MEMORANDUM DECISION Feb 05 2015, 8:55 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Hilary Bowe Ricks Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marques Love, February 5, 2015
Appellant-Petitioner, Court of Appeals Cause No. 49A02-1406-PC-436 v. Appeal from the Marion Superior Court. The Honorable Sheila A. Carlisle, State of Indiana, Judge. Appellee-Respondent The Honorable Stanley E. Kroh, Commissioner. Cause No. 49G03-0611-PC-218901
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A02-1405-CR-309 | February 5, 2015 Page 1 of 7 [1] Marques Love appeals the denial of his petition for post-conviction relief. He
argues that he received ineffective assistance of counsel because trial counsel
did not introduce evidence that Love might have been suffering from post-
traumatic stress disorder at the time of the crime. Finding that trial counsel was
not ineffective, we affirm.
Facts [2] The Facts underlying Love’s case are as follows:
November 14, 2006, Love encountered Scoey Scott at a gas station in Indianapolis, Indiana. Previously, Love and Scott were good friends and lived together, but had a falling out and no longer were friends. Love and Scott argued, and Love got in his vehicle and left the gas station. On his way home, Love realized he forgot some items at the gas station, and returned. Love parked his car near Scott's vehicle. As Love exited his vehicle, he heard a noise and believed that Scott had thrown rocks at Love's vehicle. A physical altercation ensued. At some point, Love drew a gun and shot Scott, who fell to his knees. Love then fired at least two more shots at Scott, and Scott fell all the way to the ground and died before medical help arrived. Love then left the scene, but later returned with his father and was arrested for Scott's murder. On November 16, 2006, the State charged Love with murder. On December 15, 2006, Love filed a notice of self-defense. Love waived his right to a jury trial, and on October 25 and 26, 2007, the trial court held a bench trial, after which it found Love guilty of murder. Love v. State, No. 49A02-0712-CR-1061, slip. op. at p. 2-5 (Ind. Ct. App. June 18,
2008). The trial court imposed a sixty-year sentence.
[3] On June 18, 2008, a panel of this Court affirmed Love’s conviction and
sentence. See Love, No. 49A02-0712-CR-1061, slip. op. at p. 2-5. Love filed his
first petition for post-conviction relief on September 14, 2009, and he afterwards Court of Appeals of Indiana | Memorandum Decision 48A02-1405-CR-309 | February 5, 2015 Page 2 of 7 filed several amended petitions, the last of which was filed on May 16, 2014.
On July 17, 2012, the post-conviction court held a bifurcated hearing. That
hearing was concluded on January 15, 2013, and the post-conviction court filed
its findings of facts and conclusions of law denying Love post-conviction relief
on June 12, 2014. Love now appeals.
Discussion and Decision [4] Love argues that the post-conviction court erred in denying his petition for post-
conviction relief. Post-conviction proceedings are not “super appeals” through
which convicted persons can raise issues they failed to raise at trial or on direct
appeal. Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012). Rather,
post-conviction proceedings afford petitioners a limited opportunity to raise
issues that were unavailable or unknown at trial and on direct appeal. Davidson
v. State, 763 N.E.2d 441, 443 (Ind. 2002). A post-conviction petitioner bears the
burden of establishing grounds for relief by a preponderance of the evidence.
Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). To prevail on appeal from the
denial of post-conviction relief, 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. Id. at 643-44.
[5] Where, as here, the post-conviction court makes findings of fact and
conclusions of law in accordance with Indiana Post–Conviction Rule 1(6), we
cannot affirm the judgment on any legal basis, but rather, must determine if the
court’s findings are sufficient to support its judgment. Graham v. State, 941
Court of Appeals of Indiana | Memorandum Decision 48A02-1405-CR-309 | February 5, 2015 Page 3 of 7 N.E.2d 1091, 1096 (Ind. Ct. App. 2011). We will not reweigh the evidence or
judge the credibility of witnesses, and will consider only the probative evidence
and reasonable inferences flowing therefrom that support the post-conviction
court’s decision. Id.
[6] Love contends that his trial counsel was ineffective because he did not
introduce evidence that Love might have been suffering from post-traumatic
stress disorder at the time of the crime.1 When reviewing ineffective assistance
of counsel claims, we begin with the presumption that counsel rendered
adequate legal assistance. Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002). To
rebut this presumption, the petitioner must demonstrate both that counsel’s
performance fell below an objective standard of reasonableness based on
prevailing professional norms, and that there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Many claims of
ineffective assistance of counsel can be resolved by a prejudice inquiry alone.
Carr v. State, 728 N.E.2d 125, 131 (Ind. 2000).
