MEMORANDUM DECISION                                             Jun 17 2015, 8:23 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.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
A. David Hutson                                           Gregory F. Zoeller
Hutson Legal                                              Attorney General of Indiana
Jeffersonville, Indiana
                                                          Jodi Kathryn Stein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Richard Dean Martin,                                      June 17, 2015

Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          10A01-1409-PC-419
        v.                                                Appeal from the Clark Circuit Court.
                                                          The Honorable Daniel E. Moore,
                                                          Special Judge.
State of Indiana,                                         Cause No. 10C01-1306-PC-9
Appellee-Respondent




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 10A01-1409-PC-419 | June 17, 2015     Page 1 of 15
[1]   Richard Dean Martin appeals from the denial of his second petition for post-

      conviction relief. Martin makes a number of arguments, which we restate as

      follows: (1) the post-conviction court erroneously refused to vacate Martin’s

      convictions based upon the trial judge’s failure to recuse herself; and (2) the

      post-conviction court erred by finding that Martin did not receive the ineffective

      assistance of appellate counsel. Finding that one of Martin’s sentences needs to

      be revised and finding no other error, we affirm and remand with instructions to

      revise Martin’s sentence on Count III to a thirty-year term, to be served

      concurrently.


                                                     Facts
[2]   The facts underlying Martin’s convictions were described by a panel of this

      Court as follows:

              In 2004, Martin began living with C.C. and her three children, which
              included eight-year-old S.G. Over the next three years, Martin
              repeatedly molested S.G. Two or three times per month, Martin
              would enter S.G.’s bedroom late at night and kiss S.G.’s breasts or
              vagina and rub his penis on her face, neck, shoulders, and vagina.
              Each molestation lasted about ten to fifteen minutes.
              Martin and C.C. ended their relationship in November of 2006, and in
              February of 2007, S.G. told her mother about the molestations. C.C.
              informed the Clark County Sheriff’s Department, which, in turn,
              informed the Indiana Department of Child Services (“DCS”). The
              DCS sent investigator Chris Yarbrough to interview C.C., S.G., and
              Martin. Yarbrough informed Martin of S.G.'s allegations, and
              Martin’s response “was very firm that [S.G.] doesn't lie.” While
              Martin did not admit the allegations to Yarbrough, Martin did
              acknowledge to Yarbrough that S.G. had “hunched” on Martin’s penis
              one night when he was in bed with her, and that that “activity went on
              for approximately one minute and he noted ... that he probably could

      Court of Appeals of Indiana | Memorandum Decision 10A01-1409-PC-419 | June 17, 2015   Page 2 of 15
              have stopped that activity sooner than he did.” Yarbrough made a
              report based on those interviews and submitted that report to the Clark
              County prosecutor.
      Martin v. State, No. 10A01-0812-CR-568, slip op. at 1-2 (Ind. Ct. App. Aug. 20,

      2009) (record citations omitted) (“Martin I”).


[3]   The State charged Martin with six counts of class A felony child molesting.

      Following a jury trial, the jury found Martin guilty as charged. The trial court

      held a sentencing hearing on September 24, 2008, at which it found the

      following aggravating circumstances:


           The harm suffered by the victim was significant and greater than the
            elements necessary to prove the commission of the offense;
           Martin’s criminal history;
           The victim was under the age of twelve years old;
           Martin’s offenses were crimes of violence;
           Martin was in a position of having care, custody, or control of the victim;
           Martin threatened to harm the victim if she told anyone what he had
            done.

      The trial court found no mitigating circumstances. The trial court imposed

      concurrent fifty-year sentences on all six convictions, for an aggregate sentence

      of fifty years imprisonment.


[4]   Martin appealed his convictions. On appeal, his attorney raised three issues of

      fundamental error: (1) the admission of evidence regarding uncharged acts of

      molestation against the victim; (2) the admission of the DCS investigator’s

      testimony recounting Martin’s statement that the victim did not lie; and (3) a

      jury instruction stating that the uncorroborated testimony of a victim was


      Court of Appeals of Indiana | Memorandum Decision 10A01-1409-PC-419 | June 17, 2015   Page 3 of 15
      sufficient to support a guilty verdict. This Court affirmed. Martin I, slip op. at

      3-11.


