MEMORANDUM DECISION                                                FILED
                                                               Jul 21 2016, 6:54 am

Pursuant to Ind. Appellate Rule 65(D),                             CLERK
                                                               Indiana Supreme Court
this Memorandum Decision shall not be                             Court of Appeals
                                                                    and Tax Court
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
John T. Wilson                                            Gregory F. Zoeller
Anderson, Indiana                                         Attorney General of Indiana

                                                          Ian McLean
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Clarence Stout a/k/a,                                     July 21, 2016
Larry Cornell,                                            Court of Appeals Cause No.
Appellant-Petitioner,                                     48A04-1509-PC-1411
                                                          Appeal from the Madison Circuit
        v.                                                Court
                                                          The Honorable Thomas Newman,
State of Indiana,                                         Jr., Judge
Appellee-Respondent.                                      Trial Court Cause No.
                                                          48D03-1102-PC-5



Barnes, Judge.


Court of Appeals of Indiana | Memorandum Decision 48A04-1509-PC-1411 | July 21, 2016    Page 1 of 10
                                             Case Summary
[1]   Clarence Stout (a/k/a Larry Clinton Cornell) appeals the denial of his petition

      for post-conviction relief (“PCR petition”), which challenged his conviction for

      Class A felony child molesting. We affirm.


                                                      Issue
[2]   The sole issue before us is whether the post-conviction court properly concluded

      that Stout received effective assistance of trial counsel.


                                                     Facts
[3]   In 1984, Stout was charged with molesting his niece, ten-year-old K.C., earlier

      that year. Stout’s first trial resulted in a conviction for Class A felony child

      molesting and a fifty-year sentence, which our supreme court affirmed on direct

      appeal. Stout v. State, 528 N.E.2d 476 (Ind. 1988). However, Stout

      subsequently filed a petition for post-conviction relief; we reversed the denial of

      the petition and remanded for a new trial. Stout v. State, 580 N.E.2d 676 (Ind.

      Ct. App. 1991).


[4]   Stout’s attorney for his second trial, Mark Maynard, did not represent him

      during his first trial. Maynard retrieved Stout’s case file, participated in

      discovery with the State, hired a private investigator, and filed a notice of intent

      to pursue an insanity defense. At one point, Stout filed a motion to remove

      Maynard as his attorney, but later he orally withdrew this motion before the

      trial court. The doctors appointed to examine Stout in light of his proposed

      insanity defense confirmed that Stout suffered from post-traumatic stress
      Court of Appeals of Indiana | Memorandum Decision 48A04-1509-PC-1411 | July 21, 2016   Page 2 of 10
      disorder (“PTSD”) related to his service in Vietnam; the doctors also found that

      Stout had pedophilia. At the outset of the trial, Stout insisted in open court that

      Maynard withdraw the insanity defense, against Maynard’s advice. At trial,

      Maynard cross-examined K.C. regarding inconsistencies in statements she had

      given to various persons and inconsistencies in her testimony in the first trial.

      Maynard did the same with another niece who also claimed Stout had

      improperly touched her. Maynard lodged objections during trial, including to

      testimony by a counselor asked to address inconsistencies in K.C.’s statements

      and testimony. Stout testified on his behalf and admitted to molesting K.C., as

      well as several other children, but he denied threatening her with deadly force,

      as was required to support a Class A felony molesting conviction at the time of

      the offense. Maynard argued to the jury that it should only convict Stout of

      Class C felony child molesting.


[5]   The jury found Stout guilty as charged. At sentencing, Maynard submitted

      extensive testimony and documentation of Stout’s military service and PTSD

      diagnosis and argued that those factors warranted mitigating weight.

      Nevertheless, in light of Stout’s admitted molestation of numerous children and

      criminal record of sex crimes against children, the trial court imposed the

      maximum sentence of fifty years. On appeal, Stout argued error in the

      admission of evidence of a prior rape of a cousin and other “depraved sexual

      instinct” evidence and in the counselor’s testimony regarding K.C., that there

      was insufficient evidence to support his Class A felony conviction, that his

      sentence was cruel, unusual, and manifestly unreasonable, and that his


      Court of Appeals of Indiana | Memorandum Decision 48A04-1509-PC-1411 | July 21, 2016   Page 3 of 10
      presentence report contained improper statements by the probation officer. We

      rejected these arguments and affirmed. Stout v. State, 612 N.E.2d 1076 (Ind. Ct.

      App. 1993), trans. denied.


[6]   In 2011, Stout filed a pro se PCR petition and declined representation by the

      State Public Defender’s Office.1 Stout asserted several grounds upon which

      Maynard’s assistance allegedly was ineffective. He claimed Maynard “failed to

      investigate or hold a deposition on the States’ witnesses, [did not] put a defense

      together, and he only used evidence provided by the state without question or

      proof of fact.” App. p. 15. He also alleged Maynard failed to object to

      vouching testimony and to present supposed evidence that K.C. was an

      incompetent witness who had recently attempted to kill herself, her husband,

      and her child at the time of trial. He claimed Maynard failed to call witnesses

      who had been subpoenaed to trial to testify on his behalf. Stout further asserted

      that Maynard failed to present evidence of his military service and PTSD. He

      also raised independent claims that his sentence violated Blakely v. Washington,

      542 U.S. 296, 124 S. Ct. 2531 (2004).


[7]   By the time of the hearing on Stout’s PCR petition on October 20, 2014, he had

      been released from the Department of Correction, having served his sentence.

