MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                          FILED
court except for the purpose of establishing                         May 25 2017, 9:29 am

the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
James Whatley                                            Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana

                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

James Whatley,                                           May 25, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1512-PC-2338
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark Stoner,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Jeffrey Marchal,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G06-0709-PC-195388



Altice, Judge.


                                         Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017           Page 1 of 20
[1]   James Whatley, pro se, appeals the denial of his petition for post-conviction

      relief (PCR petition) in which he alleged that he received ineffective assistance

      of both trial and appellate counsel. His ineffectiveness arguments encompass

      claims of instructional error, improper admission of evidence, and procedural

      misconduct. He also claims that appellate counsel failed to present the

      sufficiency issue well on direct appeal and trial counsel failed to present

      evidence of a possible intervening cause.


[2]   We affirm.


                                       Facts & Procedural History


[3]   In the early morning hours of August 22, 2007, Whatley’s girlfriend Debra

      Bigham drove Whatley and Ciera Pedrey to the Relax Inn in Indianapolis. The

      women waited in Whatley’s car at the back of the motel while Whatley went to

      a room on the second floor to deliver crack cocaine. When he had not returned

      after about ten minutes, Bigham honked the horn. Apparently, Whatley had

      fallen asleep inside the motel room because he had been using cocaine and not

      sleeping for several days.


[4]   Shortly thereafter, Bharat Patel, the owner and manager of the motel,

      approached the women with a flashlight and angrily demanded that they leave.

      This was not the first time that Patel had ordered Bigham and/or Whatley to

      leave the premises, which they frequented for illegal purposes. As Bigham

      explained that she was waiting for a friend, Patel picked up a rock and threw it

      at her. Bigham then drove to the front of the motel and sent Pedrey to get

      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017   Page 2 of 20
      Whatley. As Pedrey walked toward the motel, Patel came around, picked up a

      beer bottle, and threw it at her, chasing her back to the car. Patel then hit the

      hood of the car and the windshield before Bigham and Pedrey drove away.

      Patel called the police to report the trespass around 2:00 a.m.


[5]   Bigham drove to a nearby gas station and called Whatley. She indicated that

      Patel had attacked her again and that she would not return to the motel to pick

      up Whatley. Instead, she agreed to meet him in a drive-in parking lot next to

      the motel. Whatley showed up several minutes later out of breath. He

      hurriedly directed Bigham into the passenger seat and as he sat in the driver

      seat, he stated: “Baby, you don’t have to worry about it no more. He’s

      not…going to f*** with you no more.” Trial Transcript at 86. Whatley then

      asked Bigham and Pedrey to check on Patel.


[6]   The women went up an exterior stairway and found Patel lying motionless on

      his back on the second-floor balcony. Bigham shook Patel’s leg but could not

      wake him. About this same time, IMPD Officer Conrad Simpson arrived at the

      motel in response to Patel’s earlier call. As the women descended the stairs,

      they notified the officer that Patel needed help. Officer Simpson found Patel

      breathing but unresponsive with a laceration on the back of his head and blood




      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017   Page 3 of 20
      coming out of one ear. Patel’s right hand was clinched around a set of keys and

      a cordless phone and flashlight were near his body.1


[7]   Patel suffered a large contusion to the back left-side of his head with an

      associated skull fracture and brain injury. He never regained consciousness and

      died in the hospital about a month later once life support was removed. An

      autopsy revealed that Patel’s death was caused by a blunt force injury to the

      back of his head. In the opinion of the pathologist, Dr. Kent Harshbarger, the

      injury was consistent with Patel falling and striking his head on the ground.


[8]   On September 20, 2007, Bigham gave a statement to police regarding the events

      in question. In addition to providing many of the facts as set out above, she

      indicated that Whatley picked her and Pedrey up from the gas station after they

      were permitted to leave the scene. He then told Bigham that he had struck

      Patel in the head two times with his fist.


