MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jul 10 2019, 10:33 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Curtis T. Hill, Jr.
Public Defender of Indiana                                Attorney General of Indiana

Kristen E. Phair                                          Justin F. Roebel
Special Assistant to the State Public                     Supervising Deputy Attorney
Defender                                                  General
Indianapolis, Indiana                                     Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Damian Justin Harris,                                     July 10, 2019
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          18A-PC-1835
        v.                                                Appeal from the Allen Superior
                                                          Court
State of Indiana,                                         The Honorable Frances C. Gull,
Appellee-Respondent.                                      Judge
                                                          Trial Court Cause No.
                                                          02D05-1303-PC-82



Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019                   Page 1 of 15
                                      Statement of the Case
[1]   Damian Harris appeals the denial of his petition for post-conviction relief, in

      which he had claimed his trial counsel had failed to present crucial mitigating

      evidence at sentencing. We affirm.


                                                     Issue
[2]   Harris raises one issue, which we restate as: whether the post-conviction court

      erred in rejecting his claim of ineffective assistance of trial counsel.


                               Facts and Procedural History
[3]   The facts of the case, as stated in Harris’ first appeal, are as follows:


              [On February 21, 2000,] [w]hen Harris was just fifteen years old,
              he attempted to rob a locally owned market. He failed in his
              endeavor to obtain money; however, as Harris was exiting the
              market, he entered into a struggle with the owner of the market,
              whom Harris shot and killed. The State filed a delinquency
              petition based upon Harris’ acts that, if committed by an adult,
              would be the offenses of murder, felony murder, and attempted
              robbery. The State later filed a motion for waiver of juvenile
              jurisdiction, which the juvenile court granted. Following a jury
              trial in adult criminal court, Harris was found guilty of felony
              murder and attempted robbery.


      Harris v. State, 824 N.E.2d 432, 436 (Ind. Ct. App. 2005) (“Harris 1”).


[4]   At sentencing, Harris, through his attorneys, presented testimony from his

      mother, his sister, a school official who knew Harris, and an official from the

      youth center where Harris had been detained while his case was pending. The

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019   Page 2 of 15
      witnesses discussed positive aspects of Harris’ character. Harris also offered as

      exhibits his school records and an evaluation that was generated during juvenile

      waiver proceedings. The sentencing court accepted the exhibits into evidence.

      Harris’ counsel urged the trial court to find that Harris’ lack of a criminal record

      and young age were mitigating factors and impose the minimum sentence of

      forty-five years.


[5]   The court agreed that Harris’ lack of a criminal history and young age were

      mitigating factors. The court further concluded those factors were outweighed

      by the nature and circumstances of the offense, the impact on the victim’s

      family and the community, and the victim’s age. As a result, the court vacated

      the attempted robbery conviction but sentenced Harris to sixty-five years for

      murder, the maximum possible sentence.


[6]   On appeal, a panel of this Court affirmed Harris’ conviction but determined the

      trial court had: (1) erroneously cited an improper aggravating circumstance

      (impact on the victim’s family and the community); and (2) erroneously

      enhanced Harris’ sentence by citing aggravating factors that had not been

      submitted to the jury or admitted by Harris, in violation of the holding in

      Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

      Harris 1, 824 N.E.2d at 442. The Court remanded for resentencing.


[7]   On remand, the trial court held another sentencing hearing. Harris was

      represented by one of the two attorneys who had represented him at the original

      sentencing hearing. The court again identified Harris’ age and lack of criminal


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019   Page 3 of 15
       history as mitigating factors but determined they were outweighed by the

       victim’s age. The court assigned low mitigating weight to Harris’ age, telling

       Harris he was “[c]learly old enough to know better, clearly old enough to

       conform your conduct to the requirements of the law, and clearly old enough to

       appreciate right and wrong.” Resentencing Tr. p. 45. The court also stated it

       appeared Harris had planned the robbery in advance. The court imposed a

       sentence of sixty-five years, the same as before.


[8]    Harris appealed, arguing: (1) the trial court abused its discretion in identifying

       aggravating and mitigating circumstances; and (2) his sentence was

       inappropriate pursuant to Indiana Appellate Rule 7(B). A panel of this court

       affirmed Harris’ sentence in a Memorandum Decision. Harris v. State, Cause

       No. 02A03-0509-CR-446 (Ind. Ct. App. May 16, 2006) (“Harris 2”).


