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.


ATTORNEYS FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                    GREGORY F. ZOELLER
Public Defender of Indiana                          Attorney General of Indiana

JOHN A. ENGLAND                                     BRIAN REITZ
Deputy Public Defender                              Deputy Attorney General
Indianapolis, Indiana                               Indianapolis, Indiana


                                                                          Apr 14 2014, 9:27 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

TYRONE A. THOMPSON,                                 )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )      No. 49A02-1309-PC-787
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                      APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Mark D. Stoner, Judge
                         The Honorable Jeffrey L. Marchal, Magistrate
                              Cause No. 49G06-1007-PC-57880



                                          April 14, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       Tyrone Thompson was convicted of class C felony battery stemming from a bar fight

during which he struck another patron with a broken beer bottle. He appealed his eight-year

sentence, and this Court affirmed. He filed a petition for post-conviction relief, claiming that

his trial counsel (“Counsel”) provided ineffective assistance during sentencing by failing to

introduce documentation to support his mental illness claim. The post-conviction court

denied his petition.

       Thompson now appeals, contending that the post-conviction court clearly erred in

concluding that he failed to establish that he received ineffective assistance of counsel.

Finding that Counsel advanced Thompson’s mental illness for consideration at sentencing,

that the trial court gave it due consideration as a mitigator, and that Thompson was not

prejudiced by Counsel’s failure to introduce documents to support his mental illness claim,

we affirm.

                               Facts and Procedural History

       The facts as summarized in an unpublished memorandum decision on Thompson’s

direct appeal and adopted in the post-conviction court’s findings of fact are as follows:

              On July 25, 2010, Justin Mackey (Justin) traveled from Kokomo,
       Indiana, to Indianapolis, Indiana, to visit his brother Robert Matthew Mackey
       (Matt) and to attend the Brickyard 400 race the following day. On the night of
       July 25, they planned to go out to a few bars downtown. First, they went to the
       Bourbon Street Distillery, where each had one drink. Then they went to
       another bar and each had a drink there, also. Finally, they went to a bar
       downtown named Blu because Matt was good friends with a bartender there.
       Meanwhile, Thompson bought a “little bit” of beer and went to Blu.



                                               2
              When Matt and Justin reached Blu, there was some kind of
       confrontation in front of the bar involving Thompson. Thompson “turned right
       into” Matt and Justin and “body[-]checked” Justin. Matt and Justin told
       Thompson that they did not want any problems, and both of them backed away
       and tried to walk around him. They continued along the street to a different
       bar called Hyde, but realized once they got there that Justin’s clothing did not
       meet Hyde’s dress code. Therefore, after failing to get into Hyde, both Matt
       and Justin went back to Blu to try once again to enter the bar.

               When Matt and Justin reached Blu the second time, Matt saw
       Thompson out of the corner of his eye, and Thompson body-checked him.
       Matt threw his hands up and told Thompson again that he did not want any
       problems. In response, Thompson “threw his arm” at Matt and knocked the
       phone out of his hand. Matt reached down to pick up his phone, and at that
       time Justin thought he saw Thompson reach for something—possibly a gun.
       To protect Matt, who had his back turned to Thompson, Justin body[-]checked
       Thompson. In response, Thompson started stabbing Justin with a broken beer
       bottle.

               Subsequently, Thompson backed away from Matt and Justin and went
       down an alley between Blu and another bar, but Matt started following him so
       that he could not get away. Once they got down the alley, Thompson said to
       Matt: “[I will] kill you mother f[***]er,” “I’ll kill you, your family,” and “I’m
       a gangster.” In the alley, and then in the middle of Georgia Street, Thompson
       and Matt started to swing at each other with their belts. Once they exited the
       alley, though, police officers were on the scene and handcuffed and arrested
       Thompson.

Appellant’s App. at 98-99 (citing Thompson v. State, No. 49A04-1011-CR-694 (Ind. Ct.

App. July 7, 2011) (internal citations omitted) (some alterations in Thompson)).