[9]   Shortly after Patel’s death, Christina Wilson – a resident of the motel – came

      forward as an eyewitness in the case. On the night in question, Wilson came

      upon a heated confrontation between Patel and two individuals that were inside

      a vehicle, and then she hurried toward her room on the second floor on Patel’s

      direction. Wilson watched from her doorway as Patel came upstairs and

      pounded on a door. She observed a black male come out of another room and




      1
         Upon later testing in the crime lab, “very tiny stains” of Patel’s blood were found on the lens and strap of
      the flashlight. Trial Transcript at 222.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017                 Page 4 of 20
       walk up to and hit Patel, who immediately fell backward to the concrete floor.

       Wilson could not see whether the man used his fist or an object. After striking

       Patel, the man turned and walked down the stairs and around the building.

       Wilson could not identify the man but provided a general description.


[10]   On September 25, 2007, the State charged Whatley with murder. Specifically,

       the State alleged that Whatley knowingly killed Patel “by striking with his fists

       at and against [Patel], thereby inflicting mortal injuries upon [Patel]”. Direct

       Appeal Appendix at 22.


[11]   While in the Marion County Jail, Whatley spoke about his case with another

       inmate, Lonnie Carson, in the spring of 2008 and showed him related

       documents. Carson sent a letter to the prosecutor in early May 2008.

       According to Carson, Whatley indicated he struck Patel once in the back left-

       side of the head with a hammer and then went through Patel’s pockets.

       Whatley also told Carson that there were three female witnesses that he wanted

       to “disappear if at all possible.” Id. at 258-59. Further, Whatley told Carson

       that he was concerned he left a footprint at the scene so he burned the shoes

       along with the hammer.


[12]   Whatley’s two-day jury trial commenced on August 25, 2008. Wilson, Bigham,

       and Carson were among the witnesses for the State. Despite Carson’s reference

       to a hammer, the State proceeded under the theory that Whatley approached

       his unsuspecting victim and forcefully struck him once or twice with his fist,

       knocking Patel backward to the concrete ground. At trial, the State used


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017   Page 5 of 20
       Carson’s testimony to show that Whatley admitted striking Patel and

       characterized the reference to the hammer as bragging by Whatley. In addition

       to aggressively cross examining the witnesses in an attempt to discredit them,

       Whatley’s trial counsel also requested an instruction on involuntary

       manslaughter, a lesser included offense.2


[13]   The jury found Whatley guilty of murder, and the trial court subsequently

       sentenced him to sixty years in prison. Whatley filed a direct appeal in which

       he challenged the sufficiency of the evidence and the admission of evidence

       regarding his drug use and delivery of drugs on the night in question. Another

       panel of this court affirmed Whatley’s murder conviction, and the Supreme

       Court denied Whatley’s petition for transfer. Whatley v. State, 908 N.E.2d 276

       (Ind. Ct. App. 2009), trans. denied.


[14]   Whatley filed a pro-se PCR petition on March 31, 2010, and an amended

       petition on August 9, 2013. An evidentiary hearing was held on the amended

       PCR petition on October 2, 2014 and February 26, 2015.3 The post-conviction

       court denied Whatley’s PCR petition on December 11, 2016. Whatley now

       appeals. Additional facts will be provided below as needed.




       2
         Involuntary manslaughter, Ind. Code § 35-42-1-4(b), contemplates an incidental killing that occurs during a
       battery. Nunn v. State, 601 N.E.2d 334, 339 (Ind. 1992). “Where the killing is accomplished by a touching,
       as here, involuntary manslaughter may be a lesser included offense of murder.” Id.
       3
         Whatley was represented by counsel for a short time during the PCR proceedings beginning in August
       2014. He fired counsel at the conclusion of the evidentiary hearing and has proceeded pro se since.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017             Page 6 of 20
                       Standard of Review for Post-Conviction Proceedings


[15]   In post-conviction proceedings, the petitioner bears the burden of proving

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

       Rule 1(5). The petitioner, on appeal, faces a “rigorous standard of review.”

       Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001). He must show that the

       evidence leads unerringly and unmistakably to a conclusion opposite to that

       reached by the post-conviction court. Gulzar v. State, 971 N.E.2d 1258, 1260

       (Ind. Ct. App. 2012), trans. denied. Further, where the post-conviction court has

       entered findings of fact and conclusion of law, like in this case, we will not defer

       to its legal conclusion but will reverse its findings and judgment only upon a

       showing of clear error – that which leaves us with a definite and firm conviction

       that a mistake has been made. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.

       2000).


                    Standard of Review for Ineffective Assistance of Counsel


[16]   When evaluating ineffective assistance of counsel claims, we apply the two-part

       test set out in Strickland v. Washington, 466 U.S. 668 (1984). Under this test, the

       petitioner must show that counsel’s performance fell below an objective

       standard of reasonableness and that counsel’s deficient performance prejudiced

       the petitioner. Bethea v. State, 983 N.E.2d 1134, 1138 (Ind. 2013). “We afford

       counsel considerable discretion in choosing strategy and tactics, and ‘[i]solated

       mistakes, poor strategy, inexperience, and instances of bad judgment do not

       necessarily render representation ineffective.’” State v. Hollin, 970 N.E.2d 147,


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017   Page 7 of 20
       151 (Ind. 2012) (quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001)).

       There is a strong presumption that trial counsel rendered adequate service.

       Bethea, 983 N.E.2d at 1139.


[17]   With regard to the prejudice element, the petitioner must establish “a

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

       would have been different.” Id. “A reasonable probability is one that is

       sufficient to undermine confidence in the outcome.” Kubsch v. State, 934

       N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland, 466 U.S. at 694). Further,

       because a petitioner must prove both deficient performance and resulting

       prejudice, the failure to prove either defeats such a claim. See Young v. State, 746

       N.E.2d 920, 927 (Ind. 2001).


                                           Discussion & Decision


[18]   Whatley alleges that trial and appellate counsel were ineffective in a number of

       ways – some related and some not. Due to the overlap of many of the claims,

       we will address each based on the type of error alleged.


                                             1. Jury Instructions


[19]   Whatley contends that appellate counsel was ineffective for failing to challenge

       final jury instructions 7, 8, and 10. Although he acknowledges that trial counsel

       objected to instruction 10 as being an improper mandatory instruction, he

       asserts that trial counsel failed to adequately present and preserve the issue and

       failed to object to instructions 7 and 8. Whatley claims that the three


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017   Page 8 of 20
       instructions operated together to preclude the jury from finding him guilty of

       involuntary manslaughter.


[20]   Whatley complains that instructions 7 and 8 precluded the jury from

       considering involuntary manslaughter because the instructions essentially

       indicated to the jury that it could consider involuntary manslaughter only if it

       first found Whatley not guilty of murder. In challenging these instructions,

       Whatley relies exclusively on Roberson v. State, 982 N.E.2d 452 (Ind. Ct. App.

       2013). He claims that the two cases are analogous, but they are not.


[21]   In Roberson, we found the jury instructions regarding murder and the lesser

       included offense of voluntary manslaughter erroneous in a number of ways. As

       a whole, the jury instructions indicated to the jury that “it could only consider

       convicting Roberson of voluntary manslaughter if it first found him not guilty of

       murder.” Id. at 460 (emphasis in original). We explained:


               It was a clearly incorrect statement of the law to inform the jury
               that it could only consider convicting Roberson of voluntary
               manslaughter instead of murder if it first found him not guilty of
               murder, given that the jury instruction for murder did not inform
               the jury that the State had to disprove the existence of sudden
               heat. Such an instruction might be accurate with respect to lesser
               included offenses generally, but it is not with respect to voluntary
               manslaughter, given that the State must prove not only all of the
               elements of murder but must additionally disprove the existence
               of sudden heat when there is any appreciable evidence of such.


