MEMORANDUM DECISION                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                       Mar 17 2016, 6:29 am

this Memorandum Decision shall not be                                             CLERK
                                                                              Indiana Supreme Court
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the defense of res judicata, collateral
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ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana
John Pinnow                                              Larry D. Allen
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Clyde L. Smith,                                          March 17, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         71A05-1508-PC-1136
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jerome Frese,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         71D03-1206-PC-25



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016             Page 1 of 8
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Clyde L. Smith (Smith), appeals the post-conviction

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


[2]   We affirm.


                                                    ISSUE

[3]   Smith raises one issue on appeal, which we restate as follows: Whether Smith’s

      trial counsel provided ineffective assistance.


                           FACTS AND PROCEDURAL HISTORY

[4]   Smith and his wife, Juanita Smith (Juanita), adopted and raised their biological

      granddaughters, A.S. (born in October of 1992) and C.S. (born in February of

      1994), when the girls were respectively three and two years old. Smith

      frequently played games with A.S. and C.S. in the basement of their house.

      During these games, he would make the girls perform fellatio on him when he

      won. To avoid exposure, Smith used the word “chocolate” as the code name

      for wanting oral sex from the girls. (Appellant’s App. p. 84). Smith would take

      them to the “boom boom” room in the basement and would turn the lights off

      during the act. (Appellant’s App. p. 93). He would sometimes have one of the

      girls look out for their grandmother, while the other performed oral sex on him.

      Smith also attempted to penetrate A.S.’s vagina with his penis at least once;

      however, he stopped because it was painful for her. These abuses continued for

      more than two years until 2006.


      Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016   Page 2 of 8
[5]   At some point, when A.S. was in middle school, she told Juanita that Smith

      was molesting both girls. Juanita confronted Smith, and he admitted to the

      allegations. She, however, did not report the molestations and did not seek

      counseling for the girls. Instead, Juanita and the girls moved out of the house

      into her daughter’s nearby apartment. Two or three months later, Juanita,

      A.S., and C.S., returned to the house with Smith.


[6]   In September, 2011, several years after Juanita learned of the abuses, a teacher

      overheard C.S. talking with a classmate about the molestations. The teacher

      reported the incident, and Detective Dave Sult (Detective Sult) of the St. Joseph

      County Special Victims Unit initiated an investigation. After waiving his

      Miranda rights, Smith admitted to Detective Sult that he had molested the girls

      for several years.


[7]   On October 5, 2011, the State filed an Information charging Smith with one

      Count of attempted child molesting and four Counts of child molesting, all

      Class A felonies. Smith’s counsel negotiated a plea agreement that provided

      that Smith would plead guilty to three of the five Counts. The trial counsel also

      negotiated a maximum executed cap of sixty-five years. Smith waived his right

      to appeal the sentence as long as the court sentenced him within the parameters

      of the plea agreement. The trial court took the guilty plea under advisement

      and ordered the preparation of a pre-sentence investigation report.


[8]   On January 24, 2012, Smith pled guilty to one Count of attempted child

      molesting and two Counts of child molesting, all Class A felonies. On


      Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016   Page 3 of 8
       February 22, 2012, the trial court held Smith’s sentencing hearing and

       sentenced him to an aggregate sentence of sixty-five years.


[9]    After filing and amending his petition for post-conviction relief in 2012 and

       2013, both pro se and with the help of public defenders, Smith filed his last

       amendment on February 12, 2015. On July 17, 2015, the post-conviction court

       held an evidentiary hearing and, on July 27, 2015, denied Smith’s petition for

       relief.


[10]   Smith now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

[11]   Smith argues that his trial counsel rendered ineffective assistance. It is

       generally accepted that 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. On review, we will not reverse the

       judgment unless the evidence as a whole unerringly and unmistakably leads to a

       conclusion opposite that reached by the post-conviction court. Id. Further, the

       post-conviction court in this case entered findings of fact and conclusions

       thereon in accordance with Indiana Post-Conviction Rule 1(6). Id. “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.” Id. In this review, we accept findings of fact unless

       Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016   Page 4 of 8
       clearly erroneous, but we accord no deference to conclusions of law. Id. The

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

       credibility of witnesses. Id.


[12]   To prevail on a claim of ineffective assistance of counsel, a petitioner must

       demonstrate both that his counsel’s performance was deficient and that the

       petitioner was prejudiced by the deficient performance. Ben-Yisrayl v. State, 729

       N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687,

       104 S.Ct. 2052, 2064 (1984), reh’g denied), reh’g denied, cert. denied, 534 U.S. 830

       (2001). A counsel’s performance is deficient if it falls below an objective

       standard of reasonableness based on prevailing professional norms. French v.