[7] Love, who was shot a few months prior to the commission of his crime, argues
that evidence that he was suffering from post-traumatic stress disorder as a
1 In his petition for post-conviction relief, Love also argues that counsel was ineffective for failing to investigate whether Love was competent at the time of trial, but he does not raise this issue in this appeal. In its brief, the State argues that trial counsel could not be deemed ineffective for failing to present an insanity defense. However, Love does not argue that trial counsel should have presented an insanity defense. Rather, he argues that trial counsel should have investigated the possibility that he suffered from post-traumatic stress disorder in order to present evidence of the disorder at trial to bolster the self-defense strategy.
Court of Appeals of Indiana | Memorandum Decision 48A02-1405-CR-309 | February 5, 2015 Page 4 of 7 result of that shooting should have been introduced to bolster his self-defense
strategy. He argues that the introduction of such evidence would likely have
changed the outcome of the case because it would have shown that Love’s
subjective belief that he needed to use force to protect himself was reasonable.
At the post-conviction hearing, trial counsel stated that he was aware that Love
had recently been shot.
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MEMORANDUM DECISION Feb 05 2015, 8:55 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Hilary Bowe Ricks Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marques Love, February 5, 2015
Appellant-Petitioner, Court of Appeals Cause No. 49A02-1406-PC-436 v. Appeal from the Marion Superior Court. The Honorable Sheila A. Carlisle, State of Indiana, Judge. Appellee-Respondent The Honorable Stanley E. Kroh, Commissioner. Cause No. 49G03-0611-PC-218901
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A02-1405-CR-309 | February 5, 2015 Page 1 of 7 [1] Marques Love appeals the denial of his petition for post-conviction relief. He
argues that he received ineffective assistance of counsel because trial counsel
did not introduce evidence that Love might have been suffering from post-
traumatic stress disorder at the time of the crime. Finding that trial counsel was
not ineffective, we affirm.
Facts [2] The Facts underlying Love’s case are as follows:
November 14, 2006, Love encountered Scoey Scott at a gas station in Indianapolis, Indiana. Previously, Love and Scott were good friends and lived together, but had a falling out and no longer were friends. Love and Scott argued, and Love got in his vehicle and left the gas station. On his way home, Love realized he forgot some items at the gas station, and returned. Love parked his car near Scott's vehicle. As Love exited his vehicle, he heard a noise and believed that Scott had thrown rocks at Love's vehicle. A physical altercation ensued. At some point, Love drew a gun and shot Scott, who fell to his knees. Love then fired at least two more shots at Scott, and Scott fell all the way to the ground and died before medical help arrived. Love then left the scene, but later returned with his father and was arrested for Scott's murder. On November 16, 2006, the State charged Love with murder. On December 15, 2006, Love filed a notice of self-defense. Love waived his right to a jury trial, and on October 25 and 26, 2007, the trial court held a bench trial, after which it found Love guilty of murder. Love v. State, No. 49A02-0712-CR-1061, slip. op. at p. 2-5 (Ind. Ct. App. June 18,
2008). The trial court imposed a sixty-year sentence.
[3] On June 18, 2008, a panel of this Court affirmed Love’s conviction and
sentence. See Love, No. 49A02-0712-CR-1061, slip. op. at p. 2-5. Love filed his
first petition for post-conviction relief on September 14, 2009, and he afterwards Court of Appeals of Indiana | Memorandum Decision 48A02-1405-CR-309 | February 5, 2015 Page 2 of 7 filed several amended petitions, the last of which was filed on May 16, 2014.
On July 17, 2012, the post-conviction court held a bifurcated hearing. That
hearing was concluded on January 15, 2013, and the post-conviction court filed
its findings of facts and conclusions of law denying Love post-conviction relief
on June 12, 2014. Love now appeals.
Discussion and Decision [4] Love argues that the post-conviction court erred in denying his petition for post-
conviction relief. Post-conviction proceedings are not “super appeals” through
which convicted persons can raise issues they failed to raise at trial or on direct
appeal. Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012). Rather,
post-conviction proceedings afford petitioners a limited opportunity to raise
issues that were unavailable or unknown at trial and on direct appeal. Davidson
v. State, 763 N.E.2d 441, 443 (Ind. 2002). A post-conviction petitioner bears the
burden of establishing grounds for relief by a preponderance of the evidence.
Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). To prevail on appeal from the
denial of post-conviction relief, 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. Id. at 643-44.
[5] Where, as here, the post-conviction court makes findings of fact and
conclusions of law in accordance with Indiana Post–Conviction Rule 1(6), we
cannot affirm the judgment on any legal basis, but rather, must determine if the
court’s findings are sufficient to support its judgment. Graham v. State, 941
Court of Appeals of Indiana | Memorandum Decision 48A02-1405-CR-309 | February 5, 2015 Page 3 of 7 N.E.2d 1091, 1096 (Ind. Ct. App. 2011). We will not reweigh the evidence or
judge the credibility of witnesses, and will consider only the probative evidence
and reasonable inferences flowing therefrom that support the post-conviction
court’s decision. Id.
