      MEMORANDUM DECISION
                                                                         Apr 17 2015, 9:42 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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.



      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Chad McKinney                                             Gregory F. Zoeller
      Michigan City, Indiana                                    Attorney General of Indiana

                                                                Justin F. Roebel
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Chad McKinney,                                            April 17, 2015

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                49A04-1406-PC-282
              v.                                                Appeal from the Marion Superior
                                                                Court
                                                                The Honorable Clark H. Rogers,
      State of Indiana,                                         Judge
      Appellee-Respondent                                       Trial Court Cause No. 49F25-0312-
                                                                PC-222387




      Bradford, Judge.



                                            Case Summary
[1]   In 2006, Appellant-Petitioner Chad McKinney was convicted of the murder of

      Anthony Laurenzo. His conviction was affirmed on direct appeal. McKinney

      Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015      Page 1 of 24
      subsequently filed a petition for post-conviction relief (“PCR”), in which he

      alleged that he had received ineffective assistance of both trial and appellate

      counsel. Following an evidentiary hearing, the post-conviction court denied

      McKinney’s petition. McKinney appealed this determination.


[2]   On appeal, McKinney again alleges that he received ineffective assistance of

      both trial and appellate counsel. McKinney also alleges that he received

      ineffective assistance of post-conviction counsel. Concluding that McKinney

      has failed to establish that he received ineffective assistance of trial, appellate, or

      post-conviction counsel, we affirm.



                            Facts and Procedural History
[3]   Our opinion in McKinney’s prior direct appeal, which was handed down on

      September 17, 2007, instructs us as to the underlying facts and procedural

      history leading to this post-conviction appeal:

              On the night of December 19, 2003, Dominick Bruno (“Dominick”)
              and [Laurenzo], who had been a groomsman in Dominick’s wedding,
              procured some LSD and then went to Dancer’s Show Club in
              Indianapolis. Both men consumed some of the LSD before entering
              the club. After a few minutes, Laurenzo began acting abnormally,
              alternating between periods of quiet with his head between his knees
              and periods where he had a great deal of energy, was shaking, and was
              yelling, “Oh, Jesus.” Tr. p. 222. The club’s doorman saw Laurenzo
              crying and rubbing his chest and believed that Laurenzo was
              hallucinating. Eventually, the doorman asked Dominick to take
              Laurenzo out of the club.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 2 of 24
        About that time, Dominick received a call from his wife, Connie.
        Connie, who was eight-and-a-half months pregnant, was at the
        couple’s trailer home with their young son, Joseph. Connie told
        Dominick that McKinney, who had also been a groomsman in
        Dominick’s wedding, was at the home and needed to see him.
        According to Connie, McKinney had been drinking whiskey and
        seemed sad. Dominick and Laurenzo left the club and drove to the
        Brunos’ home. During the drive, Laurenzo was swinging his arms and
        talking with God and Jesus. Twice during the drive, Dominick pulled
        over to calm Laurenzo.


        After they arrived at Dominick’s home, Dominick led Laurenzo
        inside. McKinney was lying on the floor near the door, and Laurenzo
        stepped on him. Laurenzo was still swinging his arms, and he hit
        McKinney. McKinney pulled Laurenzo onto a couch and started
        hitting him before Dominick and Connie separated them. Dominick
        told McKinney that Laurenzo was “on a bad trip” from the LSD, that
        he was “not trying to hurt nobody,” and that McKinney should leave
        him alone. Id. at 230. At that point, Laurenzo was foaming at the
        mouth and claiming that he was God and “the most powerful man in
        the world.” Id. at 77-78. Connie tried to give Laurenzo a glass of
        milk, but Laurenzo threw it or knocked it out of her hand. Dominick
        left the room to check on Joseph and returned to find McKinney
        beating Laurenzo up again, and Dominick again separated the two.


        McKinney eventually left the trailer, but he returned approximately
        ten minutes later with a purple Crown Royal bag and a white glove.
        By that point, Laurenzo had “actually started to listen” to Dominick
        “a little bit.” Id. at 232. Nonetheless, McKinney removed a small
        pistol from the purple bag and pointed it at Laurenzo. McKinney then
        fired a shot while the gun was pointed at the ground. Dominick told
        McKinney, “Look, you just shot a bullet. You need to go. I got a son
        here, I’ve got a pregnant wife. You know this is not good. You need
        to leave now.” Id. at 236-37. McKinney placed the gun on an
        entertainment center but did not leave. Laurenzo was still standing
        and claiming to be God and the most powerful man in the world.
        Connie told Laurenzo to sit down, and Laurenzo approached her “like
        he was going to hit [her] or something.” Id. at 88. Connie told


Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 3 of 24
        Laurenzo, “I’m pregnant and you’re not going to hit me,” and
        Laurenzo did not do anything to her. Id.


