MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                                Jul 23 2020, 9:08 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cynthia M. Carter                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Evan Matthew Comer
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Chad Malone,                                              July 23, 2020
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          19A-PC-2207
        v.                                                Appeal from the Wayne Circuit
                                                          Court
State of Indiana,                                         The Honorable David Kolger,
Appellee-Respondent.                                      Judge
                                                          Trial Court Cause No.
                                                          89C01-1404-PC-7



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020                    Page 1 of 23
                                              Case Summary

[1]   Chad Malone appeals the denial of his petition for post-conviction relief,

      claiming that his trial counsel was ineffective on several grounds, including the

      alleged failure to interview witnesses prior to trial and failure to proffer a jury

      instruction on criminal recklessness, a lesser included offense of attempted

      murder. Malone also contends that he is entitled to relief because “an

      unconstitutional conflict of interest arose” when the deputy prosecutor who

      tried his attempted murder case declined to recuse herself because she had

      previously represented him as defense counsel in an unrelated marijuana case.

      Appellant’s Brief at 33.


[2]   We affirm.



                                  Facts and Procedural History
[3]   In Malone’s direct appeal, this court summarized the facts regarding his

      convictions on two counts of class A felony attempted murder, as follows:


              One afternoon in September 2011, Valerie Grubbs had a
              disagreement with Carey Parkhurst and Corey Groce. Valerie
              told Malone about it, and they drove around looking for Carey
              and [Groce]. They found the pair sitting in a gray sedan in the
              drive-through lane of a nearby McDonald’s in Richmond. As
              [Grubbs] pulled her car alongside the sedan, Malone pulled out a
      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 2 of 23
              gun and fired six shots at Carey and [Groce]. [Grubbs] and
              Malone fled the scene.


              Carey and [Groce] were treated for gunshot wounds at a local
              hospital. Carey had been shot in the chest and right arm.
              [Groce] had also been shot in the arm. [Groce’s] wounds
              required surgery in which veins from his leg were used to repair
              veins in his arm. Both eventually recovered, though [Groce] has
              numbness in his arm and limited use of his hand.


      Malone v. State, No. 89A01-1302-CR-71, slip op. at 2 (Ind. Ct. App. Oct. 29,

      2013). Following the shootings, the State charged Malone, who was twenty

      years old at the time, with two counts of attempted murder, a Class A felony.


[4]   Several days after the shooting, Malone’s mother, Tammy Tellas, agreed to be

      interviewed by a Richmond police detective. Tellas told the detective that she

      and Groce had been previously involved in a romantic relationship and had

      lived together at some point. She recounted an incident that had occurred

      several weeks earlier, where Groce burglarized her apartment, kicked in an air

      conditioning unit, and injured Malone’s stepfather, Cairo Hardin.


[5]   Malone was represented by three different public defenders while his case was

      pending. The trial court granted a total of six continuances prior to trial, and

      about two weeks before the trial was to commence, Malone retained attorney

      David Jordan (trial counsel) to represent him. Trial counsel immediately

      requested a continuance, stating that Malone’s family had recently acquired

      funds to hire private counsel. The trial court denied this seventh request to



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 3 of 23
      continue the trial and that same day, the State moved to amend the charging

      information against Malone as follows:

                                                   COUNT I:


              [O]n or about September 16th, 2011, in Wayne County, State of
              Indiana, Chad Malone did intentionally engage in a substantial
              step toward the commission of the criminal offense of Murder,
              to-wit: Chad Malone intentionally attempted to kill Corey Groce by
              discharging a firearm causing a bullet to strike Corey Groce
              about the body. . . .


                                                   COUNT II:


              [O]n or about September 16th, 2011, in Wayne County, State of
              Indiana, Chad Malone did intentionally engage in a substantial
              step toward the commission of the criminal offense of Murder,
              to-wit: Chad Malone intentionally attempted to kill Casey
              Parkhurst by discharging a firearm causing a bullet to strike
              Casey Parkhurst about the body. . . .


