Esther Martin v. State of Indiana ( 2024 )

FILED
Jan 09 2024, 8:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy E. Karozos Theodore E. Rokita
John Pinnow Indiana Attorney General
Lindsay Van Gorkom
Indianapolis, Indiana Justin F. Roebel
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Esther Martin, January 9, 2024
Appellant-Defendant, Court of Appeals Case No.
22A-PC-2574
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo,
Appellee-Plaintiff Judge
Trial Court Cause No.
20D03-2002-PC-8
Opinion by Chief Judge Altice
Judge Foley concurs.
Judge Riley dissents with separate opinion.
Altice, Chief Judge.
Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 1 of 34
Case Summary
[1] Esther S. Martin was charged in 2011 with two counts of Class A felony child
molesting. Her 2014 jury trial ended in a mistrial after a juror sent a note to the
judge asking if Martin’s mental state had been assessed. Ultimately, the trial
court found Martin incompetent to stand trial, and Martin was committed to a
state hospital for restoration efforts. In early 2015, two treating doctors at the
hospital reported that Martin had become competent to stand trial, and she was
retried to a jury in 2016, found guilty as charged, and sentenced to two
consecutive forty-year terms. On direct appeal, this court affirmed Martin’s
convictions but ordered that the sentences be served concurrently.
[2] Martin filed an amended petition for post-conviction relief (PCR), which the
court denied. Martin now appeals, claiming that her trial counsel provided
ineffective assistance (1) by failing to re-challenge Martin’s competency prior to
the 2016 trial, (2) by failing to present mitigating evidence at sentencing
pertaining to Martin’s intellectual functioning, and (3) by failing to object at
sentencing to the State’s argument that Martin’s family or community knew she
had sexual tendencies but failed to protect children from her.
[3] We affirm. 1
1
We held oral argument at the Court of Appeals Courtroom on November 16, 2023. We commend counsel
on their oral and written advocacy.
Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 2 of 34
Facts & Procedural History
[4] Martin, born in 1984, was removed from her birth parents at around fifteen
months of age and placed in foster care with Andrew and Arlene Martin (the
Martins), who adopted Martin when she was about four years old. 2 The
Martins are Old Order Mennonite and have five children, all adopted.
[5] Martin exhibited developmental delays as a child. She attended a Mennonite
school and required special attention both academically and to address issues of
impulsivity and acting out. Martin was required to repeat the fifth grade, and
she did not continue with education past eighth grade, although that was not
uncommon in her community. Thereafter, she lived with her parents in rural
Elkhart County, helping with household chores. Martin never worked outside
the home.
[6] At some point, the Martins began providing childcare in their home to six or so
children, including the victim in this case, B.H., who began going to the
Martins’ home as a toddler. Martin was about eighteen years old at the time
and helped provide the childcare. As found in our memorandum opinion on
direct appeal:
In January 2011, B.H. told his father that Martin had been
touching him inappropriately. At this time, B.H. was ten years
old, and Martin was twenty-six. B.H. believed that the touching
began when he was six or seven years old. B.H. said that the first
2
They also adopted Martin’s younger sister, Barbara.
Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 3 of 34
occasion occurred when he was in the bathroom, and Martin
came in, closed the door, and kissed his “privates.” Further
similar incidents involving Martin kissing B.H.’s genitals or
putting his penis in her mouth occurred once or twice a week
over the next few years. B.H.’s parents reported his statements to
police, who then arranged to interview Martin.
Before the [January 11, 2011] interview, Martin’s father told
Detective Ryan Hubbell of the Elkhart County Sheriff’s
Department that Martin communicated at the level of a twelve-
year-old child. . . . Detective Hubbell went through each of the
rights individually and attempted to explain them to Martin in
language she would understand. . . . After initialing that she
understood each of the rights and signing a waiver of her rights,
Detective Hubbell began questioning Martin.
Throughout the eighty-minute-long interview, Martin
consistently and repeatedly denied ever touching B.H. in a sexual
manner. She did say that B.H. once tried to look up her dress
and that she scolded him, and on at least one other occasion,
B.H. brushed up against her and touched her and she again
scolded him. . . . Martin consistently referred to penises as “pee
pees,” and at one point asked Detective Hubbell why he was
repeatedly talking about “peanuts.” Detective Hubbell explained
that penises were the same as “pee pees.” Martin also said it
made her “feel like throwing up” to think about kissing a penis.
Also during the interview, Martin said that ten to fifteen years
ago she had a “problem” about wanting to touch the “pee pees”
of children brought to her mother’s daycare but that she had
grown out of it.
Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 4 of 34
Martin v. State, No. 20A05-1605-CR-1016 (Ind. Ct. App. July 14, 2017)
(citations to record omitted). On October 7, 2011, the State charged Martin
with two counts of Class A felony child molesting related to acts with B.H.
First Trial
[7] After Martin was charged, trial counsel Thomas Leatherman (Leatherman)
referred her to clinical psychologist Gerald Wingard, PhD for psychological
testing. Dr. Wingard met with Martin in December 2011 and administered,
among other things, the Wechsler Adult Intelligence Scale – III (WAIS) to
determine her intellectual and cognitive functioning level. Results indicated
that Martin’s full scale IQ was 62, which “occurs at the Mildly Mentally
Deficient” range of intelligence. Direct Appeal Confid. Exhibits Vol. II at 4.