        Connie then called 911 to get help for Laurenzo. While she was on
        the phone, McKinney approached Laurenzo, put him in a headlock,
        pushed the gun against his temple, and shot him in the head.
        Laurenzo immediately fell to the floor. Dominick saw McKinney
        drop the gun, and McKinney left the trailer. Laurenzo died of “a
        through-and-through contact gunshot wound to the head.” Id. at 322.
        Dominick and Connie gave statements to the police and identified
        McKinney as the shooter. Police found a gun broken into several
        pieces on the floor of the trailer.


        After McKinney was arrested, he reported to a doctor at the Marion
        County Jail that he had a bullet lodged in his hand. He subsequently
        removed the bullet himself using a razor blade and gave it to a guard.
        Testing showed that the bullet had been fired from the gun recovered
        by police. Furthermore, McKinney’s wound was consistent with the
        exit wound on Laurenzo’s head because the exit wound indicated that
        something was resting against Laurenzo’s skin, possibly McKinney's
        hand. Finally, DNA testing showed that Laurenzo’s blood was on the
        barrel of the recovered gun and on McKinney’s jacket.


        The [Appellee-Respondent the State of Indiana (the “State”)] charged
        McKinney with murder, a felony. A jury trial was held on August 15-
        17, 2005. During the noon recess on August 15, Judge Patricia
        Gifford (“Judge Gifford”) became aware that Laurenzo’s mother had
        worked for her in the early 1980s. Judge Gifford brought counsel into
        her chambers and advised them of her former relationship with
        Laurenzo’s mother. McKinney’s attorney indicated that she had
        known this information from the beginning and had not asked for
        recusal because she felt that Judge Gifford is fair.


        During the trial, Connie testified that she heard a “pop” then looked
        over and saw Laurenzo falling. Ex. p. 304. The prosecutor asked
        Connie whether she saw a gun at that point, and she said “no.” Id. at
        305. Regarding Dominick’s testimony that McKinney dropped the

Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 4 of 24
        gun to the floor after shooting Laurenzo and the fact that the gun was
        found in several pieces on the floor, David Brundage (“Brundage”),
        the State’s firearms expert, was asked whether dropping the weapon
        would cause it to fall apart. He responded:
                 Not in my opinion. One, the magazine has to be out of
                 the gun. Two, the safety has to be forward or to a firing
                 position, then the slide has to be drawn all the way back
                 before it can be lifted up and in my opinion that couldn’t
                 be done with—in a dropping situation. Has to be—that
                 would have to be done on purpose.
        Id. at 614-15. On August 17, 2005, the last day of the trial, the jury
        was unable to reach a verdict, and the trial court declared a mistrial
        and scheduled another pre-trial conference.


        Two days later, McKinney’s attorney filed a motion asking Judge
        Gifford to grant a change of judge pursuant to Indiana Rule of
        Criminal Procedure 12(B) (“Criminal Rule 12(B)”) based upon Judge
        Gifford’s former relationship with Laurenzo’s mother. Judge Gifford
        denied the motion, finding that McKinney had failed to file it within
        ten days of his plea of not guilty as required by Indiana Rule of
        Criminal Procedure 12(D) (“Criminal Rule 12(D)”) and that “[n]o
        facts have been alleged that would cause an objective person to have a
        reasonable basis for doubting the judge’s impartiality [.]” Appellant’s
        Supp. App. p. 3.


        The second jury trial commenced on April 24, 2006. When the
        prosecutor asked Connie whether she saw a gun after hearing a
        gunshot, she testified, in contrast to her testimony at the first trial,
        “When [McKinney] turned around—when he turned around he had
        his hands—he opened his hands like this and he said, ‘What do you
        want me to do?’ And the gun fell and hit the floor.” Tr. p. 91. On
        cross-examination, McKinney’s counsel asked Connie whether her
        testimony “differs radically” from her testimony during the first trial,
        and Connie responded, “Yes.” Id. at 140. This exchange led to the
        following question from the jury: “[I]f your testimony is different
        today than it was previously, why did you change it?” Id. at 142.
        Connie answered, “Because I was assured that no matter what
        happened, me and my children were going to be safe.” Id.
Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 5 of 24
        McKinney’s counsel immediately moved for a mistrial, arguing that
        Connie’s response to the jury’s question implied that McKinney is
        dangerous and had threatened her. The trial court denied the motion.
        Later in the trial, the defense called Connie as a witness and asked her
        whether McKinney had ever threatened her, and she said, “No.” Id. at
        583.


