MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    FILED
court except for the purpose of establishing                            Dec 15 2017, 9:16 am

the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Scott Howard Duerring                                    Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Angela N. Sanchez
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

David W. Erickson,                                       December 15, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1701-PC-140
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         20D03-1603-PC-9



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017          Page 1 of 8
[1]   David W. Erickson appeals from the denial of his petition for post-conviction

      relief (PCR Petition) following his guilty plea to attempted murder. He asserts

      that the post-conviction court erred in rejecting his claim of ineffective

      assistance of trial counsel.


[2]   We affirm.


                                         Facts & Procedural History


[3]   On September 13, 2007, Erickson pled guilty to attempted murder, a Class A

      felony. As the factual basis, he admitted that he intended to kill T.P. and that

      he attempted to do so by stabbing her with a knife. At the time, Erickson was

      represented by Attorney Brent Zook.1 Subsequent to the entry of his guilty plea,

      Attorney Zook asked the court to expedite a mental health examination of

      Erickson by Dr. Paul Yoder, indicating the desire to have the examination done

      prior to sentencing. Additionally, Erickson waived his right to be sentenced

      within thirty days to accommodate the scheduling of the examination. The trial

      court held a sentencing hearing on November 29, 2007, prior to which the court

      reviewed Dr. Yoder’s psychological report. For purposes of sentencing,

      Attorney Zook relied upon Dr. Yoder’s findings that Erickson had a reduced

      ability to cope with stress and merely snapped, causing him to commit the

      crime, in arguing for a twenty-five-year sentence, an extensive period of




      1
          Attorney Zook passed away in 2010.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017   Page 2 of 8
      probation, and treatment. At the conclusion of the hearing, the court sentenced

      Erickson to forty years imprisonment.


[4]   On March 7, 2016, Erickson, pro se, filed a PCR Petition alleging trial counsel

      ineffectiveness. The post-conviction court held an evidentiary hearing on

      October 21, 2016. On December 22, 2016, the post-conviction court issued

      findings of fact and conclusions of law denying Erickson’s request for post-

      conviction relief. Erickson now appeals. Additional facts will be provided as

      necessary.


                                          Discussion & Decision


[5]   Erickson argues that his trial counsel rendered ineffective assistance. Because

      there was no trial, Erickson’s claim relates to his trial counsel’s performance in

      assisting and advising him prior to the entry of his guilty plea. Erickson asserts

      that his counsel never met with him and never discussed the evidence or

      possible defenses to the charge of attempted murder prior to his guilty plea.


[6]   In a post-conviction proceeding, the petitioner bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Bethea v. State, 983

      N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction

      relief, the petitioner stands in the position of one appealing from a negative

      judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In

      order to prevail, the petitioner must demonstrate that the evidence as a whole

      leads unerringly and unmistakably to a conclusion opposite that reached by the

      post-conviction court. Id. Although we do not defer to a post-conviction

      Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017   Page 3 of 8
      court’s legal conclusions, we will reverse its findings and judgment only upon a

      showing of clear error, i.e., “that which leaves us with a definite and firm

      conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729

      N.E.2d 102, 106 (Ind. 2000)).


[7]   A petitioner will prevail on a claim of ineffective assistance of trial counsel only

      upon a showing that counsel’s performance fell below an objective standard of

      reasonableness and that the deficient performance prejudiced the petitioner. Id.

      Because a petitioner must prove both deficient performance and resulting

      prejudice, the failure to prove either defeats such a claim. See Young v. State,

      746 N.E.2d 920, 927 (Ind. 2001).


[8]   The petitioner must first demonstrate deficient performance, which is

      “representation that fell below an objective standard of reasonableness,

      committing errors so serious that the defendant did not have the ‘counsel’

      guaranteed by the Sixth Amendment.” Bethea, 983 N.E.2d at 1138 (quoting

      McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)). There is a strong

      presumption that trial counsel rendered adequate service. Bethea, 983 N.E.2d at

      1139.


[9]   With regard to the prejudice inquiry, the petitioner must establish “a reasonable

      probability that, but for counsel’s errors, the result of the proceeding would

      have been different.” Id. Where, as here, the defendant has entered a guilty

      plea, he is entitled to relief only if he proves that (1) he would not have pled

      guilty absent the ineffective assistance of counsel; and (2) there is a reasonable


      Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017   Page 4 of 8
       probability that he would have received a more favorable result in a trial.