       Id. (emphasis supplied).



       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017   Page 9 of 20
[22]   Whatley’s reliance on Roberson is misplaced and represents a fundamental

       misunderstanding of the difference between voluntary manslaughter and

       involuntary manslaughter. As observed in Roberson, voluntary manslaughter


               is not a “typical” lesser included offense, because instead of
               requiring the State to prove less than all the elements of murder,
               it requires the State to prove all of the elements of murder and
               disprove the existence of sudden heat when there is any
               appreciable evidence of such in the record. Additionally, a
               conviction for voluntary manslaughter constitutes an acquittal of
               murder.


       Id. at 456 (citation omitted and emphasis in original). Involuntary

       manslaughter, on the other hand, is a typical lesser included offense requiring

       the State to prove less than all the elements of murder. The element

       distinguishing murder from involuntary manslaughter is what the defendant

       intends to do – kill or batter. See McEwen v. State, 695 N.E.2d 79, 86 (Ind.

       1998). Unlike when voluntary manslaughter is at issue, once the jury

       determined that Whatley knowingly killed Patel there was no additional

       consideration (such as, the absence of sudden heat) to finding Whatley guilty of

       murder. Roberson is simply not applicable in this context.


[23]   Whatley next challenges instruction 10, which he contends created the type of

       mandatory presumption regarding intent prohibited by Sandstrom v. Montana,

       442 U.S. 510 (1979). In Sandstrom, the Court found violative of the Fourteenth

       Amendment an instruction indicating that “the law presumes that a person

       intends the ordinary consequences of his voluntary acts.” Id. at 512. “The Due


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017   Page 10 of 20
       Process Clause prohibits the State from relying upon an evidentiary

       presumption that has the effect of relieving it of its burden to prove every

       essential element of a crime beyond a reasonable doubt.” Pattison v. State, 54

       N.E.3d 361, 365 (Ind. 2016) (citing Sandstrom, 442 U.S. at 524). See also Francis

       v. Franklin, 471 U.S. 307, 314 (1985) (mandatory presumptions “violate the Due

       Process Clause if they relieve the State of the burden of persuasion on an

       element of an offense”).


[24]   Instruction 10 provided:

               An individual who inflicts injury upon another is deemed by law
               to be guilty of homicide if the injury contributed mediately or
               immediately to the death of the other person. In order for an
               intervening cause to break the chain of criminal responsibility, it
               must be so extraordinary that it would be unfair to hold the
               defendant responsible for the actual result. A defendant is said to
               have contributed mediately or immediately to a death when he
               has put in motion a series of events ultimately ending in the
               Victim’s death.


       Appellant’s Direct Appeal Appendix at 88. This is an instruction on causation and

       intervening cause. It creates no presumption regarding intent or any other

       essential element of the charged offense. Cf. McCorker v. State, 797 N.E.2d 257,

       264-65 (Ind. 2003) (mandatory presumption in accomplice liability instruction

       did not present a Sandstrom problem because it did not instruct jury to presume

       or find intent or any other element of the charged crimes from the consequences




       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017   Page 11 of 20
       of defendant’s acts).4 Accordingly, no reasonable juror could have understood

       this instruction as a mandatory presumption on the element of intent. See

       Francis, 471 U.S. at 316 (“federal constitutional question is whether a

       reasonable juror could have understood the [instruction] as a mandatory

       presumption that shifted to the defendant the burden of persuasion on the

       element of intent once the State had proved the predicate acts”); Sandstrom, 442

       U.S. at 521 (“the question before this Court is whether the challenged jury

       instruction had the effect of relieving the State of the burden of proof…on the

       critical question of petitioner’s state of mind”).


[25]   Whatley has failed to show that instructions 7, 8, and 10 were erroneous. As a

       result, he cannot establish deficient performance of trial or appellate counsel

       with respect to their failing to challenge the instructions.