        Dominick also gave new testimony at the second trial. Specifically, he
        testified that before McKinney shot Laurenzo, McKinney had said,
        referring to Laurenzo, “We don’t need him anymore” and that
        McKinney had put the gun in Laurenzo’s mouth and said, “Do you
        want me to blow your head off, m* * * * * f* * * * *?” Id. at 234.


        Brundage again served as the State’s firearms expert during the second
        trial. During the course of the testimony, he disassembled the gun and
        realized, contrary to his testimony at the first trial, that it could be
        disassembled without the magazine having been removed. When
        asked again whether dropping the gun would cause it to break into
        pieces, he responded, contrary to his testimony at the first trial, “Not
        normally, but in my business anything can happen, and I would never
        want to be totally conclusive that it could never happen.” Id. at 544.
        When asked whether he was changing his testimony, Brundage
        replied, “I would have to change that at this time to reflect that the
        magazine does not have to be in the gun, or out of the gun.” Id. at
        545. The prosecution did not notify the defense of any of these
        changes in testimony.


        McKinney tendered lesser included offense instructions for the crimes
        of reckless homicide and criminal recklessness. The trial court refused
        to give the instructions, concluding that the evidence would not
        support convictions for these offenses. The jury found McKinney
        guilty of murder. Judge Gifford made the following statement at the
        sentencing hearing:
                 I think it’s unlikely to believe that the victim facilitated
                 this crime by his actions since it was very much in
                 evidence that he was not in control of his actions, that
                 [McKinney] acted under a strong provocation. The

Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 6 of 24
                       evidence did show that he did go out and get the gun and
                       return after a period of time. That circumstances are not
                       likely to happen again. These circumstances aren’t, but
                       I’m not sure that another set might not. I would agree
                       that in fact it might be a hardship to his children,
                       however, I’ve not really seen any evidence that he was
                       financially supporting the children. I’m not sure that they
                       need his other support. There was one mitigator, the fact
                       that his criminal history is minimal, at best. However,
                       taking into consideration the evidence presented to the
                       jury in which they found [McKinney] knowingly killed
                       the victim in this matter, would override any mitigation[.]
              Tr. p. 624-25. Judge Gifford sentenced McKinney to a prison term of
              fifty-five years, the presumptive sentence for murder.


      McKinney v. State, 873 N.E.2d 630, 635-38 (Ind. Ct. App. 2007).


[4]   On July 7, 2008, McKinney filed a pro se PCR petition. An attorney for the

      Office of the Public Defender of Indiana entered an appearance on August 28,

      2008, but subsequently withdrew his appearance on February 23, 2010. On

      September 30, 2010, McKinney filed a motion to withdraw his petition, without

      prejudice. The post-conviction court granted McKinney’s September 30, 2010

      motion to dismiss on October 4, 2010.


[5]   On January 23, 2012, McKinney filed a second pro se PCR petition. The post-

      conviction court conducted a bifurcated evidentiary hearing on September 12,

      2013 and January 23, 2014. On May 22, 2014, the post-conviction court issued

      an order denying McKinney’s request for PCR.



                                 Discussion and Decision

      Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 7 of 24
[6]   Post-conviction procedures do not afford the petitioner with a super-appeal.

      Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a

      narrow remedy for subsequent collateral challenges to convictions, challenges

      which must be based on grounds enumerated in the post-conviction rules. Id.

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

      judgment and as a result, faces a rigorous standard of review on appeal. Dewitt

      v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942

      (Ind. Ct. App. 1999), trans. denied.


[7]   Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,

      745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his

      claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

      Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,

      a petitioner must convince this court that the evidence, taken as a whole, “leads

      unmistakably to a conclusion opposite that reached by the post-conviction

      court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without

      conflict and leads to but one conclusion, and the post-conviction court has

      reached the opposite conclusion, that its decision will be disturbed as contrary

      to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.

      The post-conviction court is the sole judge of the weight of the evidence and the

      credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

      We therefore accept the post-conviction court’s findings of fact unless they are

      clearly erroneous but give no deference to its conclusions of law. Id.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 8 of 24
[8]    McKinney claims that the post-conviction court erred in denying his PCR

       petition because the evidence demonstrates that he received ineffective

       assistance of both trial and appellate counsel. McKinney also claims that he

       received ineffective assistance of his PCR counsel. We will discuss each claim

       in turn.