      Appellant’s Appendix at 102 (emphasis added). The original charging

      information did not include language that Malone “intentionally” attempted to

      kill the victims.


[6]   Shortly after Malone retained trial counsel, Malone’s public defender provided

      trial counsel with the case file that included nearly 200 exhibits, discovery

      materials, and a list of nearly forty witnesses, one of which was Tellas. Among

      those materials was a copy of the statement Tellas provided to the Richmond

      police detective. Trial counsel reviewed Tellas’s statement and decided not to


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 4 of 23
      investigate Tellas’s allegations regarding the prior burglary and battery incident.

      Trial counsel believed that the State would likely consider those circumstances

      as Malone’s motive and intent for shooting Groce. Trial counsel did not

      interview Tellas, Grubbs, or Hardin prior to trial.


[7]   During the jury trial that commenced on December 11, 2012, the State called

      both Hardin and Grubbs to testify. Grubbs testified that on the day of the

      shooting, she and Malone were at an apartment building picking up some

      items. While Malone was in the apartment, Grubbs waited in the car and at

      some point, she saw Groce’s vehicle approach and “almost side-swipe” her car.

      Trial Transcript at 610. Grubbs identified the occupants of the vehicle as

      Parkhurst and Groce. Grubbs testified that she exited her vehicle, threw up her

      arms and “start[ed] screaming [and] calling them names.” Id. When Malone

      returned to the car, he got into the passenger seat and Grubbs then began

      chasing Groce.


[8]   After noticing Groce’s vehicle in a drive-through lane at a nearby McDonald’s,

      Grubbs pulled up and stopped her vehicle. Malone immediately pulled out a

      gun and began shooting into Groce’s car. Grubbs testified that she was aware

      of some “bad blood” between Groce and Malone. Id. at 611. At that point,

      trial counsel objected, and there was no further questioning regarding the

      existence of any feud between Malone and Groce.


[9]   At the conclusion of the three-day trial, Malone was found guilty as charged.

      Thereafter, Malone was sentenced to thirty-five years on Count I and to forty


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 5 of 23
       years on Count II, to be served consecutively, for an aggregate term of seventy-

       five years. The trial court identified several aggravating factors, including

       Malone’s criminal history, and that the offenses had been committed in the

       presence of a minor. The trial court also noted that the nature and

       circumstances of the crime went beyond “the minimal conduct necessary to

       violate the applicable statutes,” that Malone had violated a protective order

       when committing the underlying offenses, that Malone was in violation of

       probation and pretrial release, and that Malone had violated the terms of his

       bond by committing the underlying offenses. See id. at 872-79. The trial court

       rejected Malone’s age as a mitigating factor and afforded minimal weight to

       Malone’s troubled childhood as a mitigator. The trial court also concluded that

       Groce’s alleged inducement or facilitation of the crimes was not a statutory

       mitigating circumstance.


[10]   Malone appealed to this court, claiming that his sentence was inappropriate and

       that the trial court abused its discretion in denying his seventh motion for a

       continuance. We affirmed Malone’s convictions and sentence in an

       unpublished memorandum decision on October 29, 2013.


[11]   On April 23, 2018, Malone filed an amended petition for post-conviction relief,

       claiming that trial counsel was ineffective for failing to: (1) interview various

       witnesses prior to trial; (2) object to the State’s amendments of the charging

       information; (3) proffer a jury instruction for criminal recklessness; (4) present

       adequate mitigating evidence at sentencing; and (5) object to an alleged conflict

       of interest concerning the deputy prosecutor who tried Malone’s case.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 6 of 23
[12]   Following a hearing on May 15, 2019, the post-conviction court entered

       findings of fact and conclusions of law denying Malone’s request for relief. It

       determined that trial counsel was well-prepared, employed reasonable strategies

       on Malone’s behalf, and his decision not to object to the State’s amended

       charging information was reasonable because the amendments merely clarified

       the State’s burden of proof.