                                              Admission of Evidence


[26]   Whatley contends that trial counsel was ineffective for failing to object to

       certain testimony of Lonnie Carson.5 Specifically, Whatley argues that Carson

       should not have been allowed to testify that Whatley used a hammer to strike




       4
         The Court in McCorker emphasized that Sandstrom “did not outlaw mandatory presumptions in jury
       instructions” and noted that “jury instructions are full of mandatory presumptions as to what the law requires
       once the jury has found certain facts.” Id. at 265.
       5
         Whatley baldly asserts that appellate counsel was also ineffective for not raising this evidentiary issue on
       appeal as fundamental error. Because Whatley presents no fundamental error analysis and does not even
       acknowledge the heightened standard, we find the argument waived. See Ryan v. State, 9 N.E.3d 663, 668
       (Ind. 2014) (fundamental error permits appellate courts to correct “the most egregious and blatant trial errors
       that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense
       counsel who…strategically fail to preserve an error”).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017               Page 12 of 20
       Patel. He notes that this testimony exceeded the scope of the charging

       information, which specifically alleged that Whatley struck Patel with his fists.

       Whatley claims that without this evidence the jury likely would have found him

       guilty of involuntary manslaughter rather than murder.


[27]   Importantly, Whatley does not contend that Carson should have been

       precluded from testifying. He claims only that trial counsel should have moved

       to exclude any mention of the hammer. The result of this limitation would

       have been Carson testifying generally that Whatley admitted striking Patel –

       exactly the theory of the State’s case. For strategic reasons, defense counsel

       could have reasonably chosen to allow Carson’s reference to the hammer

       because it was contrary to the State’s theory of the case6 and not consistent with

       the eyewitness testimony or any other evidence presented by the State.7 See

       Myers v. State, 33 N.E.3d 1077, 1099 (Ind. Ct. App. 2015) (an objection to

       inadmissible evidence may be waived as part of reasonable trial strategy and

       such strategy will not be second-guessed by this court), trans. denied. Indeed,

       this curious detail made Carson’s testimony far less credible.




       6
        The trial record reveals that the State did not rely on the reference to the hammer to establish how Patel was
       killed. Rather, the State downplayed this reference by characterizing it as “bragging” by Whatley. Trial
       Transcript at 300. The State also consistently argued to the jury that Patel’s head trauma was suffered by his
       head striking the concrete floor after Patel was hit by Whatley.
       7
         At the post-conviction hearing, defense counsel could not specifically recall the details of Carson’s
       testimony but testified that his general strategy with regard to jailhouse informants is to impeach their
       testimony and credibility.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017                Page 13 of 20
[28]   Given that the overall defense strategy was to challenge the credibility of the

       State’s lay witnesses (i.e., Carson, Bigham, and Wilson), we cannot say that

       trial counsel’s failure to object to the hammer reference was “so deficient or

       unreasonable as to fall outside of the objective standard of reasonableness.”

       Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011) (quoting Autrey v.

       State, 700 N.E.2d 1140, 1141 (Ind. 1998)). See also Hinesley v. State, 999 N.E.2d

       975, 985 (Ind. Ct. App. 2013) (looking to counsel’s overall trial strategy and

       observing that trial counsel need not confirm every aspect of the strategic basis

       for counsel’s actions), trans. denied.


                                         Prosecutorial Misconduct


[29]   Next, Whatley complains that trial counsel failed to object to improper

       comments made by the prosecutor during closing and reply arguments.

       Whatley provides us with two single-spaced pages of quotations from the

       prosecutor’s arguments but provides little cogent argument. We will review his

       claims to the extent we can decipher them. He bases his claim of prosecutorial

       misconduct on the fact that the prosecutor “consistently and repeatedly told the

       jury that Whatley knowingly killed Patel.” Appellant’s Brief at 33. Additionally,

       the prosecutor allegedly made statements regarding the use of helmets that were

       unsupported by the evidence.


[30]   We find unpersuasive Whatley’s assertion that it was improper for the

       prosecutor to argue, on several occasions, that Whatley knowingly killed Patel.