       The State charged Thompson with class C felony criminal recklessness, class A

misdemeanor battery, and class C felony battery. A jury found him guilty of class C felony

criminal recklessness and class C felony battery, and the trial court entered judgment only on

the battery conviction. At sentencing, the trial court found as mitigating factors Thompson’s

extensive mental health history and his extensive substance abuse. The trial court found that


                                              3
Thompson’s extensive twenty-eight-year criminal history outweighed the mitigators and

sentenced him to eight years in the Department of Correction (“DOC”).

       Thompson appealed his sentence, claiming that the trial court overlooked his

impending fatherhood as a mitigator. He also challenged the appropriateness of his sentence

under Indiana Appellate Rule 7(B). Another panel of this Court affirmed his sentence.

Thompson filed a petition for post-conviction relief, claiming that he received ineffective

assistance of counsel based on Counsel’s failure to introduce documentation to support his

proffered mitigator of mental illness. The post-conviction court denied his petition, and he

now appeals. Additional facts will be provided as necessary.

                                 Discussion and Decision

       Thompson contends that the post-conviction court erred in denying his petition for

post-conviction relief. The petitioner in a post-conviction proceeding “bears the burden of

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

Rule 1(5); Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013). When issuing its decision to

grant or deny relief, the post-conviction court must make findings of fact and conclusions of

law. Ind. Post-Conviction Rule 1(6). A petitioner who appeals the denial of his post-

conviction petition faces a rigorous standard of review. Massey v. State, 955 N.E.2d 247,

253 (Ind. 2011). In conducting our review, we neither reweigh evidence nor judge witness

credibility; rather, we consider only the evidence and reasonable inferences most favorable to

the judgment. Id. “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


                                              4
mistake has been made.” Passwater, 989 N.E.2d at 770 (citation and quotation marks

omitted). In other words, if a post-conviction petitioner was denied relief in the proceedings

below, he must show that the evidence as a whole leads unerringly and unmistakably to a

conclusion opposite the one reached by the post-conviction court. Massey, 955 N.E.2d at

253.

       Thompson asserts that he was denied his constitutional right to effective assistance of

counsel. To prevail on an ineffective assistance claim, he must satisfy two components. Id.

He must demonstrate both deficient performance and prejudice resulting from it. Strickland

v. Washington, 466 U.S. 668, 687 (1984). Deficient performance is “representation [that] fell

below an objective standard of reasonableness, [where] counsel made errors so serious that

counsel was not functioning as ‘counsel’ guaranteed by the Sixth Amendment.” Passwater,

989 N.E.2d at 770. We assess counsel’s performance based on facts that are known at the

time and not through hindsight. Shanabarger v. State, 846 N.E.2d 702, 709 (Ind. Ct. App.

2006), trans. denied. Evidence of isolated poor strategy, inexperience, or bad tactics will not

support an ineffective assistance claim; instead, we evaluate counsel’s performance as a

whole. Flanders v. State, 955 N.E.2d 732, 739 (Ind. Ct. App. 2011), trans. denied (2012).

“[C]ounsel’s performance is presumed effective, and a defendant must offer strong and

convincing evidence to overcome this presumption.” Ritchie v. State, 875 N.E.2d 706, 714

(Ind. 2007). Prejudice occurs when a reasonable probability exists that, but for counsel’s

errors, the result of the proceeding would have been different. Passwater, 989 N.E.2d at 770.

“A reasonable probability is a probability sufficient to undermine confidence in the


                                              5
outcome.” Mitchell v. State, 946 N.E.2d 640, 643 (Ind. Ct. App. 2011), trans. denied.

“Although the performance prong and the prejudice prong are separate inquiries, failure to

satisfy either prong will cause the claim to fail.” Baer v. State, 942 N.E.2d 80, 91 (Ind.

2011).

