MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Feb 27 2017, 9:28 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                       CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
court except for the purpose of establishing                                     and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
John Berry                                              Curtis T. Hill, Jr.
Pendleton, Indiana                                      Attorney General of Indiana

                                                        Richard C. Webster
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

John Berry,                                             February 27, 2017
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        49A05-1603-PC-553
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Clark H. Rogers,
Appellee-Respondent.                                    Judge
                                                        Trial Court Cause No.
                                                        49F25-0902-PC-24179



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-553 | February 27, 2017             Page 1 of 8
                                       Statement of the Case
[1]   John Berry appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Berry raises a single issue for our review, namely, whether he

      received ineffective assistance from his trial counsel. We affirm.


                                 Facts and Procedural History
[2]   The facts underlying Berry’s conviction and sentence were stated by our

      supreme court in his direct appeal:


              John Berry is a forty-one-year-old man who suffers from alcohol
              dependence. Berry began abusing alcohol at the age of nine and
              became a daily drinker by his sophomore year of high school.
              He also used marijuana, cocaine, methamphetamine, LSD,
              mushrooms, and ecstasy, but he stopped using these drugs at age
              thirty. His drinking, however, continued.


              Over the years, Berry has received rehabilitation treatment
              multiple times without success. He also has several convictions
              related to his alcohol use.


              In 1999, Berry was diagnosed with bipolar disorder. He has been
              hospitalized multiple times for a combination of symptoms
              related to his drug and alcohol abuse and bipolar disorder. He
              has been treated with mood-stabilizing, psychotropic,
              antianxiety, and antidepressant medications.


              On Monday, February 9, 2009, Berry went with his father, John
              Berry III (Father), to a house Father was helping renovate.
              Father parked his truck in front of the house. Tony Monday was
              working on the bathroom ceramic tile when Berry and Father
              arrived.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-553 | February 27, 2017   Page 2 of 8
        Father greeted Monday, and Monday told Father that he had
        borrowed the power drill and claw hammer during the weekend
        and that those tools were in the bathroom. Father then took
        Berry into one of the bedrooms where Berry was to do drywall
        work, and Father told Berry where the drill and hammer were.


        Berry went into the bathroom and told Monday that he was
        “going to kill” him. Monday asked Berry why, and Berry told
        Monday to “shut up” and repeated that he was “going to kill”
        him. Berry then struck Monday in the head with the claw
        hammer. Monday pleaded with Berry to stop, but Berry ignored
        him and continued to strike Monday.


        During this time, Father was in the living room area with his
        back to the hallway leading to the bathroom. Eventually,
        Monday exited the bathroom into the hallway, and Father turned
        around to see Monday bleeding profusely from his head. Father
        began attending to Monday’s injuries as Monday explained to
        Father what happened. Father called 911.


        Father then saw Berry in the kitchen, walking back and forth and
        wiping the hammer with a towel. Father asked Berry, “Did you
        hit him with the f* *king hammer?” Berry responded, “I guess
        so.”


        Father told Berry to go to the garage. Berry left through the back
        door, walked to the front of the house, opened Father’s truck,
        and placed the hammer and bloody towel in a chest of drawers
        located in the covered bed of the truck. Berry then reentered the
        house and told Father he could not find the garage. Father told
        Berry where the garage was and that Berry should stay there.


        Medics and police officers arrived soon after. Father told the
        officers where Berry was, and they surrounded the garage. Berry


Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-553 | February 27, 2017   Page 3 of 8
        initially refused to unlock the door and exit the garage, but
        Father was eventually able to convince Berry to come out.


        Police handcuffed Berry and began to question him. They
        described Berry’s behavior as nonchalant and very calm; noted
        that Berry’s speech was clear; and stated that Berry offered no
        resistance. When asked where the hammer was, Berry told
        police it was in a drawer in the truck and directed them to the
        correct truck. When asked why he placed the hammer there,
        Berry responded that Father told him to do so. Finally, when
        asked why he hit Monday with the hammer, Berry gave
        nonsensical answers, including that God told him to hit Monday
        and that Monday was caught playing with an eagle. Berry was
        then taken to the hospital, admitted to a mental health center,
        and discharged several days later.


        Monday suffered severe injuries. He underwent surgery to repair
        his nose, his eyes, and his broken jaw. Titanium plates were
        implanted into his skull, and he also lost sight in one eye.
        Monday can no longer use his dentures due to the damage
        inflicted to his jaw.


        The State charged Berry with Class A felony attempted murder.
        Berry interposed an insanity defense. A court-appointed
        psychiatrist and court-appointed psychologist found Berry
        competent to stand trial.


        Berry waived his right to a trial by jury. After hearing expert and
        lay testimony, the trial court found Berry guilty as charged,
        rejecting his insanity defense. . . .


Berry v. State, 969 N.E.2d 35, 36-37 (Ind. 2012).




Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-553 | February 27, 2017   Page 4 of 8
[3]   In his direct appeal, Berry argued that the trial court erred when it rejected his

      insanity defense. Our court agreed, reversing his conviction on the basis that

      Berry suffered from “settled insanity.” Id. at 36. However, the Indiana

      Supreme Court granted transfer and affirmed the trial court “because there was

      credible expert testimony that defendant’s behavior was caused by his voluntary

      abuse of alcohol.” Id.