       Whatley was charged with knowingly – as opposed to intentionally – killing


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017   Page 14 of 20
       Patel. Thus, the purpose of the prosecutor’s closing argument was to persuade

       the jury that he knowingly killed Patel. Whatley does not explain why asserting

       that an element of the State’s case has been proven is improper conduct.


[31]   Further, the prosecutor’s statements in this regard were based on the evidence.

       In addition to noting Whatley’s assurances to Bigham that Patel would not

       bother her again and the significant force with which Patel’s head struck the

       concrete,8 the prosecutor argued:

                He knowingly killed Bharat Patel. How do we know he knew it?
                He knew it as we all know it. When you strike someone they fall
                down. You know that that is a high probability that when you
                strike someone unprovoked and unannounced, walk up to a
                person who is unprepared and you strike them, you know that
                there is a high probability that they are going to strike the ground.
                He knew that. And he knew as we know that when you strike
                your head on the ground there is a high probability that you will
                sustain serious injury up to and including death.


       Trial Transcript at 316-17. These were all “fair characterizations of the State’s

       view of the evidence.” Etienne v. State, 716 N.E.2d 457, 462 (Ind. 1999).


[32]   Whatley claims that the prosecutor’s statements about wearing helmets to

       protect the head are not supported by evidence. The prosecutor noted various

       instances when people wear helmets and then stated:




       8
         Dr. Harshbarger opined that Patel’s skull fracture and brain injuries were caused by “a significant amount
       of force.” Trial Transcript at 174. Additionally, Wilson testified that even from a distance she heard and felt
       Patel hit the concrete.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017               Page 15 of 20
               Why do they strap on a helmet? To protect their head. To
               protect the brain that is in the head. Because when the brain
               strikes something with that force you end up with a cracked skull
               like Mr. Patel. You end up with bruising and contusions and
               blood in the ventricles…as described to [sic] by Dr. Harshbarger.
               And we know that that has a high probability of occurring. We
               know that because we take every precaution to protect our head
               and our brains from that type of injury.


       Trial Transcript at 317. Whatley complains that the prosecutor oversimplified

       the matter in an attempt to make all head injuries the same as Patel’s.

       Oversimplification, however, does not amount to prosecutorial misconduct.

       And jurors are expected to apply common sense and draw upon their

       accumulated background knowledge and experience when considering the

       evidence. See Staton v. State, 853 N.E.2d 470, 475-76 (Ind. 2006). This was all

       the prosecutor was asking when discussing the use and purpose of helmets.


[33]   None of the specific examples argued by Whatley were cause for an objection

       by trial counsel. Accordingly, trial counsel was not ineffective for failing to

       object to these statements, and trial counsel cannot be faulted for not raising

       this claim on direct appeal.


                                              Intervening Cause


[34]   Whatley asserts that trial counsel was ineffective for failing to present evidence

       of an intervening cause that would have negated his criminal responsibility. He

       claims that counsel “could have elicited this testimony either from an




       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017   Page 16 of 20
       independent expert or through appropriately cross-examining the State’s expert,

       Dr. Kent Harshbarger.” Appellant’s Brief at 37.


[35]   At trial, Dr. Harshbarger testified that Patel died as the result of blunt force

       trauma to the head. The doctor detailed the associated skull fracture and

       significant brain injuries, which he believed were consistent with Patel falling

       and striking the back of his head on the ground. Dr. Harshbarger testified that

       at some point in the hospital9 Patel suffered a “large infarctus stroke of the left

       hemisphere of the brain, probably from the swelling.” Trial Transcript at 177.

       Near the end of his life, Patel also developed pneumonia and severe pulmonary

       edema. Dr. Harshbarger summed up his testimony as follows:

                  The cause of death is the condition, but for which the person
                  would be alive. And there is no question that the blunt force, for
                  which, is the injury of the fall, the striking, the skull fracturing,
                  the brain bruise that led to the complications that ultimately
                  cause his treatment to be futile.