[8] The matter proceeded to jury trial on July 7, 2014. Prior to voir dire, the court
heard argument on Martin’s pending Motion for Special Assistance, which
asserted that Martin “functions between 4th and 8th grade levels” and requested
that Martin’s mother, Arlene, be allowed in the court room and seated close
enough to Martin so that they “can have meaningful conversations about the
process of the trial.” Direct Appeal Confid. Appendix Vol. 3 at 18. The trial court
granted the motion to the extent that it would allow someone to sit with Martin
and provide the requested assistance, although not Martin’s mother as the State
indicated the possibility of calling her as a witness.
[9] After voir dire, a juror sent a note to the judge asking if Martin’s mental state
had been assessed. The court and counsel for both parties met in chambers,
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and Dr. Wingard was consulted over the phone. On Leatherman’s motion, the
court declared a mistrial and ordered competency evaluations by Gary Seltman,
M.D. and LaRissa M. Chism-Buggs, M.D., who separately evaluated Martin in
September 2014. In their respective reports, each found Martin not competent
to stand trial.
[10] Dr. Seltman’s report stated that Martin had a “poor command of the judicial
process and players involved,” “a fairly poor understanding of the
consequences” if found guilty, and “did not appear to fully appreciate the
seriousness of the charges against her.” Id. at 22. Dr. Chism-Buggs found that
Martin had “a basic appreciation of right versus wrong and can differentiate
between lying and telling the truth” and had a very basic understanding of the
charges against her, the adversarial nature of the judicial system, and of her
attorney working on her behalf, but “lack[ed] an appreciation of the
proceedings against her” such that she would be unable to assist her attorney in
her own defense. Id. at 27.
[11] In October 2014, Dr. Wingard also submitted a report to the court based on his
December 2011 testing of Martin. He reported that Martin’s results placed her
in the first percentile and that individuals in that range learn slower, tend to
misunderstand and misperceive situations and depend on others for solutions or
directions, their social interactions are immature, and their memory for specific
types of information and ability to consider consequences is usually weak.
Direct Appeal Confid. Exhibit Vol. II at 6. He opined that Martin lacked “the
Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 6 of 34
necessary ability and skills to assist in her defense” and was not competent to
stand trial. Id. at 7.
Commitment
[12] In November 2014, the trial court committed Martin to the Division of Mental
Health and ordered the superintendent to certify within ninety days whether
Martin had a substantial probability of obtaining comprehension sufficient to
understand the proceedings and make a defense in the foreseeable future.
Martin was admitted to Madison State Hospital (MSH) on December 8, 2014,
for treatment and evaluation.
[13] Martin was evaluated by Vincent Porter, M.D., who created a psychiatric
treatment plan for Martin. According to MSH records, the stated “goal” for
Martin was that she “will know and have a basic understanding of conditions
for participating in her own defense,” understand the charges against her, the
potential consequences, and the trial process. PCR Confid. Exhibits Vol. 1 at 175.
The identified “objective” was that Martin would be able to “sit for and
participate in a competency evaluation on legal terms administered by the Legal
Education Facilitator/Co-facilitator scoring a 70% or above by being able to
define the definitions and/or roles of the courtroom personnel in her own
words.” Id. In December, January, and into early February 2015, Martin
participated in the Legal Education Group, where she received education about
legal terms and processes, was given homework, and was regularly evaluated to
check progress. On January 28, the facilitator of the Legal Education Group
Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 7 of 34
reported that Martin had received a score of 90.2%, and she recommended that
Martin be seen for a competency evaluation.
[14] In early February 2015, Martin was evaluated by two MSH doctors – first by
Gina Benz, PsyD and, a week later, by Dr. Porter – with each concluding that
Martin’s competency had been restored. Dr. Benz administered the Evaluation
of Competency to Stand Trial-Revised (ECST-R) and reported that Martin
“presents with a good factual and rational understanding of the courtroom
proceedings, court participants, and her role in the trial” and “evidences a good
understanding of and ability to consult effectively with her counsel in her
defense.” Direct Appeal Confid. Appendix Vol. 3 at 35. In addressing Martin’s
documented limited intellectual functioning, Dr. Benz opined that “it appears
her IQ score is an underrepresentation of her abilities within the realm of being
competent to stand trial in defense of her current legal issues.” Id.
[15] Dr. Porter’s report similarly expressed skepticism about Martin’s prior IQ score,
agreeing that her intelligence was “below average” but that “her low intellect
IQ of 62 is either underestimated or does not strongly correlate with her ability
to comprehend court proceedings and legal terminology. Her memory is intact.
She is coherent and without psychosis.” Id. at 39, 40. Both doctors referred to
and relied in part on the group facilitator’s report that Martin had scored 90.2%
on a recent legal terminology test.
Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 8 of 34
Second Trial
[16] The case proceeded to jury trial on January 26 and 27, 2016. 3 Prior to trial,
Leatherman filed a motion to suppress Martin’s January 2011 interview with
Detective Hubbell, arguing that Martin’s waiver of rights was not freely and
voluntarily made because, due to her mental deficiencies, she did not fully
understand the waiver of Miranda rights or understand the significance of it. At
the suppression hearing, Dr. Wingard and Martin’s parents testified for the
defense,4 and Detective Hubbell testified for the State. The trial court denied
the motion to suppress, recognizing that Martin had diminished mental
capacity but concluding that she knowingly and voluntarily waived her Miranda
rights.
[17] At trial, the State presented the testimony of Detective Hubbell, B.H., and his
parents. A redacted version of Martin’s interview with Detective Hubbell was
played for the jury. The defense called Martin’s sister, Barbara, to testify.