                             Ineffective Assistance of Counsel
[9]    The right to effective counsel is rooted in the Sixth Amendment to the United

       States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The

       Sixth Amendment recognizes the right to the assistance of counsel because it

       envisions counsel’s playing a role that is critical to the ability of the adversarial

       system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S.

       668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness

       must be whether counsel’s conduct so undermined the proper function of the

       adversarial process that the trial court cannot be relied on as having produced a

       just result.” Strickland, 466 U.S. at 686.


[10]   A successful claim for ineffective assistance of counsel must satisfy two

       components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first

       prong, the petitioner must establish that counsel’s performance was deficient by

       demonstrating that counsel’s representation “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. We recognize that

       even the finest, most experienced criminal defense attorneys may not agree on


       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 9 of 24
       the ideal strategy or most effective way to represent a client, and therefore,

       under this prong, we will assume that counsel performed adequately and defer

       to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585

       (Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of

       bad judgment do not necessarily render representation ineffective. Id.


[11]   Under the second prong, the petitioner must show that the deficient

       performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner

       may show prejudice by demonstrating that there is “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.

       A petitioner’s failure to satisfy either prong will cause the ineffective assistance

       of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently,

       “[a]lthough the two parts of the Strickland test are separate inquires, a claim

       may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031

       (Ind. 2006) (citing Williams, 706 N.E.2d at 154).


                       A. Ineffective Assistance of Trial Counsel
[12]   McKinney argues that his trial counsel provided ineffective assistance in

       numerous regards, including (1) failing to call McKinney to testify during trial,

       (2) requesting that the trial court’s instructions to the jury include a self-defense

       jury instruction, (3) failing to call firearm and pathology experts to contest the

       testimony of the State’s expert witnesses, (4) failing to make a timely request for

       a change of judge, and (5) failing to present mitigating evidence at sentencing.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 10 of 24
                        1. Failing to Call McKinney to Testify During Trial

[13]   McKinney asserts that his trial counsel provided ineffective assistance by failing

       to call him as a witness during trial. Specifically, McKinney states that counsel

       should have allowed him to present a claim that he acted in self-defense and

       that the gun accidentally fired. McKinney claims that he told his counsel that

       he wished to testify, but that his counsel would not let him. However, contrary

       to McKinney’s claim that he wished to testify at trial, McKinney’s trial counsel

       testified at the PCR evidentiary hearing that McKinney “expressed to me [that]

       he absolutely did not want to testify” as “there was some issue regarding … the

       bullet that was lodged in his hand which he had removed at the jail. And also

       he … he was very concerned that it might not be helpful to him.” PCR Tr. pp.

       23-24 (ellipses in original). Further, even if McKinney would have expressed a

       desire to testify, trial counsel further testified that she “would have advised

       against it and I probably did.” PCR Tr. p. 24.


[14]   In addition, trial counsel testified that it was the defense’s proffered theory that

       McKinney “was not the shooter. That the shooter in fact was Dominic[k]

       Bruno.” Tr. p. 24. Allowing McKinney to provide an alternative theory that

       he acted in self-defense would have been in direct contrast to the proffered

       defense. Trial counsel made the tactical decision to present the theory that

       Dominick, not McKinney, was the shooter. Trial counsel presented evidence

       and argument during trial to support this theory. Specifically, trial counsel

       presented evidence which established the following:



       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 11 of 24
               Dominic[k] Bruno, he was bi-polar and off his medication. I was able
               to establish he was off his medication. He’d had a history of erratic
               (inaudible) and sometimes violent behavior when he was not
               medicated. (Phone static) And we both (phone static) I believe it was
               established that the gun was allegedly dropped by Mr. McKinney or
               this is what I think the Bruno’s testified and that it shattered into
               pieces. Yet the gun was intact and had been reassembled and so our
               … our strategy was to try and get the jury to believe or at least to make
               a reasonable doubt that Mr. … that Bruno had shot the gun and had
               reassembled it, and handled it, before the police arrived. And that
               both of the Bruno’s [sic] had a motive emphatically because of not
               wanting Dominic[k] to go to prison and they would have a murder.


       PCR Tr. pp. 24-25. Again, we defer to counsel’s strategic and tactical

       decisions. Smith, 765 N.E.2d at 585. Because the PCR record demonstrates

       that trial counsel presented a plausible theory on defense which, if successful,

       would have resulted in an acquittal, we conclude that the post-conviction court

       did not err in determining that trial counsel did not provide ineffective

       assistance in this regard.