       Id. at 195-96.


[36]   The evidence regarding Patel’s cause of death was clearly established at trial.

       Whatley did not present any evidence at the post-conviction hearing that he

       claims should have been presented at trial to establish that an intervening cause

       existed. We reject his unsupported and self-serving opinion that Patel’s stroke




       9
           Patel was removed from life support within a month of sustaining his head injury.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017     Page 17 of 20
       was likely independent of the head injury. The post-conviction court did not err

       in denying relief on this ground.


                              Presentation of Sufficiency Issue on Appeal


[37]   Finally, Whatley claims that appellate counsel failed to present the sufficiency

       issue well on direct appeal. These types of ineffectiveness claims are almost

       always unsuccessful. See Bieghler v. State, 690 N.E.2d 188, 195 (Ind. 1997)

       (observing that these claims “essentially require the reviewing tribunal to re-

       view specific issues it has already adjudicated to determine whether the new

       record citations, case references, or arguments would have had any marginal

       effect on their previous decision” and implicate concerns of finality and judicial

       economy).


[38]   With regard to sufficiency, appellate counsel argued that involuntary

       manslaughter was the only charge supported by the evidence because Whatley

       did not have the requisite intent for murder. In other words, while his knowing

       battery of Patel resulted in death, he did not knowingly kill Patel. 10


[39]   After attacking the credibility of Carson and Bigham, Counsel emphasized that

       Wilson – the only eyewitness – saw a man strike Patel once, after which Patel

       fell backward to the ground. Wilson testified that she was surprised at the result

       of the strike because although it was not a tap, it did not seem that hard.




       10
         “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high
       probability that he is doing so.” Ind. Code § 35-41-2-2(b).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017           Page 18 of 20
       Counsel went on to note Dr. Harshbarger’s steadfast opinion that the fatal

       injuries were caused by Patel’s head hitting the concrete floor. Counsel

       queried: “Who hits a person one (1) time and thinks of even the slim possibility

       that he will hit his head with such force that he will die?” Appellant’s Direct

       Appeal Brief at 7.


[40]   In the reply brief, counsel argued that there was no evidence to support a

       finding that Patel was hit with any object besides a hand – refuting the State’s

       claim that Patel received a single vicious blow to the head with a hard object.

       According to counsel, the record established that Patel suffered two injuries – a

       punch to the front of the face and the fatal injury from the backward fall.


[41]   Counsel distinguished cases cited by the State and argued that this case was

       much more like Nunn, 601 N.E.2d 334, in which our Supreme Court reduced a

       murder conviction to involuntary manslaughter. In Nunn, the defendant struck

       the victim one time in the head/neck with his hand, and the victim died from a

       severed vertebral artery, an unusual injury. Relying upon Nunn, counsel argued

       that Whatley “could not have intended or been aware of a high probability that

       his one (1) strike to Patel’s face would kill the man.” Appellant’s Direct Appeal

       Reply Brief at 2.


[42]   When this court affirmed Whatley’s conviction on direct appeal, counsel sought

       transfer. Again, counsel noted that the fatal injury was caused when Patel hit

       the concrete floor. Counsel argued that the conviction should be reduced as in

       Nunn. The Supreme Court denied transfer.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017   Page 19 of 20
[43]   Instead of raising flaws in counsel’s argument, Whatley simply rehashes the

       sufficiency argument that was already ably presented by counsel on direct

       appeal. We agree that the sufficiency argument was strong and presented a

       close call, but we cannot conclude that appellate counsel was ineffective in her

       presentation of the issue.


                                                  Conclusion


[44]   Whatley has failed to establish deficient performance by trial or appellate

       counsel. Therefore, we need not reach the prejudice prong. The post-

       conviction court’s denial of relief was not clearly erroneous.


[45]   Judgment affirmed.


       Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-PC-2338 | May 25, 2017   Page 20 of 20