Following the close of evidence, the court read the following stipulation to the
jury: (1) psychologist Dr. Wingard evaluated Martin in 2011 and she “was
found to have an IQ of 62 and a diagnosis of Mild Mental Retardation,” and (2)
psychiatrist Dr. Porter evaluated her in 2015 and found her to be “higher
functioning than Mild Mental Retardation and gave a diagnosis of Low
3
The trial judge for the second trial was not the same as in the first trial.
4
The court allowed Dr. Wingard’s October 2014 report to be admitted into evidence for purposes of Martin’s
IQ scores in December 2011 but struck the portion of the report in which he opined on Martin’s competency.
Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 9 of 34
Intellectual Functioning, which is a modest upgrade[.]” Direct Appeal Confid.
Appendix Vol. 3 at 90; Direct Appeal Transcript Vol. V at 68. After the close of
evidence, Leatherman requested and received permission from the court to
allow Martin to consult with her parents about whether to testify. Martin
thereafter stated on the record her decision not to testify.
[18] During closing argument, the State urged that, although Martin had lower
intellectual functioning, she knew right from wrong, took advantage of B.H.
when opportunities would arise, and exhibited self-preservation skills when
talking to Detective Hubbell, as she controlled what information she disclosed
and only released more once Detective Hubbell told her he knew about certain
incidents from her parents. Leatherman questioned B.H.’s credibility and
suggested that he took advantage of Martin because she was low functioning.
The jury found Martin, then age thirty-two, guilty as charged.
Sentencing
[19] At the sentencing hearing, Leatherman presented argument only, asserting that
mitigating circumstances existed, including the recognized mental challenges
that Martin had faced all her life. Leatherman argued that the court should also
consider as mitigating that Martin had no prior criminal history, was adopted
and raised in a strict religious community, and had family and community
support throughout the process. Direct Appeal Transcript Vol. V at 130.
Leatherman asked the court to impose a minimum sentence.
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[20] The State called B.H.’s father to testify. Thereafter, the State argued that while
Martin does not have an official criminal record, there were prior incidents of
sexual misconduct of which her parents were aware. As is relevant here, the
prosecutor then stated:
There was awareness, an absolute awareness, of sexual deviant
tendencies on the part of Esther Martin, and yet no one did
anything to protect other children from her.
Id. at 138. The State maintained that, given the other, known incidents that
went unchecked, Martin’s lack of criminal history had “little value.” Id.
[21] The State further argued that, although Martin had a diminished mental
capacity, she was a “master manipulator” and “self-serving opportunist,”
waiting to engage in acts until adults were not present, she violated a position of
trust, and, during the time she was at MSH, she inappropriately touched a peer,
despite being specifically instructed to stay away from that person. Id. at 138,
142. The State asked the court to impose consecutive forty-year sentences.
[22] The court recognized the existence of aggravators and mitigators but found that
the aggravators “far outweighed” the mitigators. Id. at 146. The court viewed
Martin as an “opportunist,” having contact with B.H. when no one was
around. Id. at 145. The court sentenced Martin to consecutive forty-year
terms.
Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 11 of 34
Direct Appeal
[23] Martin appealed, asserting two issues: (1) the trial court should not have
admitted into evidence her recorded interview with Detective Hubbell, and (2)
her sentence was inappropriate. This court found that even if her interview
with Detective Hubbell was conducted in violation of Miranda, such error was
harmless, as she never confessed during the interview, B.H. testified about
Martin’s repeated sexual abuse, and B.H.’s forensic interview was also
admitted. Martin v. State, 20A05-1605-CR-1016 (Ind. Ct. App. July 14, 2017).
A majority of the court reduced her sentenced to concurrent forty-year terms. 5
PCR Proceedings
[24] In February 2020, Martin filed a pro se petition for post-conviction relief, which
was later amended, by counsel, on May 22, 2020. Martin’s amended PCR
petition alleged that she received ineffective assistance of trial counsel on
sixteen bases, including as is relevant here: (1) Leatherman did not request a
hearing on Martin’s competency to stand trial prior to her January 2016 trial;
(2) he did not investigate and present mitigating evidence at sentencing; (3) he
did not object to the State’s argument at sentencing concerning inaction taken
by her family and community to protect children from Martin’s known
tendencies; and (4) he did not argue at sentencing that Martin should receive
credit against her sentence for the time she was confined at MSH prior to trial.
5
The dissent believed that a thirty-year sentence was appropriate given that Martin had undisputed mental
limitations, “was found to be incompetent to stand trial at one time,” and had no criminal history. Id. at *5.
Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 12 of 34
Martin’s PCR petition alleged that appellate counsel was also ineffective,
including for failing to assert that Martin should have received credit against her
sentence for her time at MSH.
[25] The PCR hearing began on November 1, 2021 and continued to January 4,
2022. Martin called twelve witnesses, including Dr. Wingard, Drs. Chism-
Buggs and Seltman (who found Martin incompetent in September 2014),
Leatherman, appellate counsel, Martin’s parents, her sister, a friend, and two
teachers. Martin also presented the testimony of psychologist James Cates,
Ph.D., who had reviewed Martin’s records from MSH and the evaluations of
MSH Drs. Porter and Benz. The reports of Drs. Wingard, Chism-Buggs,
Seltman, and Cates were admitted into evidence, along with Martin’s medical
records from MSH and her school records.
