MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Aug 21 2019, 9:04 am

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


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Arturo Strickland                                        Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana
                                                         J. T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Arturo Strickland,                                       August 21, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-1068
        v.                                               Appeal from the Wayne Superior
                                                         Court
State of Indiana,                                        The Honorable Gregory A. Horn,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         89D02-1412-PC-28




Tavitas, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019                Page 1 of 13
                                               Case Summary

[1]   Arturo Strickland, pro se, appeals the post-conviction court’s (“PC court”)

      denial of his petition for post-conviction relief (“PCR”). We affirm.


                                                      Issue

[2]   Strickland raises three issues on appeal, which we consolidate and restate as

      whether Strickland received ineffective assistance of trial counsel.


                                                      Facts

[3]   In March 2012, Strickland was charged with sexual misconduct with a minor, a

      Class B felony, and with being a habitual offender after fourteen-year-old C.C.

      alleged that twenty-nine-year-old Strickland forced C.C. to have sexual

      intercourse with him.


[4]   Strickland’s counsel proposed a jury instruction regarding attempted sexual

      misconduct with a minor, which the trial court accepted. The jury convicted

      Strickland of attempted sexual misconduct with a minor, a Class B felony.

      After the State’s presentation of evidence on the habitual offender

      enhancement, Strickland’s counsel moved for judgment on the evidence, which

      the trial court granted. Strickland was sentenced to sixteen years imprisonment.

      Strickland initially filed a direct appeal, then subsequently requested this Court

      dismiss the appeal.


[5]   On December 4, 2014 Strickland filed a PCR petition alleging ineffective

      assistance of trial counsel. Strickland filed amended petitions on August 24,


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019   Page 2 of 13
      2015, and October 21, 2016. On June 29, 2017, and November 30, 3017, a

      hearing was held on Strickland’s PCR petition. Strickland appeared pro se.

      Strickland argued that he received ineffective assistance of trial counsel for three

      reasons: (1) failure of trial counsel to offer an abandonment defense; (2) failure

      of trial counsel to object to jury instruction number eleven (“Instruction 11”);

      and (3) failure of trial counsel to challenge Strickland’s sentence.


[6]   After the hearing, the PC court entered findings of fact and conclusions of law

      and denied Strickland’s PCR petition. The PC court reviewed Instruction 11,

      which stated:


              The Defendant has the burden of proving his defense that he
              reasonably believed that [C.C.] was sixteen (l6) years of age or
              older at the time of the occurrence. Defendant must prove this
              defense by a preponderance of the evidence. When I say that a
              party has the burden to prove an issue by a preponderance of the
              evidence, I mean by the greater weight of the evidence. A greater
              number of witnesses testifying to a fact on one side or a greater
              quantity of evidence introduced on one side is not necessarily of
              the greater weight. The evidence given upon a fact that
              convinces you most strongly of its truthfulness is of the greater
              weight.


      Jury Trial Tr. Vol. II p. 81. In doing so, the PC court found that, despite

      Strickland’s argument that Instruction 11 was in error, Strickland “refers to

      absolutely no authority suggesting how the instruction is incorrect.”

      Appellant’s App. Vol. II pp. 12-13. Accordingly, the PC court concluded that

      Instruction 11 was a correct statement of law. The PC court further concluded

      that Strickland’s trial counsel’s tactical approach to offer Instruction 11 was

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019   Page 3 of 13
      reasonable in light of the evidence presented at trial. Furthermore, the PC court

      also indicated that the evidence presented at trial did not support an instruction

      for abandonment. Despite Strickland’s argument that his trial counsel failed to

      object to Strickland’s sentence as above the advisory sentence, the trial court

      weighed the aggravating and mitigating factors to reach that conclusion, and

      found this claim was not proper for a PCR petition. Strickland now appeals.


                                                   Analysis

[7]   Strickland appeals the denial of his PCR petition. Our Supreme Court has

      stated:


                The petitioner in a post-conviction proceeding bears the burden
                of establishing grounds for relief by a preponderance of the
                evidence. When appealing from the denial of post-conviction
                relief, the petitioner stands in the position of one appealing from
                a negative judgment. To prevail on appeal from the denial of
                post-conviction relief, a petitioner must show that the evidence as
                a whole leads unerringly and unmistakably to a conclusion
                opposite that reached by the post-conviction court. [Where, as
                here, a post-conviction court has made findings of fact and
                conclusions of law in accordance with Indiana Post-Conviction
                Rule 1(6), 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.


