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                                         Sep 15 2014, 8:57 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE:                                 ATTORNEYS FOR APPELLEE:

MICHAEL A. WINDHORN                               GREGORY F. ZOELLER
Bunker Hill, Indiana                              Attorney General of Indiana

                                                  ERIC P. BABBS
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL A. WINDHORN,                              )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
              vs.                                 )        No. 91A02-1312-PC-1074
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Respondent.                       )


                      APPEAL FROM THE WHITE SUPERIOR COURT
                          The Honorable Robert B. Mrzlack, Judge
                               Cause No. 91D01-1208-PC-7



                                      September 15, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Michael A. Windhorn appeals the post-conviction court’s denial of his petition for

post-conviction relief. Windhorn raises a single issue for our review, which we restate as

whether the post-conviction court’s judgment that Windhorn was not denied the effective

assistance of trial counsel is clearly erroneous. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On September 19, 2006, the State charged Windhorn with child molesting, as a

Class A felony. Windhorn pleaded guilty as charged on January 29, 2007, pursuant to a

written plea agreement.     The court accepted Windhorn’s plea on March 2 and, in

accordance with the terms of the plea agreement, the court sentenced Windhorn to

twenty-eight years executed, or two years below the advisory sentence for a Class A

felony.

       On August 24, 2012, Windhorn filed his petition for post-conviction relief. In

relevant part, Windhorn alleged that his trial counsel had failed to properly investigate

whether Windhorn suffered from a mental illness and whether the State’s charge was

supported by evidence independent of a confession Windhorn had made to the police

shortly after his arrest. As a result of those failures, Windhorn continued, he did not enter

into his guilty plea knowingly, voluntarily, and intelligently.

       At the ensuing evidentiary hearing, Windhorn called his trial counsel, Brett

Gibson, as a witness. Gibson testified that he “specifically remembered” Windhorn

because, when Gibson was retained by Windhorn and the two first met, Windhorn “t[old]

me that [he was] guilty, that [he] felt very guilty about what had happened, that [he] had


                                              2
consulted with [his] religious advisers . . . and they advise[d] [him] to tell the

police . . . and confess . . . , and [he] said [he] did that.” Tr. at 10-11. Gibson further

testified: “seldom when I’m first retained does someone tell me, yes, I’m guilty, and I

want to get this thing resolved, and I specifically remember that.” Id. at 11. Gibson also

stated that he has represented numerous clients with varying degrees of mental illness,

Windhorn did not inform Gibson of a purported mental illness, Gibson did not observe

that Windhorn suffered from an apparent mental illness, and, before he had first met with

Windhorn, Windhorn had reported to officers that he did not suffer from a mental illness.

And Windhorn’s current psychiatrist, Dr. Alfredo Tumbali, testified that Windhorn had

never been diagnosed with any mental illness prior to his incarceration in 2007, at which

time Windhorn was diagnosed with depression.

      Following the evidentiary hearing, the court entered findings of fact and

conclusions of law denying Windhorn’s petition. In particular, the court found and

concluded as follows:

      13.     [Windhorn] presented evidence at the Evidentiary Hearing
      suggesting that he was suicidal and depressed at the time of his arrest in this
      case and that[,] after being sentenced and transported to the Indiana
      Department of Correction, . . . he was diagnosed with bi-polar disorder.
      Attorney Gibson testified that he reviewed the discovery in this case with
      [Windhorn], including a transcript of the statement [Windhorn] gave to the
      police, and that [Windhorn’s] statement to the police did not appear to
      contain any suppression issues. He also testified that he did not observe
      any evidence of mental illness of [Windhorn]. In addition, Dr. Tumbali
      testified that his medical records of [Windhorn] showed that no mental
      condition was diagnosed prior to 2007.

      14.    The Court can understand that a defendant might feel suicidal and
      depressed after being accused of, confessing to, and then being arrested for
      acts that support a Class A Felony charge of child molesting. [Windhorn]
      has failed to present evidence sufficient to convince the Court, however,
                                            3
       that [his] suicidal ideation and depression rose to a level that interfered with
       his ability to make a knowing, voluntary, and informed decision to plead
       guilty. [Windhorn] also failed to present sufficient evidence to convince
       the Court that[,] at the time the offense was committed, [he] suffered from a
       mental disease or defect that would support the position that he was unable
       to appreciate the wrongfulness of his conduct.

