Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                        Jan 24 2014, 9:14 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

MARK SMALL                                        GREGORY F. ZOELLER
Indianapolis, Indiana                             Attorney General of Indiana

                                                  JODI KATHRYN STEIN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL SAKHA,                                    )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
              vs.                                 )      No. 49A02-1305-PC-425
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Respondent.                       )


                     APPEAL FROM THE MARION SUPERIOR COURT
                             The Honorable Gary L. Miller, Judge
                    The Honorable Christina Klineman, Master Commissioner
                             Cause No. 49G05-9609-PC-147351


                                      January 24, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                               STATEMENT OF THE CASE
       Appellant-Petitioner, Michael Sakha (Sakha), appeals the post-conviction court’s

denial of his petition for post-conviction relief.

       We affirm.

                                            ISSUE

       Sakha raises one issue, which we restate as: Whether the post-conviction court erred

in denying his petition.

                           FACTS AND PROCEDURAL HISTORY

       The facts of this case were set forth as follows in Sakha’s prior appeal:

              On September 20, 1996, at approximately 9:30 p.m., Joel Goode was
       in the process of depositing money in an ATM in Indianapolis when Sakha
       approached him, placed a gun to his back, and demanded all of the money in
       his bank account. Although Goode attempted to comply with Sakha’s
       demand, the ATM would not permit Goode to perform another transaction.
       As a result, Sakha demanded that Goode drive him around town and
       withdraw all of his money from other ATM’s. Goode refused and began to
       walk away. Sakha then told Goode that he was going to “blow [his] brains
       out.” After a brief struggle, Sakha shot Goode in the neck and fled. The shot
       was photographed by the ATM’s camera.
              Goode’s injuries have left him paralyzed from the chest down. Goode
       has incurred substantial medical bills and undergone several surgeries. As a
       result of the incident, Sakha was charged [on September 27, 1996] with
       attempted murder, a class A felony, attempted robbery, a class A felony, and
       carrying a handgun without a license, a class A misdemeanor.

Sakha v. State, 49A05-0702-PC-88, slip op. at *1 (Ind. Ct. App. Oct. 31, 2007) (internal

references omitted.

       In August of 1997, almost a year after being charged with these offenses, Sakha

agreed to plead guilty as charged with open sentencing and concurrent sentences. The trial

court conducted the guilty plea hearing on August 20, 1997. At the hearing, Sakha stated
                                               2
that he understood the terms of the plea agreement and the sentencing parameters. He also

stated that he understood that he was waiving specifically enumerated constitutional rights

and agreed to the factual basis set forth by the State. The trial court accepted Sakha’s guilty

plea after determining that it was voluntarily made.

       Thereafter, Sakha’s attorney obtained and reviewed Sakha’s medical records and

interviewed the physician who treated Sakha for depression the month before he committed

the offenses. Defense counsel also talked to Sakha and his family, ordered a substance

abuse evaluation, and hired sentencing consultant Steven Brock to evaluate Sakha and

provide information to the trial court on Sakha’s “particular strengths and weaknesses

relevant to sentencing.” (Brock’s Memorandum, p. 1). The sentencing memorandum and

substance abuse evaluation both stated that Sakha had a dysfunctional childhood and had

recently been diagnosed with major depression and polysubstance abuse.

       At the September 24, 1997 sentencing hearing, Sakha’s father and sister testified

that Sakha began abusing drugs after he suffered a football injury at the beginning of his

junior year in high school. Neither family member expressed concern about Sakha’s

competence. At the conclusion of the hearing, Sakha gave the following statement:

       I want to apologize to . . . Joel Goode for everything that’s happened because
       that wasn’t my intention for this to happen to him. . . . I understand how this
       all happened now. You know, I had problems at home. . . . I made good
       grades. I was in sports and I had a job, tried to be a good role model. Well,
       that all changed when I had my football injury. That’s when I basically lost
       my outlook out of my abusive home life. . . . It changed and so I turned to
       drugs because I lost the outlook. I needed a way to get away from it all. . . .
       I realize all of it now and I will take responsibility for my actions, but I
       believe I can still add positive things to society. No matter how much time I
       get, I will always strive to be a better person and make up for what happened.
       Thank you, sir.

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(Index of Exhibits, p. 122).

       Following Sakha’s statement, the trial court sentenced him to fifty years for

attempted murder as a Class A felony, fifty years for attempted robbery as a Class A felony,

and one year for carrying a handgun without a license as a Class A misdemeanor. The trial

court ordered all sentences to run concurrently to each other for a total executed sentence

of fifty years.

       In 2007, this court affirmed the trial court’s denial of Sakha’s motion for a belated

appeal. See Sakha, slip op. at *3. On May 27, 2008, Sakha filed a petition for post-

conviction relief, which he amended on July 31, 2008, and again on April 23, 2012. The

sole issue alleged in the amended petition was whether trial counsel was ineffective for

failing to adequately investigate Sakha’s competency at sentencing.

       The post-conviction court held a hearing on the petition on June 13, 2012.

Psychologist John Ehrman (Dr. Ehrman) testified that he reviewed Sakha’s case and

interviewed him in March of 2010. Dr. Ehrman, who has conducted five or six competency

evaluations in thirty-five years of practice, hypothesized that, based on this review and

interview, he “suspected” that Sakha was not competent at the time of the sentencing

hearing. (Transcript p. 16). Dr. Ehrman also admitted that he could be wrong because he

was not at the sentencing hearing that occurred thirteen years prior to his interview with

Sakha. In addition, Sakha’s sisters testified about Sakha’s high school football injury and

the changes in Sakha that occurred after the injury. Younger sister Victoria Dickerson

(Dickerson) testified that on the day he was sentenced, Sakha “didn’t seem like he really


                                             4
could grasp the fact that he could be spending a huge remainder of his life in jail.” (Tr. p.