[5]   On February 26, 2010, Martin filed a petition for post-conviction relief, arguing

      that he had received the ineffective assistance of trial counsel and that there was

      insufficient evidence supporting his convictions. The post-conviction court

      denied Martin’s petition. He appealed that ruling to this Court, and we

      affirmed. Martin v. State, No. 10A05-1110-PC-526 (Ind. Ct. App. June 1, 2012)

      (“Martin II”).


[6]   On March 29, 2013, Martin filed a motion for permission to file a successive

      petition for post-conviction relief, which was granted. On May 30, 2013,

      Martin filed his successive petition for post-conviction relief. In pertinent part,

      Martin raised the following issues in that petition:


              Martin was denied due process because he did not receive notice of
               DCS’s substantiation of the molestation allegations.
              The trial judge should have recused herself from the case because of an
               attenuated familial relationship to the victim.
              Trial counsel was ineffective for (1) failing to raise a venue issue; (2) not
               impeaching the DCS investigator; (3) not raising a juror misconduct
               issue; and (4) not attacking some of the convictions on sufficiency.
              Appellate counsel was ineffective for (1) not raising a Blakely1 sentencing
               argument with respect to some of his convictions; and (2) failing to make
               arguments related to aggravators and mitigators.




      1
          Blakely v. Washington, 542 U.S. 296 (2004).


      Court of Appeals of Indiana | Memorandum Decision 10A01-1409-PC-419 | June 17, 2015   Page 4 of 15
      After filing the successive petition for post-conviction relief, Martin filed a

      motion for the trial judge to recuse herself, which she granted. At that point,

      Special Judge Moore was appointed.


[7]   The successive post-conviction court held an evidentiary hearing on Martin’s

      petition on June 30, 2014. On August 28, 2014, the post-conviction court

      granted Martin’s petition in part and denied it in part. Specifically, the post-

      conviction court reduced two of Martin’s convictions to their presumptive

      thirty-year terms based on a Blakely violation. The remainder of Martin’s

      petition was denied. Martin now appeals.


                                   Discussion and Decision
[8]   The general rules regarding the review of a ruling on a petition for post-

      conviction relief are well established:

               “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). “When appealing from
              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) (quotation omitted).


      Court of Appeals of Indiana | Memorandum Decision 10A01-1409-PC-419 | June 17, 2015   Page 5 of 15
       Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).


                                    I. Recusal of Trial Judge
[9]    First, Martin contends that his conviction should have been vacated because the

       trial judge did not recuse herself until after he filed his successive petition for

       post-conviction relief. Judicial Conduct Rule 2.11(A) and Indiana Trial Rule

       79(C) both require that a judge must recuse herself if she knows that the judge,

       the judge’s spouse or domestic partner, or a person within the third degree of

       relationship to either of them, is likely to be a material witness in pending

       litigation. “Third degree of relationship” is defined as “great-grandparent,

       grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-

       grandchild, nephew, and niece.” Ind. Judicial Conduct Terminology. If

       recusal is mandatory pursuant to these rules, and if recusal does not occur, then

       prejudice is presumed. Patterson v. State, 926 N.E.2d 90, 95 (Ind. Ct. App.

       2010).


[10]   In this case, the trial judge has a stepsister, Christine Devereaux. In 2000,

       Devereaux married Dave Pinnick. Pinnick is the biological uncle of S.G., the

       victim in this case. In 2002—six years before Martin’s trial—Devereaux and

       Pinnick divorced. Although the trial judge met Pinnick during his marriage to

       Devereaux, she never met any of his family, including S.G. It is undisputed

       that the trial judge was wholly unaware of her attenuated connection to S.G.

       until Martin filed his successive petition for post-conviction relief. Mandatory




       Court of Appeals of Indiana | Memorandum Decision 10A01-1409-PC-419 | June 17, 2015   Page 6 of 15
       recusal was not required, inasmuch as the relationship between the trial judge

       and S.G. did not qualify as a “third degree of relationship.”


[11]   In his reply brief, Martin concedes that mandatory recusal was not required.