       15.     [Windhorn] has failed to present sufficient evidence to convince the
       Court that his attorney’s advice and counsel fell below the objective
       standard of reasonableness to suggest that his guilty plea was not made
       freely, voluntarily and intelligently. In addition, the other grounds alleged
       by [Windhorn] in his petition were not proved by the evidence presented.

Appellant’s App. at 19-20. This appeal ensued.

                            DISCUSSION AND DECISION

       Windhorn appeals the post-conviction court’s denial of his petition for post-

conviction relief. Our standard of review in such appeals is clear:

       [The petitioner] bore the burden of establishing the grounds for post-
       conviction relief by a preponderance of the evidence. See Ind. Post-
       Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d 591, 597 (Ind.
       2001). Post-conviction procedures do not afford a petitioner with a super-
       appeal, and not all issues are available. Timberlake, 753 N.E.2d at 597.
       Rather, subsequent collateral challenges to convictions must be based on
       grounds enumerated in the post-conviction rules. Id. If an issue was
       known and available, but not raised on direct appeal, it is waived. Id. If it
       was raised on appeal, but decided adversely, it is res judicata. Id.

              In reviewing the judgment of a post-conviction court, appellate
       courts consider only the evidence and reasonable inferences supporting the
       post-conviction court’s judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind.
       2006). The post-conviction court is the sole judge of the evidence and the
       credibility of the witnesses. Id. at 468-69. Because he is now appealing
       from a negative judgment, to the extent his appeal turns on factual issues
       [the petitioner] must convince this court that the evidence as a whole leads
       unerringly and unmistakably to a decision opposite that reached by the
       post-conviction court. See Timberlake, 753 N.E.2d at 597. We will disturb
       the decision only if the evidence is without conflict and leads only to a
       conclusion contrary to the result of the post-conviction court. Id.

Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.
                                              4
        Further, the post-conviction court in this case made findings of fact and

conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). “Although we

do not defer to the post-conviction court’s legal conclusions, ‘[a] post-conviction court’s

findings and judgment will be reversed only upon a showing of clear error—that which

leaves us with a definite and firm conviction that a mistake has been made.’” Overstreet

v. State, 877 N.E.2d 144, 151 (Ind. 2007) (citation omitted).

        Windhorn contends that he was denied the effective assistance of trial counsel in

violation of the Sixth Amendment to the United States Constitution. Specifically, he

argues that his trial counsel did not adequately investigate Windhorn’s purported mental

illness and did not adequately prepare for trial.1 A claim of ineffective assistance of

counsel must satisfy two components. Strickland v. Washington, 466 U.S. 668 (1984).

First, the defendant must show deficient performance: representation that fell below an

objective standard of reasonableness, committing errors so serious that the defendant did

not have the “counsel” guaranteed by the Sixth Amendment. Id. at 687-88. Second, the

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

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

proceeding would have been different. Id. at 694.

        The post-conviction court did not err when it rejected Windhorn’s assertion that

his trial counsel had performed below an objectively reasonable standard. First, Gibson

        1
            Windhorn states that these errors resulted in him entering a guilty plea that was not made
knowingly, voluntarily, and intelligently, but he does not separately argue that his guilty plea is invalid.
Our supreme court has noted that whether counsel rendered effective assistance is a distinct question from
whether a guilty plea is made knowingly, voluntarily, and intelligently. State v. Moore, 678 N.E.2d 1258,
1266 (Ind. 1997). Thus, we do not interpret these statements on appeal to be a distinct argument that
Windhorn’s guilty plea is invalid, and any attempt by Windhorn to separately argue the validity of his
guilty plea is not supported by cogent reasoning. Ind. Appellate Rule 46(A)(8)(a).
                                                     5
did not fail to investigate Windhorn’s alleged mental illness. Gibson testified that he has

represented numerous clients with varying degrees of mental illness, that Windhorn did

not inform Gibson of a purported mental illness, that Gibson did not observe that

Windhorn suffered from an apparent mental illness, and that, before he had even met with

Windhorn, Windhorn had reported to officers that he did not suffer from a mental illness.