      Stout did not present any testimony at the hearing, but rather simply read from




      1
        Originally, the post-conviction court treated this petition as a successive PCR petition and dismissed it
      because Stout had not obtained permission from this court to file a successive PCR petition. Upon request by
      Stout, however, this court determined that Stout’s petition should not be treated as a successive petition and
      remanded to the post-conviction court for further proceedings.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1509-PC-1411 | July 21, 2016             Page 4 of 10
his PCR petition. Maynard was not subpoenaed to appear at the hearing.2

Stout was permitted to submit several affidavits or letters in support of his PCR

petition, most of which were twenty years old. Several of the documents

accused Maynard of being intoxicated during Stout’s trial; however, the trial

court had addressed those claims before sentencing and stated that it had not

observed any signs that Maynard had been intoxicated. An affidavit from

Stout’s mother, Alpha Harlow, related allegations regarding K.C.’s mental

health and troubled background, including that K.C. and her husband had tried

to commit suicide before Stout’s second trial. A letter written by Stout’s

stepfather, Clarence Harlow, stated that he had been subpoenaed to testify at

trial but was not called. A letter written by a Barbara Howard claimed she

could have testified as a “rebutle [sic] witness” and “could have testified against

one of the witness [sic] that the State called which would have ruined her

credibility, and I could have testified to the fact that, although Randy Cornell

said I was violated by the defendant, I was never violated by the defendant.”

Ex. F. Randy Cornell did not testify at Stout’s second trial. Howard’s letter

also related that her aunt, Ruth Nevin, had come to her house demanding that

Howard give her some evidence related to the case, and attempting to persuade

Howard that “we should do all what [sic] we could to keep Stout” in jail. Id.

Nevin likewise did not testify at Stout’s second trial.




2
    The Indiana Roll of Attorneys indicates that Maynard is still practicing law.


Court of Appeals of Indiana | Memorandum Decision 48A04-1509-PC-1411 | July 21, 2016   Page 5 of 10
[8]    Although the State had asserted in its response to Stout’s PCR petition that it

       may assert laches as a defense, it did not present any evidence on that defense at

       the PCR hearing. On August 13, 2015, the post-conviction court denied Stout’s

       PCR petition. Stout was appointed counsel to pursue an appeal from this

       denial.


                                                    Analysis
[9]    A post-conviction relief petitioner bears the burden of proving grounds for relief

       by a preponderance of the evidence. Hollowell v. State, 19 N.E.3d 263, 268-69

       (Ind. 2014). A petitioner appealing the denial of post-conviction relief is in the

       position of appealing from a negative judgment. Id. at 269. “To prevail on

       appeal from the denial of post-conviction relief, a petitioner must show that the

       evidence as a whole leads unerringly and unmistakably to a conclusion opposite

       that reached by the post-conviction court.” Id. The post-conviction court here

       also entered findings of fact and conclusions of law, in accordance with Indiana

       Post-Conviction Rule 1(6). We do not defer to the post-conviction court’s legal

       conclusions, but we will reverse its findings and judgment only upon a showing

       of clear error, which is error that leaves us with a definite and firm conviction

       that a mistake has been made. Id.


[10]   To establish a claim alleging violation of the Sixth Amendment right to

       effective assistance of counsel, a defendant must establish the two components

       set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).

       Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013). “First, a defendant must


       Court of Appeals of Indiana | Memorandum Decision 48A04-1509-PC-1411 | July 21, 2016   Page 6 of 10
       show that counsel’s performance was deficient.” Id. Counsel’s representation

       is deficient only if it fell below an objective standard of reasonableness and

       counsel made errors so serious that counsel was not functioning as “counsel”

       guaranteed to the defendant by the Sixth Amendment. Id. In analyzing an

       attorney’s performance, we give deference to his or her choice of strategy and

       tactics. Ward v. State, 969 N.E.2d 46, 64 (Ind. 2012).


[11]   “Second, a defendant must show that the deficient performance prejudiced the

       defense.” Passwater, 989 N.E.2d at 770. To establish prejudice, a defendant

       must show that counsel’s errors were so serious as to deprive the defendant of a

       fair trial, meaning a trial that’s result is reliable. Id. A defendant must establish

       that there is a reasonable probability that, but for counsel’s unprofessional

       errors, the result of the proceeding would have been different. Id.