                             2. Requesting a Self-Defense Jury Instruction

[15]   McKinney also asserts that his trial counsel provided ineffective assistance by

       requesting a self-defense jury instruction. McKinney, however, did not raise

       this issue in his January 23, 2012 PCR petition.1 As such, this claim is

       unavailable here because “[i]ssues not raised in the petition for post-conviction




       1
         McKinney’s PCR petition included a claim that his trial counsel was ineffective for failing to
       call him as a witness during trial and for attempting to provide jury instructions on the lesser-
       included offenses of reckless homicide. It did not, however, include a claim that trial counsel
       provided ineffective assistance by requesting a self-defense jury instruction.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 12 of 24
       relief may not be raised for the first time on post-conviction appeal.” Allen v.

       State, 749 N.E.2d 1158, 1171 (Ind. 2001) (citing Ind. Post-Conviction Rule 1(8)

       which provides that “[a]ll grounds for relief available to a petitioner under this

       rule must be raised in his original petition.”)


       3. Failing to Call Firearms and Pathology Experts to Contest the Testimony of
                                the State’s Expert Witnesses

[16]   McKinney asserts that his trial counsel provided ineffective assistance by failing

       to call a firearm and a pathology expert to contest the testimony of the State’s

       expert witnesses. McKinney, however, did not raise these issues in his January

       23, 2012 PCR petition. Again, these claims are unavailable here because

       “[i]ssues not raised in the petition for post-conviction relief may not be raised

       for the first time on post-conviction appeal.” Allen, 749 N.E.2d at 1171.


[17]   Further, even if McKinney had preserved these issues, he did not provide any

       evidence, be that affidavits or sworn testimony, from potential witnesses

       indicating what their testimony would have been. Without this evidence,

       McKinney cannot establish a claim of ineffective assistance or prejudice

       because we have no way to judge trial counsel’s performance in this regard. See

       Hunter v. State, 578 N.E.2d 353, 355 (Ind. 1991) (providing that the court could

       not say that counsel’s performance was ineffective because it had no idea what

       the potential witnesses would have testified about and, as a result, have no basis

       to judge counsel’s performance).




       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 13 of 24
                   4. Failing to Make a Timely Request for a Change of Judge

[18]   McKinney further asserts that his trial counsel provided ineffective assistance by

       failing to file a timely motion for a change of judge. McKinney claims that trial

       counsel was ineffective in this regard because Judge Gifford was biased or

       prejudiced against him because Laurenzo’s mother was a former employee of

       Judge Gifford.


[19]   As we recognized in McKinney’s direct appeal, trial counsel initially made the

       tactical decision not to request a change of judge because of her belief that a

       change of judge was unnecessary “because Judge Gifford is fair,” McKinney,

       873 N.E.2d at 639, and because she had a good relationship with Judge

       Gifford. Trial counsel also indicated that when she did ultimately file a motion

       for a change of judge, she “could not point to any specific instances of bias.”

       PCR Tr. p. 27. Trial counsel went on to state,

               In other words, in my experience and I had been an attorney, you
               know, for I think at [that] time around fifteen, eighteen years, and did,
               you know, hundreds and hundreds of cases and in that time handled
               hundreds and hundreds of cases and I could not prove that she was
               treating me or [McKinney] any different than she’d treat any other
               defense counsel or defendant. I couldn’t point to anything in
               particular. And then as I conducted further research into that I learned
               that … she had in fact fired this employee certainly or well before this
               shooting occurred and didn’t, to quote, unquote “could not stand her”.
               Now I don’t know whether that’s true because I never discussed that
               with Judge Gifford and I think she couldn’t discuss her employee
               issues with me. But it’s my understanding they didn’t have a very
               good relationship to begin with.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 14 of 24
       PCR Tr. p. 27. Trial counsel did eventually file a motion for a change of judge,

       which was denied by the trial court. In discussing the filing and denial of the

       motion during the PCR evidentiary hearing, trial counsel further stated the

       following:

               It’s my recollection that I did file a motion for change of judge.… I
               didn’t feel that I had not timely filed it. I think I filed within a certain
               time asking that (inaudible) and make sure that it was factually
               accurate and try and justify filing the motion, which I did. And [I]
               should also state again there that I had indicated I did not see bias.
               Which probably was true because I did not in fact see bias from the
               Bench.


       PCR Tr. pp. 27-29 (brackets added).


