 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
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.
                                                          Mar 18 2014, 9:41 am




ATTORNEYS FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:
MARIO GARCIA                                       GREGORY F. ZOELLER
CHRISTOPHER H. WEINTRAUT                           Attorney General of Indiana
Brattain Minnix Garcia
Indianapolis, Indiana                              JOSPEH Y. HO
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

SHAWN MCWHORTER,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
           vs.                                     )      No. 73A01-1309-PC-375
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )

                      APPEAL FROM THE SHELBY CIRCUIT COURT
                         The Honorable Charles D. O’Connor, Judge
                              Cause No. 73C01-1212-PC-022


                                         March 18, 2014
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
      Shawn McWhorter (“McWhorter”) pleaded guilty in Shelby Circuit Court to Class

B felony criminal deviate conduct and Class C felony robbery and was sentenced to an

aggregate term of twenty-eight years incarceration. After this court rejected his direct

appeal, McWhorter filed a petition for post-conviction relief claiming ineffective

assistance of trial counsel.    The post-conviction court denied McWhorter’s petition.

McWhorter appeals and claims that the trial court clearly erred in determining that he was

not denied the effective assistance of trial counsel due to his counsel’s failure to

investigate McWhorter’s mental health.

      We affirm.

                               Facts and Procedural History

      The facts underlying McWhorter’s convictions were set forth in our not-for-

publication memorandum decision in McWhorter’s direct appeal:

          The relevant facts follow. On or about July 25, 2007, during the early
      morning hours, McWhorter was driving his car when he saw two girls, who
      were under the age of sixteen at the time, on the side of the road.
      McWhorter admitted at his guilty plea hearing that he used the threat of
      force to cause one of the girls to submit to deviate sexual conduct and to
      commit robbery by taking money from the other girl.
          On November 14, 2007, the State charged McWhorter with criminal
      deviate conduct as a class A felony, sexual misconduct with a minor as a
      class A felony and as a class B felony, two counts of criminal confinement
      as class B felonies, attempted sexual misconduct with a minor as a class A
      felony, armed robbery as a class B felony, impersonation of a public
      servant as a class D felony, and intimidation as a class D felony.
          McWhorter and the State entered into a Joint Motion to Enter Plea of
      Guilty and Advisement of Rights and Waiver dated September 18, 2009
      and file-stamped on September 23, 2009. In the Joint Motion, McWhorter
      agreed to enter a plea of guilty for criminal deviate conduct as a class B
      felony and robbery as a class C felony. Section A of the Joint Motion
      indicated that the sentence was “OPEN.” Section D included the additional
      term of the plea that “[t]he Judge to determine whether counts ... run
      concurrent or consecutive to each other and whether our case is
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      concurrent/consecutive to Marion County.” Paragraph 6 of a separate
      Advisement of Rights and Waiver, also dated September 18, 2009 and
      signed by McWhorter and the State, provided in part:
             If you plead guilty to an offense with sentencing to be
             determined by the Court, you waive your right to have any
             court review the reasonableness of the sentence, including but
             not limited to appeals under Indiana Rule of Appellate
             Procedure 7(B) and you agree and stipulate that the sentence
             of the court is reasonable and appropriate in light of your
             nature and character.
          On October 20, 2009, the trial court conducted a guilty plea hearing and
      took McWhorter's plea under advisement. Also at the hearing, the court
      told McWhorter that the agreement between the State and McWhorter
      contained a provision under which McWhorter waived the right to appeal
      his sentence.
          On November 19, 2009, the trial court held a sentencing hearing. The
      court accepted McWhorter's plea of guilty as set forth in the Joint Motion.
      The court found several aggravating factors and one mitigating factor,
      assigned the aggravating factors substantial weight and the mitigating
      factor minimal weight, and found that the aggravating factors justified an
      enhanced sentence. The court then sentenced McWhorter to twenty years
      executed for the criminal deviate conduct conviction and eight years
      executed for the robbery conviction, and ordered the sentences to be served
      consecutive to each other and consecutive to a sentence imposed in a
      separate case in Marion Superior Court 3 under Cause Number 49G03-
      0710-FA-210802 . . . . The court also confirmed that McWhorter
      understood that he “may be entitled to take an appeal” and that any appeal
      must be filed within thirty days after sentencing or the denial of a motion to
      correct error.