       Instead, he argues that “[t]he only question is whether the subsequent discovery

       of the relationship creates the appearance of partiality.” Reply Br. p. 4. In

       considering this claim, we turn to our Supreme Court’s statements regarding the

       requirement of recusal:

                There is no question that a judge is required to disqualify himself or
                herself in any proceeding in which the judge’s impartiality might
                reasonably be questioned. The Canon demands it. In addressing
                those concerns the issue has been cast as “whether an objective,
                disinterested observer fully informed of the facts underlying the
                grounds on which recusal was sought would entertain a significant
                doubt that justice would be done in the case.” Pepsico, Inc. v. McMillen,
                764 F.2d 458, 460 (7th Cir. 1985). As this court has recently stated,
                the issue “is not whether the judge personally believes himself or
                herself to be impartial, but whether a reasonable person aware of all
                the circumstances would question the judge’s impartiality.” In re
                Morton, 770 N.E.2d 827, 831 (Ind. 2002).
       In re Wilkins, 780 N.E.2d 842, 845 (Ind. 2003).2


[12]   Applying that test to the case before us, we cannot conclude that a reasonable

       person, aware of all the circumstances, would question the judge’s impartiality.

       The degree of relationship—a niece of a man married to the judge’s stepsister




       2
         Martin concedes that recusal is not a viable remedy in this case, inasmuch as the trial judge was unaware of
       the salient facts until years after the trial had concluded. Instead, he suggests that the proper remedy for the
       alleged appearance of partiality would be to vacate his convictions and remand for retrial. We decline to do
       so.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1409-PC-419 | June 17, 2015                 Page 7 of 15
       for only two years, with the marriage ending six years before Martin’s trial—is

       extraordinarily attenuated. Indeed, it was so attenuated that the trial judge was

       not even aware of it. The fact that the trial judge recused herself at Martin’s

       request after he filed his successive petition for post-conviction relief does not

       affect our analysis. There is no evidence whatsoever tending to establish that

       this remote, past relationship in any way affected Martin’s trial. No reasonable

       person would conclude otherwise. Consequently, we find no error on this

       basis.


                            II. Assistance of Appellate Counsel
[13]   Next, Martin argues that he received the ineffective assistance of appellate

       counsel.3 The rules regarding such claims are well established:

                The standard of review for claims of ineffective assistance of appellate
                counsel is the same as for trial counsel in that the defendant must show
                appellate counsel was deficient in his or her performance and that the
                deficiency resulted in prejudice. 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.




       3
         Martin did not raise this claim in his first petition for post-conviction relief. The State concedes that he has
       not waived the claim, however, because the attorney who represented him on direct appeal also represented
       him during his first petition for post-conviction relief. See Spranger v. State, 650 N.E.2d 1117, 1121 (Ind. 1995)
       (holding that waiver should not be applied “where the same attorney represents a defendant both at trial and
       on appeal and does not raise on appeal the issue of trial counsel ineffectiveness”). Therefore, we will address
       these arguments.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1409-PC-419 | June 17, 2015                  Page 8 of 15
               State, 761 N.E.2d 389, 392 (Ind. 2002) (citing Strickland, 466 U.S. at
               687–88, 104 S.Ct. 2052). To satisfy the 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).
       Hollowell, 19 N.E.3d at 269.


                                     A. Blakely v. Washington
[14]   In 2004, the United States Supreme Court issued its decision in Blakely. Among

       other things, Blakely held that “[o]ther than the fact of a prior conviction, any

       fact that increases the penalty for a crime beyond the prescribed statutory

       maximum must be submitted to a jury and proved beyond a reasonable doubt.”

       542 U.S. at 301. Our Supreme Court found Blakely applicable to Indiana’s

       sentencing scheme in March 2005. Smylie v. State, 823 N.E.2d 679, 690 (Ind.

       2005). In response, our General Assembly amended Indiana’s sentencing

       statutes with an effective date of April 25, 2005. Consequently, Blakely must be

       applied to offenses committed before April 25, 2005, and the amended advisory

       sentencing scheme is applied to offenses committed after that date. Creekmore v.