And Windhorn’s psychiatrist likewise testified that Windhorn had never been diagnosed

with any mental illness prior to his incarceration in 2007, at which time Windhorn was

diagnosed with depression. Windhorn presented no evidence to demonstrate that, prior to

the entry of his guilty plea, he actually—or even possibly—suffered from a mental illness

for Gibson to investigate.        As such, the post-conviction court did not err when it

concluded that Gibson did not render ineffective assistance on this issue.

       We also reject Windhorn’s assertion that Gibson failed to adequately prepare for

trial. It is well established that counsel is afforded considerable discretion in choosing

strategy and tactics, and we will accord that decision deference. Wilkes v. State, 984

N.E.2d 1236, 1245 (Ind. 2013) (citations and quotations omitted). Here, Gibson testified

that, when he first met with Windhorn, Windhorn immediately admitted his guilt,

acknowledged his confession to the police, and asked Gibson to “get this thing resolved.”

Tr. at 11. And Gibson further testified that he had reviewed Windhorn’s confession and

determined that there were no legitimate bases to have that confession suppressed.2



       2
          On appeal, Windhorn asserts that the confession should have been suppressed both because of
his mental illness and because he was under a “false arrest.” Appellee’s Br. at 21. We have already
rejected Windhorn’s claim that he suffered from a mental illness. Regarding the alleged false arrest,
Windhorn did not submit the transcript of his interrogation and confession to the post-conviction court.
Thus, Windhorn has not met his burden of proof to show that Gibson was incorrect when Gibson testified
                                                   6
        In light of these facts, we agree with the State that “it was an entirely reasonable

strategy for counsel to focus on negotiating a plea agreement that would limit

Windhorn’s sentencing exposure.” Appellee’s Br. at 10. Further, an expedient plea

agreement is highly beneficial to the State, as it saves the State the time and expense of a

trial, which in turn can make such a plea a mitigating circumstance for the defendant at

sentencing. See Trueblood v. State, 715 N.E.2d 1242, 1257 (Ind. 1999). And Gibson

successfully negotiated a plea agreement with the State that called for Windhorn to serve

an executed term of twenty-eight years, or two years less than the advisory sentence for a

Class A felony. See Ind. Code § 35-50-2-4. Gibson’s strategy was entirely reasonable in

light of Windhorn’s admission to him, Windhorn’s request to “get this thing resolved,”

Tr. at 11, and Windhorn’s legitimate confession to the police.

        We also disagree with Windhorn’s assertion that his confession was inadmissible

under the corpus delicti rule. As our supreme court has explained, to admit a confession

into evidence, there must be “some evidence of probative value aside from the

confession” that tends to prove the commission of the crime. Parker v. State, 228 Ind. 1,

7, 88 N.E.2d 556, 558 (1949). The primary purpose of this rule is to reduce the risk of

convicting a defendant based on his confession to a crime that did not occur, such as

“confessions produced by coercive tactics.” Willoughby v. State, 552 N.E.2d 462, 466

(Ind. 1990).

        Contrary to Windhorn’s assertions, his conviction is supported by more than just

his confession to police.        Had Windhorn gone to trial, the State also would have


that he had reviewed that confession and determined there were no legitimate bases to have the confession
suppressed.
                                                   7
supported its allegation with the testimony of Windhorn’s wife, who first reported the

molestation of their child to Child Protective Services after Windhorn had admitted the

molestations to her. And the testimony of Windhorn’s wife could either have been

voluntary through her own waiver of the spousal privilege, see Glover v. State, 836

N.E.2d 414 (Ind. 2005) (noting that Indiana’s spousal privilege “does not bar the spouse

from testifying if the spouse chooses to do so”), or the court could have compelled

Windhorn’s wife to testify under our child protection laws, see Baggett v. State, 514

N.E.2d 1244, 1245 (Ind. 1987) (“the privileged communication between a husband and

wife is not a ground for excluding evidence in any judicial proceeding resulting from a

report of a child who may be a victim of child abuse or neglect . . . .”); see also I.C. § 31-

32-11-1. Thus, there is no error on these issues.

       As Windhorn cannot demonstrate that his counsel rendered assistance that fell

below an objectively reasonable standard, Windhorn’s claim that he was denied his Sixth

Amendment right to counsel must fail, and we need not consider whether any of the

alleged errors prejudiced Windhorn. Hence, we affirm the post-conviction court’s denial

of Windhorn’s petition for post-conviction relief.

       Affirmed.

BAILEY, J., and PYLE, J., concur.




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