      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014) (internal quotations and

      citations omitted). As the clearly erroneous standard “is a review for

      sufficiency of evidence, we neither reweigh the evidence nor determine the


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019   Page 4 of 13
      credibility of witnesses.” State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014).

      “Rather, we ‘consider only the evidence that supports that judgment and the

      reasonable inferences to be drawn from that evidence.’” Id. (quoting Ben-Yisrayl

      v. State, 738 N.E.2d 253, 258-59 (Ind. 2000), cert. denied, 534 U.S. 1164, 122 S.

      Ct. 1178 (2000)).


[8]   Strickland contends that he received ineffective assistance of trial counsel in

      several regards. To prevail on a claim of ineffective assistance of counsel, a

      petitioner must demonstrate both that: (1) his or her counsel’s performance was

      deficient, and (2) the petitioner was prejudiced by the deficient performance.

      Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v.

      Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)), reh’g denied, cert.

      denied, 534 U.S. 830, 122 S. Ct. 73 (2001). The failure to satisfy either prong

      will cause the claim to fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

      2006). Ineffective assistance of counsel claims, thus, can be resolved by a

      prejudice analysis alone. Id.


[9]   An attorney’s performance is deficient if it falls below an objective standard of

      reasonableness based on prevailing professional norms. Woodson v. State, 961

      N.E.2d 1035, 1041 (Ind. 2012). A strong presumption arises that counsel

      rendered adequate assistance and made all significant decisions in the exercise

      of reasonable professional judgment. McCullough v. State, 973 N.E.2d 62, 74

      (Ind. Ct. App. 2012), trans. denied. “[A] defendant must offer strong and

      convincing evidence to overcome this presumption.” Id. Isolated poor strategy,



      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019   Page 5 of 13
       inexperience, or bad tactics does not necessarily constitute ineffective assistance

       of counsel. Id.


[10]   In order to demonstrate prejudice, “the 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.” Weisheit v.

       State, 109 N.E.3d 978, 983 (Ind. 2018) (quoting Strickland, 466 U.S. at 694, 104

       S. Ct. 2052).


                                             A. Strickland’s Defense

[11]   Strickland first argues that he received ineffective assistance of trial counsel

       because his trial counsel failed to provide him with a defense. Strickland

       appears to contend that his trial counsel should have set forth the defense of

       abandonment and that trial counsel’s failure to do so meant Strickland received

       ineffective assistance of counsel. At the trial, the State played Strickland’s

       interview with police in which Strickland claimed that he and C.C. were

       together in Strickland’s room when C.C. asked Strickland if he would have

       sexual intercourse with C.C. while Strickland was positioned behind C.C.

       Strickland indicated that he attempted to do so; however, Strickland was unable

       to do so due to C.C.’s size. At the PCR hearing, Strickland’s trial counsel

       indicated that he did not believe the abandonment defense applied to

       Strickland’s case.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019   Page 6 of 13
[12]   Strickland’s defense of abandonment rests on his assertion that, although he

       stopped short of completing the sexual act due to C.C.’s size, he could have

       persisted and “completed” the act but chose not to because C.C. felt like a

       family member to him. Appellant’s Br. p. 18. Strickland contends that his trial

       counsel’s error was demonstrated by trial counsel’s motion for a lesser included

       instruction, wherein trial counsel indicated that there was “evidence present to

       the effect that the Defendant abandoned an attempt at the crime charged. . . .”

       Appellant’s App. Vol. II p. 30. According to Strickland, therefore, his trial

       counsel should have also requested an instruction on abandonment.


[13]   To prevail on a claim of ineffective assistance for failure to tender a jury

       instruction, the defendant “must prove that he was entitled to the defense and

       that he was prejudiced when the jury was not instructed on the defense.” Potter

       v. State, 684 N.E.2d 1127, 1135 (Ind. 1997). “The decision of whether or not to

       present a defense can be considered a matter of trial strategy and will not be

       lightly second guessed.” Whitener v. State, 696 N.E.2d 40, 43 (Ind. 1998).


[14]   At the PCR hearing, Strickland’s trial counsel indicated that he did not offer an

       abandonment defense because Strickland claimed to have abandoned the act, at

       least in part, because he felt he was unable to complete the act due to C.C.’s

       size. For the defense of abandonment to apply, there are several “temporal

       prerequisites” that must be met; moreover, the abandonment must be both

       “voluntary and complete, and the defendant must successfully and voluntarily

       prevent commission of the underlying crime.” Jones v. State, 87 N.E.3d 450, 457

       (Ind. 2017). “For abandonment to be voluntary, the decision to withdraw from

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019   Page 7 of 13
       the effort to commit the underlying crime must originate with the accused.” Id.