[26] Dr. Wingard testified that people with Martin’s level of intellectual functioning
get confused, do not have strong memory capability, and often defer to
authority such as “if something is told to them often enough, they’re going to
believe it.” PCR Transcript at 33. Drs. Chism-Buggs and Seltman addressed
their respective 2014 court-ordered evaluations of Martin in which they found
Martin not competent to stand trial. Dr. Chism-Buggs stated she did not notice
any indicators of malingering or exaggerating when she evaluated Martin. Dr.
Seltman estimated that he had conducted around 500 competency evaluations,
and, of those, he found in about 95% of cases that the individual was
competent. He explained that, in concluding that Martin was not competent,
he felt that she did not fully appreciate the seriousness of the charges, did not
Court of Appeals of Indiana | Opinion 22A-PC-2574 | January 9, 2024 Page 13 of 34
understand the consequences, and did not understand “what’s going on with
the process.” Id. at 160. His testimony noted that intellectual disabilities are
not treatable through medication or psychiatric treatment.
[27] Dr. Cates, who possessed experience working with Old Order Mennonite and
Amish populations, stated in his report that Martin’s diminished mental
capacity combined with the Mennonite background and cultural practices all
contributed to limitations in Martin’s ability to participate in her own defense.
He criticized the treatment Martin received at MSH, viewing it as being “drilled
basically” on memorization of words and their meanings. Id. at 75.
[28] Dr. Cates’s report addressed the MSH records, including Legal Education
Group’s participation records. He observed that there was no way to confirm
whether Martin actually “met the [required] 70% retention criteria” and
highlighted that on February 5, 2015 – which was after her February 2
evaluation by Dr. Benz but before Dr. Porter’s evaluation – Martin recalled
only 58% of terms with no prompts and 25% still required five verbal prompts.
PCR Confid. Exhibits Vol. 1 at 44. Dr. Cates pointed out that, despite these
scores, Dr. Porter subsequently relied, in part, on the facilitator’s report that
Martin had achieved a 90.2% score on definitions.
[29] Dr. Cates also noted that Dr. Porter utilized “the McGarry criteria,” which
involved asking Martin a series of questions to ascertain her understanding of
legal matters, and that the American Academy of Psychiatry’s 2007 Practice
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Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial
characterized the McGarry criteria as weak and unreliable.
[30] As to Dr. Benz, Dr. Cates observed that she did not administer any screening
test of intellectual functioning yet opined that Martin’s intelligence was higher
than the 62 IQ score. Dr. Cates pointed out that although Dr. Benz
administered a recognized competency assessment instrument, ECST-R, she
did not report the specific scores.
[31] Dr. Cates testified about his own meeting with Martin on May 21, 2021, during
which he administered a variety of assessments, including the ECST-R
evaluation that Dr. Benz had used. In contrast to her conclusions, Dr. Cates
determined that Martin’s scores reflected “a severe impairment in her ability to
consult with counsel, and significant difficulty engaging in rational
understanding of courtroom proceedings” and “a moderate impairment in her
factual understanding of the courtroom.” Id. at 50. When Dr. Cates tested
Martin with the same legal terms that the MSH Legal Education Group had
used, Martin knew about half of the thirty terms. Dr. Cates viewed these results
as “dismal, at best.” Id. at 53.
[32] Dr. Cates’s report opined that MSH failed to use available tools to determine
Martin’s competency and instead relied on “outdated measures and clinical
inference alone” to declare she had been restored to competency. Id. at 54. He
concluded that Martin’s competency was never restored and she was re-tried
although equally as incompetent as she was at the time of the first trial.
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[33] Each of Martin’s parents testified that they saw no improvement in Martin’s
functioning or capabilities upon her release from MSH. Two teachers testified
to Martin’s struggles at school and, when asked about Martin’s strengths as a
student, each responded, “Recess.” PCR Transcript at 129, 132. Martin’s sister
and a childhood friend each discussed Martin’s lower functioning, need for
assistance, and childlike behavior.
[34] Leatherman testified that he had been an attorney for approximately fifty years,
with his practice focused primarily on criminal and domestic cases. Although
he had tried thousands of cases and handled many child molestation cases over
the years, he recalled having only one other case in which the defendant’s
competency was at issue. He testified that after he received the two MSH
reports stating that Martin’s competency had been restored, he did not contact
those doctors, and he did not reach back out to Drs. Seltman or Chism-Buggs,
although he did have one or more telephone conversations with Dr. Wingard.
[35] Leatherman stated that he argued for mitigating circumstances at sentencing
but did not call witnesses because
[n]o one informed me that they had any witnesses that they
wanted me to call. I wasn’t made aware of any information we
could provide to the Court that I thought would be helpful that
[the court] didn’t already have.
***
If I had been advised that there was some witness that wanted to
provide some information about [Martin] that I thought would
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be helpful, I would have indeed called her or called the witness.
But I was not provided with any. And I couldn’t think –
[Martin] didn’t have a job outside of her home. Her parents have
already testified. We had her school records. . . . [W]e had her
intelligence issues, and that was all in front of the Court.
Id. at 52.
[36] As to the State’s argument at sentencing that there was an awareness by others
of Martin’s sexual deviant tendencies yet no one did anything to protect
children from her, Leatherman acknowledged that generally sentencing is to be
based on the individual defendant but he was not particularly concerned about
the State arguing a “collective kind of guilt.” Id. at 54.
