MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                              Mar 30 2016, 9:20 am
this Memorandum Decision shall not be
                                                                        CLERK
regarded as precedent or cited before any                           Indiana Supreme Court
                                                                       Court of Appeals
court except for the purpose of establishing                             and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana
Vickie Yaser                                             Michael Gene Worden
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Larry G. Sloan,                                          March 30, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         45A05-1508-PC-1127
        v.                                               Appeal from the
                                                         Lake Superior Court
State of Indiana,                                        The Honorable
Appellee-Respondent.                                     Diane Ross Boswell, Judge
                                                         The Honorable
                                                         Natalie Bokota, Magistrate
                                                         Trial Court Cause No.
                                                         45G03-1310-PC-14



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A05-1508-PC-1127 | March 30, 2016       Page 1 of 15
[1]   Larry G. Sloan (“Sloan”) appeals the denial of his petition for post-conviction

      relief, contending that the post-conviction court erred in denying his petition.

      On appeal, he raises the following restated issues for our review:


              I. Whether Sloan received ineffective assistance of his trial
              counsel during sentencing on the basis that his counsel failed to
              present evidence of his mental illness as a mitigating factor; and


              II. Whether evidence concerning Sloan’s mental illness
              constituted newly discovered evidence and warranted a reduced
              sentence.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On November 6, 1990, M.S., who was seven weeks old at the time and the

      daughter of Sloan, was taken to the emergency room because of profuse

      bleeding from her rectum. While examining M.S., the attending physician

      observed multiple bruises in various stages of healing all over the infant’s body.

      The doctor also observed a large tear between the infant’s vagina and rectum,

      which was the cause of the bleeding. The tear was so severe that a portion of

      the baby’s bowels was visible. Neither the doctor nor the nurse had ever seen

      an injury of this extent, and the doctor immediately suspected child sexual

      abuse. The doctor informed the police that the injury was caused by forcing a

      large, rigid object repeatedly into the rectal area. Additionally, M.S. also

      suffered from tearing and shearing injuries to her brain that left holes in parts of



      Court of Appeals of Indiana | Memorandum Decision 45A05-1508-PC-1127 | March 30, 2016   Page 2 of 15
      her brain and were caused by tremendous acceleration and deceleration, which

      is commonly the result of a shaking injury.


[4]   On November 7, 1990, Sloan was questioned by the police. In his statement to

      the police, Sloan admitted that he struck M.S. several times on her bottom with

      his fist and slapped her on her face to get her to stop crying. Sloan also

      admitted that he stuck his penis inside the infant’s rectum, although he later

      attempted to recant this statement. The State charged Sloan with Class A

      felony child molesting, Class C felony battery, and Class B felony neglect of a

      dependent. Sloan attempted to plead guilty to the battery count; however, the

      trial court declined to accept the guilty plea. A subsequent bench trial was held,

      at which Sloan was represented by public defender, Kevin Relphorde

      (“Relphorde”).


[5]   At the conclusion of the trial, Sloan was found guilty of all counts. During his

      sentencing, Sloan expressed remorse for what happened to M.S., but also

      maintained his innocence of any crimes other than the battery count and

      indicated that the baby’s mother shared a lot of the blame for the injuries the

      baby suffered. Relphorde argued the following mitigating circumstances to the

      trial court: (1) Sloan’s remorse; (2) Sloan’s young age; (3) Sloan’s lack of felony

      convictions; and (4) the crime was unlikely to occur again. In sentencing Sloan,

      the trial court found as mitigating factors: (1) Sloan’s lack of a prior criminal

      history; and (2) Sloan’s young age. The trial court found the following as

      aggravating factors: (1) the heinous nature of the crimes; (2) the very young age

      of the victim; (3) the fact that Sloan was the biological father of the victim; and

      Court of Appeals of Indiana | Memorandum Decision 45A05-1508-PC-1127 | March 30, 2016   Page 3 of 15
      (4) that a lesser sentence would depreciate the seriousness of the crimes. Sloan

      was sentenced to forty-five year for the Class A felony child molesting

      conviction and fifteen years for the Class B felony neglect of a dependent

      conviction, to run consecutively for a total of sixty years. Due to double

      jeopardy concerns, the trial court vacated the Class C felony battery conviction.