[20]   Upon reviewing the trial court’s denial of the motion for a change of judge that

       was ultimately filed by McKinney’s trial counsel, we concluded on appeal that

       “even if McKinney’s motion had been timely filed, [McKinney] failed to make

       a showing of bias or prejudice.” McKinney, 873 N.E.2d at 640. In reaching this

       conclusion, we stated the following: “McKinney argues that ‘[t]he personal

       relationship between the judge and her former employee support a rational

       inference of bias and prejudice.’” Appellant’s Br. p. 8. However,

       approximately twenty years had passed since Laurenzo’s mother had worked

       with Judge Gifford, and McKinney’s affidavit did not allege any facts

       suggesting that any relationship existed between the two after that employment

       was terminated.” Id.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 15 of 24
[21]   The record demonstrates that trial counsel initially made the tactical decision to

       refrain from filing a motion for a change of judge. Again, we defer to counsel’s

       strategic and tactical decisions. Smith, 765 N.E.2d at 585. Furthermore, even if

       counsel could possibly be found to have provided deficient performance by

       failing to file the motion for a change of judge sooner, McKinney has failed to

       prove that he was prejudiced by trial counsel’s decision in this regard. The

       record is devoid of any evidence which would suggest that the trial court acted

       with bias toward McKinney or that the eventual outcome of his trial would

       have been any different had a timely motion for a change of judge been granted.

       Likewise, the record is devoid of any evidence which would suggest that the

       length of the sentence imposed following the jury’s finding of guilt would have

       been any different had a timely motion for a change of judge been granted. As

       such, McKinney’s claim in this regard must fail because he has failed to prove

       both deficient performance and prejudice. See Williams, 706 N.E.2d at 154

       (providing that a petitioner’s failure to satisfy either prong will cause the

       ineffective assistance of counsel claim to fail).


                      5. Failing to Present Mitigating Evidence at Sentencing

[22]   McKinney also asserts that his trial counsel provided ineffective assistance for

       failing to present mitigating evidence at sentencing. Specifically, McKinney

       claims that his trial counsel failed to present the following mitigating evidence:

       (a) the circumstances of the crime, including that McKinney claimed to have

       been provoked; (b) circumstances of the crime unlikely to reoccur; and (c)

       McKinney’s children would be unduly burdened by his incarceration.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 16 of 24
                                        a. Circumstances of the Crime

[23]   McKinney claims that, given the opportunity to testify to the circumstances of

       the crime, he could have convinced the trial court that he was provoked and

       committed “at most a Reckless Homicide.” Appellant’s Br. p. 31. We disagree

       and conclude that McKinney’s claim must fail because he has failed to prove

       that he was prejudiced, i.e., that the outcome of the sentencing hearing would

       have been different if trial counsel had presented McKinney’s desired evidence.


[24]   The evidence presented at trial was that of an execution-style killing. In finding

       McKinney guilty of murder, the jury found that the evidence showed that

       McKinney knowingly or intentionally killed Laurenzo. In considering whether

       McKinney suffered any potential prejudice due to the exclusion of McKinney’s

       desired evidence, we refer back to our prior decision on direct appeal in which

       we stated that:

               It is undisputed that Laurenzo was incapacitated and acting out.
               However, Dominick told McKinney multiple times that Laurenzo did
               not intend to hurt anybody and that he was only having a negative
               reaction to the drugs in his system. In addition, McKinney had several
               opportunities to remove himself from the situation. At one point he
               did leave, only to return with the gun and shoot Laurenzo. To the
               extent that McKinney was provoked by Laurenzo, we noted above
               that the jury could have reasonably concluded that the deadly force
               used by McKinney was not proportionate to the requirements of the
               situation.


       McKinney, 873 N.E.2d at 645-46 (citation omitted). We also note that

       McKinney has failed to present any additional evidence during the PCR

       proceedings that would indicate that he was prejudiced by counsel’s failure to

       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 17 of 24
       present McKinney’s additional desired evidence. As such, McKinney has failed

       to establish that he was prejudiced by his trial counsel’s failure to present his

       desired evidence during the sentencing hearing.


                                   b. Circumstances Unlikely to Reoccur

[25]   McKinney claims that his trial counsel failed to present evidence supporting the

       alleged mitigating factor that the circumstances of the crime were unlikely to

       reoccur. Despite McKinney’s claim in this regard, however, the record

       demonstrates that this alleged mitigating factor was presented to and explicitly

       rejected by the trial court. As such, trial counsel cannot be found ineffective for

       failing to raise this allegedly mitigating factor at sentencing.


