 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be                                       Jun 19 2013, 7:16 am
 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

JAMES T. ACKLIN                                           ANDREW FALK
Chief Deputy Public Defender                              Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

JAMES H. SUTTLE, JR.,                                     )
                                                          )
       Appellant-Defendant,                               )
                                                          )
                vs.                                       )      No. 49A02-1211-PC-906
                                                          )
STATE OF INDIANA,                                         )
                                                          )
       Appellee-Plaintiff.                                )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Kurt M. Eisgruber, Judge
                         The Honorable Steven J. Rubick, Magistrate
                             Cause No. 49G01-0705-PC-76663


                                                June 19, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       James H. Suttle, pro se, appeals the denial of his petition for post-conviction relief

(PCR), in which he challenged his conviction for murder. On appeal, he presents the

following restated issue for review: Did Suttle establish ineffective assistance of trial counsel

by virtue of counsel’s failure to provide Suttle’s mental-health records to court-appointed

psychiatrists?

       We affirm.

       The facts underlying Suttle’s conviction of murder were set out in his direct appeal, as

follows:

       On May 1, 2007, Suttle spent the evening drinking alcohol with Myeshia
       Williams, Billy Kilpatrick, and Terry Taylor on Williams’ front porch. As they
       socialized, Taylor was selling crack cocaine to persons who passed the house.
       At some point, Suttle asked Taylor if Suttle could purchase cocaine on credit,
       and Taylor declined to give cocaine to Suttle. Suttle said he was going to get
       money and he would “be right back,” and then walked away laughing and
       smiling.

       After Suttle left, Williams went into her house. Taylor and Kilpatrick went out
       to the street to listen to music and continue talking. Taylor turned on the radio
       in his truck and sat on the tailgate, while Kilpatrick leaned against the front of
       his car facing Taylor. Suttle returned about fifteen minutes after he left,
       carrying a shotgun. Suttle pointed the shotgun at Taylor and yelled “give me
       my money.” Kilpatrick begged Suttle not to shoot Taylor. Suttle fired a shot
       into the ground. Taylor put his hands in the air and tried to jump off the truck.
       Suttle shot Taylor twice in the chest and once in the back. Between shots,
       Suttle was yelling “what’s up now, Terry” and “give me my money.”
       Kilpatrick ran into Williams’ house. Before fleeing the scene, Suttle pointed
       the shotgun at the house and yelled to Kilpatrick that he was next. Taylor died
       from his gunshot wounds.

       The State charged Suttle with murder, and a jury found him guilty. At
       sentencing, the court found a mitigator in Suttle’s mental illness, but did not
       assign it much weight because a doctor testified the diagnosis was “tentative
       until further observation.” The court also found Suttle’s remorse mitigating,
       his criminal history aggravating, and his probationary status at the time of the

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       crime aggravating. Finding the mitigators outweighed the aggravators, the
       court sentenced Suttle to fifty years imprisonment.

Suttle v. State, No. 49A04-0804-CR-230, slip op. at 1 (Ind. Ct. App. Feb. 25, 2009)

(footnotes and internal citations omitted).

       The facts relevant to the present petition are that before Suttle’s trial, trial counsel

learned that Suttle suffered from a mental illness. As a result, counsel filed a notice of

insanity defense and a request for the appointment of two psychiatrists to evaluate Suttle’s

mental health. The trial court appointed Drs. George Parker and Roger Perry to evaluate

Suttle to determine whether he was competent to stand trial and whether he was able to

appreciate the wrongfulness of his actions at the time of the offense. The order concerning

the appointment of Drs. Parker and Perry included the following paragraph:

       To the extent there exist records of prior treatment of the defendant that
       defense counsel considers relevant to the competency or sanity examination,
       DEFENSE COUNSEL IS HEREBY ORDERED to notify you [i.e., Drs.
       Parker and Perry] of the existence of those records within 7 days. DEFENSE
       COUNSEL IS FURTHER ORDERED to request production of those
       records from the appropriate providers within 10 days, and to provide those
       records to you within 10 days of obtaining the records. The Court is to be
       provided notice of defense counsel’s compliance with the foregoing
       requirements. IF YOU HAVE BEEN NOTIFIED THAT DEFENSE
       COUNSEL SEEKS YOUR REVIEW OF PRIOR MDICAL RECORDS,
       DO NOT PREPARE A WRITTEN REPORT UNTIL SUCH TIME AS
       YOU HAVE REVIEWED THOSE RECORDS.