[4]   Thereafter, Berry filed his petition for post-conviction relief. In relevant part,

      Berry asserted that his trial counsel, Michael Day, rendered ineffective

      assistance when Day pursued an insanity defense in lieu of arguing that Berry

      had committed a lesser-included offense to murder. The post-conviction court

      held an evidentiary hearing on Berry’s petition. At that hearing, Day testified

      that “it was pretty clear from the facts and the evidence that from the get go that

      there was a mental defect at play here”; that the “insanity defense . . . was the

      best route given all the evidence”; that he “would have lost

      credibility . . . saying that . . . the insanity was . . . what was going on . . . [a]nd

      then at the same time say[ing] well, if insanity doesn’t apply then what we have

      here is . . . aggravated battery”; and that Berry’s argument in his petition was

      based on “hindsight.” Post-Conviction Tr. at 4-6, 10. Crediting and relying on

      Day’s testimony, the post-conviction court entered findings of fact and

      conclusions of law denying Berry’s petition. This appeal ensued.


                                     Discussion and Decision
[5]   Berry appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Our standard of review in such appeals is clear:
      Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-553 | February 27, 2017   Page 5 of 8
              The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)
              (citations omitted). When appealing the denial of post-
              conviction relief, the petitioner stands in the position of one
              appealing from a negative judgment. Id. 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. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
              Further, the post-conviction court in this case made findings of
              fact and conclusions of law in accordance with Indiana Post-
              Conviction Rule 1(6). Although 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.” Ben-Yisrayl v. State,
              729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).


      Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).


[6]   On appeal, Berry asserts that the post-conviction court erred when it found that

      Day did not render ineffective assistance of counsel when Day pursued an

      insanity defense in lieu of arguing for a lesser-included offense.

              When evaluating an ineffective assistance of counsel claim, we
              apply the two-part test articulated in Strickland v. Washington, 466
              U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
              State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
              prong, “the defendant must show deficient performance:
              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.”
              McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
              Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
      Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-553 | February 27, 2017   Page 6 of 8
              second prong, “the defendant must show prejudice: a reasonable
              probability (i.e. a probability sufficient to undermine confidence
              in the outcome) that, but for counsel’s errors, the result of the
              proceeding would have been different.” Id. (citing Strickland, 466
              U.S. at 694, 104 S. Ct. 2052).


      Id. at 274. Moreover, “strategic choices made after thorough investigation of

      law and facts relevant to plausible options are virtually unchallengeable.”

      Strickland, 466 U.S. at 690.


[7]   According to Berry:


              had Day researched the case of Thompson v. State, 804 N.E.2d
              1146, 1149 [(Ind. 2004),] . . . he would have realized he had a
              losing defense. The Indiana Supreme Court ruled in Thompson
              that even if a defendant has expert witnesses testifying on his/her
              behalf . . . the trial court can disregard their opinion[s] and rely
              upon the testimony of lay witnesses, and that conflicting credible
              expert testimony is sufficiently probative of sanity . . . . Day
              knew that there were two lay witnesses testifying that [Berry] was
              not insane and that Dr. Masbaum would be testifying that
              [Berry’s] condition was either voluntary intoxication or
              withdraw[al] from voluntary intoxication . . .


      Appellant’s Br. at 3. Berry further takes issue with Day’s statement to the post-

      conviction court that, absent the proper mens rea, “there was no crime here,”

      and Berry also contends that Day’s expression of regret for not securing a better

      outcome for Berry demonstrates that Day “should have went [sic] with the

      lesser offense strategy.” Id. at 4.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1603-PC-553 | February 27, 2017   Page 7 of 8
[8]    Berry has not carried his burden on appeal. Thompson does not demonstrate

       that Day’s strategy to pursue an insanity defense was unreasonable; rather,

       Thompson merely recognizes that such questions are questions of fact, to be

       credited or rejected by the fact-finder as it deems appropriate. Further, Day’s

       statement to the post-conviction court that there was no crime absent the proper

       mens rea was a correct statement. And Day’s regret for not securing a better

       outcome for Berry does not impugn the reasonableness of Day’s decisions

       during the course of the trial proceedings.


[9]    Berry’s arguments on appeal are merely requests to reweigh the evidence

       credited by the post-conviction court, which we will not do. The post-

       conviction court found, based on Day’s testimony, that Day’s pursuit of the

       insanity defense in lieu of a lesser-included offense was objectively reasonable.

       Again, Day testified that he had concluded that that strategy was the “best

       route” in light of “the facts and the evidence” and that arguing an alternative

       basis for liability would have lost him essential credibility. Post-Conviction Tr.

       at 4-6, 10. Indeed, this court agreed with Day’s assessment of the merits of the

       insanity defense, although the Indiana Supreme Court ultimately reinstated

       Berry’s conviction. In sum, the post-conviction court’s findings are supported

       by the record, and the court’s findings support its judgment. Thus, we affirm

       the post-conviction court’s denial of Berry’s petition for post-conviction relief.


[10]   Affirmed.


       Bailey, J., and May, J., concur.

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