[9]    Harris filed a petition for post-conviction relief in 2013 and amended it in 2017.

       The post-conviction court held an evidentiary hearing on September 8, 2017.

       Among other evidence, Harris presented testimony from his trial attorneys and

       from Dr. Robin Kohli, a psychologist who had evaluated Harris on January 1,

       2017. Next, the parties filed proposed findings of fact and conclusions thereon.


[10]   On July 5, 2018, the court issued findings of fact, conclusions thereon, and a

       judgment. The court determined Harris was entitled to additional jail credit

       time but otherwise denied Harris’ petition. As for Harris’ claim of ineffective

       assistance of trial counsel, the court concluded he did not “suffer prejudice”

       from his attorney’s alleged failure to present certain mitigating evidence during


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019   Page 4 of 15
       sentencing. Appellant’s App. Vol. II, p. 188. The court explained Harris had

       failed to “establish a reasonable probability that [Harris] would have received a

       sentence less than the maximum even if all the mitigating evidence presented in

       this post-conviction proceeding had been presented at sentencing.” Id. This

       appeal followed.


                                    Discussion and Decision
                                         I. Standard of Review
[11]   The post-conviction process is not an opportunity for a “‘super-appeal.’”

       McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002) (quoting Ben-Yisrayl v. State,

       729 N.E.2d 102, 105 (Ind. 2000)). Indiana Post-Conviction Rule 1(a) sets forth

       specific circumstances under which a petitioner may collaterally attack a

       conviction or sentence, such as by claiming that the conviction or sentence

       violates a federal or state constitutional right.


[12]   A petitioner who has been denied post-conviction relief appeals from a negative

       judgment and must convince the appellate court that the evidence, as a whole,

       leads unerringly and unmistakably to a decision opposite that reached by the

       post-conviction court. McCary, 761 N.E.2d at 391. When reviewing a denial of

       post-conviction relief, we give no deference to the post-conviction court’s legal

       conclusions, but to the extent the decision turns on factual determinations, our

       review is deferential, and will result in reversal only when the decision is found

       to be clearly erroneous. Boesch v. State, 778 N.E.2d 1276, 1280-81 (Ind. 2002).




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019   Page 5 of 15
[13]   Harris argues this Court should give the post-conviction court’s findings and

       conclusions less deference because the court entirely adopted the State’s

       proposed findings and conclusions as its own. We disagree. Harris also

       concedes the court made grammatical changes throughout the State’s proposed

       findings and conclusions. We conclude the court carefully considered the

       individual findings proposed by the State. See Stevens v. State, 770 N.E.2d 739,

       762 (Ind. 2002) (rejecting petitioner’s claim that he was denied unbiased

       adjudication of post-conviction claims; post-conviction court largely adopted

       State’s proposed findings but implemented several edits and corrections).


[14]   In addition, Harris notes that in one instance, the post-conviction court’s

       findings and conclusions misstated Harris’ age as sixteen at the time of the

       murder. The court also correctly identified Harris’ age as fifteen elsewhere in

       the findings and conclusions, and any error in that regard is harmless.


                                2. Effectiveness of Trial Counsel
[15]   Harris argues his trial counsel should have presented evidence at sentencing

       and/or resentencing discussing scientific information on adolescent brain

       development, which he claims would have demonstrated that his capacity for

       foresight, strategic thinking, and impulse control were less than that of an adult.

       He further claims counsel should have discovered and presented evidence that

       he: (1) had a traumatic childhood, including being beaten by his mother and

       sexually abused by his older brothers, and being exposed to his mother’s violent

       behavior against his father and others; and (2) was impaired at the time of the

       murder due to mental illness, including conduct disorder, cannabis dependence,
       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019   Page 6 of 15
       and post-traumatic stress disorder resulting from physical and sexual abuse.

       Harris concludes that if the sentencing court had seen this evidence, it would

       have concluded he was not “a callous felon” but rather “a compromised child”

       and would have imposed a shorter sentence. Appellant’s Br. p. 15.


[16]   The Sixth Amendment guarantees criminal defendants a right to the assistance

       of counsel. The right to counsel includes a right to effective assistance of

       counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80

       L. Ed. 2d 674 (1984) (quotation omitted). When evaluating a claim of

       ineffective assistance of counsel, we apply the two-part test that was first set

       forth in Strickland. First, a petitioner must show that counsel’s performance was

       deficient. Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013). Second, a

       defendant must show that the deficient performance prejudiced the defense. Id.

