Harrold v. State

977 N.E.2d 478

Shane HARROLD, Appellant–Petitioner,

v.STATE of Indiana, Appellee–Respondent.

No. 35A02–1206–PC–518.

Court of Appeals of Indiana.

Oct. 25, 2012.

Appeal from the Huntington Circuit Court; The Honorable Thomas Hakes, Judge; Cause No. 35C01–0310–PC–3.

Shane Harrold, Michigan City, IN, Appellant pro se.

Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorney for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BARNES, Judge.

Case Summary

Shane Harrold appeals the denial of his petition for post-conviction relief (“PCR petition”), which challenged his conviction for murder. We affirm.

Issues

The issues before us are:

I. whether Harrold received ineffective assistance of trial counsel; and

II. whether his guilty plea was involuntary.

Facts

On January 26, 2001, at about 11:30 a.m., Harrold became angry at his two-year-old stepson, Justin, after he urinated in his pants. Harrold picked up Justin and slammed him over his knee, rendering the boy unconscious. Harrold delayed seeking medical treatment for Justin, even though he was aware that something was very wrong. Instead, Harrold ran cold water over Justin's face, shook him, banged his head on the floor, and attempted to perform CPR. At about 1:30 p.m., Harrold finally drove Justin to the hospital, after first driving to his manager's house to inform her that he would not be coming to work. Justin was declared dead at the hospital.

On January 29, 2001, the State charged Harrold with murder. On March 19, 2001, Harrold pled guilty but mentally ill to murder, in exchange for which the State agreed not to pursue the death penalty or life without parole. The State also agreed that it was going to “remain[ ] silent at the sentencing hearing.” App. p. 34. Trial counsel stated that despite Harrold's mental health problems, it was counsel's opinion that Harrold understood his guilty plea and that his mental illness did “not diminish his intelligence or his ability to make those decisions.” Id. at 36.

The trial court conducted an initial sentencing hearing on April 23, 2001. At the beginning of this hearing, counsel for Harrold indicated that he and Harrold had reviewed the presentence report and that Harrold wanted to advise the trial court that he had never used an alleged alibi referred to in the report. The report also listed eleven incidents of mental health hospitalizations Harrold had undergone between the ages of twelve and seventeen. There are several references in the report to Harrold having been diagnosed with major depression, as well as possible oppositional defiant disorder. Also, the report referred at one point to Harrold having an IQ of 75 and frequently using marijuana. Harrold told the probation officer preparing the report that he was currently taking Prozac for depression and “trozadone” ¹ as a sleep aid. Id. at 26. There is no mention in the report of Harrold ever having been diagnosed with paranoid schizophrenia. During this hearing, the prosecutor cross-examined Harrold and his wife when they testified regarding sentencing. At the conclusion of this hearing, the trial court stated that it was going to continue the hearing for one week so that it could “confer with my probation officer more deeply about the hospitalizations. I was unaware that there were so many and I would like to know what they were....” Id. at 76.

The sentencing hearing resumed on April 30, 2001. During this hearing, the prosecutor stated, “I have agreed not to make any specific sentencing recommendation.” Id. at 83. However, she then proceeded to make an argument regarding her view of the possible aggravators and mitigators in the case. The trial court then pronounced sentence, stating in part:

The Court has considered at great length the mental illness problems .... but a close reading of all of the reports of the doctors show one major, constant factor, and that's oppositional defiant disorder. The mere fact that someone has a 75 I.Q. and has not been educated to the extent he could have been is to [sic] a reason for murdering a child.

Id. at 84. Ultimately, the court concluded that Harrold's mental health was a mitigating circumstance but that it was outweighed by the aggravating circumstances of his criminal history, the nature and circumstances of the crime, and the age of the victim; the court imposed a sentence of sixty-five years.