[12]   On appeal, Stout contends that the letters or affidavits he submitted in support

       of his PCR petition demonstrate that Maynard failed to provide him an

       adequate defense because he did not challenge K.C.’s mental state or otherwise

       call witnesses who purportedly could have challenged the State’s case. We note

       that Stout did not present Maynard’s testimony at the PCR hearing. When a

       post-conviction relief petitioner claims ineffective assistance of counsel but fails

       to call available counsel to testify, it may be inferred that counsel would not

       have corroborated any claims of ineffective assistance. Oberst v. State, 935

       N.E.2d 1250, 1254 (Ind. Ct. App. 2010), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1509-PC-1411 | July 21, 2016   Page 7 of 10
[13]   As the State suggests, any decision by Maynard to challenge K.C.’s credibility

       or competency to testify based on her mental health would have been a very

       dicey proposition that easily could have backfired on Stout. That is to say,

       especially with reference to K.C.’s alleged attempted suicide before the second

       trial, well after Stout’s molestation of her, the jury may have inferred that Stout

       at least was partially to blame for her troubled mental state. Maynard may well

       have reasonably decided to avoid that topic entirely.


[14]   As for other rebuttal evidence Stout suggests Maynard failed to present, Stout

       does not adequately explain how such evidence would have been relevant or

       useful in his second trial. For example, Howard stated in her letter that she

       could have attacked the credibility of one of the State’s female witnesses, but

       fails to identify who that witness was. She also said that she could have

       rebutted Randy Cornell’s claim that Stout had “violated” her, but Cornell did

       not testify at Stout’s second trial. Ex. F. Likewise, Howard’s discussion of her

       aunt, Ruth Nevin, has no apparent connection to any evidence presented at

       Stout’s second trial, given that Nevin did not testify. Similarly, other vague

       references in the letters and affidavits to uncalled, potential “rebuttal” witnesses

       fail to explain exactly what they could have rebutted in the State’s case. In

       sum, it is impossible to say how Stout was prejudiced by Maynard’s failure to

       call these witnesses, let alone whether it was an unreasonable decision for

       Maynard not to call them.


[15]   We also reject Stout’s overall, more general claim that Maynard failed to

       investigate his case or provide an adequate defense. Maynard obtained funds

       Court of Appeals of Indiana | Memorandum Decision 48A04-1509-PC-1411 | July 21, 2016   Page 8 of 10
       from the trial court to hire a private investigator. He attempted to pursue an

       insanity defense on Stout’s behalf, but Stout insisted that the defense be

       withdrawn. Maynard clearly had familiarized himself with previous statements

       given by witnesses and conducted cross-examination based on those statements.

       Maynard objected to an instance of purported vouching by a counselor for

       K.C.’s testimony, which we reviewed on direct appeal. Ultimately, in light of

       the evidence against Stout, Maynard decided to pursue a defense strategy of

       attempting to persuade the jury to convict him of only a Class C instead of a

       Class A felony, based on Stout’s own testimony admitting to the molestation of

       K.C. but denying he had threatened her with deadly force. Such a strategy is

       not necessarily unreasonable. See Christian v. State, 712 N.E.2d 4, 6 (Ind. Ct.

       App. 1999) (citing Underwood v. Clark, 939 F.2d 473, 474 (7th Cir. 1991)). Stout

       fails to explain why it was an unreasonable strategy in his case. Maynard’s

       overall performance during trial was not deficient and did not prejudice Stout.


[16]   Stout also challenges Maynard’s performance in relation to his sentencing. 3 We

       observe that Stout has already served his sentence for this conviction and has

       been released from the Department of Correction. “Once ‘sentence has been

       served, the issue of the validity of the sentence is rendered moot.’” Lee v. State,

       816 N.E.2d 35, 40 n.2 (Ind. 2004) (quoting Irwin v. State, 744 N.E.2d 565, 568




       3
         To the extent Stout raised independent claims in his PCR petition that his sentence was imposed in
       violation of Blakely v. Washington, those claims clearly are not available on collateral review, given that
       Stout’s case was final long before Blakely was decided in 2004. See, e.g., Gutermuth v. State, 868 N.E.2d 427
       (Ind. 2007).

       Court of Appeals of Indiana | Memorandum Decision 48A04-1509-PC-1411 | July 21, 2016               Page 9 of 10
       (Ind. Ct. App. 2001)). In any event, we cannot perceive how Maynard

       provided ineffective assistance with respect to Stout’s sentence. Stout seems to

       suggest that Maynard failed to present mitigating evidence regarding Stout’s

       military service and resulting PTSD, but, in fact, Maynard did thoroughly

       present such evidence and argued to the trial court that it was mitigating.

       Additionally, given Stout’s extensive history of molesting children, both

       resulting in criminal convictions and not, the trial court’s imposition of a

       maximum sentence was entirely justified, and Stout would not have been

       prejudiced, even if Maynard had failed to present mitigating evidence or could

       have been more thorough in presenting it. Stout has failed to establish that

       Maynard was ineffective with respect to sentencing.


                                                 Conclusion
[17]   Stout failed to establish that he received ineffective assistance of trial counsel;

       thus, the post-conviction court did not clearly err in denying his PCR petition.

       We affirm.


[18]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1509-PC-1411 | July 21, 2016   Page 10 of 10
