McCarty v. State

• Decision Date: 04 February 2004
• Docket Number: No. 49A04-0306-PC-296.,49A04-0306-PC-296.
• Citation: 802 N.E.2d 959
• Parties: Kevin L. McCARTY, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

802 N.E.2d 959

Kevin L. McCARTY, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 49A04-0306-PC-296.

Court of Appeals of Indiana.

February 4, 2004.

Transfer Denied April 27, 2004.

Susan K. Carpenter, Public Defender of Indiana, Lisa Malmer Johnson, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

Kevin McCarty entered a plea of guilty to two counts of child molestation as Class A felonies.¹ He sought post-conviction relief and his petition was denied. McCarty raises a single issue on appeal, which we restate as whether McCarty was denied effective assistance of counsel when his counsel failed at sentencing to offer evidence of McCarty's mental impairment and other potential mitigating circumstances. We reverse.²

FACTS

McCarty was charged with four counts of child molesting, two as Class A felonies and two as Class C felonies. Counsel was appointed to represent McCarty, and McCarty eventually agreed to plead guilty to the two Class A felonies. The plea agreement provided for a maximum executed sentence of forty years. After a sentencing hearing, the trial court imposed a sentence of forty years on each count, with the sentences to be served concurrently.

McCarty's counsel did not raise as mitigating circumstances at the sentencing hearing that McCarty was mentally retarded, had himself been molested, and had a troubled family background. McCarty sought post-conviction relief, asserting his trial counsel was ineffective for failing to investigate or raise those potential mitigators.

McCarty presented testimony at his post-conviction hearing from a professor of psychological science and developmental psychology that McCarty had been in special education classes and that his IQ was between 68 and 70.³ When he was twenty years old, tests revealed McCarty was functioning at a ten-to-thirteen-year-old level.⁴ The psychologist testified that mentally retarded people tend to exercise poor judgment and have difficulty controlling their anger and other impulses because they sometimes do not learn from their experiences.

Trial counsel met with McCarty only once before the guilty plea hearing. He testified that based on his interaction with McCarty, McCarty did not appear mentally disabled. Counsel therefore did not pursue an investigation of McCarty's mental status. Counsel did not recall whether he had read McCarty's lengthy confession, which included McCarty's statement that he had been molested. He did not recall whether he reviewed McCarty's court file or whether he had received a call from McCarty's sister about McCarty's family background. Counsel did not secure the services of an investigator or a mental health professional nor did he try to obtain McCarty's school or mental health records. He did not recall whether he and McCarty discussed McCarty's family history and background or whether McCarty had offered him any direction in terms of presenting evidence at the sentencing hearing.

DISCUSSION AND DECISION

Standard of Review

Post-conviction proceedings are not "super appeals" through which convicted persons can raise issues they failed to raise at trial or on direct appeal. Rather, they afford petitioners a limited opportunity to raise issues that were unavailable or unknown at trial and on direct appeal. Bahm v. State, 789 N.E.2d 50, 57 (Ind.Ct. App.2003), aff'd on reh'g 794 N.E.2d 444 (Ind.Ct.App.2003)

. Post-conviction proceedings are civil in nature, and petitioners bear the burden of proving their grounds for relief by a preponderance of the evidence. Id. When a petitioner appeals the denial of post-conviction relief, he appeals from a negative judgment; consequently, we may not reverse the post-conviction court's judgment unless the petitioner demonstrates the evidence, as a whole, leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Id. We accept the post-conviction court's findings of fact unless they are clearly erroneous, but we do not have to give deference to the post-conviction court's conclusions of law. Id. On appeal, we may not reweigh the evidence or reassess the credibility of the witnesses. Id.