       State, 778 N.E.2d 816, 824 (Ind. 2002). To meet the appropriate test for

       prejudice, the petitioner must show that there is a reasonable probability that,

       but for counsel’s unprofessional errors, the result of the proceeding would have

       been different. Id. Failure to satisfy either prong will cause the claim to fail.

       Id.


[13]   Smith first claims that his trial counsel’s performance was deficient because the

       trial counsel did not present mitigating evidence beyond Smith’s lack of

       criminal history.


[14]   To support his argument, Smith cites to Wiggins v. Smith, 539 U.S. 510 (2003).

       The Wiggins court held that trial counsel’s failure to expand investigation of the

       defendant’s dysfunctional background—severe physical and sexual abuses the

       defendant had suffered at the hands of his mother and while under the care of a


       Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016   Page 5 of 8
       series of foster parents—beyond a presentence investigation report and social

       services records fell short of the prevailing professional standards. Id. at 534.

       Counsel’s conduct was also unreasonable in light of the evidence trial counsel

       uncovered in the social services records—evidence that would have led a

       reasonably competent attorney to investigate further. Id.


[15]   This court previously addressed the issue of trial counsel’s failure to investigate

       and present to the court potentially mitigating circumstances in the context of a

       child molesting case in McCarty v. State, 802 N.E.2d 959 (Ind. Ct. App. 2004).

       The McCarty court similarly held that trial counsel’s failure to investigate the

       defendant’s background for sentencing purposes fell short of the prevailing

       professional standards. Id. at 964. Had trial counsel spent more time with the

       defendant in preparing for the guilty plea and sentencing hearings, he might

       well have observed manifestations of the defendant’s mental retardation and

       sought more detailed information regarding his family history, sexual

       victimization as a teenager, and potential for successful rehabilitation. Id.


[16]   Both the Wiggins and McCarty courts recognized that when a trial counsel

       identifies a red flag in the client’s background, counsel should inquire deeper to

       avoid counsel’s performance from falling short of the prevailing professional

       norms. However, the present case is different from both Wiggins and McCarty

       because we do not have such red flags here. The record does not reveal any

       manifestations of Smith’s mental retardation, severe physical or sexual abuses

       in his formative years, or other extreme circumstances that could have put a

       reasonably competent attorney on guard and warranted a further investigation

       Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016   Page 6 of 8
       into Smith’s background. The only detail that the record reveals is that Smith

       was going through “a lot of things” due to the death of his mother. (Appellant’s

       Ex. 2, p. 6). While tragic in its own way, the death of Smith’s mother does not

       make his background or circumstances extreme. Other than that, Smith lived a

       normal life; he had a loving wife, a job, a house, and two beautiful adopted

       girls.


[17]   Smith further asserts that his trial counsel should have contacted the victims

       and “[found] out their opinion on what the appropriate sentence [should be].”

       (Appellant’s Br. p. 6). We disagree and note that a decision regarding what

       witnesses to call is a matter of trial strategy which an appellate court will not

       second-guess. Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998). As such, based

       on our review of the record, we conclude that trial counsel’s performance did

       not fall below an objective standard of reasonableness based on the prevailing

       professional norms.


[18]   Smith finally argues he was prejudiced because he would have received a lesser

       sentence if the two victims were allowed to testify at the sentencing hearing.

       We disagree because the post-conviction judge, who was the same judge that

       sentenced Smith, after hearing the testimonies of A.S. and C.S. at the post-

       conviction hearing, clearly stated that their testimonies would not have

       produced a different result. See Hinesley v. State, 999 N.E.2d 975, 982 (Ind. Ct.

       App. 2013), trans. denied (a post-conviction court’s findings and judgment

       should be entitled to greater than usual deference when the post-conviction

       judge is the same judge who conducted the original trial) (internal quotation

       Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016   Page 7 of 8
       marks omitted). The post-conviction court added that the testimonies only

       demonstrated how deeply victimized the girls were; he would have discounted

       C.S.’s testimony “absolutely entirely” because C.S. felt that Smith should not

       go to jail at all. (Tr. p. 164). As such, we hold that there is no reasonable

       probability that the sentencing court would have imposed a lesser sentence

       under the circumstances.


                                               CONCLUSION

[19]   Based on the foregoing, we hold the post-conviction court properly denied

       Smith’s petition for post-conviction relief.


[20]   Affirmed.


[21]   Najam, J. and May, J. concur




       Court of Appeals of Indiana | Memorandum Decision 71A05-1508-PC-1136 | March 17, 2016   Page 8 of 8