43). Sister Sarah Cross (Cross) testified that Sakha was in a daze at the sentencing hearing.

Specifically, according to Cross, Sakha was “sitting there with this little weird smile on his

face.” (Tr. p. 54). Sakha testified that he had only a vague recollection of the sentencing

proceeding.

       Sakha’s trial counsel, Arnold Baratz (Baratz), testified by deposition as follows:

               [Sakha] was competent and didn’t seem to have any problems
       regarding competency. And in talking with his family, his friends, teachers
       at school, coaches, all kind of people, there didn’t seem to be anything in his
       history to indicate that he had any mental health issues. The depression was
       just diagnosed pretty close to the time of the commission of the crime, and
       appeared to have been more situational, based on things that were happening
       in his life, and not necessarily the result of a mental illness.

(Baratz’s Deposition, p. 9).

       On April 29, 2013, the post-conviction court denied Sakha’s petition in a seventeen-

page order. Specifically, the post-conviction court concluded as follows:

               [Baratz] unequivocally testified that Sakha appeared to understand
       what was going on at all times during the proceedings and pendency of the
       case. It is equally clear that Sakha was able to assist trial counsel and to
       provide detailed and voluminous information to [Baratz], to [Gustafson] who
       conducted an extensive alcohol and drug evaluation, to the sentencing
       consultant [Brock], and to the presentence writer from probation. While
       [Baratz] decided after his thorough investigation that neither a competency
       evaluation nor an insanity defense were appropriate in Sakha’s case, he did
       effectively and appropriately consider and investigate these potential issues.
       [Sakha] has failed to prove deficient performance; thus, this claims fails.

(Appellant’s App. p. 19).

       Sakha now appeals the denial of his petition. Additional facts will be provided if

necessary.


                                              5
                             DISCUSSION AND DECISION

       Sakha argues that the post-conviction court erred in denying his petition.

Specifically, he contends that “trial counsel was ineffective because he failed adequately

to investigate Sakha’s mental competence to understand the proceedings at sentencing.”

(Appellant’s Br. p. 10).

       In reviewing the judgment of a post-conviction court, this court considers only the

evidence and reasonable inferences supporting its judgment. Hall v. State, 849 N.E.2d 466,

468 (Ind. 2006). The post-conviction court is the sole judge of the evidence and the

credibility of witnesses. Id. at 468-69. To prevail on appeal from the denial of post-

conviction relief, the petitioner must show that the evidence as a whole leads unerringly

and unmistakably to a conclusion opposite that reached by the post-conviction court. Id.

at 469. Only where the evidence is without conflict and leads to but one conclusion, and

the post-conviction court has reached the opposite conclusion, will the court’s findings or

conclusions be disturbed as being contrary to law. Id.

       To establish a claim of ineffective assistance of counsel, a petitioner must first

demonstrate deficient performance on the part of counsel. Smith v. State, 765 N.E.2d 578,

585 (Ind. 2002). This part of the test requires the petitioner to demonstrate that counsel’s

representation fell below an objective standard of reasonableness, and that counsel’s errors

were so serious that they resulted in a denial of the right to counsel guaranteed under the

Sixth Amendment to the United States Constitution. Id. There is a strong presumption

that counsel rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment. Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002).

                                             6
This presumption can be rebutted only with strong and convincing evidence. Elisea v.

State, 777 N.E.2d 46, 50 (Ind. Ct. App. 2002).

       The petitioner must also show that counsel’s deficient performance resulted in

prejudice to the defense. Smith, 765 N.E.2d at 585. Specifically, the petitioner must show

that but for counsel’s unprofessional errors, there is a reasonable probability that the results

of the proceeding would have been different. Id. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Id.

       Further, a claim of ineffective assistance of counsel based on a failure to investigate

requires a showing of what additional information may have been garnered from further

consultation or investigation and how that additional information would have aided in the

preparation of the case. Turner v. State, 974 N.E.2d 575, 585 (Ind. Ct. App. 2012), trans.

denied. Here, Sakha claims that trial counsel failed to investigate his competency at

sentencing. Competency is defined as “whether a [petitioner] currently possesses the

ability to consult rationally with counsel and factually comprehend the proceedings against

him.” Campbell v. State, 732 N.E.2d 197, 202 (Ind. Ct. App. 2000).

       Our review of the evidence reveals that at the time of the sentencing hearing, trial

counsel obtained and reviewed Sakha’s medical records and interviewed the physician who

treated Sakha for depression the month before he committed the offenses. Trial counsel

also spoke with Sakha and his family, ordered a substance abuse evaluation, and hired a

sentencing consultant. Both the sentencing and substance abuse memoranda provided that

Sakha had a dysfunctional childhood and suffered from major depression and

polysubstance abuse. Neither report mentioned any concern that Sakha did not possess the

                                               7
ability to consult rationally with his counsel or factually comprehend the proceedings, and

Sakha’s family expressed no such concerns. We further note that in addition to a lack of

indicators of incompetency, Sakha gave a coherent and articulate statement of remorse at

the sentencing hearing wherein he took full responsibility for his actions. Sakha has failed

to show that the evidence as a whole leads unerringly and unmistakably to a conclusion

opposite that reached by the post-conviction court.

                                     CONCLUSION

       Based on the foregoing, we conclude that the post-conviction court properly denied

Sakha’s petition.

       Affirmed.

VAIDIK, C.J. and MAY, J. concur




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