       Segura v. State, 749 N.E.2d 496, 507 (Ind. 2001); Jeffries v. State, 966 N.E.2d 773,

       779 (Ind. Ct. App. 2012), trans. denied. “A reasonable probability is one that is

       sufficient to undermine confidence in the outcome.” Kubsch v. State, 934

       N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668,

       694 (1984)).


[10]   Erickson claims that his trial counsel failed to advise him of the defense of

       involuntariness—i.e., that he had a viable defense of automatism. As explained

       by our Supreme Court, “[a]utomatism has been defined as the existence in any

       person of behaviour of which he is unaware and over which he has no

       conscious control.” McClain v. State, 678 N.E.2d 104, 106 (Ind. 1997)

       (quotations and citations omitted). This state involves a person who “though

       capable of action, is not conscious of what he is doing.” Id. (quotations and

       citation omitted). Automatism can manifest itself in a range of conduct,

       including “somnambulism (sleepwalking), hypnotic states, fugues, metabolic

       disorders, and epilepsy and other convulsions or reflexes.” Id.


[11]   In support of his claim that automatism was a viable defense, Erickson points to

       his own statements made weeks or months after the crime in which he claimed

       that he blacked out at the moment of the attack. He contends that Dr. Yoder’s

       psychological evaluation further supports his defense because Dr. Yoder

       concluded that he lacked intent to commit the crime. In so arguing, Erickson

       ignores or mischaracterizes the record. At most, the record supports the

       conclusion that Erickson acted without extensive premeditation and later

       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017   Page 5 of 8
       blocked the brutal moment of the crime from his memory. Neither of these

       circumstances, however, supports a claim that he did not act voluntarily at the

       time he committed the crime.


[12]   When arrested shortly after the crime, Erickson gave a detailed description of

       his actions before, during, and immediately thereafter. At no point did he claim

       that he had blacked out. To the contrary, he was clearly capable of recalling

       and recounting the events of the night and his actions. Erickson detailed his

       interactions with his wife through text messages and phone conversations and

       how he became upset. He also detailed how he took three-year-old T.P. by the

       hair and buttocks and threw her on the floor and then retrieved a knife from the

       kitchen and stabbed her in the abdomen. Erickson recalled seeing organs

       protruding from T.P.’s abdomen and how he then placed her in the bathtub.

       Erickson explained that he retrieved another knife before leaving the apartment

       and that he intended to kill himself, which suggests he was aware of the gravity

       of the crime he had just committed. Given the detail Erickson provided soon

       after he committed the offense, his brief blackout, which claim arose only after

       he had been incarcerated for some time, reflects, at most, only a loss of memory

       after the crime, not his state of mind at the time he committed the crime.


[13]   Likewise, Erickson mischaracterizes Dr. Yoder’s report. Dr. Yoder did not

       conclude, as Erickson suggests, that Erickson lacked the specific intent to kill

       T.P. at the time of the crime. Dr. Yoder merely observed that there was no

       evidence of significant premeditated intent to kill “at least prior to the ‘heat of

       the moment.’” Exbibit Vol. 2, Exhibit E at 23. Dr. Yoder also acknowledged

       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017   Page 6 of 8
       that Erickson’s belated claim of a blackout was inconsistent with his earlier

       statements to police. While he could not rule out the possibility of a blackout,

       Dr. Yoder noted that Erickson performed a complex series of actions in moving

       through several different rooms in the apartment during his attack on T.P. Dr.

       Yoder indicated that a “rage related blackout would be more plausible” if the

       attack had been a spontaneous occurrence in one room only while next to the

       knives at the time he was arguing with his wife on the phone. Exhibit Vol. 2,

       Exhibit E at 12. Dr. Yoder opined that Erickson’s later claim of a blackout

       “might suggest a more complex form of amnesia if there is other data to support

       such a conclusion.” Id. It does not appear, however, that Dr. Yoder found

       such other evidence for that conclusion.


[14]   Erickson’s claim essentially boils down to an asserted inability to recall the

       events long after the crime, not a claim that he was involuntarily unable to

       consciously control or be aware of his actions as he performed them. In short,

       Erickson has failed to establish that under the facts of this case, automatism was

       a viable defense to the charge of attempted murder. Thus, Erickson cannot

       establish that trial counsel was ineffective for failing to recognize and advise

       him of such defense.


[15]   The post-conviction court did not err in denying Erickson’s request for post-

       conviction relief based on his claim of ineffective assistance of counsel.


[16]   Judgment affirmed.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017   Page 7 of 8
May, J. and Vaidik, C. J., concur.




Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PC-140 | December 15, 2017   Page 8 of 8