[37] The parties submitted proposed findings and conclusions, and on October 5,
2022, the PCR court issued a sixteen-page order, which determined that neither
trial nor appellate counsel was ineffective. 6 As is relevant to the current claims
of ineffective assistance of trial counsel, the court’s order found:
33. Petitioner opines that counsel should have been aware that
she lacked the ability to understand the proceedings and assist in
her defense in January 2016 because she had already been
determined incompetent to stand trial in January 2015 based on
low cognitive function. However, later in 2015, two doctors at
[MSH] found that Petitioner did understand courtroom
proceedings, had the ability to consult effectively with her
counsel, and did not currently demonstrate mental health
6
The PCR court issued an Amended Abstract of Judgment to reflect jail credit plus good time credit for the
69 days spent at MSH for restoration efforts.
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symptoms or intellectual deficits that would interfere with her
ability to participate in her defense at that time. In other words,
the reports indicated that Petitioner had been restored to
competency. . . . Furthermore, a low IQ does not necessarily
indicate an inability to comprehend legal proceedings. . . . No
contemporaneous evidence existed that cast doubt on Petitioner’s
competence at that time. To the contrary, the evidence was that
Petitioner was then competent to stand trial in January 2016.
This is true even in light of Dr. Cates’ testimony at the post
conviction hearing regarding tests he had performed in 2021. Dr.
Cates simply presented another opinion based on different test
results that were not available to counsel in 2016 . . . Members of
Petitioner’s family and friends testified at the post conviction
hearing as to Petitioner’s “child likeness” struggles in school,
inability to manage funds or go grocery shopping and poor
reading. None of these amounted to evidence supporting that
Petitioner was incompetent to stand trial. Counsel’s failure to
further investigate whether Petitioner was competent to stand
trial and seek another competency evaluation between
Petitioner’s release from [MSH] and her January 2016 trial did
not amount to ineffective assistance of counsel.
***
42. Petitioner avers that trial counsel was ineffective at
sentencing for failing to investigate and present mitigating
evidence[.] . . . Petitioner admitted that her counsel argued the
existence of mitigating circumstances at sentencing, however,
contends he should have gone further and presented witnesses
and exhibits on her behalf. . . . Petitioner [] argues that had
counsel investigated further, he may have discovered an expert
such as Dr. Cates, who could have reviewed the prior
competency evaluations completed by [MSH] and testified from
a different perspective. Trial counsel testified at the post
conviction hearing that no one ever informed him of any
witnesses they wanted to call, Petitioner did not have a job
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outside the home, that her parents had already testified, and her
intelligence issue[s] were already before the Court. In other
words, there was nothing left for anyone to say. Counsel had no
reason to investigate further. The decision not to call a witness
whose testimony is cumulative does not constitute ineffective
assistance of counsel.
43. Petitioner asserts that her trial counsel was also ineffective for
failing to object to the State’s argument at sentencing . . . that
Petitioner’s family and community failed to protect children from
Petitioner even when they had awareness of sexual deviant
tendencies on the part of Petitioner. . . . Petitioner contends that
the sentence imposed would have been different had trial counsel
objected to this line of argument. The record reflects that this
argument was one of many aggravating factors presented to and
already known by the Court. This one circumstance would not
have made any difference as to the sentence.
PCR Appendix at 120-121, 125-27. The PCR court rejected Martin’s claim that,
even if the errors did not individually rise to the level of ineffective assistance of
counsel, the cumulative effect amounted to ineffective assistance.
[38] Martin now appeals. Additional information will be provided below as needed.
Discussion & Decision
Standard of Review
[39] Post-conviction proceedings are not a “super appeal.” Barber v. State, 141
N.E.3d 35, 41 (Ind. Ct. App. 2020), trans. denied. They provide a narrow
remedy to raise issues that were not known at the time of trial or were
unavailable on direct appeal. Id. The petitioner must establish her claims by a
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preponderance of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner
who has been denied relief faces a rigorous standard of review. Dewitt v. State,
755 N.E.2d 167, 169 (Ind. 2001).
To prevail, the petitioner must show that the evidence as a whole
leads unerringly and unmistakably to a conclusion opposite that
reached by the post-conviction court. When reviewing the post-
conviction court’s order denying relief, we will not defer to the
post-conviction court’s legal conclusions, and the 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. The post-conviction court is the sole
judge of the weight of the evidence and the credibility of
witnesses.
Barber, 141 N.E.3d at 41 (internal quotations and citations omitted).
[40] To prevail on a claim of ineffective assistance of counsel, the petitioner must
show that (1) counsel’s performance was deficient, and (2) counsel’s
performance prejudiced the defendant. Id. at 42.
A counsel’s performance is deficient if it falls below an objective
standard of reasonableness based on prevailing professional
norms. To meet the 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. A reasonable probability is a probability sufficient
to undermine confidence in the outcome. Failure to satisfy either
prong will cause the claim to fail. When we consider a claim of
ineffective assistance of counsel, we apply a strong presumption .
. . that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment. [C]ounsel’s performance is presumed effective, and a
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defendant must offer strong and convincing evidence to
overcome this presumption.
Id. (internal citations and quotations omitted).
1. Competency
[41] Martin argues that Leatherman provided ineffective assistance because he failed
to request another competency evaluation prior to the 2016 trial. A defendant
is not competent to stand trial when she is unable to understand the proceedings
and assist in the preparation of her defense. Id. at 42; see also Dusky v. United
States, 362 U.S. 402, 402 (1960) (to be competent, defendant must have a
“sufficient present ability to consult with h[er] lawyer with a reasonable degree
of rational understanding … [and] a rational as well as factual understanding of
the proceedings against h[er]”).
