MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Apr 12 2017, 10:15 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.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Christopher M. Macy                                       Curtis T. Hill, Jr.
Pendleton, Indiana                                        Attorney General of Indiana
                                                          Michael Gene Worden
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher M. Macy,                                      April 12, 2017
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          49A05-1601-PC-100
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Kurt M. Eisgruber,
Appellee-Respondent                                       Judge
                                                          The Honorable Steven J. Rubick,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49G01-0804-PC-71221



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017             Page 1 of 9
[1]   Christopher Macy, pro se, appeals the judgment of the post-conviction court,

      which denied his petition for post-conviction relief (PCR). He argues that he

      received the ineffective assistance of trial and appellate counsel, and that the

      PCR court erred by refusing to issue a subpoena. Finding that Macy did not

      receive the ineffective assistance of counsel and no other error, we affirm.


                                                     Facts
[2]   Macy worked as a maintenance worker in the Keystone Towers apartments.

      On March 26, 2008, he found that his tools were missing. He thought that

      Darrick Mitchell had stolen them, and he began asking residents where he

      could find Mitchell. He later found him; in front of at least three witnesses,

      Macy repeatedly hit Mitchell on the head with a flashlight. Witnesses

      recounted that Mitchell slumped over, started bleeding profusely, and made

      gurgling noises. Although the police arrived within minutes, Mitchell could not

      be saved, and he died from his wounds.


[3]   On February 3, 2009, Macy was found guilty of voluntary manslaughter by

      means of a deadly weapon, a class A felony. The trial court sentenced him to

      forty-five years. Macy appealed, arguing that the trial court erred by admitting

      several autopsy photographs into evidence, but we affirmed his conviction in a

      memorandum decision. Macy v. State, No. 49A04-0903-CR-144, 2009 WL

      3817903, at *1 (Ind. Ct. App. Nov. 16, 2009).


[4]   Macy filed a petition for PCR on July 22, 2010, which he subsequently

      amended. He argued that he had received the ineffective assistance of trial and

      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017   Page 2 of 9
      appellate counsel. His central claim was that his trial counsel should have

      pursued a different trial strategy: he conceded that he hit Mitchell repeatedly

      on the head with a flashlight, but thought that, in the intervening moments

      between the end of his attack and the arrival of the police, someone else may

      have snuck in the room and murdered Mitchell.


[5]   The PCR court enabled Macy to subpoena several witnesses, including his trial

      counsel and the deputy prosecutor involved in his case. He also received

      answers to interrogatories served on his trial and appellate counsel. The PCR

      court, however, declined to subpoena the trial court judge and the forensic

      pathologist who testified at the trial, reasoning that neither would be able to

      provide relevant testimony regarding Macy’s PCR arguments. On November

      9, 2015, the PCR court issued its ruling, finding that Macy had not met his

      burden to show that he had received the ineffective assistance of counsel.

      Following a motion to correct error, which was denied, Macy now appeals.


                                   Discussion and Decision
[6]   Macy has three arguments on appeal. First, he argues that the PCR court erred

      by declining to subpoena the forensic pathologist; he claims that the

      pathologist’s trial testimony opened a door to argue that a second weapon and

      assailant were involved, and that this was relevant to his ineffective assistance

      of counsel argument. Second, he argues that his trial counsel should have

      pursued his preferred strategy at trial and that appellate counsel picked a weak




      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017   Page 3 of 9
      argument on appeal. Finally, he argues that the trial court improperly

      sentenced him, and that the PCR court improperly upheld his sentence.


[7]   The petitioner in a post-conviction proceeding bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5); Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App. 2006).

      When appealing from the denial of post-conviction relief, the petitioner stands

      in the position of one appealing from a negative judgment. Id. On review, we

      will not reverse the judgment unless the evidence as a whole unerringly and

      unmistakably leads to a conclusion opposite that reached by the post-conviction

      court. Id.


                                       I. Witness Subpoena
[8]   Pro se petitioners are entitled to request the issuance of subpoenas accompanied

      by an affidavit stating the reason for calling the witness and the expected

      testimony. Indiana Post-Conviction Rule 1(9)(b). That rule requires the PCR

      court to order subpoenas to be issued “[i]f the court finds the witness’ testimony

      would be relevant and probative,” but to refuse it otherwise. Id. The decision

      to grant or deny a request for issuance of a subpoena is within the PCR court’s

      discretion and will only be reversed if the decision is against the logic and effect

      of the facts and circumstances. Collins v. State, 14 N.E.3d 80, 84 (Ind. Ct. App.

      2014).


[9]   We find that the PCR court was entirely correct to deny Macy’s request to

      subpoena the forensic pathologist. Macy is required to “identify what

      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017   Page 4 of 9
       additional information would have been discovered and how he was prejudiced

       by the absence of this information.” Williams v. State, 724 N.E.2d 1070, 1076

       (Ind. 2000). His hypothesis that trial counsel would have elicited additional

       information regarding the number of head wounds or the directions of the

       strikes, and that this information would have convinced the jury that an as-yet

       undiscovered third party snuck into the crime scene and murdered Mitchell, is,

       at best, sheer fantasy. The PCR court made no error in this regard.