       (quotations omitted). “That decision must in no way be attributable to extrinsic

       factors that increase the probability of detection or make more difficult the

       accomplishment of the criminal purpose.” Id. Because the abandonment

       defense requires proof of all elements for the defense to apply, “the State need

       only disprove one element beyond a reasonable doubt.” Id.


[15]   The abandonment defense did not apply to the facts of Strickland’s case. Even

       if the primary reason Strickland did not pursue further action with C.C. was

       because C.C. felt like a family member to Strickland, Strickland also

       acknowledges, even in his brief to this Court, that he partially did not complete

       the act due to C.C.’s size. See Appellant’s Br. p. 18. Accordingly, extrinsic

       factors contributed to Strickland’s decision not to complete the sexual act with

       C.C., and the defense of abandonment does not apply. Strickland, therefore,

       cannot establish that he was prejudiced. The PC court’s denial of this claim

       was not clearly erroneous.


                                                B. Jury Instruction

[16]   Strickland next argues that he received ineffective assistance of trial counsel

       because his trial counsel failed to object to a jury instruction which Strickland

       contends misstated the law. Specifically, Strickland takes issue with Instruction

       11, which stated:


               The Defendant has the burden of proving his defense that he
               reasonably believed that [C.C.] was sixteen (l6) years of age or
               older at the time of the occurrence. Defendant must prove this

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019   Page 8 of 13
               defense by a preponderance of the evidence. When I say that a
               party has the burden to prove an issue by a preponderance of the
               evidence, I mean by the greater weight of the evidence. A greater
               number of witnesses testifying to a fact on one side or a greater
               quantity of evidence introduced on one side is not necessarily of
               the greater weight. The evidence given upon a fact that
               convinces you most strongly of its truthfulness is of the greater
               weight.


       Jury Trial Tr. Vol. II p. 81. Indiana Code 35-42-4-9(c), which outlines the

       elements of sexual misconduct with a minor, states that: “It is a defense that the

       accused person reasonably believed that the child was at least sixteen (16) years

       of age at the time of the conduct.” 1


[17]   Our understanding of Strickland’s argument is that, had his trial counsel

       objected to Instruction 11 as it was presented, and specifically, to the portion

       that indicated, “defendant has the burden to prove his defense,” the trial court

       would have been required to sustain the objection and omit the instruction.

       Appellant’s Br. p. 14. We disagree with this statement and, to the extent that

       Strickland is making a different argument, his argument is waived for failure to

       make a cogent argument.




       1
         The version of Indiana Code Section 35-42-4-9(a)(1) in effect when Strickland’s offense was committed,
       stated:
               A person at least eighteen (18) years of age who, with a child at least fourteen (14) years of age but
               less than sixteen (16) years of age, performs or submits to sexual intercourse or deviate sexual
               conduct commits sexual misconduct with a minor, a Class C felony. However, the offense is:
                        (1) a Class B felony if it is committed by a person at least twenty-one (21) years of age

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019                    Page 9 of 13
               A defendant’s reasonable belief his victim is sixteen or older is a
               defense under the explicit terms of the statute. Such a defense
               admits all the elements of the crime but proves circumstances
               that excuse the defendant from culpability. Moon v. State, 823
               N.E.2d 710, 715 (Ind. Ct. App. 2005), reh’g denied, trans. denied.
               The “mistaken belief” defense in Ind. Code § 35-42-4-9 does not
               negate an element of the crime; rather, if believed, the defense
               reduces [the defendant’s] culpability for acts he committed. See
               id. at 714. Therefore, the burden to prove the defense may
               properly be placed on the defendant. Id. The State has the
               burden of proving all elements of a charged crime beyond a
               reasonable doubt, but the burden of proving a defense may be
               placed on the defendant if proving the defense does not require
               him to negate an element of the crime. Id. When a defense
               addresses only the defendant’s culpability, the defendant may be
               assigned the burden to prove the defense by a preponderance of
               evidence. Id. at 715.


       Weaver v. State, 845 N.E.2d 1066, 1069 (Ind. Ct. App. 2006).


[18]   Here, Strickland’s counsel proposed an instruction regarding whether

       Strickland reasonably believed that C.C. was sixteen years at the time of the

       alleged offense; however, this was not the instruction the trial court used. The

       instruction that Strickland’s trial counsel proposed was very similar to the one

       offered in Moon v. State, 823 N.E.2d at 714.