[42] If a trial court is provided with “reasonable grounds for believing that the
defendant lacks the ability to understand the proceedings and assist in the
preparation of a defense,” the court must set a hearing to address competency.
Ind. Code § 35-36-3-1(a). The right to a competency hearing upon motion is
not absolute, however. Barber, 141 N.E.3d at 43. Such a hearing is required
only when a trial judge is confronted with evidence creating a reasonable or
bona fide doubt as to a defendant’s competency. Id. The presence of indicators
sufficient to require the court to conduct a hearing under I.C. § 35-36-3-1 must
be determined upon the facts of each case. Mast v. State, 914 N.E.2d 851, 856
(Ind. Ct. App. 2009), trans. denied. “A trial judge’s observations of a defendant
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in court are an adequate basis for determining whether a competency hearing is
necessary; such a determination will not be lightly disturbed.” Id.[43] Here, the PCR court determined that, at the time of Martin’s January 2016
trial, “[n]o contemporaneous evidence existed that cast doubt on Martin’s
competence,” and, thus, Leatherman did not provide deficient performance by
not requesting a competency hearing prior to the second trial. PCR Transcript at
121. Martin argues that this finding was clearly erroneous because such
evidence did exist at that time, which should have caused Leatherman to
investigate and ultimately challenge the reports of restored competency. If he
had requested a competency hearing, Martin maintains that there is a
reasonable probability Martin would have been found incompetent.
[44] In support, Martin points out that her limited intellectual functioning is
undisputed, she was found to be incompetent in 2014, and Dr. Seltman’s
September 2014 report, which found that Martin would have a “fairly
significant difficulty assisting in her own defense,” stated that “this difficulty is
not likely to be responsive to psychiatric treatment.” Direct Appeal Confid.
Appendix Vol. 3 at 22. Furthermore, Martin argues, the MSH records –
specifically her scores in the Legal Education Group – reflect a lack of
appreciable improvement during her stay and that Leatherman should have
recognized the suspect nature of the reported 90.2% score on January 28
because it was not consistent with Martin’s other group participation records
before and after that date. Martin argues that, despite having this available
information, Leatherman failed to contact any of the doctors. She also urges
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that Leatherman should have noted that, although the two MSH doctors opined
that Martin’s IQ was higher than previously reported, neither administered an
intelligence test to Martin. Martin maintains that, given these various failures,
Letherman’s performance was deficient. We do not agree.
[45] Martin was committed to MSH with the intended goal of restoration of
competency. After around seventy days there, Drs. Benz and Porter each
issued a report in February 2015 finding that Martin had been restored to
competency. Dr. Benz reported that Martin “has made significant progress in
her legal education classes [], receiving a passing score (90%) on the legal
education assessments” and opined that Martin’s tested IQ with Dr. Wingard
possibly had underestimated her abilities. Id. at 31. Dr. Benz’s sources
included a review of Martin’s records at MSH, consultation with MSH staff on
Martin’s unit, previous assessments of her, and a clinical interview with Martin
that included administering to Martin: (1) Mini Mental Status Exam and (2)
ECST-R, which includes a systematic screening for feigned incompetency.
Although not outlining specific test scores, Dr. Benz reviewed in detail her
findings, including that Martin “evidences a good factual understanding of the
trial process and proceedings against her,” “demonstrates a good understanding
of the courtroom participants,” and “does not show any self-defeating
motivation or poor reasoning that would interfere with her ability to participate
in her defense.” Id. at 34.
[46] Dr. Porter’s report was based, in part, on his interaction with and treatment of
Martin since her admission in December 2014, a review of Martin’s unit chart
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progress notes, and the group facilitator’s report of a 90.2% score on a recent
test of legal terminology. He also interviewed Martin and asked her a series of
forensic questions to ascertain her understanding of basic legal matters. Like
Dr. Benz, he opined that Martin’s low IQ did not correlate with her ability to
comprehend court proceedings and legal terminology and concluded that
Martin “will be able to assist her counsel” with her defense. Id. at 40.
[47] Martin would have us find that Leatherman’s performance was deficient for
failing to question the validity of those two reports, urging that counsel should
have dug into the supporting records and perhaps located a countering expert
opinion, such as Dr. Cates. While all of that could have been done, we are
unwilling to find that an objective standard of reasonableness based on
prevailing professional norms required it to be done. We agree with the State
that, given the two 2015 competency reports, “no reasonable attorney would
have believed there was a need to re-challenge Martin’s competency.” Appellee’s
Brief at 27. Accordingly, we find, as did the PCR court, that Leatherman did
not provide deficient performance by failing to seek a competency hearing
before the second trial. Her ineffective assistance of counsel claim based on
failure to request a competency hearing fails.
2. Sentencing- Mitigating Evidence
[48] Martin contends that – although Leatherman argued at sentencing about the
existence of mitigating circumstances, including Martin’s limited intellectual
functioning – he performed deficiently by “failing to present available evidence
of [her] intellectual disability.” Appellant’s Brief at 46. Our Supreme Court has
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observed that the dispositive question in cases challenging whether counsel
should have presented additional mitigating evidence is “what effect the totality
of the omitted mitigation evidence would have had on [the] sentence.” Coleman
v. State, 741 N.E.2d 697, 702 (Ind. 2000).