[13]   The post-conviction court also noted that trial counsel had received all of the

       relevant documents and materials from Malone’s previous attorneys, that

       Malone failed to show how an additional continuance would have benefited

       him, and that it was a reasonable strategy for trial counsel to proceed without

       requesting an instruction on the lesser-included offense of criminal

       recklessness. Moreover, it determined that trial counsel’s decision to not focus

       on the contentious relationship between Malone and Groce was a reasonable

       strategy because the State likely would have used that circumstance as evidence

       of Malone’s specific intent and motive to commit the offenses.


[14]   The post-conviction court concluded that the deputy prosecutor had no duty to

       recuse herself from the attempted murder trial, inasmuch as her representation

       of Malone as defense counsel in the prior marijuana case was wholly unrelated

       to the attempted murder case, and the prior case was resolved two years before

       the attempted murder offenses. Finally, the court concluded that trial counsel

       was not ineffective for not investigating and presenting alleged mitigating

       evidence of “juvenile brain development,” or offering evidence that Groce in



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 7 of 23
       some way provoked the attack. PCR Appendix Vol. II at 147-48. Malone now

       appeals.


                                      Discussion and Decision

                                             I. Standard of Review


[15]   Our standard of review in post-conviction proceedings is well-settled:


           [P]ost-conviction proceedings do not grant a petitioner a ‘super-
           appeal’ but are limited to those issues available under the Indiana
           Post-Conviction Rules. Post-conviction proceedings are civil in
           nature, and petitioners bear the burden of proving their grounds for
           relief by a preponderance of the evidence. Ind. Post-Conviction
           Rule 1(5). A petitioner who appeals the denial of PCR faces a
           rigorous standard of review, as the reviewing court may consider
           only the evidence and the reasonable inferences supporting the
           judgment of the post-conviction court. The appellate court must
           accept the post-conviction court’s findings of fact and may reverse
           only if the findings are clearly erroneous. If a PCR petitioner was
           denied relief, he or she must show that the evidence as a whole leads
           unerringly and unmistakably to an opposite conclusion than that
           reached by the post-conviction court.


       Jent v. State, 120 N.E.3d 290, 92-93 (Ind. Ct. App. 2019), trans. denied (quoting

       Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal citations

       omitted), trans. denied).


                                     II. Ineffective Assistance of Counsel


[16]   Malone argues that he is entitled to post-conviction relief because trial counsel

       was ineffective for failing to: (a) interview and present witnesses; (b) object to

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 8 of 23
       the State’s amendment of the charging information; (c) proffer instructions on

       the lesser-included offense of criminal recklessness; (d) present exculpatory and

       mitigating evidence at sentencing; and (e) object to the deputy prosecutor’s

       potential conflict of interest.


[17]   The Sixth Amendment to the United States Constitution guarantees a person

       accused of a crime the “right to be represented by counsel.” United States v.

       Cronic, 466 U.S. 648, 655 (1984). In ineffective assistance of counsel cases,

       reversal is appropriate where a defendant shows both that counsel’s

       performance fell below an objective standard of reasonableness and that said

       deficient performance so prejudiced the defendant as to deprive him of a fair

       trial. Pennycuff v. State, 745 N.E.2d 804, 811 (Ind. 2001) (citing Strickland v.

       Washington, 466 U.S. 668, 697 (1984)). There is a strong presumption that

       counsel rendered adequate assistance and made all significant decisions in the

       exercise of reasonable professional judgment. Id. Judicial scrutiny of counsel’s

       performance is highly deferential and should not be exercised through the

       distortions of hindsight. Id. Isolated poor strategy, inexperience, or bad tactics

       do not necessarily amount to ineffectiveness of counsel. Id. When considering

       ineffective assistance of counsel claims, we “judge the reasonableness of

       counsel’s challenged conduct on the facts of the particular case, viewed as of the

       time of counsel’s conduct.” Id. (citing Strickland, 466 U.S. at 690). A claim that

       trial counsel was ineffective may be disposed of on the prejudice inquiry alone.

       Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999); Lee v. State, 91 N.E.3d

       978, 984 (Ind. Ct. App. 2017), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 9 of 23
                                               1. Potential Witnesses


[18]   Malone argues that trial counsel was ineffective for failing to “do his

       groundwork” by not fully investigating and interviewing several potential

       witnesses prior to trial. Appellant’s Brief at 20. More specifically, Malone claims

       that trial counsel’s failure to interview the potential witnesses about the

       contentious relationship that he had with Groce prevented the discovery of

       evidence demonstrating that Groce was not merely an “innocent” victim. Id. at

       16, 27.


[19]   Counsel has a duty to make reasonable investigations or to make a reasonable

       decision that a particular investigation is unnecessary. Ritchie v. State, 875

       N.E.2d 706, 719 (Ind. 2007). A “less than complete investigation” of a

       particular witness is not deficient performance if “reasonable professional

       judgments support the limitation on investigation.” Strickland, 466 U.S. at 690-

       91. In those circumstances, the duty to investigate gives way to reasonable trial

       strategy. See Wilkes v. State, 984 N.E.2d 1236, 1244-45 (Ind. 2013). In reviewing

       counsel’s trial performance, “strategic choices made after thorough

       investigation of law and facts relevant to plausible options are virtually

       unchallengeable.” Knowles v. Mirzayance, 556 U.S. 111, 124 (2009) (citing

       Strickland, 466 U.S. at 690); see also McKnight v. State, 1 N.E.3d 193, 201 (Ind.

       Ct. App. 2013).


[20]   In support of his claim, Malone directs us to the testimony of various witnesses

       at the post-conviction hearing, which suggests that Groce provoked Malone


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 10 of 23
       because of the previous home invasion and physical assault against a member

       of Malone’s family. Malone claims that Tellas would have testified that she

       and Groce had dated at some point, and that Groce had allegedly burglarized

       her residence and had stabbed her husband (Malone’s stepfather) several

       months before the shootings.


[21]   Trial counsel’s defense strategy, however, focused on the lack of Malone’s

       specific intent, in that his actions were not intended to cause either victim’s

       death. That strategy negated the only material element of the offense that was

       seriously disputed. None of the incidents the witnesses were expected to

       describe directly involved Malone, and they had occurred weeks or months

       prior to the shootings. Moreover, there was nothing novel about this evidence

       that would have established a lack of specific intent on Malone’s part. To the

       contrary, as the post-conviction court observed, such evidence could have

       provided the jury with a motive for the shootings, i.e., that Groce had

       previously dated Malone’s mother, burglarized her home, and stabbed his

       stepfather.


[22]   We also note that criminal charges relating to the shootings were pending

       against Grubbs at the time of Malone’s trial. 1 Grubbs’s testimony about

       Malone’s contentious relationship with Groce could very well have prompted

       her to exercise her right against self-incrimination, thereby preventing that



       1
        Grubbs admitted that she had provided the transportation to Malone for the purpose of shooting the
       victims.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020                Page 11 of 23
       evidence from being offered at trial. In fact, trial counsel successfully objected

       to the State’s questioning of Grubbs when she was asked about the alleged

       ongoing feud between Malone and Groce. Moreover, as with the proposed

       testimony from Tellas, the admission of such testimony from Grubbs would

       have provided the jury with Malone’s motive for shooting the victims and

       would have undermined trial counsel’s lack of specific intent to kill defense.


[23]   In sum, to focus on the contentious relationship between Groce and Malone

       would effectively have supported the State’s theory of the case. Trial counsel

       chose a reasonable defense to try to negate the specific intent element of the

       charged offenses, and to that end, he made the strategic decision to not provide

       the jury with any evidence of motive. Thus, trial counsel exercised a sound trial

       strategy not to pursue further investigation and interview the potential witnesses

       identified by Malone. Thus, we reject Malone’s claim that trial counsel was

       ineffective on this basis.