       To establish prejudice, a defendant must show that there is a reasonable

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

       proceeding would have been different. Id. The two parts of the Strickland test

       are separate and independent inquiries. Thacker v. State, 715 N.E.2d 1281, 1284

       (Ind. Ct. App. 1999), trans. denied. If it would be easier to dispose of an

       ineffectiveness claim on the ground of lack of sufficient prejudice, that course

       should be followed. Massey v. State, 955 N.E.2d 247, 258 (Ind. Ct. App. 2011).


[17]   The judge who presided over Harris’ original trial and sentencing, as well as the

       resentencing hearing, also presided over the post-conviction evidentiary

       hearing. Under these circumstances, we afford the post-conviction court’s

       findings and judgment “greater than usual deference.” McCullough v. State, 973

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019   Page 7 of 15
       N.E.2d 62, 75 (Ind. Ct. App. 2012), trans. denied. We provide such deference

       because the judge is “uniquely situated” to address whether trial counsel’s

       performance failed to meet the Strickland standard. Hinesley v. State, 999 N.E.2d

       975, 982 (Ind. Ct. App. 2013), trans. denied.


[18]   We now turn to the standards governing mitigating evidence at sentencing. In

       determining an appropriate sentence, all circumstances of the particular crime

       and the background of the individual offender should be considered. Thomas v.

       State, 562 N.E.2d 43, 47 (Ind. Ct. App. 1990). This individualized sentencing

       process requires possession of the fullest information possible concerning the

       defendant’s life and characteristics. Id. In addition:


               The finding of mitigating factors is not mandatory and rests
               within the discretion of the trial court, and the trial court is not
               required to accept the defendant’s arguments as to what
               constitutes a mitigating factor. Further, the trial court is not
               required to give the same weight to proffered mitigating factors as
               the defendant does, nor is it obligated to explain why it did not
               find a factor to be significantly mitigating.


       Williams v. State, 997 N.E.2d 1154, 1163-64 (Ind. Ct. App. 2013) (citations

       omitted). When a post-conviction petitioner claims that counsel should have

       presented certain mitigating evidence, we must determine “what effect the

       totality of the omitted mitigation evidence would have had on [the defendant’s]

       sentence.” Coleman v. State, 741 N.E.2d 697, 702 (Ind. 2000).


[19]   This appeal can be resolved on the prejudice element of the Strickland test. In

       Lewis v. State, 116 N.E.3d 1144 (Ind. Ct. App. 2018), trans. denied, eighteen-year-

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019   Page 8 of 15
       old Lewis participated in the robbery and murder of two people, and a jury

       determined he was guilty of two counts of robbery and two counts of felony

       murder. His counsel declined to present any mitigating circumstances at

       sentencing, and the court imposed maximum, consecutive sentences of sixty-

       five years for each count of felony murder. On direct appeal, Lewis’ counsel

       declined to challenge the sentence under Indiana Appellate Rule 7(B),

       determining the record was too inadequate to raise that claim.


[20]   Lewis later filed a petition for post-conviction relief, alleging his trial counsel

       should have argued that his young age, difficult childhood, and poor mental

       health were mitigating factors. The post-conviction court denied Lewis’

       petition, and he appealed. A panel of this Court determined Lewis’ trial

       counsel performed deficiently, concluding the attorney “certainly should have

       proffered the mitigators at sentencing.” Id. at 1157. Regardless, the Court

       affirmed the post-conviction court’s judgment, concluding Lewis had failed to

       demonstrate a reasonable probability that he was prejudiced by his attorney’s

       poor performance. The Court explained: (1) the record failed to demonstrate

       that Lewis was naïve or clueless despite his young age; (2) difficult childhoods

       generally do not warrant mitigating weight; and (3) there did not appear to be a

       nexus between Lewis’ mental illness and the crimes.