Harrold filed a belated direct appeal, challenging the propriety of his sentence and alleged violation of the plea agreement by the prosecutor in not remaining completely silent during the sentencing hearings. This court affirmed Harrold's sentence. Harrold v. State, No. 35A02–0509–CR–842 (Ind.Ct.App. Aug. 10, 2006), trans. denied. With respect to Harrold's claim that the prosecutor violated the plea agreement, we first noted that he had waived that claim by failing to object to the prosecutor's questioning and comments. Regardless, we also held that Harrold's argument on this issue was “an attack on the plea agreement's validity, and, thus, it must be brought, if at all, by a petition for post-conviction relief.” Id., slip op. at 12.

On October 25, 2011, Harrold filed an amended PCR petition, along with a request that the petition be decided by affidavit for the stated reason that he was “illiterate, uneducated, and incompetent, and ... is not competent to present his post-conviction issues at an evidentiary hearing.” ² App. p. 89. Accompanying the petition were affidavits from Harrold and his mother, asserting among other things that he had been diagnosed with paranoid schizophrenia as a child and that trial counsel had been ineffective for failing to adequately investigate his mental health problems. The PCR court agreed to decide the petition via affidavit. The State presented no evidence, and Harrold presented no evidence aside from the original affidavits submitted with his amended PCR petition. On May 24, 2012, Harrold filed a motion for an extension of time to gather and submit additional evidence, which the PCR court denied. On June 7, 2012, the PCR court denied Harrold's petition. Harrold now appeals.

Analysis

PCR proceedings are civil in nature, and a defendant bears the burden of establishing his or her claims by a preponderance of the evidence. Smith v. State, 822 N.E.2d 193, 198 (Ind.Ct.App.2005), trans. denied. A defendant appealing the denial of a PCR petition is challenging a negative judgment. Id. Thus, to the extent this appeal turns on factual issues, Harrold must convince this court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the PCR court. See id. “In other words, the defendant must convince this court that there is no way within the law that the court below could have reached the decision it did.” Id. We will not defer to the PCR court's legal conclusions, but we do accept its factual findings unless they are “clearly erroneous.” Id.

Additionally, Harrold's PCR petition was resolved solely on the basis of affidavits and without a live evidentiary hearing. It was within the trial court's discretion to order that the case be submitted on affidavits only, given that Harrold was acting pro se. See id. at 201 (citing Ind. Post–Conviction Rule 1(9)(b)). Moreover, Harrold explicitly requested that the case be submitted on affidavits only. Resolution of the case in this manner did not render the PCR court's decision a summary disposition under Post–Conviction Rule 1(4)(f) or (g). See id. Rather, we review any factual issues in this case as we would have if there had been a live evidentiary hearing; that is, for whether the PCR court's findings or judgment are clearly erroneous. See id. at 205–06 (reviewing whether defendant's trial counsel was ineffective under “clearly erroneous” standard where case was submitted on affidavit under Post–Conviction Rule l(9)(b)).

I. Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his or her counsel's performance was deficient and that the petitioner was prejudiced by the deficient performance. Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984)), cert. denied. An attorney's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind.2002). To meet the appropriate test for prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Failure to satisfy either prong will cause the claim to fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006).

The gist of Harrold's argument is that the presentence report was inaccurate and/or incomplete regarding the full extent of his mental illness, in particular his claim that he had been diagnosed with paranoid schizophrenia as a child. Harrold claims that trial counsel should have uncovered the true, full extent of Harrold's mental illness history, which he asserts is much more severe than described in the presentence report. Harrold claims trial counsel should have sought his examination by court-appointed mental health professionals for purposes of determining his competency to stand trial, and/or to pursue an insanity defense. When considering a claim of ineffective assistance for alleged failure to investigate as possible defense or mitigating sentencing evidence, “we apply a great deal of deference to counsel's judgments.” Boesch v. State, 778 N.E.2d 1276, 1283 (Ind.2002). Even if an attorney has engaged in “ ‘less than complete investigation’ “ into a case, strategic choices...