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                          Jul 11 2013, 8:24 am
establishing 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

JOHN PINNOW                                       J.T. WHITEHEAD
Deputy Public Defender                            Deputy Attorney General
Indianapolis, Indiana                             Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DAVID L. HOWARD,                                  )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
              vs.                                 )      No. 46A04-1212-PC-639
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Respondent.                       )


                    APPEAL FROM THE LAPORTE SUPERIOR COURT
                         The Honorable Kathleen B. Lang, Judge
                            Cause No. 46D01-0902-PC-216



                                         July 11, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      David L. Howard was convicted of murder, a felony, following a jury trial. On

direct appeal, this court affirmed his conviction and sentence. See Howard v. State, No.

46A03-0907-CR-299 (Ind. Ct. App. September 10, 2010) (“Howard I”).                Howard

subsequently petitioned for post-conviction relief, which the post-conviction court

denied. He now appeals, challenging the post-conviction court’s judgment, and he raises

a single issue for our review, namely, whether he was denied the effective assistance of

appellate counsel.

      We affirm.

                      FACTS AND PROCEDURAL HISTORY

      This court set out the facts and procedural history in Howard I:

      At around 6:30 p.m. on October 31, 2005, Howard called Jeremy Bowers
      and requested a ride after his vehicle broke down in rural LaPorte County.
      Bowers borrowed five dollars from his mother for gas and left his
      residence. At approximately 7:30 p.m., Lisa Howard (“Lisa”) heard what
      sounded like a “firecracker” outside of her home. Tr. p. 63. Moments later,
      Lisa noticed a vehicle pull into her driveway and observed the passenger
      drag a body from the driver’s side of the vehicle and leave it on the ground
      nearby. Continuing to watch, Lisa saw the passenger remove clothing from
      the body and drop it around the side of the house. After dropping the
      clothing, the passenger ran back to the vehicle, sat there for a minute or so,
      and then exited again to drag the body further. Lisa notified police.

             Minutes later, Officers Shawn Hutchison, Shane Washluske, and
      Nick Krause of the Michigan City Police Department responded to the
      crime scene. The officers saw a vehicle in the driveway and a man in front
      of that vehicle. Officers walked towards the front of the vehicle and
      discovered a dead body, later identified as Bowers. During initial
      questioning, the man identified himself as Howard and handed police a red
      bandana and a box of shotgun shells from his own pocket. Police also
      noticed that Howard had blood and human tissue all over his clothes.

             Additional officers processed the crime scene for evidence and were
      able to observe and recover a shotgun, shotgun shell casing, blood trails,
                                            2
      drag marks, and the victim’s clothes.       During the course of the
      investigation, police obtained a warrant to search Howard’s residence,
      where they uncovered an additional box of ammunition and two shotgun
      shells.

             On November 1, 2005, the State charged Howard with murder, a
      felony. On July 6, 2007, Howard was found guilty following a jury trial.
      On September 13, 2007, Howard was sentenced to sixty-five years in the
      Indiana Department of Correction with five years suspended to probation.

Id. at *1. On direct appeal, Howard alleged that the State had presented insufficient

evidence to support his conviction and that his sentence was inappropriate in light of the

nature of the offense and his character.     We affirmed his sentence and conviction.

Howard thereafter filed a petition for post-conviction relief, which the post-conviction

court denied following a hearing. This appeal ensued.

                           DISCUSSION AND DECISION

      The petitioner bears the burden of establishing his grounds for post-conviction

relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Harrison v.

State, 707 N.E.2d 767, 773 (Ind. 1999). To the extent the post-conviction court denied

relief in the instant case, Howard appeals from a negative judgment and faces the

rigorous burden of showing that the evidence as a whole “‘leads unerringly and

unmistakably to a conclusion opposite to that reached by the [lower] court.’”         See

Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999) (quoting Weatherford v. State, 619

N.E.2d 915, 917 (Ind. 1993)). It is only where the evidence is without conflict and leads

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

that its decision will be disturbed as contrary to law. Bivins v. State, 735 N.E.2d 1116,

1121 (Ind. 2000).


                                            3
       On appeal, Howard asserts that he received ineffective assistance from his

appellate counsel.1     A claim of ineffective assistance of counsel must satisfy two

components. Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must

show deficient performance: 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. Id. at 687-88. Second, the defendant

must show prejudice: a reasonable probability (i.e., a probability sufficient to undermine

confidence in the outcome) that, but for counsel’s errors, the result of the proceeding

would have been different. Id. at 694.