[21]   As in Lewis, we conclude that Harris was not prejudiced by trial counsel’s

       failure to present evidence related to the three mitigating factors discussed

       above. Starting with Harris’ abusive childhood, we agree with the Lewis court

       that evidence of a difficult childhood is not generally entitled to much

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019   Page 9 of 15
       mitigating weight. 116 N.E.3d at 1155 (quotation omitted). Further, Harris’

       primary source of evidence regarding his abusive childhood was Dr. Kohli’s

       2017 report, wherein Harris and one of his brothers described being subjected to

       sexual abuse by their older brothers and being beaten by their mother. Harris

       further described seeing his mother attack his father and others with a knife.


[22]   Dr. Kohli conceded on cross-examination that he had not interviewed Harris’

       mother or sister because Harris’ post-conviction counsel had not asked him to

       contact them. Harris’ mother had “vehemently” denied to Harris’ trial counsel

       that Harris had been molested. PCR Tr. Vol. 2, p. 40. Further, Harris’ sister

       had testified at trial that their mother “was a good mother” and that Harris was

       “taught very well” growing up. Sentencing Tr. p. 41. The post-conviction

       court concluded Dr. Kohli’s report was of “dubious value” due to its exclusion

       of possibly unfavorable information, Appellant’s App. Vol. II, p. 185, and

       would not have had much mitigating value at sentencing or resentencing. The

       evidence supports the court’s determination.


[23]   Next, we turn to Harris’ second proposed mitigator: his claimed mental

       illnesses. When considering what, if any, mitigating weight to give to evidence

       of a defendant’s mental illness, the sentencing court should consider, among

       other factors: (1) the extent of the defendant’s inability to control his or her

       behavior due to the disorder or impairment; (2) overall limitations on

       functioning; (3) the duration of the mental illness; and (4) the extent of any

       nexus between the disorder or impairment and the commission of the crime.

       Krempetz v. State, 872 N.E.2d 605, 615 (Ind. 2007).

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019   Page 10 of 15
[24]   In 2017, Dr. Kohli diagnosed Harris as having experienced several forms of

       mental illness at the time of the murder in 2000, including post-traumatic stress

       disorder, conduct disorder, and cannabis disorder. The post-conviction court

       determined that if evidence of Harris’ claimed mental illnesses had been

       presented at sentencing or resentencing, it would not have made a difference

       because those conditions did not compel him “to decide to commit the

       potentially dangerous act of armed robbery,” which led to the murder.

       Appellant’s App. Vol. II, p. 185. The court determined Harris was not so

       mentally impaired that it would have been impossible for him to refrain from

       knowingly or intentionally killing another person. The court thus concluded

       Harris’ claimed mental illnesses would have been given little, if any mitigating

       weight. Viewing the evidence in the light most favorable to the judgment, we

       agree. See Greer v. State, 749 N.E.2d 545, 551 (Ind. 2001) (affirming trial court’s

       decision to give little mitigating weight to defendant’s PTSD diagnosis;

       defendant shot a store employee during a robbery, and there was no evidence

       defendant ultimately lacked the ability to distinguish right from wrong).


[25]   Finally, as for the third proposed mitigator, general evidence about adolescent

       brain development, Harris points out that the United States Supreme Court

       stated in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1

       (2005), that psychological and sociological studies have established that

       juveniles tend to have diminished mental capacity in the form of an

       underdeveloped sense of responsibility, vulnerability to outside pressures, and a

       transitory sense of personality.


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019   Page 11 of 15
[26]   The Supreme Court issued Roper six months before Harris’ resentencing

       hearing, and Harris’ lead trial counsel was aware of that decision at

       resentencing. Even so, if counsel had presented general information about

       adolescent brain function at Harris’ resentencing, we agree with the post-

       conviction court that it would not have affected the sentencing outcome. Roper

       discussed adolescent brain function in the context of the death penalty, which

       was not at issue in Harris’ case. There is also no evidence that juvenile

       immaturity played a role in Harris’ decision to commit murder. Harris’ expert

       witness, Dr. Robin Kohli, conceded different adolescents may develop at

       different rates, and many juveniles with impulsivity issues and abusive

       childhoods go on to become “model citizens” instead of committing grievous

       criminal offenses. PCR Tr. Vol. 2, p. 123.


[27]   Harris further claims that, if none of the three mitigating circumstances

       standing alone establishes a reasonable probability that his sentence would have

       been different if they had been presented at sentencing or resentencing, then the

       three factors, taken together, do meet that standard. It is well established that

       errors by counsel that are not individually sufficient to prove ineffective

       representation may add up to ineffective assistance when viewed cumulatively.