                                II. Ineffectiveness of Counsel
[10]   Our Supreme Court has summarized the standard applied to claims of

       ineffective assistance of counsel as follows:

               A defendant claiming a violation of the right to effective
               assistance of counsel must establish the two components set forth
               in Strickland v. Washington, 466 U.S. 668 (1984); accord Williams v.
               Taylor, 529 U.S. 362, 390-91 (2000). First, the defendant must
               show that counsel’s performance was deficient. Strickland, 466
               U.S. at 687. This requires a showing that counsel’s
               representation fell below an objective standard of reasonableness,
               id. at 688, and that the errors were so serious that they resulted in
               a denial of the right to counsel guaranteed the defendant by the
               Sixth Amendment, id. at 687. Second, the defendant must show
               that the deficient performance prejudiced the defense. 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.
               at 694. A reasonable probability is a probability sufficient to
               undermine confidence in the outcome. Id.


               Counsel is afforded considerable discretion in choosing strategy
               and tactics, and we will accord those decisions deference. Id. at
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               689. A strong presumption arises that counsel rendered adequate
               assistance and made all significant decisions in the exercise of
               reasonable professional judgment. Id. at 690. The Strickland
               Court recognized that even the finest, most experienced criminal
               defense attorneys may not agree on the ideal strategy or the most
               effective way to represent a client. Id. at 689. Isolated mistakes,
               poor strategy, inexperience, and instances of bad judgment do
               not necessarily render representation ineffective. Bieghler v. State,
               690 N.E.2d 188, 199 (Ind. 1997); Davis v. State, 598 N.E.2d 1041,
               1051 (Ind. 1992); Ingram v. State, 508 N.E.2d 805, 808 (Ind.
               1987).


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


[11]   Macy’s trial counsel testified at the PCR hearing regarding her trial strategy.

       She noted that there was overwhelming evidence that Macy killed Mitchell.

       She reasoned that Macy’s best strategy would be to defeat the murder charge by

       convincing the jury that he acted in the heat of passion. In fact, Macy’s trial

       counsel’s strategy worked: instead of being convicted of murder, he was

       convicted of voluntary manslaughter.


[12]   Macy posits that he merely battered Mitchell, and that someone else—“an

       individual by the name of ‘Hitman’ who walked around with a stick”—sneaked

       into the crime scene and murdered Mitchell. Appellant’s Br. p. 28. By arguing

       that his trial counsel should have convinced the jury that, despite a complete

       lack of evidence, a third party sneaked onto the scene and committed the crime,

       Macy is demanding the impossible. Macy’s trial counsel more than met the

       standard of performance required of attorneys; as such, Macy cannot meet his



       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017   Page 6 of 9
       burden of proving the first prong of the Strickland test, and his ineffective

       assistance of trial counsel argument must fail.


[13]   Macy also argues that his appellate counsel was ineffective because appellate

       counsel declined to raise “at least eight (8) issues that could have been presented

       on appeal,” which Macy sent to appellate counsel in a letter. Id. at 34.


[14]   We give great deference to appellate counsel’s decisions regarding which

       arguments to raise on appeal, which is “one of the most important strategic

       decisions of appellate counsel.” Hampton v. State, 961 N.E.2d 480, 491 (Ind.

       2012) (citing Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997)). Appellate

       counsel’s performance, as to the selection and presentation of issues, will thus

       be presumed adequate unless found unquestionably unreasonable considering

       the information available in the trial record or otherwise known to the appellate

       counsel. Id. at 491-92. Just as with trial counsel, Macy must show prejudice: a

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

       would have been different. Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014).


[15]   Among the possible arguments Macy contends appellate counsel should have

       raised are the following: that trial counsel was ineffective (we have already

       found that she was not); that the trial court should have instructed the jury on

       reckless homicide (there was no evidence, and Macy has never argued, that he

       acted recklessly as opposed to knowingly); that the trial court began evaluating

       final instructions after the defense’s final witness but before the defense had

       formally closed its case (if this was error, we cannot see how Macy would have


       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017   Page 7 of 9
       been prejudiced by it); and that Indiana’s sentencing scheme is generally

       unconstitutional (Macy relies on several cases decided before Indiana amended

       its sentencing scheme in 2005).


[16]   Searching through Macy’s proposed appellate arguments, we cannot say that

       appellate counsel’s choice was unquestionably unreasonable. None of Macy’s

       proposed appellate arguments have merit, and he has not convinced us that

       appellate counsel would have achieved a different result by arguing them.

       Macy’s claim of ineffective assistance of appellate counsel also fails.


                        III. Trial Court’s Sentencing Statement
[17]   At the sentencing hearing, the trial court rejected Macy’s argument that

       Mitchell’s alleged provocation should be counted as a mitigating factor. He

       argues that a finding by the jury that he committed voluntary manslaughter

       necessarily indicates that he was provoked, and that therefore the trial court

       erred.1


[18]   Macy is incorrect. Voluntary manslaughter requires proof that a person

       knowingly or intentionally killed another human being “while acting under

       sudden heat.” Ind. Code § 35-42-1-3(a) (2008). The trial court simply noted

       that, in the encounter, Macy walked straight into the room and began beating




       1
         We note that this argument was available at the direct appeal stage and is not properly before us at the PCR
       stage. Regardless, we will address it.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017               Page 8 of 9
       Mitchell without Mitchell saying or doing anything; therefore, it declined to

       accept Macy’s proposed mitigating factor.


[19]   In sum, the PCR court properly denied to subpoena a witness, when Macy

       failed to specify what relevant information she would provide; Macy did not

       receive the ineffective assistance of trial or appellate counsel; and the trial court

       did not err in sentencing him.


[20]   The judgment of the post-conviction court is affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-PC-100 | April 12, 2017   Page 9 of 9
