pursue a

competency hearing. Unlike the majority, I conclude that any reasonable

attorney, faced with these facts, would have believed there was a need to re-

challenge Martin’s competency.

[67] Accordingly, I conclude that Martin met her burden of establishing that, had

Leatherman requested a competency hearing, there is a reasonable probability

the outcome of her case would have been different. Leatherman was ineffective

for failing to challenge Martin’s competency to stand trial in 2016, and the post-

conviction court’s conclusion is clearly erroneous.

Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 34 of 34