Direct Appeal Appendix at 47 (emphasis in original). Defense counsel did not provide notice

to the court with respect to the existence of any treatment records referenced in the order, nor

did Dr. Parker receive any documents from counsel pursuant to this order. Dr. Parker

examined Suttle and concluded that Suttle was competent to stand trial and appreciated the


                                               3
wrongfulness of his actions at the time the murder was committed. Dr. Parker apparently

submitted a report that indicated a diagnosis of possible schizophrenia. Dr. Perry also

submitted a report. Neither report is included in the appellate record.

       At sentencing, Suttle argued that his mental illness was a mitigating factor. The court

discussed its conclusion on that issue as follows:

       The Court will find as mitigating the fact that you have expressed remorse, the
       fact that you do suffer some form of mental illness. The Court is going to give
       your – your mental illness minimal weight because according to Dr. Parker,
       your diagnosis of paranoid schizophrenia should be considered tentative until
       you were [sic] either observed over a longer period of time or additional
       medical records become available.

Trial Transcript at 331-32. Upon its finding that the mitigating factors outweighed the

aggravating factors, the trial court sentenced Suttle to fifty years, which is five years less than

the advisory sentence for murder. See Ind. Code Ann. § 35-50-2-3(a) (West, Westlaw current

through P.L. 171 with effective dates through May 7, 2013).

       As it turned out, Social Security and Midtown Mental Health records were then

available that were relevant to the question of Suttle’s mental illness. At the post-conviction

hearing, Dr. Parker testified that had he reviewed those records at the time, he would have

definitively confirmed the tentative diagnosis that Suttle suffered from paranoid

schizophrenia. Suttle filed his pro se PCR petition on November 30, 2009, and amended the

petition once before a hearing was conducted. Following the hearing, the court denied

Suttle’s petition, which is the ruling that Suttle now appeals. Suttle contends trial counsel

rendered ineffective assistance in failing to provide Drs. Parker and Perry with mental health

records for use in their evaluation of his mental health.

                                                4
       In a post-conviction proceeding, the petitioner bears the burden of establishing

grounds for relief by a preponderance of the evidence. Bethea v. State, 983 N.E.2d 1134

(Ind. 2013). “When appealing the denial of post-conviction relief, the petitioner stands in the

position of one appealing from a negative judgment.” Id. at 1138 (quoting Fisher v. State,

810 N.E.2d 674, 679 (Ind. 2004)). In order to prevail, the petitioner must demonstrate that

the evidence as a whole leads unerringly and unmistakably to a conclusion opposite the post-

conviction court’s conclusion. Bethea v. State, 983 N.E.2d 1134. Although we do not defer

to a post-conviction court’s legal conclusions, we will reverse its findings and judgment only

upon a showing of clear error, i.e., “that which leaves us with a definite and firm conviction

that a mistake has been made.” Id. at 1138 (quoting Ben–Yisrayl v. State, 729 N.E.2d 102,

106 (Ind. 2000)).

       A petitioner will prevail on a claim of ineffective assistance of counsel only upon a

showing that counsel’s performance fell below an objective standard of reasonableness and

that the deficient performance prejudiced the petitioner. Bethea v. State, 983 N.E.2d 1134

(citing Strickland v. Washington, 466 U.S. 668 (1984)). To satisfy the first element, the

petitioner must demonstrate deficient performance, which is “representation that fell below

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

not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id. at 1138 (quoting McCary v.