McWhorter v. State, 73A01-0912-CR-573, 2010 WL 2812715, slip op. at 2-4 (Ind. Ct.

App. July 19, 2010).

      On direct appeal, McWhorter challenged the propriety of his sentence under

Indiana Appellate Rule 7(B). A panel of this court concluded that, based on the language

in his plea agreement, McWhorter waived his right to appeal his sentence. Id. at 7. Still,

we held that, even if McWhorter had not waived his right to appeal, his sentence was not



                                            3
inappropriate in light of the nature of the offense and the character of the offender. Id. at

12.

       McWhorter filed a petition for post-conviction relief on December 5, 2012. After

the State responded, the post-conviction court held a hearing on the matter on May 2,

2013. The post-conviction court entered an order denying McWhorter’s petition on

August 6, 2013. McWhorter now appeals.

                          Post-Conviction Standard of Review

       Post-conviction proceedings are not “super appeals” through which convicted

persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State,

761 N.E.2d 389, 391 (Ind. 2002). Rather, post-conviction proceedings afford petitioners

a limited opportunity to raise issues that were unavailable or unknown at trial and on

direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). A post-conviction

petitioner bears the burden of establishing grounds for relief by a preponderance of the

evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). On appeal from the denial

of post-conviction relief, the petitioner stands in the position of one appealing from a

negative judgment. Id. To prevail on appeal from the denial of post-conviction relief, the

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. at 643-44.

       Where, as here, the post-conviction court makes findings of fact and conclusions

of law in accordance with Indiana Post-Conviction Rule 1(6), we cannot affirm the

judgment on any legal basis, but rather, must determine if the court’s findings are

sufficient to support its judgment. Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct.


                                             4
App. 2011), aff’d of reh’g, 947 N.E.2d 962. Although we do not defer to the post-

conviction court’s legal conclusions, we review the post-conviction court’s factual

findings under a clearly erroneous standard. Id. Accordingly, we will not reweigh the

evidence or judge the credibility of witnesses, and we will consider only the probative

evidence and reasonable inferences flowing therefrom that support the post-conviction

court’s decision. Id.

                          Effective Assistance of Trial Counsel

       McWhorter claims that the trial court erred in concluding that he was not denied

the effective assistance of trial counsel.       The law regarding claims of ineffective

assistance of trial counsel was summarized in Timberlake v. State 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). First, the defendant must show that
       counsel’s performance was deficient. This requires a showing that
       counsel’s representation fell below an objective standard of reasonableness,
       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. Second, the
       defendant must show that the deficient performance prejudiced the defense.
       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. A reasonable probability is a
       probability sufficient to undermine confidence in the outcome.
           Counsel is afforded considerable discretion in choosing strategy and
       tactics, and we will accord those decisions deference.              A strong
       presumption arises that counsel rendered adequate assistance and made all
       significant decisions in the exercise of reasonable professional judgment.
       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. Isolated mistakes, poor strategy,
       inexperience, and instances of bad judgment do not necessarily render
       representation ineffective. The two prongs of the Strickland test are
       separate and independent inquiries. Thus, [i]f it is easier to dispose of an
       ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
       course should be followed.

                                             5
753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations omitted). We address both

prongs of the Strickland analysis below.

       A. Deficient Performance

       McWhorter claims that his trial counsel’s performance was deficient because he

failed to adequately investigate McWhorter’s mental health issues. Specifically, he notes

that the pre-sentence investigation report (“PSI”) prepared in the present case referenced

a PSI for McWhorter prepared in another case in Marion County. The Marion County

PSI indicated that McWhorter had mental health issues, including treatment for bipolar

disorder, depression, and suicidal tendencies.        McWhorter’s trial counsel, however,

questioned McWhorter about the Marion County PSI, and McWhorter told him that the

Marion County PSI was simply incorrect. And at the guilty plea hearing, McWhorter

told the trial court that he did not suffer from any mental illness.

       McWhorter argues that his trial counsel should have further investigated his

mental health so that this could have been argued as a mitigating circumstance at

sentencing. In support of his position, McWhorter cites McCarty v. State, 802 N.E.2d

959 (Ind. Ct. App. 2004), trans. denied.          In McCarty, the defendant was mentally

disabled, but his trial counsel failed to discover or investigate this in order to present this

fact as mitigating at sentencing. On appeal from the denial of McCarty’s post-conviction

petition, the court held that the performance of defendant’s counsel was deficient because

he met with the defendant only once, failed to interview his family members, review the

court file, obtain his educational and mental health records, or consult with a mental

health professional. Id. at 964-65.