      Sloan filed a direct appeal, in which he argued that his convictions violated

      double jeopardy and that the imposition of consecutive sentences was

      manifestly unreasonable. A panel of this court affirmed Sloan’s convictions

      and sentence in an unpublished opinion. See Sloan v. State, No. 45A03-9202-

      CF-208 (Ind. Ct. App. June 9, 1992).


[6]   On October 3, 2013, Sloan filed a pro se petition for post-conviction relief,

      which was later amended and filed by the State Public Defender on May 2,

      2014. In the petition for post-conviction relief, Sloan alleged ineffective

      assistance of his trial counsel for failing to present Sloan’s mental health issues

      as a mitigating factor at sentencing and newly discovered evidence based on a

      subsequent diagnosis of mental illness made many years after the crime. An

      evidentiary hearing was held on Sloan’s petition, at which he presented the

      following as exhibits: the record of proceedings from his direct appeal; the

      appellate briefs from his direct appeal; the pre-sentence investigation report

      (“PSI”) from his sentencing; reports from his 1991 mental health evaluation

      done by the Indiana Department of Correction (“DOC”); and a recent mental

      health evaluation done by Dr. Reinaldo Matias (“Dr. Matias”).




      Court of Appeals of Indiana | Memorandum Decision 45A05-1508-PC-1127 | March 30, 2016   Page 4 of 15
[7]   Dr. Matias is a clinical psychologist and director of mental health services for

      the Indiana State Prison in Michigan City, Indiana, where Sloan is

      incarcerated, and has been seeing Sloan as a patient for several years. Dr.

      Matias testified on Sloan’s behalf at the evidentiary hearing. He reviewed the

      1991 evaluation and the reports that were part of the PSI and found his recent

      evaluation of Sloan’s mental condition was similar to the previous evaluations,

      with respect to Sloan’s symptoms. Dr. Matias diagnosed Sloan as suffering

      from bipolar disorder and antisocial personality disorder and observed evidence

      that Sloan had anger control problems and could be impulsive. Sloan presented

      to Dr. Matias as being under a fair amount of stress and having difficulty

      managing the stress; Sloan also displayed a neediness for other people. Dr.

      Matias testified that Sloan’s bipolar disorder was treatable with medication and

      that he had been stable for several years while on the medication. He also

      testified that Sloan’s antisocial personality disorder was being treated with

      counseling. Dr. Matias stated that, when Sloan first became his patient in 2007,

      he had previously been diagnosed as having bipolar disorder.


[8]   In his testimony, Dr. Matias opined that Sloan had been suffering from these

      mental illnesses at the time he committed his crimes and that there was possibly

      a connection between the illnesses and the crimes. Dr. Matias believed that

      Sloan’s childhood contributed to his mental disorders. At the time Dr. Matias

      evaluated Sloan, Sloan’s stress had increased in the recent years, which had

      caused a decline in his condition. Dr. Matias also stated that, had he evaluated

      Sloan at the time of trial, he would have likely given Sloan the same diagnosis


      Court of Appeals of Indiana | Memorandum Decision 45A05-1508-PC-1127 | March 30, 2016   Page 5 of 15
       as he did when he actually evaluated him. At the evidentiary hearing, Sloan

       testified that when he was thirteen or fourteen years of age he first received

       mental health treatment at Tri-City and was diagnosed as borderline

       schizophrenic; however, Sloan believed he had a problem with anger even

       before that treatment.


[9]    Trial counsel, Relphorde testified at the evidentiary hearing about his

       representation of Sloan during sentencing. He had been practicing law for ten

       years at the time he handled Sloan’s case and testified that, during his

       representation of Sloan, there was no indication that Sloan had any severe

       mental health issues. Relphorde said that, if he had known of any mental

       health issues, he would have submitted evidence of these issues to the trial court

       at sentencing. He further testified that his trial strategy was that Sloan was

       innocent of all the crimes except for the battery and that the baby’s mother

       inflicted the injuries, which was the same strategy during sentencing.


[10]   At the conclusion of the evidentiary hearing, the post-conviction court issued

       findings of facts and conclusions thereon, denying Sloan’s petition for relief.