State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the second element, the petitioner must

show prejudice, which is “a reasonable probability that, but for counsel’s errors, the result of

the proceeding would have been different.” Id. at 1139. There is a “strong presumption”


                                               5
that counsel rendered adequate service. Id. Because a petitioner must prove both elements in

order to succeed, the failure to prove either element defeats the claim. See Young v. State,

746 N.E.2d 920 (Ind. 2001) (holding that because the two elements of Strickland are separate

and independent inquiries, the court may dispose of the claim on the ground of lack of

sufficient prejudice if it is easier).

       Dr. Parker testified at the post-conviction hearing that if he had reviewed Suttle’s

Social Security and Midtown Mental Health records at the time of his evaluation of Suttle,

his diagnosis would have changed from possible paranoid schizophrenia to paranoid

schizophrenia. Suttle contends that this change in the assessment would have caused the

court to assign a greater mitigating weight to Suttle’s mental illness, which in turn would

have resulted in a lesser sentence. In point of fact, the trial court found that Suttle “do[es]

suffer some form of mental illness.” Trial Transcript at 332. Moreover, the court was aware

via Dr. Parker’s report of the possibility that Suttle’s form of mental illness might be

paranoid schizophrenia. Although the comments recited previously in this opinion are

susceptible to a contrary construction, we are not persuaded that Suttle has established with

the requisite certainty that the sentence imposed upon the corrected classification would have

been reduced even further than his current sentence.

       Because Suttle appeals from a negative judgment and his appeal turns on factual

issues, he will prevail only if he convinces us that the evidence “as a whole leads unerringly

and unmistakably to a decision opposite that reached by the post-conviction court.” Stevens

v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S. 830 (2003). In other words,


                                              6
he must convince us “that there is no way within the law that the court below could have

reached the decision it did.” Id. (emphasis in original). In the context of this case, this

means he must establish that there is no way the post-conviction court could have concluded

that the trial court would not have further reduced Suttle’s sentence had a definitive

classification of his mental illness (i.e., paranoid schizophrenia) been provided to the court.

       The trial court affirmatively found as a mitigator that Suttle has a mental illness.

Although the court was not inclined to assign it great weight, the court determined that the

combined weight of it and the only other mitigator – Suttle’s remorse – outweighed the

aggravating circumstances and justified a sentence less than the advisory. Would the

confirmed diagnosis of paranoid schizophrenia have changed the calculus enough to prompt

a further reduction in the sentence? Upon review, the question we must answer is not

whether the court could or would have reduced the sentence. Rather, the question is whether

we can say there is no way the court would have failed to reduce the sentence. See Stevens v.

State, 770 N.E.2d 739.

       Our Supreme Court has noted, “[w]hat is brought out [during the penalty phase] that

will help [a defendant] is what goes to show that he is not as ‘bad’ a person as one might

have thought from the evidence in the guilt phase of the proceeding.” Id. at 755 (quoting

Stewart v. Gramley, 74 F.3d 132, 136 (7th Cir. 1996), cert. denied, 519 U.S. 838). Mental

illness as a mitigator may warrant less weight where the nexus between the defendant’s

mental illness and the commission of the crime is not clear. See Archer v. State, 689 N.E.2d

678 (Ind. 1997). Suttle and the others involved in this incident had been drinking throughout


                                              7
the evening on the night Taylor was murdered. There is no suggestion that Suttle’s mental

illness was a precipitating factor in the shooting. In fact, Suttle defended on a theory of self-

defense and the parties were forbidden by an order in limine from mentioning his history of

mental illness. Finally, we note that Dr. Parker testified at the post-conviction hearing that

although the records would have caused him to confirm the tentative diagnosis of paranoid

schizophrenia, they would not have altered his conclusions that Suttle was competent to stand

trial and was able to appreciate the wrongfulness of his actions at the time of the offense.

       Because there is no clear nexus between the shooting and Suttle’s mental illness, we

cannot say that there is no way within the law that the post-conviction court could have

reached the conclusion that the sentence imposed by the trial court would have remained the

same even with a definitive diagnosis of paranoid schizophrenia.

       Judgment affirmed.

ROBB, C.J., and CRONE, J., concur.




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