                                              6
       In contrast, here, McWhorter’s counsel did view the PSI and noticed the reference

to the Marion County PSI indicating that McWhorter suffered from mental health issues.

When he asked McWhorter about this, however, McWhorter denied the mental health

issues and claimed that the Marion County PSI was incorrect. Nor does McWhorter

claim that his trial counsel met with him only once. And McWhorter’s trial counsel

interviewed McWhorter’s mother, unlike the counsel in McCarty. Under these facts and

circumstances, we are unable to say that the trial court clearly erred in finding that the

performance of McWhorter’s counsel did not fall below an objective standard of

reasonableness for failing to further investigate McWhorter’s mental health. But even if

McWhorter’s counsel’s performance was deficient, this does not mean that he would

prevail.

       B. Prejudice

       As noted above, even if counsel’s performance is deficient, the defendant must

still prove that this deficient performance prejudiced the defense.     Timberlake, 753

N.E.2d at 603. Here, even though McWhorter’s trial counsel did not ask the trial court to

consider McWhorter’s mental health as a mitigator, he did mention it to the trial court.

And the post-conviction judge, who was also the sentencing judge, found that he had

acknowledged that McWhorter was taking medication for his mental issues at

sentencing—a finding McWhorter does not attack on appeal. Thus, the trial court was at

least aware of McWhorter’s mental health issues at sentencing.             Still, even if

McWhorter’s mental health issues had been formally proffered as a mitigator,




                                            7
McWhorter has not persuaded us that the trial court would have imposed a different

sentence.

       Certainly, a defendant’s mental illness can be a mitigating factor in sentencing.

Ousley v. State, 807 N.E.2d 758, 762 (Ind. Ct. App. 2004). But this does not mean that a

defendant’s mental illness is automatically to be given significant mitigating weight. The

mitigating weight to be given to a defendant’s mental illness depends upon: (1) the extent

of the defendant’s inability to control his or her behavior due to the disorder or

impairment; (2) overall limitations on the defendant’s functioning; (3) the duration of the

mental illness; and (4) the extent of any nexus between the disorder or impairment and

the commission of the crime. Id.

       Here, McWhorter fails to explain how his mental illness affected his ability to

control his behavior. Nor did he present any evidence as to how his illness impaired his

ability to function. Perhaps most importantly, McWhorter presented no evidence with

regard to any nexus between his illness and his brutal attack on the victims in this case.

Indeed, according to the Marion County PSI, McWhorter reported that he had been

diagnosed with bipolar disorder and had attempted suicide. He also stated that he had

anxiety problems and heard voices which told him that he was “not good enough and

[was] not doing enough.” Ex. Vol., Defendant’s Ex. A, p. 13. McWhorter, however,

indicated that he was “not crazy,” was simply self-destructive, and “would never hurt

anyone else.” Id. at p. 14. Thus, even the PSI which noted McWhorter’s mental illness

failed to show how his mental illness was related to his criminal behavior. And at the

post-conviction hearing, McWhorter testified that he was suicidal and “hopeless” during


                                            8
sentencing. Tr. p. 16. He presented no evidence that his mental health had any nexus to

his crimes or culpability.

       In addition to this, McWhorter has a significant criminal history that included five

felony convictions—one of them for rape.        And the circumstances of McWhorter’s

crimes, as quoted from our opinion in his direct appeal, are particularly heinous: he

assaulted two girls, had forcible anal intercourse with one, and threatened to kill them if

they reported him.     Under these facts and circumstances, even if we assume that

McWhorter’s trial counsel’s performance was deficient, McWhorter has not established

that he was prejudiced, i.e., that he would have received a different, more lenient

sentence.

                                       Conclusion

       The post-conviction court did not clearly err in concluding that McWhorter’s trial

counsel’s performance did not fall below an objective standard of reasonableness. And

even if McWhorter’s counsel had performed deficiently, McWhorter has failed to

demonstrate that he was prejudiced. Accordingly, the post-conviction court did not

clearly err in denying McWhorter’s petition for post-conviction relief.

       Affirmed.

BRADFORD, J., and PYLE, J., concur.




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