                                                 2. Continuance


[24]   Malone argues that trial counsel was ineffective for failing to request a

       continuance after the State amended the charging information. Malone claims

       that the amendments affected his substantial rights and necessarily required

       additional time for trial counsel to adequately prepare for trial.


[25]   The State correctly acknowledges that the purpose of a petition for post-

       conviction relief is to raise issues unknown or unavailable to a defendant at the

       time of the original trial and appeal. Taylor v. State, 840 N.E.2d 324, 330 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 12 of 23
       2006). If an issue was raised on direct appeal, but decided adversely to the

       petitioner, it is res judicata, thus precluding its review in post-conviction

       proceedings. Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006); Trueblood v. State,

       715 N.E.2d 1242, 1248 (Ind. 1999). In other words, the doctrine of res judicata

       prevents the repetitious litigation of that which is essentially the same dispute.

       Sweeney v. State, 704 N.E.2d 86, 94 (Ind. 1998).


[26]   We note that a petitioner for post-conviction relief cannot escape the effect of

       claim preclusion merely by using different language to phrase an issue and

       define an alleged error. State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000). Thus,

       “where an issue, although differently designated, was previously considered and

       determined upon a criminal defendant’s direct appeal, the State may defend

       against defendant’s post-conviction relief petition on grounds of prior

       adjudication or res judicata.” Cambridge v. State, 468 N.E.2d 1047, 1049 (Ind.

       1984) (emphasis in original).


[27]   In this case, Malone argued on direct appeal that the trial court abused its

       discretion in denying his motion for a continuance “because he wished to be

       represented by private counsel.” Slip op. at 4. At the post-conviction level,

       Malone asserted that trial counsel was ineffective for failing to advance a proper

       argument for requesting the continuance, i.e., there was a substantive change to

       the charging information that would have allowed him to “properly investigate

       the case and develop the criminal recklessness theory.” Appellant’s Reply Brief at

       30-31.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 13 of 23
[28]   Contrary to the State’s contention, we do not view Malone’s claim on post-

       conviction relief as using “different language” to rephrase an issue that was

       adversely decided on direct appeal. Thus, the doctrine of res judicata is

       inapplicable here, and we will address Malone’s ineffective assistance of

       counsel claim. See Reed, 856 N.E.2d at 1195 (holding that the doctrine of res

       judicata did not bar the defendant’s claim on post-conviction relief where,

       although a sentencing issue was raised on direct appeal, no argument was made

       that the defendant’s sentence was improper because it was governed by the

       provisions of a specific statute that limits a court’s authority to impose

       consecutive sentences in certain circumstances).


[29]   Ind. Code § 35-34-1-5 (d) provides that when the State amends a charging

       information, the trial court “shall upon motion by the defendant order any

       continuance of the proceeding which may be necessary to accord the defendant

       adequate opportunity to prepare his defense.” The ultimate question is whether

       the defendant “had a reasonable opportunity to prepare for and defend against

       the charges.” Stafford v. State, 890 N.E.2d 744, 752 (Ind. Ct. App. 2008).


[30]   In this case, the amendments removed language from the original charging

       information alleging that Malone “knowingly or intentionally” attempted to kill

       Groce and Parkhurst and replaced it with language alleging that Malone

       “intentionally attempted to kill” Groce and Parkhurst. Appendix at 16, 102. In

       accordance with Spradlin v. State, specific intent to kill is an essential element of

       the crime of attempted murder. 569 N.E.2d 948, 951 (Ind. 1991). Hence, the

       State’s amendments merely replaced an incorrect mens rea element with the

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 14 of 23
       correct one. Additionally, the amendments added no charges against Malone,

       they did not alter the time, date, or location of the alleged offenses, and the

       identities of the victims were not changed. In short, the amendments were non-

       substantive changes to the charging information that did not affect any of

       Malone’s substantial rights.