[6] Love contends that his trial counsel was ineffective because he did not
introduce evidence that Love might have been suffering from post-traumatic
stress disorder at the time of the crime.1 When reviewing ineffective assistance
of counsel claims, we begin with the presumption that counsel rendered
adequate legal assistance. Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002). To
rebut this presumption, the petitioner must demonstrate both that counsel’s
performance fell below an objective standard of reasonableness based on
prevailing professional norms, and that there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Many claims of
ineffective assistance of counsel can be resolved by a prejudice inquiry alone.
Carr v. State, 728 N.E.2d 125, 131 (Ind. 2000).
[7] Love, who was shot a few months prior to the commission of his crime, argues
that evidence that he was suffering from post-traumatic stress disorder as a
1 In his petition for post-conviction relief, Love also argues that counsel was ineffective for failing to investigate whether Love was competent at the time of trial, but he does not raise this issue in this appeal. In its brief, the State argues that trial counsel could not be deemed ineffective for failing to present an insanity defense. However, Love does not argue that trial counsel should have presented an insanity defense. Rather, he argues that trial counsel should have investigated the possibility that he suffered from post-traumatic stress disorder in order to present evidence of the disorder at trial to bolster the self-defense strategy.
Court of Appeals of Indiana | Memorandum Decision 48A02-1405-CR-309 | February 5, 2015 Page 4 of 7 result of that shooting should have been introduced to bolster his self-defense
strategy. He argues that the introduction of such evidence would likely have
changed the outcome of the case because it would have shown that Love’s
subjective belief that he needed to use force to protect himself was reasonable.
At the post-conviction hearing, trial counsel stated that he was aware that Love
had recently been shot. PC Tr. p. 36. However, he testified that he had no
reason to be concerned regarding Love’s competency and that the issue of
Love’s sanity was never raised. PC Tr. p. 67-8.
[8] Moreover, trial counsel did present evidence of the traumatic effect of the
robbery incident during which Love was shot. He introduced evidence,
including medical records, to show that the injuries that Love had sustained
from being shot left Love in a weakened condition. Trial counsel also
attempted to show that the experience made Love’s fear reasonable, which
bolstered the claim of self-defense. At closing argument, trial counsel stated:
The other thing that we need to consider, also, in terms of how Marques perceived things and whether he was reasonable or not, was the fact that on August -- in August of that year, he was also the victim of a crime. And he went through, you know, probably ten or fifteen minutes of testimony of the grueling event that occurred, where he was suspicious of somebody that came up to the car; he thought there was a situation where he might need to protect himself, but he hesitated. And when he hesitated, he was shot. And he wasn’t able to get any of those shots off until afterwards. And you heard about the distress that he was in afterwards. And I’m sure that incident played a part in Marques’ thinking when he was involved in this fight for his life -- at the speedway that day.
Court of Appeals of Indiana | Memorandum Decision 48A02-1405-CR-309 | February 5, 2015 Page 5 of 7 Tr. p. 418. Therefore, trial counsel did attempt to show that Love had been
affected by the shooting in which he was injured and that the shooting might
have affected his mental state on the day Love committed his crime.
[9] While it is true that trial counsel did not present evidence regarding post-
traumatic stress disorder and did not investigate whether Love might be
suffering from the disorder, Love has presented no evidence that he had post-
traumatic stress disorder or that his crime was a result of the disorder. Indeed,
the only document that Love produced regarding post-traumatic stress disorder
is a report from the Social Security Administration that mentions that Love
might have possible symptoms of post-traumatic stress disorder. However, the
report does not address issues of insanity or incapacity, and it states that Love
was “a good historian” and that his “verbalizations are clear, fluent, and
relevant.” Defendant’s Ex. B. Additionally, the report is the result of an
evaluation taken on January 2, 2007, after Love had been incarcerated
following his shooting of Scott, and there is no way of knowing if possible post-
traumatic stress symptoms Love may have been exhibiting might be the result
of being shot, of shooting Scott, or of the adjustment to incarceration. Id.
[10] We cannot say that Love’s trial counsel was ineffective for failing to present
evidence of post-traumatic stress disorder resulting from the August incident
when Love was shot. Counsel presented evidence regarding the effect the
shooting might have had on Love’s mental state in regard to self-defense. And
trial counsel testified that he had no reason to investigate Love’s mental
condition, stating that if he had thought a mental evaluation was appropriate,
Court of Appeals of Indiana | Memorandum Decision 48A02-1405-CR-309 | February 5, 2015 Page 6 of 7 he would have requested one. PC Tr. p. 76. We find that trial counsel was not
ineffective.
[11] The judgment of the post-conviction court is affirmed.
Vaidik, C.J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 48A02-1405-CR-309 | February 5, 2015 Page 7 of 7