To prevail with an ineffective assistance of counsel claim, a defendant must show counsel's performance was so deficient that he was not functioning as the "counsel" guaranteed by the Sixth Amendment and that this deficient performance prejudiced the defendant. Games v. State, 684 N.E.2d 466, 468 (Ind.1997), modified on reh'g on other grounds 690 N.E.2d 211 (Ind.1997). The petitioner must demonstrate both deficient performance and resulting prejudice. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000), reh'g denied, cert. denied 534 U.S. 830, 122 S.Ct. 73, 151 L.Ed.2d 38 (2001). A deficient performance is that which falls below an objective standard of reasonableness. Counsel's performance is presumed effective, and a petitioner must offer strong and convincing evidence to overcome this presumption. Id.

Prejudice exists when "there is a reasonable probability that the result of the proceeding would have been different but for defense counsel's inadequate representation." Id. "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Games, 684 N.E.2d at 468 (quoting Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh'g denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984)). If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. Id.

Deficient Performance

We believe counsel's performance was deficient because he failed to present as mitigators four circumstances McCarty asserts should have been before the court: 1) McCarty's mental disability, 2) McCarty's own molestation as a child, 3) the likelihood he could be successfully rehabilitated, and 4) the fact his confession went beyond what the victims had reported.⁵

The requirement that a sentencing court consider and articulate certain factors in imposing a particular sentence applies to at least some sentences imposed after a guilty plea. See Abercrombie v. State, 275 Ind. 407, 411, 417 N.E.2d 316, 318 (1981)

. There, our supreme court remanded for a new sentencing hearing and sufficient findings to support the sentence imposed because there was "no statement of reasons or of specific aggravating and mitigating circumstances which would support the imposition of a one hundred-year sentence" for Abercrombie's four felony convictions. Id. at 414, 417 N.E.2d at 320.

The court there noted a number of mitigating circumstances that the sentencing court should have examined:

Some of the mitigating factors in this case were that there was no death, no permanent physical impairment, no destruction of property, no weapons involved and no evidence of deliberation. Beyond the actual facts of the crime itself, the nature and background of the individual defendant should also be considered. Here, defendant's prior criminal record was not extensive and involved no crimes of violence. The defendant showed remorse for the instant crime and agreed to plead guilty and spare the victim the ordeal of a trial. Defendant was holding a steady job and had the support of a good family in the community. The unique and unplanned circumstances surrounding the incident tend to show that the crime would not be likely to happen again. Several members of defendant's family wrote to the judge showing their concern for and support of defendant.

Id. at 414, 417 N.E.2d at 319.

McCarty asserts ineffectiveness in counsel's "complete lack of preparation for the sentencing hearing," (Br. of Petitioner-Appellant at 16), which lack of preparation caused counsel to overlook⁶ the additional mitigators McCarty urges. "In determining an appropriate sentence, all circumstances of the particular crime and the background of the individual offender should be considered ... [t]his individualized sentencing process requires possession of the fullest information possible concerning the defendant's life and characteristics." Thomas v. State, 562 N.E.2d 43, 47 (Ind.Ct.App.1990).

We note initially that counsel met with McCarty only once. McCarty does not contend this constitutes deficient performance per se, but it seems obvious that evidence of only a single meeting between counsel and client in a multiple-felony case would alert a reviewing court to the possibility of inadequate representation. We acknowledge that McCarty had confessed to the charged crimes,⁷ and counsel was likely burdened by the relentless demands invariably faced by public defenders. However, these circumstances do not excuse a perfunctory investigation of McCarty's background for sentencing purposes. Had counsel spent more time with McCarty in preparing for the guilty plea and sentencing hearings, he might well have observed manifestations of his client's mental retardation and sought more detailed information regarding his family history, sexual victimization as a teenager, and potential for successful rehabilitation.

1. McCarty's Mental Disability

McCarty's counsel violated prevailing professional norms when he failed to interview McCarty's family members, review the court file, obtain McCarty's educational and mental health records, or consult with a mental health professional. In Prowell v. State, 741 N.E.2d 704, 714 (Ind. 2001), our supreme court found Prowell's counsel ineffective for failing to pursue available leads regarding mitigating evidence. The State notes counsel's testimony that in his interaction with McCarty, McCarty appeared free of disability. Because counsel was unaware of any disability, the State asserts he could not be...