       Pennycuff v. State, 745 N.E.2d 804, 816-17 (Ind. 2001).


[28]   As the trial court noted at sentencing and resentencing, Harris murdered a

       person who was over sixty-five years of age. Further, the failed robbery was not

       a spur of the moment event; Harris planned it in advance. Against those

       factors, the trial court accepted Harris’ relatively young age and his lack of a

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019   Page 12 of 15
       criminal record as mitigating factors but gave them low weight. If the trial

       court had received evidence at sentencing or resentencing as to Harris’ difficult

       childhood and alleged mental illnesses, plus general information about

       adolescent brain development, we cannot conclude there is a reasonable

       possibility that those factors, in the aggregate, would have affected the

       sentencing outcome. The trial court, which carefully considered Harris’

       sentence twice, emphasized that Harris was old enough to know right from

       wrong, and none of the additional evidence would have established that Harris

       was incapable of understanding that murder is wrong or preventing himself

       from committing that offense. In summary, we agree with the post-conviction

       court that there is not a reasonable possibility that the court would have

       imposed a lesser sentence had it been informed of evidence related to the three

       mitigating factors cited by Harris. See French v. State, 778 N.E.2d 816, 826-27

       (Ind. 2002) (attorney’s alleged errors, viewed cumulatively did not amount to

       prejudice to defendant; evidence was such that alleged errors would not have

       changed outcome).


[29]   Harris argues in the alternative that if his trial counsel had placed the previously

       unrevealed evidence into the record during resentencing, then the Harris 2 court

       would have found his sixty-five-year sentence inappropriate pursuant to Indiana

       Appellate Rule 7(B) and ordered the trial court to reduce it. Indiana’s appellate

       courts may revise a sentence authorized by statute if, “after due consideration of

       the trial court’s decision, the Court finds that the sentence is inappropriate in

       light of the nature of the offense and the character of the offender.” Id. The


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019   Page 13 of 15
       principle role of such review is the attempt to leaven the outliers. Abd v. State,

       120 N.E.3d 1126, 1137 (Ind. Ct. App. 2019) (quotation omitted), trans. denied.

       The defendant bears the burden to persuade the reviewing court that the

       sentence imposed is inappropriate. Id. at 1137-38.


[30]   The Harris 2 court determined the nature of the offense was troubling, noting

       that Harris planned the armed robbery in advance. Another negative

       circumstance is that Harris shot the victim, instead of being a mere accomplice

       or conspirator. Cf. Brown v. State, 10 N.E.3d 1, 5 (Ind. 2014) (maximum

       sentences for robbery and two counts of murder was inappropriate; among

       other factors, Brown was accomplice rather than shooter). As for the character

       of the offender, the Harris 2 court further determined Harris’ age was not

       grounds for sentence reduction, echoing the trial court’s determination that

       Harris was old enough to understand the seriousness of the offense of murder

       and to conform with the requirements of the law.


[31]   Harris cites Lewis v. State, 759 N.E.2d 1077 (Ind. Ct. App. 2001), trans. denied, in

       support of his claim, but that case is distinguishable. Lewis was convicted of

       confinement and battery, for which he received maximum, concurrent

       sentences. A panel of this Court determined several aggravating factors found

       by the trial court were inappropriate. Next, applying a prior version of

       Appellate Rule 7(B), the Court considered the remaining aggravating factors,

       determined Lewis’ sentence was manifestly unreasonable, and remanded for

       resentencing. In support of its determination, the Court concluded it could not



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019   Page 14 of 15
       say the trial court “would necessarily weigh” the proper factors the same way,

       once the improper factors had been removed. Id. at 1087.


[32]   The Harris 2 court, unlike the Lewis court, had the benefit of the trial court’s

       reconsideration of aggravating and mitigating factors on resentencing. We

       conclude Harris has failed to demonstrate a reasonable probability that the

       Harris 2 court’s analysis would have changed if Harris’s trial counsel had

       presented evidence relevant to the three additional claimed mitigating

       circumstances. As a result, he has not demonstrated that the evidence, as a

       whole, leads unerringly and unmistakably to a decision opposite that reached

       by the post-conviction court.


                                                 Conclusion
[33]   For the reasons stated above, we affirm the judgment of the post-conviction

       court.


[34]   Affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1835 | July 10, 2019   Page 15 of 15