       More specifically, Howard avers that his appellate counsel rendered ineffective

assistance when he did not raise two particular issues on appeal. As our supreme court

has explained:

       To show that counsel was ineffective for failing to raise an issue on appeal
       thus resulting in waiver for collateral review, the defendant must overcome
       the strongest presumption of adequate assistance, and judicial scrutiny is
       highly deferential. To evaluate the performance prong when counsel
       waived issues upon appeal, we apply the following test: (1) whether the
       unraised issues are significant and obvious from the face of the record and
       (2) whether the unraised issues are “clearly stronger” than the raised issues.
       If the analysis under this test demonstrates deficient performance, then we
       examine whether, the issues which appellate counsel failed to raise[] would
       have been clearly more likely to result in reversal or an order for a new
       trial. Further, we must

               consider the totality of an attorney’s performance to
               determine whether the client received constitutionally
               adequate assistance and should be particularly sensitive to the
               need for separating the wheat from the chaff in appellate
               advocacy, and should not find deficient performance when
               counsel’s choice of some issues over others was reasonable in

       1
          Howard’s appellate counsel was deceased by the time of the hearing on Howard’s petition for
post-conviction relief.
                                                 4
              light of the facts of the case and the precedent available to
              counsel when that choice was made.

       Ineffective assistance is very rarely found in cases where a defendant
       asserts that appellate counsel failed to raise an issue on direct appeal. One
       reason for this is that the decision of what issues to raise is one of the most
       important strategic decisions to be made by appellate counsel.

Reed v. State, 856 N.E.2d 1189, 1195-96 (Ind. 2006) (citations, omissions, alterations,

and some quotations omitted). With those standards in mind, we turn to Howard’s

contentions on appeal.

       Howard first contends that his appellate counsel was deficient for not raising as an

issue on direct appeal the trial court’s determination that Howard was competent to stand

trial. A trial court’s determination of competency will only be reversed if it was clearly

erroneous. Brewer v. State, 646 N.E.2d 1382, 1385 (Ind. 1995). Where the evidence is

in conflict, we will normally only reverse this decision if it was clearly erroneous,

unsupported by the facts and circumstances before the court and the reasonable

conclusions that can be drawn therefrom. Id. Here, Dr. S.L. Prasad Babu, a psychiatrist,

and John Heroldt, a psychologist, both issued reports concluding that Howard was

competent to stand trial. And following a hearing, the trial court determined that Howard

was competent to stand trial.

       Nonetheless, Howard maintains that the competency issue was “clearly stronger

than the sufficiency of the evidence argument raised on appeal.” Brief of Appellant at

13. In support, Howard asserts that “[t]he nature of the offense, a point blank shooting

with no indication of a motive, and Howard’s apparent act of leaving the stove on in his

apartment suggest a lack of rational behavior.” Id. at 11. And he directs us to specific

findings contained in the competency reports that Howard has “a paranoid personality,”
                                             5
“clinically significant impairment,” and “a limited capacity to assist counsel[.]”

Petitioner’s Exh. D and E. But any argument on direct appeal based on the evidence

cited by Howard would have been a request that this court reweigh the evidence, which

we will not do in reviewing a competency determination. See, e.g., Wallace v. State, 486

N.E.2d 445, 454 (Ind. 1985).           The trial court’s determination is supported by the

conclusions of Dr. Babu and Heroldt, and Howard cannot show that his appellate counsel

was deficient when he did not assert the competency issue on direct appeal.

       Howard next contends that his appellate counsel should have raised the issue of

Howard’s mental illness as a mitigating factor in imposing a sentence. But, as the State

points out, Howard does not direct us to anything in the record showing that his trial

counsel proffered mental illness as a mitigating factor to the trial court. It is well settled

that if a “defendant does not advance a factor to be mitigating at sentencing, this Court

will presume that the factor is not significant and the defendant is precluded from

advancing it as a mitigating circumstance for the first time on appeal.” Hollin v. State,

877 N.E.2d 462, 465 (Ind. 2007). Here, absent a showing that this issue was preserved

for direct appeal, Howard cannot demonstrate that his appellate counsel was deficient

when he did not raise the issue.2 Howard was not denied the effective assistance of

appellate counsel.

       Affirmed.

BAILEY, J., and BARNES, J., concur.




       2
          Howard makes no contention that his appellate counsel should have raised as an issue on direct
appeal ineffective assistance of trial counsel for failing to proffer mental illness as a mitigator.
                                                   6