[49] Martin contends that Drs. Seltman and Chism-Buggs “had relevant and
favorable information about Martin’s intellectual limitations,” yet Leatherman
failed to contact them. Appellant’s Brief at 46, 50. Martin also suggests that
Leatherman should have obtained the MSH records and recognized that the
competing incompetent/competent doctor reports “were red flags warranting
further investigation,” which would have led counsel “to consult with an expert
like Dr. Cates” to rebut the opinions of Drs. Porter and Benz that Martin’s IQ
was higher than Dr. Wingard had found it to be. Id. at 50.
[50] Leatherman testified at the PCR hearing that he did not call any witnesses at
sentencing because he “wasn’t made aware of any information . . . that [he]
thought would be helpful that [the court] didn’t already have.” PCR Transcript
at 52. For instance, Leatherman explained that there was no outside
employment history to pursue, and her intelligence issues were already known
by the court. The PCR court determined that Leatherman did not provide
deficient performance, as Martin’s intelligence issues were already before the
court, and “there was nothing left for anyone to say.” PCR Appendix at 126.
[51] We too find that Leatherman’s performance was not deficient as the trial court
was well aware of Martin’s intellectual challenges. In addition to her parents
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and Dr. Wingard testifying at the suppression hearing about her limited mental
functioning, Detective Hubbell testified that Martin’s parents told him that she
functioned as a twelve-year-old. At trial, the parties’ stipulation concerning her
IQ was read to the jury. The trial court’s comments at the sentencing hearing
recognized her “diminished mental capacity” and identified it as a mitigating
circumstance, although concluding that such did not outweigh the aggravators.
Direct Appeal Transcript Vol. V at 145.
[52] Given this record, we agree with the State that “[t]here is no reason to infer that
the trial court would have given greater weight to those circumstances if
additional evidence of her diminished capacity had been presented at
sentencing.” Appellee’s Brief at 30. While counsel could have provided more
evidence of Martin’s mental functioning, there is a presumption that counsel
rendered effective assistance, and we are not persuaded that additional evidence
about Martin’s recognized intellectual limitations would have had any
appreciable effect on the sentence imposed. Thus, the PCR court properly
denied relief to Martin on this claim.
3. Sentencing – Alleged Improper Aggravator
[53] Lastly, Martin asserts that Leatherman provided ineffective assistance by failing
to object to the State’s argument at sentencing that Martin’s family and
community were aware of her sexual deviant tendencies yet failed to protect
children from her, and instead, protected their own. Martin argues that the
proper focus at sentencing is on the defendant, the crimes for which she is
convicted, her background, and her personal culpability and that, here, the
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State’s argument was trying to punish Martin for failures of her family and/or
community. As such, it was an invalid aggravating circumstance, to which
Leatherman should have objected.
[54] At the PCR hearing, Leatherman testified that he did not object because (1) he
was not overly concerned about the argument, and (2) in his experience,
objecting during opposing counsel’s argument had not been worthwhile or
successful. The PCR court found that the community-awareness argument
“was one of many” made by the State and that this one alleged aggravating
circumstance “would not have made a difference as to the sentence.” PCR
Appendix at 127.
[55] Martin contends that the trial court obviously relied on the State’s improper
argument, given that it remarked, “So the family knew that she had a
predisposition to this, and they allowed her to have the care and custody over
the control of these children.” Direct Appeal Transcript Vol. V at 146. Martin
urges that the trial court’s “improper reliance on collective punishment” during
the sentencing hearing undermines confidence in the validity of the sentence.
Appellant’s Brief at 54.
[56] We are unconvinced, however, that Leatherman rendered ineffective assistance
by failing to object. As the State observes, the argument was likely responsive
to Martin’s mitigating argument at sentencing that her family and community
had supported her throughout the whole process and were present at the
sentencing hearing. Moreover, while the trial court did mention the
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family/community’s complicity, it did not expressly identify such as an
aggravator, and rather identified the aggravating circumstances as: the victim’s
young age, the offense occurred over a period of years, Martin violated a
position of trust, and she had a history of inappropriate sexual behavior.
Accordingly, we find that the post-conviction court did not err when it found
that Leatherman did not provide ineffective assistance by not objecting to the
State’s argument about Martin’s family and community not protecting children
from her.
Conclusion
[57] While Martin argues that, even if the individual alleged errors did not
separately amount to ineffective assistance, Leatherman’s representation as a
whole constituted deficient performance that prejudiced her, as she “would not
have gone to trial in 2016, let alone been convicted, if counsel had performed
effectively.” Reply Brief at 24. We find, however, that Leatherman’s
representation was consistent with professional norms and, as the State
observes, “preserved a record that resulted in significant relief” on direct appeal.
Appellee’s Brief at 36. For the reasons discussed herein, Martin has not met her
burden to show that the post-conviction court clearly erred in denying her
petition.
[58] Judgment affirmed.
Foley, J., concurs.
Riley, J., dissents with separate opinion.
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Riley, Judge, dissenting.
[59] I respectfully part ways with the majority’s affirmance of the post-conviction
court’s opinion, as I conclude that Leatherman’s representation was
inconsistent with prevailing professional norms and resulted in ineffective
assistance when he failed to seek a competency hearing before Martin’s second
trial.
[60] “It has long been accepted that a person whose mental condition is such that he
lacks capacity to understand the nature and object of the proceedings against
him, to consult with counsel, and to assist in preparing his defense may not be
subjected to trial.” Drope v. Missouri, 420 U.S. 162, 171 (1975). In order to be
competent to stand trial, a defendant must have a “sufficient present ability to
consult with h[er] lawyer with a reasonable degree of rational understanding []
[and] a rational as well as factual understanding of the proceedings against
h[er].” Dusky v. United States, 362 U.S. 402, 402 (1960). “Mental competency
is not a static condition and is to be determined at the time of trial.” Edwards v.