[31]   There was also no testimony from trial counsel at the post-conviction hearing

       suggesting that he had relied on the State’s initial erroneously-charged mens rea

       while formulating Malone’s defense. To the contrary, trial counsel possessed

       all the evidence necessary to proceed with his chosen defense, even after the

       amendments. Thus, Malone would not have been entitled to a continuance,

       even had trial counsel requested one.


[32]   For all of these reasons, we conclude that Malone has failed to demonstrate that

       trial counsel was ineffective on this basis.


                                   3. Lesser Included Offense Instructions


[33]   Malone argues that trial counsel was ineffective for failing to proffer

       instructions on the lesser included offense of criminal recklessness. Malone

       claims that there was no strategic reason for not requesting such an instruction

       and the “all or nothing defense made no sense” under these circumstances. He

       maintains that the jury should have been given the option to find him guilty of

       criminal recklessness.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 15 of 23
[34]   The offense of murder is committed when “[a] person . . . knowingly or

       intentionally kills another human being.” Ind. Code § 35-42-1-1. An individual

       attempts to commit murder when he, “acting with the culpability required for

       the commission of the crime,” engages “in conduct that constitutes a substantial

       step toward the commission” of murder. Ind. Code § 35-41-5-1(a).


       I.C. § 35-42-2-2 provides that criminal recklessness is committed when a

       defendant “recklessly, knowingly or intentionally . . . inflicts serious bodily

       injury on another person.” A person engages in conduct “recklessly” if he

       “engages in the conduct in plain, conscious, and unjustifiable disregard of harm

       that might result and the disregard involves a substantial deviation from

       acceptable standards of conduct.” I. C. § 35-41-2-2(c).


[35]   At the post-conviction hearing, the evidence established that Malone’s trial

       counsel considered offering a criminal recklessness instruction but ultimately

       decided against doing so. Trial counsel was concerned that such an instruction

       would likely prompt the State to offer its own instructions for Class B felony

       battery. Hence, trial counsel believed that convicting Malone of a Class B

       felony offense would have “been a promising way to ensure that convictions

       and sentences on Class B felonies would have [likely] . . . ensure[d] that

       [Malone] was going to get a boat load of time with convictions on some lesser

       includeds.” PCR Transcript at 175. Counsel also believed that “there was . . .

       overwhelming evidence that [Malone] committed the B felony, so [he] didn’t

       want them in because I liked where we were at . . . the time the jury got the

       case.” Id. at 177-78.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 16 of 23
[36]   Although Malone asserts that his trial counsel’s “all-or-nothing strategy”

       regarding jury instructions was unreasonable because the jury may have been

       persuaded to convict him of a lesser alternative to a Class A felony, this is

       precisely the type of critical evaluation of counsel’s performance that is not

       permitted. See Premo v. Moore, 562 U.S. 115, 125 (2011) (observing that

       Strickland does not permit counsel’s performance to be evaluated with the

       benefit of hindsight). As our Supreme Court commented in Page, “[i]t is not

       sound policy for this Court to second-guess an attorney through the distortions

       of hindsight.” 615 N.E.2d at 896. Hence, trial counsel’s pursuit of an acquittal

       in this case, rather than taking the chance of a conviction for a serious felony,

       was a reasonable strategic choice at the time. Thus, we cannot say that trial

       counsel’s decision to not pursue an instruction on lesser-included offenses

       amounted to ineffective assistance of counsel.


                                        4. Alleged Mitigating Evidence


[37]   Malone next claims that trial counsel was ineffective because Groce’s

       provocation of the ongoing dispute with Malone should have been presented as

       mitigating evidence at sentencing. Malone further contends that trial counsel

       should have presented evidence that juvenile offenders have reduced culpability

       for their actions because of their “attendant lack of wisdom and discernment.”

       Appellant’s Brief at 29.