       The court found that trial counsel was not ineffective with respect to not

       presenting Sloan’s mental health issues as mitigating at sentencing and that

       Sloan failed to meet his burden as to newly discovered evidence. Sloan now

       appeals.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1508-PC-1127 | March 30, 2016   Page 6 of 15
                                      Discussion and Decision
[11]   Post-conviction proceedings do not afford the petitioner an opportunity for a

       super appeal, but rather, provide the opportunity to raise issues that were

       unknown or unavailable at the time of the original trial or the direct appeal.

       Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164

       (2002); Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied,

       cert. denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct

       appeal and provide only a narrow remedy for subsequent collateral challenges

       to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for post-

       conviction relief bears the burden of proving the grounds by a preponderance of

       the evidence. Ind. Post-Conviction Rule 1(5).


[12]   When a petitioner appeals a denial of post-conviction relief, he appeals a

       negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),

       trans. denied. The petitioner must establish that the evidence as a whole

       unmistakably and unerringly leads to a conclusion contrary to that of the post-

       conviction court. Id. We will disturb a post-conviction court’s decision as

       being contrary to law only where the evidence is without conflict and leads to

       but one conclusion, and the post-conviction court has reached the opposite

       conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.

       denied. The post-conviction court is the sole judge of the weight of the evidence

       and the credibility of witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct.

       App. 2008), trans. denied. We accept the post-conviction court’s findings of fact



       Court of Appeals of Indiana | Memorandum Decision 45A05-1508-PC-1127 | March 30, 2016   Page 7 of 15
       unless they are clearly erroneous, and no deference is given to its conclusions of

       law. Fisher, 878 N.E.2d at 463.


                        I. Ineffective Assistance of Trial Counsel
[13]   When evaluating a claim of ineffective assistance of counsel, we apply the two-

       part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Perry v.

       State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Pinkins v. State, 799

       N.E.2d 1079, 1093 (Ind. Ct. App. 2003), trans. denied), trans. denied. First, the

       defendant must show that counsel’s performance was deficient. Id. This

       requires a showing that counsel’s representation fell below an objective

       standard of reasonableness and that the errors were so serious that they resulted

       in a denial of the right to counsel guaranteed to the defendant by the Sixth and

       Fourteenth Amendments. Id. Second, the defendant must show that the

       deficient performance resulted in prejudice. Id. To establish prejudice, a

       defendant 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. Id.


[14]   Further, counsel’s performance is presumed effective, and a defendant must

       offer strong and convincing evidence to overcome this presumption. Williams v.

       State, 771 N.E.2d 70, 73 (Ind. 2002). We will not lightly speculate as to what

       may or may not have been an advantageous trial strategy, as counsel should be

       given deference in choosing a trial strategy that, at the time and under the


       Court of Appeals of Indiana | Memorandum Decision 45A05-1508-PC-1127 | March 30, 2016   Page 8 of 15
       circumstances, seems best. Perry, 904 N.E.2d at 308 (citing Whitener v. State,

       696 N.E.2d 40, 42 (Ind. 1998)). Isolated omissions or errors, poor strategy, or

       bad tactics do not necessarily render representation ineffective. Shanabarger v.

       State, 846 N.E.2d 702, 708 (Ind. Ct. App. 2006), trans. denied. The two prongs

       of the Strickland test are separate and independent inquiries. Manzano v. State,

       12 N.E.3d 321, 325 (Ind. Ct. App. 2014), trans. denied, cert. denied, 135 S. Ct.

       2376 (2015). “Thus, ‘[i]f it is easier to dispose of an ineffectiveness claim on the

       ground of lack of sufficient prejudice . . . that course should be followed.’” Id.

       (quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied, 537

       U.S. 839 (2002)).


[15]   Sloan argues that the post-conviction court erred in denying his petition for

       post-conviction relief because he received ineffective assistance of trial counsel.

       He specifically contends that his trial counsel, Relphorde, was ineffective during

       sentencing when he failed to investigate and present evidence concerning

       Sloan’s mental status as a mitigating circumstance. Sloan asserts that, based on

       his violent family history and the Tri-City evaluation contained in the PSI, of

       which Relphorde was aware, Relphorde should have sought a psychological

       evaluation prior to sentencing. Sloan claims that, if his trial counsel had

       presented his mental illnesses to the trial court, it would have imposed a lesser

       sentence.


[16]   There are several factors that bear on the weight, if any, which should be given

       to mental illness in sentencing. Taylor v. State, 943 N.E.2d 414, 420 (Ind. Ct.