         We initially acknowledge that the judicial officers who presided over Thompson’s

original trial also presided over the post-conviction proceedings. This Court has stated that a

post-conviction court’s findings and judgment should be entitled to “greater than usual

deference” when the post-conviction judge is the same judge who conducted the original

trial. McCullough v. State, 973 N.E.2d 62, 75 (Ind.Ct.App.2012), trans. denied (2013).

Significantly, in such a case, the trial court is uniquely situated to assess whether trial

counsel’s performance fell below an objective standard of reasonableness and whether, but

for counsel’s deficient performance, there was a reasonable probability that a different result

would have been reached. Id.

         The post-conviction court issued extensive findings of fact and conclusions of law,

which state in pertinent part,1

         9.    During his representation of Thompson, Counsel became aware that
               Thompson suffered from certain mental health issues, although the
               extent of these issues did not prevent Thompson from assisting Counsel
               in the preparation of the case.

         10.   Counsel no longer has an independent recollection of any specific
               mental health diagnosis for Thompson but he believes that Thompson
               has suffered from bi-polar disorder or schizophrenia, anger
               management issues and anti-social behavior.

         1
           Throughout the findings, the post-conviction court referred to Thompson’s counsel by name. We
refer to him as Counsel.

                                                   6
11.   Counsel knew that Thompson had received mental health counseling in
      the past.

12.   Counsel knows how to obtain and present mental health evidence and
      has previously argued incompetency and insanity issues in other cases.

13.   As Thompson had requested an early trial setting pursuant to Indiana
      Criminal Rule 4(B) and insisted on a speedy trial, Counsel had only
      fifty to sixty days to prepare for trial. This hampered Counsel’s ability
      to obtain Thompson’s mental health records in time for trial.

14.   Counsel warned Thompson that the speedy trial request was limiting his
      ability to effectively prepare the case for trial.

15.   After the trial, certain jurors commented to Counsel that they hoped
      Thompson would get help for his mental health issues.

16.   At the sentencing hearing, evidence of Thompson’s mental health
      history was presented to the trial court. Counsel elicited testimony
      from Thompson that he has suffered from schizophrenia and bi-polar
      disorder for the past fifteen years and that he was receiving treatment at
      the Horizon House for those conditions.

17.   The pre-sentence report also provided the trial court with information
      regarding Thompson’s mental health status, including the fact that he
      attempted suicide on four prior occasions.

18.   Counsel argued to the trial court that Thompson’s mental health history
      should be considered as a mitigating factor for sentencing purposes.

19.   After finding Thompson’s criminal history to be an aggravating factor,
      the trial court went on to address a portion of that history:

             He was convicted in June ’82 for the 1935 Firearms Act;
             he was convicted of Robbery in February, 1984; Auto
             Theft in November of 1987; Felony Escape in 1991;
             misdemeanor Resisting Law Enforcement and Battery in
             April of 1992; again, two separate counts of Battery and
             Resisting Law Enforcement in 1996; and on March 26th
             of 2009, he was convicted of two different cases one
             involving Theft and Battery, the second involving Theft
             and Possession of Paraphernalia. Most recently, within

                                      7
             the last twelve months he was convicted of Resisting
             Law Enforcement on October 27th of 2009; Criminal
             Conversion in April of 2010; and Possession of
             Paraphernalia in … May of this year. While not listed in
             the criminal history[,] [Thompson] has self-reported a
             federal conviction from the United States District Court
             of the Southern District of Indiana for felony Possession
             of a Firearm for which he believes he received an
             executed sentence of roughly thirteen years.

20.   As mitigating factors, the trial court noted Thompson’s prior substance
      abuse history as well as his “extensive mental health history.”

21.   Finding that the aggravating factors outweighed the mitigating factors
      and justified the imposition of a sentence above the advisory term, the
      trial court imposed the maximum eight year executed sentence to be
      served in the Indiana [DOC].

22.   The trial court further requested that Thompson receive all available
      mental health treatment while incarcerated in the [DOC].