[38]   The right to effective counsel imposes an obligation on defense attorneys to

       investigate and present mitigating factors at sentencing that may reduce a


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 17 of 23
       defendant’s overall sentence. Gibson v. State, 133 N.E.3d 673, 689 (Ind. 2019).

       The rule in Strickland, however, has never been construed to require counsel to

       investigate “every conceivable line of mitigating evidence no matter how

       unlikely the effort would be to assist the defendant at sentencing.” Wiggins v.

       Smith, 539 U.S. 510, 533 (2003) (citing Strickland, 466 U.S. at 689). As in all

       matters of trial strategy, counsel’s decision not to investigate certain mitigating

       evidence is entitled to broad judicial deference. See Gibson, 133 N.E.3d at 689.

       Thus, a question of whether counsel performed deficiently in preparing for a

       defendant’s sentencing hearing hinges on whether the investigation supporting

       counsel’s penalty-phase strategy was reasonable, and “not whether counsel

       should have presented more in mitigation.” Ritchie, 875 N.E.2d at 719.


[39]   Malone suggests that the ongoing feud with Groce supported a mitigating

       circumstance that the victim “induced or facilitated the offense,” under Ind.

       Code § 35-38-1-7.1(b)(3). Although trial counsel testified at the post-conviction

       hearing that he did not explore the issue of the victim and Malone’s prior

       relationship, there was no evidence that Groce posed an immediate threat to

       Malone or to any of Malone’s family members, or that Groce did anything else

       to provoke the incident. Hence, we cannot say that trial counsel was ineffective

       in not offering evidence at sentencing that Groce may have induced or

       facilitated the commission of the offense.


[40]   Malone also contends that trial counsel was ineffective for failing to present

       scientific evidence or properly argue relevant case law at the sentencing hearing

       regarding a juvenile offender’s lack of brain development “and [his or her]

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 18 of 23
       attendant lack of wisdom and discernment.” Appellant’s Brief at 29. Malone

       asserts that the trial court could have considered such evidence as a mitigating

       factor that may have resulted in a reduced sentence.


[41]   We initially observe that an argument at sentencing “focusing on chronological

       age is a common shorthand for measuring culpability, but for people in their

       teens and early twenties it is frequently not the end of the inquiry.” Ellis v. State,

       736 N.E.2d 731, 736 (Ind. 2000). Indeed, there are “relatively old offenders

       who seem clueless and relatively young ones who appear hardened.” Id. A

       finding of age as a mitigating circumstance is an individualized determination

       that turns on the facts of a particular case and is subject to the trial court’s broad

       sentencing discretion, particularly when it is being advanced for an offender

       who is no longer legally a juvenile. Johnson v. State, 725 N.E.2d 864, 868 (Ind.

       2000).


[42]   Malone directs us to Miller v. Alabama, 567 U.S. 460 (2012), where it was held

       that mandatory life imprisonment without parole sentences for juvenile

       offenders under eighteen years of age are categorically unconstitutional. The

       Miller Court determined that sentencing courts must “take into account how

       children are different” based on a number of developmental factors, like

       “immaturity, impetuosity, and failure to appreciate risks and consequences.”

       Id. at 477-79; see also Taylor v. State, 86 N.E.3d 157, 166 (Ind. 2017) (where our

       Supreme Court, in reviewing the seventeen-year-old defendant’s life without

       parole sentence, observed that children lack maturity, are vulnerable to negative

       influences and pressures, and are less likely to show “irretrievable depravity”).

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 19 of 23
       This rule, however, applies to the sentencing of “children,” not adults, and

       nothing in the Miller rationale addresses sentencing offenders who are over the

       age of eighteen at the time their offenses are committed.


[43]   Two additional cases, Roper v. Simmons, 543 U.S. 551, 569 (2005), and Graham

       v. Florida, 560 U.S. 48, 68 (2011), discuss various scientific studies concerning

       the cognitive development of adolescent youth. In neither of those cases did the

       Court set forth firm rules as to how such evidence should be considered for

       mitigation purposes in criminal proceedings. Moreover, the limited holdings

       and rationales advanced in Miller, Roper, and Graham, have no obvious

       applicability in Malone’s case, given that Malone was nearly twenty-one years

       old when he committed the charged offenses.