       State, 853 N.E.2d 523, 527-28 (Ind. Ct. App. 2006), clarified on other grounds on

       reh’g, Creekmore v. State, 858 N.E.2d 230 (Ind. Ct. App. 2006).


[15]   In this case, the trial court imposed enhanced fifty-year terms on Martin. It is

       undisputed that a jury was not convened for the purposes of determining

       aggravating circumstances. Therefore, for the offenses that occurred before

       April 25, 2005, the then-presumptive thirty-year term must be imposed. The


       Court of Appeals of Indiana | Memorandum Decision 10A01-1409-PC-419 | June 17, 2015   Page 9 of 15
       post-conviction court did just that for the first two counts. Martin argues that

       the same should be done for the third count.


[16]   As is common in child molesting cases, the State elected to charge these

       offenses with general timeframes rather than specific dates. Therefore, Martin

       was charged and convicted of molesting S.G. in (I) the winter of 2004, (II) the

       fall of 2004, (III) the winter of 2005, (IV) March 2006, (V) the summer of 2006,

       and (VI) November 2006. Martin argues that Count III’s “winter of 2005” is

       sufficiently ambiguous that it cannot be determined whether the acts occurred

       before or after April 25, 2005. We agree. And having reviewed the portions of

       the transcript available in the record, it is still unclear whether “winter of 2005”

       refers to January through March 2005, or December 2005. Inasmuch as this is

       a fundamental constitutional issue, we will err on the side of preserving

       Martin’s rights. Consequently, we remand with instructions to revise Martin’s

       sentence on Count III to be a thirty-year term, to be served concurrent with the

       remainder of his sentences.


                 B. Aggravating and Mitigating Circumstances
[17]   Martin argues that his appellate attorney was ineffective for failing to argue that

       the trial court erroneously found certain aggravators and failed to find his

       proffered mitigators. We review a trial court’s sentencing decisions for an

       abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified

       on reh’g on other grounds, 875 N.E.2d 218 (Ind. 2007). A trial court can abuse its

       discretion, among other ways, by finding aggravators or mitigators that are not


       Court of Appeals of Indiana | Memorandum Decision 10A01-1409-PC-419 | June 17, 2015   Page 10 of 15
       supported by the record, omitting factors that are clearly supported by the

       record and advanced for consideration, and finding factors that are improper as

       a matter of law. Id. at 490.


                                             1. Aggravators
[18]   Turning first to the aggravators, we note again that the trial court found six

       aggravating factors in this case:


            The harm suffered by the victim was significant and greater than the
             elements necessary to prove the commission of the offense;
            Martin’s criminal history;
            The victim was under the age of twelve years old;
            Martin’s offenses were crimes of violence;
            Martin was in a position of having care, custody, or control of the victim;
            Martin threatened to harm the victim if she told anyone what he had
             done.

       Martin argues that the trial court abused its discretion by finding the first,

       second, and sixth aggravators. He implicitly concedes that the remaining

       aggravators were proper.


[19]   It is well established that a single aggravating factor may support the imposition

       of both an enhanced and consecutive sentence. Field v. State, 843 N.E.2d 1008,

       1011 (Ind. Ct. App. 2006). In this case, even if we omit the three complained-of

       aggravators solely for argument’s sake, there are still three aggravators

       remaining. And while all of Martin’s sentences were enhanced, they were also

       ordered to be served concurrently rather than consecutively. In other words, he

       is serving a 50-year term instead of a 300-year term. In our view, the remaining

       Court of Appeals of Indiana | Memorandum Decision 10A01-1409-PC-419 | June 17, 2015   Page 11 of 15
       aggravators readily support the trial court’s decision to impose enhanced,

       concurrent terms. Consequently, even if appellate counsel had raised this

       argument in Martin’s direct appeal, it would not have succeeded; thus, he has

       failed to establish prejudice. We decline to find ineffective assistance on this

       basis.


                                               2. Mitigators
[20]   Next, Martin contends that his appellate attorney should have argued that the

       trial court erred by declining to find his proffered mitigating circumstances.