23.   Thompson’s evidence, as shown in Exhibits 2 through 5, provides a
      more detailed picture of his mental health issues. However, Thompson
      merely demonstrates more of the same mitigation evidence rather than
      evidence overlooked by trial counsel or improperly presented.

24.   Beyond presenting this additional mitigation evidence, Thompson has
      not shown a reasonable probability that the trial court would have given
      greater mitigating weight to his mental health issues and imposed a
      lighter sentence had Counsel presented this particular evidence.

25.   Thompson had failed to demonstrate that he was prejudiced by
      Counsel’s choice in presentation of mitigation evidence.

26.   For the reasons discussed below, the Court finds that the facts are with
      the State and against the Petitioner.

                       CONCLUSIONS OF LAW

….

31.   In this case, Thompson alleges that Counsel was ineffective for failing

                                     8
              “to present to the court mental health documents pertaining to
              Thompson and, further, to adequately question Thompson regarding his
              mental health problems and treatment as described in those
              documents.”

       32.    Deficient performance has been found in cases where counsel failed to
              uncover and present evidence of a defendant’s mental issues as a
              potential mitigating circumstance. However, this is not such a case
              here.

       33.    The Court concludes that Thompson’s argument fails for want of
              prejudice. The sentencing transcript reveals that the trial court gave
              due consideration to Thompson’s mental health history in determining
              the appropriate sentence, and there is no indication in the record that the
              trial court doubted either the legitimacy or the seriousness of his
              condition simply because it was self-reported.

       34.    Had the mental health records produced by Thompson been presented
              at sentencing, they would have confirmed what the trial court had
              already accepted as true; namely, that Thompson had been diagnosed
              with and had received treatment for a psychotic disorder.

       35.    Petitioner has therefore not shown that his attorney’s performance was
              deficient, and his claim of ineffective assistance of counsel must fail.

Appellant’s App. at 99-102, 104-05 (citations and footnote omitted).

       The sentencing transcript shows that Counsel elicited testimony from Thompson

concerning his mental health issues and advanced those issues for consideration as a

mitigator. Tr. at 257-58, 262. Not only did the trial court consider Thompson’s testimony

and Counsel’s argument concerning Thompson’s mental health, but the court also examined

the pre-sentence investigation report, which contains information regarding those mental

health issues and Thompson’s suicide attempts. The trial court characterized Thompson’s

mental health history as “extensive” and “self-reported” and listed it as one of two mitigating

factors. Tr. at 267. Thompson focuses on the term “self-reported” in maintaining that

                                               9
Counsel should have done more to substantiate his claims so that the trial court would have

given the factor more weight. This argument is purely speculative and does not establish a

reasonable probability that the trial court, having already identified the factor as mitigating,

would have reduced his sentence had Counsel offered further documentation.

          Specifically, Thompson asserts that Counsel was deficient for failing to introduce

documents showing a direct link between his mental health issues and his battery offense,

that is, his auditory hallucinations instructing him to hurt people. He relies on Barany v.

State, in which our supreme court held that the trial court abused its discretion in failing to

give mitigating consideration to the defendant’s mental illness when it was directly related to

his conduct.2 658 N.E.2d 60, 67 (Ind. 1995). In contrast, here, Counsel presented evidence

concerning Thompson’s mental illness, and the trial court gave it mitigating consideration.

In short, even if Counsel had introduced the documents specifically related to Thompson’s

auditory hallucinations, we do not believe that there is a reasonable probability that his

sentence would have been different.3 He has failed to establish prejudice and therefore has

failed to meet his burden of establishing ineffective assistance of counsel. Accordingly, we

affirm.

          Affirmed.

BAKER, J., and NAJAM, J., concur.


          2
          Barany heard voices in his head telling him to bite and kill his victim, which he did. Barany, 658
N.E.2d at 67.

          3
           In this vein, we disagree with Thompson’s assertion that he is “serving a maximum sentence as
additional punishment for having had untreated auditory hallucinations when he committed his offense.”
Appellant’s Reply Br. at 3.

                                                    10