[44]   Even so, the trial court had substantial information before it at the sentencing

       hearing showing Malone’s developmental state and culpability. Specifically,

       the psychological evaluation that assessed Malone’s competency to stand trial

       was attached to the presentence investigation report. During the evaluation,

       Malone told the interviewer that when he noticed Groce, “I’m shooting ‘em. I

       could’ve killed him. I wanted to scare them.” Pre-sentence Report at 24. When

       Malone was asked if he knew he could face legal consequences for his behavior,

       he stated, “I didn’t care,” and attempted to blame his behavior, at least in part,

       on his substance abuse. Id. Malone further stated that, after the shooting, he

       fled the scene and absconded to Indianapolis, where he remained until he

       surrendered to police.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 20 of 23
[45]   In sum, there is no evidence suggesting that Malone had diminished culpability

       and that his actions were directly traceable to his youth. Simply put, there was

       no compelling reason for the trial court to conclude that Malone’s age was a

       significant mitigator that warranted a lesser sentence. Hence, defense counsel’s

       lack of argument pursuant to Miller, Graham, and Roper was reasonable and,

       therefore, did not constitute the ineffective assistance of counsel.


                                                  5. Conflict of Interest


[46]   Malone next argues that he is entitled to post-conviction relief because trial

       counsel did not object to the deputy prosecutor’s potential conflict of interest in

       this case, inasmuch as the record shows that she had represented Malone as

       defense counsel in an unrelated criminal case two years before the instant

       offenses occurred.


[47]   To establish that counsel performed deficiently by failing to raise an objection at

       trial, the defendant must show that had defense counsel made the objection, the

       trial court “would have had no choice but to sustain it.” Taylor v. State, 689

       N.E.2d 699, 705 (Ind. 1997); Kimbrough v. State, 911 N.E.2d 621, 640 (Ind. Ct.

       App. 2009). As for instances relating to conflicts of interest in criminal settings,

       our Supreme Court has held that


               [A] lawyer must be disqualified if it is shown that the controversy
               involved in the pending case is substantially related to a matter in
               which the lawyer previously represented another client. The test
               must be applied to the facts of each case to determine whether
               the issues in the prior and present cases are essentially the same
               or are closely interwoven therewith.
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 21 of 23
       Johnson v. State, 675 N.E.2d 678, 682 (Ind. 1996). Additionally, this court has

       determined that “[a]n actual conflict of interest arises where a prosecutor places

       himself in a situation inherently conducive to dividing his loyalties between his

       duties to the State and his personal interests.” Swallow v. State, 19 N.E.3d 396,

       399 (Ind. Ct. App. 2014). The primary concern in this analysis is “whether the

       prosecuting attorney gained any confidential information through their prior

       association” with a defendant and whether that information subsequently

       “provided assistance to the prosecution.” Johnson, 675 N.E.2d at 682.


[48]   In this case, it is undisputed that the deputy prosecutor in the attempted murder

       case had previously represented Malone in a prior unrelated marijuana

       possession case. Malone has not established any link or connection between

       the two different criminal prosecutions. Moreover, both Malone and trial

       counsel acknowledged at the post-conviction relief hearing that no confidential

       information obtained from the prosecution of the marijuana case was ever

       placed before the jury during the attempted murder trial, and there was no

       allegation that the deputy prosecutor learned anything in the prior case that

       aided her prosecution of Malone for the instant offenses. Hence, there was no

       basis for her recusal, and the trial court would not have sustained trial counsel’s

       objection on the grounds that a conflict of interest existed, even if one had been

       made. Therefore, Malone’s claim of ineffective assistance of counsel on this

       basis, fails.


[49]   Judgment affirmed.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 22 of 23
Bailey, J. and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020   Page 23 of 23