[19]   In Moon, the trial court rejected the defendant’s proposed jury instruction and,

       instead, offered an instruction to the jury that defined the crime of sexual

       misconduct with a minor, which stated: “It is a defense that the defendant

       reasonably believed that [J.V.] was sixteen years of age or older. If the

       defendant proved this by a preponderance of the evidence, you must find the

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019   Page 10 of 13
       defendant not guilty of sexual misconduct with a minor. . . .” Id. This Court

       held that the trial court’s instruction “was a correct statement of law because

       the mistaken belief defense in Indiana Code § 35-42-4-9 does not negate an

       element of the crime. . . .” Id.


[20]   As the mistaken belief defense does not negate an element of the offense, there

       is “no error in assigning to [Strickland] the burden to prove his reasonable belief

       by a preponderance of [the] evidence, nor is there error in the trial court’s

       corresponding instruction to the jury.” Id. Accordingly, Strickland cannot

       prove prejudice because the trial court would not have been required to sustain

       an objection to the instruction. See Overstreet v. State, 877 N.E.2d 144, 155 (Ind.

       2007) (holding “in order to prevail on a claim of ineffective assistance due to the

       failure to object, the defendant must show an objection would have been

       sustained if made”). Strickland did not receive ineffective assistance of trial

       counsel because his trial counsel did not object to the trial court’s Instruction

       11. The PC court’s conclusion is not clearly erroneous.


                                            C. Strickland’s Sentence

[21]   Finally, Strickland argues that he received ineffective assistance of trial counsel

       with regard to his sentence. Specifically, we understand Strickland’s argument

       to be that he received ineffective assistance of counsel because trial counsel

       failed to propose certain mitigating factors. To the extent Strickland is arguing

       that his sentence is inappropriate or that the trial court abused its discretion in

       sentencing Strickland, this issue should have been raised on direct appeal and

       not at this stage. See Collins v. State, 817 N.E.2d 230, 232 (Ind. 2004) (“[A]n
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019   Page 11 of 13
       issue known and available but not raised on direct appeal may not be raised in

       post-conviction proceedings”). Accordingly, we only address Strickland’s

       argument regarding trial counsel’s decision to not propose certain mitigators.


[22]   At the PCR hearing, Strickland asked his counsel why he did not propose

       several mitigators, including that: (1) “there was no death”; (2) “there was no

       permanent physical impairment”; 2 (3) “there [were] no weapons involved”; (4)

       “there was no evidence of deliberation or premeditation;” (5) Strickland’s

       criminal history was not extensive and involved no crimes of violence; 3 (6)

       Strickland was suffering from multiple mental disorders; (7) Strickland “had

       good family support”; and (8) “the unique and unexplained circumstances

       surrounding the charged crime tended to show that the alleged crime was not

       likely to reoccur.” 4 PCR Tr. pp. 17-18.


[23]   Even if trial counsel should have raised these mitigators, Strickland is unable to

       establish prejudice because Strickland has not demonstrated that the trial court

       would have accepted the proposed mitigators or that Strickland’s sentence

       would have turned out differently as a result. A trial court is not obligated to




       2
         The pre-sentence investigation report (“PSI”) indicates that, according to C.C.’s mother, C.C. is in
       treatment and on medication due to the offense.
       3
        The PSI indicates that Strickland’s criminal history includes convictions for leaving the scene of an
       accident, Class B misdemeanor; minor consuming alcoholic beverage, Class C misdemeanor; battery, Class
       A misdemeanor; minor consuming alcoholic beverage, Class C misdemeanor; driving while suspended, Class
       A misdemeanor; two counts of forgery, Class C felonies; theft, Class D felony; driving while suspended,
       Class A misdemeanor; domestic battery, Class A misdemeanor; dealing in a schedule II controlled substance,
       Class B felony; and a probation violation.
       4
           Strickland has not indicated what those circumstances are.


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019                   Page 12 of 13
       accept a defendant’s claim as to what constitutes a mitigating factor. Rascoe v.

       State, 736 N.E.2d 246, 249 (Ind. 2000). A claim that the trial court failed to

       find a mitigating factor requires the defendant to establish that the mitigating

       evidence is both significant and clearly supported by the record. Anglemyer v.

       State, 868 N.E.2d 482, 493 (Ind. 2007). Strickland has not done either.

       Accordingly, the PC Court’s conclusion is not clearly erroneous.


                                                  Conclusion

[24]   Strickland did not receive ineffective assistance of trial counsel; therefore, the

       PC court’s denial of his petition for PCR is not clearly erroneous. We affirm.


[25]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1068 | August 21, 2019   Page 13 of 13