       App. 2011), trans. denied. These include: (1) the extent of the defendant’s

       Court of Appeals of Indiana | Memorandum Decision 45A05-1508-PC-1127 | March 30, 2016   Page 9 of 15
inability to control his or her behavior due to the disorder or impairment; (2)

overall limitations on functioning; (3) the duration of the mental illness; and (4)

the extent of any nexus between the disorder or impairment and the

commission of the crime. Id. (citing Krempetz v. State, 872 N.E.2d 605, 615

(Ind. 2007)), trans. denied. At the post-conviction hearing, Sloan did not present

any evidence that he was unable to control his behavior due to his mental

illness or any other limitations he suffered due to his mental health issues.

Sloan did present evidence at the post-conviction hearing that he had long-

standing mental health issues. However, his evidence did not establish any

nexus between his mental illness and the commission of the crime. At the

hearing, when asked whether he had an opinion as to whether there was a

connection between Sloan’s mental illnesses and his crimes, Dr. Matias testified

that it was “hard to say” and it was “quite possible at the time he may have

been manic or hypomanic, leading to bad judgment and possibly committed the

crimes that we’re addressing here.” P-C. R. Hrg. Tr. at 16-17. The testimony of

Dr. Matias, therefore, did not establish a connection between Sloan’s mental

disorders and the crimes for which he was convicted; at most, the testimony

merely showed that it was hard to say if there was a nexus between them and it

was only quite possible that Sloan was manic or hypomanic at the time he

committed the crimes. Sloan has failed to demonstrate that Relphorde had any

reason at the time of sentencing to investigate Sloan’s mental health issues for

the purpose of mitigation.




Court of Appeals of Indiana | Memorandum Decision 45A05-1508-PC-1127 | March 30, 2016   Page 10 of 15
[17]   Even if Sloan’s trial counsel had been deficient in his performance, Sloan

       cannot show any prejudice from Relphorde having not presented evidence of

       mental illness as a mitigating circumstance. During sentencing, the trial court

       found as aggravating factors the heinous nature of the crimes, the extremely

       young age of the victim, the fact that Sloan was the biological father of the

       victim, and that a lesser sentence would depreciate the seriousness of the

       crimes. The aggravating factor of violation of a position of trust can itself

       support the maximum enhancement of a sentence for child molesting. McCoy v.

       State, 856 N.E.2d 1259, 1262 (Ind. Ct. App. 2006); see also Hamilton v. State, 955

       N.E.2d 723, 727 (Ind. 2011) (“A harsher sentence is also more appropriate

       when the defendant has violated a position of trust that arises from a

       particularly close relationship between the defendant and the victim, such as a

       parent-child or stepparent-child relationship.”). We conclude that, based on the

       valid aggravating factors found by the trial court, there was no likelihood that

       the presentation of Sloan’s mental illnesses, which were not shown conclusively

       to have a nexus to the crime committed, as mitigating factors would have

       resulted in a reduced sentence. Sloan has, therefore, failed to show he suffered

       any prejudice and is unable to prove his claim of ineffective assistance of trial

       counsel.


                                II. Newly Discovered Evidence
[18]   Newly discovered evidence mandates a new trial only when a defendant

       demonstrates that: (1) the evidence has been discovered since trial; (2) it is

       material and relevant; (3) it is not cumulative; (4) it is not merely impeaching;

       Court of Appeals of Indiana | Memorandum Decision 45A05-1508-PC-1127 | March 30, 2016   Page 11 of 15
       (5) it is not privileged or incompetent; (6) due diligence was used to discover it

       in time for trial; (7) it is worthy of credit; (8) it can be produced upon a retrial of

       the case; and (9) it will probably produce a different result at trial. Whedon v.

       State, 900 N.E.2d 498, 504 (Ind. Ct. App. 2009) (citing Taylor v. State, 840

       N.E.2d 324, 329-30 (Ind. 2006)), summarily aff’d, 905 N.E.2d 408 (Ind. 2009).

       “We ‘analyze[ ] these nine factors with care, as the basis for newly discovered

       evidence should be received with great caution and the alleged new evidence

       carefully scrutinized.’” Id. The petitioner for post-conviction relief bears the

       burden of showing that all nine requirements are met. Id. (emphasis in

       original).