                             c. Undue Burden by McKinney’s Incarceration

[26]   McKinney also claims that his trial counsel was ineffective for failing to call the

       mother of his children to testify at sentencing to the undue burden that would

       be placed upon the children if McKinney were sent to prison. The record

       demonstrates that McKinney’s trial counsel made the tactical decision not to

       call the mother of McKinney’s children to testify at sentencing. In explaining

       this tactical decision during the PCR evidentiary hearing, trial counsel stated

       that:

               The issue with regards to having the mother of the children testify was
               that she was a very hostile witness at the time. She (inaudible) I had a
               … interviewed her extensively. She had indicated to me that if she
               were called to testify she would be harmful to Mr. McKinney and
               would not say anything in his favor. In fact stated that she would like
               to see him go to prison. And she [was] very angry with him at the
               time. I’m not sure what all the details were of that. But I also recall
       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 18 of 24
               my notes which indicated that I met with Mr. McKinney and
               discussed this with him and he thought it would not be a good idea to
               put her on as a witness given … given her hostility.


       PCR Tr. pp. 22-23. Again, we defer to counsel’s strategic and tactical

       decisions. Smith, 765 N.E.2d at 585.


[27]   Furthermore, review of the record demonstrates that McKinney has failed to

       prove that he was prejudiced by his trial counsel’s strategic decision. In

       considering whether McKinney was prejudiced by the lack of his children’s

       mother’s testimony at sentencing, we previously stated that:

               McKinney fails to explain how the minimum sentence of forty-five
               years would cause any less hardship on his children than the fifty-five-
               year presumptive sentence actually imposed. Indeed, the difference
               between those two sentences “hardly can be argued to impose much, if
               any, additional hardship” on McKinney’s children.


       McKinney, 873 N.E.2d at 645 (citation omitted). In addition, McKinney has

       provided no evidence suggesting that the trial court would have imposed a

       different sentence if trial counsel would have presented his allegedly desired

       evidence during sentencing.


                    B. Ineffective Assistance of Appellate Counsel
[28]   The standard of review for a claim of ineffective assistance of appellate counsel

       is the same as for trial counsel in that the petitioner must show appellate

       counsel was deficient in her performance and that the deficiency resulted in

       prejudice. Overstreet v. State, 877 N.E.2d 144, 165 (Ind. 2007) (citing Bieghler v.

       State, 690 N.E.2d 188, 193 (Ind. 1997)). Again, to satisfy the first prong, the

       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 19 of 24
       petitioner must show that counsel’s performance was deficient in that counsel’s

       representation fell below an objective standard of reasonableness and that

       counsel committed errors so serious that petitioner did not have the “counsel”

       guaranteed by the Sixth Amendment. Id. (citing McCary v. State, 761 N.E.2d

       389, 392 (Ind. 2002)). To show prejudice, the petitioner must show a

       reasonable probability that but for counsel’s errors the result of the proceeding

       would have been different. Id. (citing McCary, 761 N.E.2d at 392). “When

       raised on collateral review, ineffective assistance claims generally fall into three

       basic categories: (1) denial of access to an appeal; (2) waiver of issues; and (3)

       failure to present issues well.” Id. (citing McCary, 761 N.E.2d at 193-95).


[29]   In alleging ineffective assistance of appellate counsel, McKinney asserts that his

       counsel rendered ineffective assistance by failing “to raise the threat issue on

       direct appeal.” Appellant’s Br. p. 37 (emphasis removed). McKinney framed

       this issue in his PCR petition as whether his appellate counsel had provided

       ineffective assistance for “failing to appeal the Court’s denial of [his] motion for

       a mistrial after [the] State’s witness testified and implied through her testimony

       that the Petition had threatened her.” PCR App. p. 399. However, review of

       the record demonstrates that appellate counsel did raise this issue on direct

       appeal. See McKinney, 873 N.E.2d at 640-41 (providing that the trial court did

       not abuse its discretion in denying McKinney’s motion for a mistrial that

       related to the so-called threat issue because defense counsel elicited a

       clarification from the witness that McKinney had not threatened her and that




       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 20 of 24
       any error was harmless in light of the overwhelming evidence of McKinney’s

       guilt).