       Determining what is a proper mitigating circumstance is within the discretion of

       the trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007). An

       allegation that the trial court failed to identify or find a mitigating factor

       requires the defendant to establish that the mitigating evidence is both

       significant and clearly supported by the record. Id.at 272-73. There is no error

       in failing to find mitigation when the mitigation claim is “‘highly disputable in

       nature, weight, or significance.’” Id. at 272 (quoting Smith v. State, 670 N.E.2d

       7, 8 (Ind. 1996)).


[21]   Martin identifies three proffered mitigators for our review. First, he argues that

       the fact that he “was a law-abiding citizen for a substantial period of his life”

       should have been found to be mitigating. Appellant’s Br. p. 28. We cannot




       Court of Appeals of Indiana | Memorandum Decision 10A01-1409-PC-419 | June 17, 2015   Page 12 of 15
       agree.4 In 1996 and 1997, when Martin was approximately twenty years old, he

       was convicted of two separate felony theft charges. Martin was later charged

       with prostitution in Kentucky, though the charge was eventually dismissed, and

       has been arrested four times. He violated probation in 2001. He then began

       molesting S.G. in 2004 and continued to do so several times a month for the

       next two years. Martin was almost thirty-two years old at his sentencing

       hearing in this case. For much of the first decade of his adult life, therefore,

       Martin has had multiple contacts with law enforcement—which have not

       dissuaded his continued criminal activity. We find no error in the trial court’s

       declination of this mitigator.


[22]   Second, Martin contends that it should be mitigating that “the circumstances

       that led to the charge are unlikely to recur.” Id. at 28-29. Martin essentially

       argues that because he is no longer in a romantic relationship with S.G.’s

       mother, the circumstances that led to the repeated molestations are unlikely to

       recur. The fact that he will no longer have an opportunity to molest S.G. does

       not mean that he will no longer have opportunities to molest other children.

       There is no basis in this record to conclude that the circumstances that led to

       Martin’s convictions are unlikely to recur, and we find no error on this basis.




       4
         The presentence investigation report was not provided to the successive post-conviction court and is not
       included in the record on appeal. In recounting Martin’s criminal history, we rely on the transcript from the
       sentencing hearing.

       Court of Appeals of Indiana | Memorandum Decision 10A01-1409-PC-419 | June 17, 2015              Page 13 of 15
[23]   Third, Martin argues that the fact that he would respond positively to probation

       and that his character made him unlikely to commit crime in the future should

       have been mitigating. To the contrary, the record reveals that he has violated

       probation in the past. Martin directs us to evidence in the record indicating that

       he had the support of his family and community and that he had familial

       responsibilities that would prevent him from committing crimes in the future.

       While we applaud Martin for building a life and a positive community for

       himself, we cannot say that the trial court erred in declining to find this

       mitigator given Martin’s prior probation violation and prior contacts with the

       criminal justice system that have not yet dissuaded him from continuing

       criminal activity. We find no error on this basis.


[24]   Consequently, even if Martin’s appellate attorney had raised these issues on

       direct appeal, the arguments would not have been successful, and he has failed

       to establish prejudice. The post-conviction court did not err by finding that

       Martin did not receive the ineffective assistance of appellate counsel.


[25]   Martin raises two arguments for the first time on appeal: the first is that his

       appellate attorney should have made a sentencing argument pursuant to

       Indiana Appellate Rule 7(B) and the second is that appellate counsel should

       have raised a claim of prosecutorial misconduct. Martin did not make either of

       these arguments to the post-conviction court during the successive post-

       conviction relief proceedings. He did not include proposed findings of fact or

       conclusions of law on these issues when he submitted his proposed findings and

       conclusions to the post-conviction court. We can only conclude, therefore, that

       Court of Appeals of Indiana | Memorandum Decision 10A01-1409-PC-419 | June 17, 2015   Page 14 of 15
       he has waived these arguments. Allen v. State, 749 N.E.2d 1158, 1171 (Ind.

       2001) (noting that it is well settled that issues not raised in the petition for post-

       conviction relief may not be raised for the first time on post-conviction appeal).


[26]   The judgment of the post-conviction court is affirmed in part and remanded

       with instructions to revise Martin’s sentence on Count III to a thirty-year term,

       to be served concurrently with the other sentences.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 10A01-1409-PC-419 | June 17, 2015   Page 15 of 15