[19]   Sloan argues that the post-conviction court erred in denying his petition because

       he established newly discovered evidence that required the reduction of his

       sentence. He contends that his diagnosis by Dr. Matias of suffering from

       bipolar disorder and antisocial personality disorder and their manageability was

       newly discovered evidence that meets all nine of the requirements. Specifically,

       Sloan asserts that this evidence was discovered after he was sentenced, is

       relevant and material, is not cumulative or merely impeaching, is not privileged

       or incompetent, that due diligence was exercised to discover it before

       sentencing, that it is worthy of credit, can be reproduced, and would produce a

       different result if he is resentenced.


[20]   In order to establish that newly discovered evidence warrants a new sentencing,

       a petitioner for post-conviction relief must show that all nine requirements are

       met. Whedon, 900 N.E.2d at 504. Here, the alleged newly discovered evidence

       Court of Appeals of Indiana | Memorandum Decision 45A05-1508-PC-1127 | March 30, 2016   Page 12 of 15
       is Sloan’s diagnosis of bipolar disorder and antisocial personality disorder by

       Dr. Matias and the disorders’ manageability with treatment. The post-

       conviction court found that this was not newly discovered evidence warranting

       new sentencing because Sloan failed to show that his diagnosed mental illnesses

       were relevant and material or that the trial court’s consideration of them would

       probably produce a different result at sentencing. Appellant’s App. at 140-42.

       We agree.


[21]   The following factors bear on the weight, if any, which should be given to

       mental illness in sentencing: (1) the extent of the defendant’s inability to

       control his or her behavior due to the disorder or impairment; (2) overall

       limitations on functioning; (3) the duration of the mental illness; and (4) the

       extent of any nexus between the disorder or impairment and the commission of

       the crime. Taylor, 943 N.E.2d at 420. As discussed in the previous section,

       Sloan has not established that he was unable to control his behavior due to his

       mental disorders. No evidence was presented as to what extent Sloan’s mental

       illnesses affected his inability to control his actions. Additionally, there was no

       evidence presented regarding any overall limitations on Sloan’s functioning that

       was caused by his disorders. The evidence did show that Sloan has likely

       suffered from bipolar disorder and antisocial personality disorder for a

       substantial period of time. Although he was not diagnosed as suffering from

       these disorders at the time of his trial, Dr. Matias testified that the findings in

       the 1991 DOC evaluation were very similar to his findings and that Sloan had

       been diagnosed as having bipolar disorder since sometime prior to Sloan


       Court of Appeals of Indiana | Memorandum Decision 45A05-1508-PC-1127 | March 30, 2016   Page 13 of 15
       becoming his patient in 2007. P-C. R. Hrg. Tr. at 13-14, 20-21. Sloan also did

       not show that there was any conclusive nexus between his disorders and the

       commission of his crimes. Dr. Matias’s testimony at most only established that

       it was “hard to say” and it was “quite possible at the time he may have been

       manic or hypomanic, leading to bad judgment and possibly committed the

       crimes that we’re addressing here.” Id. at 16-17. Therefore, the evidence did

       not establish a connection between Sloan’s mental disorders and the crimes for

       which he was convicted. At most, it merely demonstrated that it was hard to

       say if there was a nexus between them and it was only quite possible that Sloan

       was manic or hypomanic at the time he committed the crimes. We, therefore,

       conclude that Sloan’s claimed newly discovered evidence only met one of the

       four factors and was not shown to be relevant and material.


[22]   Further, Sloan did not establish that his proffered newly discovered evidence

       would probably produce a different result at sentencing. During Sloan’s

       sentencing, the trial court found as mitigating factors his lack of a prior criminal

       history and his young age. The trial court found several aggravating

       circumstances, including the heinous nature of the crimes, the extremely young

       age of the victim, and the fact that Sloan was the biological father of the victim

       and in a position of trust. Based on these valid aggravating circumstances, we

       conclude that Sloan has not shown any likelihood that the diagnosis of his

       mental disorders, which were not shown to be conclusively connected to the

       commission of the crimes, would have caused a difference in the sentence




       Court of Appeals of Indiana | Memorandum Decision 45A05-1508-PC-1127 | March 30, 2016   Page 14 of 15
       imposed by the trial court. The post-conviction court did not err in denying

       Sloan’s petition for post-conviction relief.


[23]   Affirmed.


[24]   Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1508-PC-1127 | March 30, 2016   Page 15 of 15