[30]             As a general rule, when a reviewing court decides an issue on direct
                 appeal, the doctrine of res judicata applies, thereby precluding its review
                 in post-conviction proceedings. Ben-Yisrayl v. State, 738 N.E.2d 253,
                 258 (Ind. 2000). The doctrine of res judicata prevents the repetitious
                 litigation of that which is essentially the same dispute. Sweeney v. State,
                 704 N.E.2d 86, 94 (Ind. 1998). And, a petitioner for post-conviction
                 relief cannot escape the effect of claim preclusion merely by using
                 different language to phrase an issue and define an alleged error. State
                 v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000). “[W]here an issue,
                 although differently designated, was previously considered and
                 determined upon a criminal defendant’s direct appeal, the State may
                 defend against defendant’s post-conviction relief petition on grounds of
                 prior adjudication or res judicata.” Cambridge v. State, 468 N.E.2d 1047,
                 1049 (Ind. 1984) (emphasis in original).


       Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006).


[31]   Because appellate counsel raised the “threat” issue on direct appeal, counsel

       cannot be said to have provided inefficient assistance for failing to do so.

       Further, to the extent that McKinney attempts to frame the issue in a different

       light by arguing in his PCR brief that appellate counsel was ineffective for

       failing to argue that the alleged “threat” issue constituted a so-called

       “evidentiary harpoon” on direct appeal, McKinney cannot escape the effect of

       res judicata by merely using different language to phrase the issue. See id. The

       post-conviction court, therefore, did not err in finding that McKinney did not

       suffer from ineffective assistance of appellate counsel.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 21 of 24
              C. Ineffective Assistance of Post-Conviction Counsel
[32]   McKinney last contends that his post-conviction counsel provided ineffective

       assistance by failing to present certain evidence during the evidentiary hearing.

       We note that the right to counsel in post-conviction proceedings is not

       guaranteed by either the Sixth Amendment of the United States Constitution or

       Article I, Section 13 of the Indiana Constitution. Daniels v. State, 741 N.E.2d

       1177, 1190 (Ind. 2001) (citing Baum v. State, 533 N.E.2d 1200, 1201 (Ind.

       1989)).

               A petition for post-conviction relief is not generally regarded as a
               criminal proceeding and does not call for a public trial within the
               meaning of these constitutional provisions. Carman v. State (1935), 208
               Ind. 297, 196 N.E. 78. It thus is not required that the constitutional
               standards be employed when judging the performance of counsel when
               prosecuting a post-conviction petition at the trial level or at the
               appellate level.
               We therefore apply a lesser standard responsive more to the due course
               of law or due process of law principles which are at the heart of the
               civil post-conviction remedy. We adopt the standard that if counsel in
               fact appeared and represented the petitioner in a procedurally fair
               setting which resulted in a judgment of the court, it is not necessary to
               judge his performance by the rigorous standard set forth in [Strickland].


       Baum, 533 N.E.2d at 1201 (footnote omitted). In fact, review of relevant

       authority indicates that only a finding that counsel abandoned his client justifies

       a finding of ineffective assistance by post-conviction counsel. See Waters v. State,

       574 N.E.2d 911, 912 (Ind. 1991) (providing that although petitioner’s post-

       conviction counsel entered an appearance, counsel, in essence, abandoned his

       client and did not present any evidence in support of his client’s claim); Taylor v.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 22 of 24
       State, 882 N.E.2d 777, 784 (Ind. Ct. App. 2008) (providing that the petitioner’s

       post-conviction counsel provided ineffective assistance by effectively

       abandoning his client and did not present any evidence in support of his client’s

       claim).


[33]   McKinney does not allege that he was abandoned by his post-conviction

       counsel. McKinney merely alleges that his post-conviction counsel should have

       presented additional evidence during the evidentiary hearing on McKinney’s

       PCR petition. Specifically, McKinney argues that his post-conviction counsel

       should have presented the testimony of an expert on the disease of Lupus, a

       pathology expert, and a firearms expert. However, despite McKinney’s

       assertion that his post-conviction counsel should have provided additional

       evidence during the evidentiary hearing, the record demonstrates that

       McKinney was afforded a procedurally-fair setting in which post-conviction

       counsel presented argument and evidence in support of McKinney’s claims.

       Because McKinney’s post-conviction counsel appeared and represented

       McKinney in a procedurally-fair setting, we need not judge counsel’s

       performance by the rigorous standard set forth in Strickland. See Baum, 533

       N.E.2d at 1201.



                                               Conclusion
[34]   In sum, we conclude that McKinney did not receive ineffective assistance from

       his trial, appellate, or post-conviction counsel. Accordingly, we affirm the post-

       conviction court’s denial of McKinney’s PCR petition.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 23 of 24
[35]   The judgment of the post-conviction court is affirmed.


       Vaidik, C.J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015   Page 24 of 24