State, 902 N.E.2d 821, 827 (Ind. 2009).
[61] Unlike the majority and the post-conviction court, I find that an abundant
amount of contemporaneous evidence exists which, viewed against the
backdrop of Martin’s prior psychological and psychiatric testing, casts a bona
fide doubt on Martin’s competency at the time of her second trial in January
2016. After Martin’s first trial ended in a mistrial and she was found to be
incompetent to stand trial, Martin was admitted at MSH for restoration efforts
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pursuant to an order for MSH to certify within ninety days whether Martin had
a substantial probability of obtaining comprehension sufficient to understand
the proceedings and to formulate a defense in the foreseeable future. Despite
Dr. Wingard’s report, which placed Martin’s IQ at 62 with an extremely low
adaptive functioning percentile, and even though intellectual disability
manifests itself during childhood and remains static throughout life whereas
mental disability can be improved by medications, MSH placed Martin in legal
education classes, drilling her weekly on legal definitions and terms.
[62] During Martin’s 70-day residency at MSH—which was 20 days shorter than the
trial court’s order envisioned—Martin’s legal education records do not support
that she ever demonstrated an ‘understanding’ of the basic legal terminology in
which she was drilled, as required by the competency standard enunciated in
Dusky. The records show that Martin’s ability to define words varied from
week to week. During her first session on December 17, 2014, Martin could not
independently identify a single word and required up to two verbal prompts to
define the legal term. A week later, on December 24, 2014, Martin could
partially define two terms and required prompts for other words, but no longer
had any recollection of certain terms from the previous session. On December
31, 2014, the session revisited the words taught to Martin during the first
session, but she was unable to define the terms again. On January 9, 2015,
Martin could provide a partial definition of ‘judge’ but struggled with
explaining the other terms. The following week, on January 16, 2015, Martin
required several prompts from facilitators to define legal terminology. On
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January 21, 2015, Trimble instructed Martin to identify the roles of the players
in the courtroom on a drawing, which Martin was unable to do. Yet, despite
Martin showing a very limited amount of recall and no understanding, on
January 28, 2015, Martin received a score of 90% on the legal terminology
testing administered by Trimble. The following day, on January 29, 2015,
despite having purportedly just passed a legal education test with a score of
90%, Martin had another legal education class at which she knew only six or
seven of the legal terms without prompting and required several verbal prompts
for the other words. As a result, and solely relying on this passing test score,
Drs. Bentz and Porter found Martin competent to stand trial.
[63] As Martin’s parents had advised that Martin ‘can memorize,’ but also
cautioned that she has little understanding of how to use words and their
meanings effectively in any useful manner, and based on her weekly lack of
progression in the legal education classes, it can be reasonably inferred that the
90% test score is more reflective of her power to temporarily memorize, while
her recall is almost non-existent as indicated by the rapid decline in knowledge
retention between class sessions and after she was released from MSH. During
the second trial, even Martin’s counsel remarked that he was unsure whether
Martin understood the proceedings she was involved in. From the time of
Martin’s IQ testing in 2011 until Dr. Cates’ testing in 2021 for purposes of the
post-conviction proceedings, Martin’s intellectual functioning did not change.
Dr. Cates’ results— which were consistent with Dr. Wingard’s findings—
confirmed the depth of Martin’s intellectual deficits. When Dr. Cates replicated
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the legal education assessment conducted by MSH, Martin, after having
experienced a full jury trial and one partial trial, “had very little factual
understanding of courtroom procedures.” (Tr. Vol. II, p. 95). Even though Drs.
Bentz and Porter expressed doubt about Dr. Wingard’s assessment of Martin’s
IQ, Drs. Bentz and Porter never conducted an intellectual and adaptive
functioning test but merely relied on a legal terminology test which only
measured Martin’s ability to memorize definitions but not her ability to
understand.
[64] Despite being aware of Martin’s severe mental deficiencies, evaluations by two
independent psychiatrists resulting in findings of incompetency to stand trial
due to those deficiencies, and one of those doctor’s written assertion that
Martin’s limitations were not likely to respond to psychiatric treatment,
Leatherman took no steps to consider whether, by the time she went to trial in
2016, Martin was competent to be tried. Rather, he took Drs. Bentz’s and
Porter’s evaluation and determination of competency at face value and forged
ahead with the trial, opening Martin up to allegations from the State that she
was a master manipulator.
[65] Commencing with a juror instigating the finding that Martin was incompetent
to stand trial by handing a note to the trial judge questioning her competency
during the first trial, there were numerous red flags waving prominently in front
of counsel throughout these proceedings. Leatherman nonetheless closed his
eyes and ignored them. Despite Dr. Wingard’s determination of Martin’s
intellectual disability prior to her first trial, it was a layperson who suspected
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Martin’s mental state, rather than the professional whose job it was to safeguard
her interests. During MSH’s attempted ‘restoration’ of Martin’s intellectual
abilities to gain an understanding of the legal process, it was obvious that,
although Martin had memorization capabilities to a certain extent, these
abilities declined rapidly once she was no longer ‘drilled.’ By the time of the
second trial, it can be reasonably inferred that, in the absence of constant
drilling and repetition, Martin had resorted back to her initial intellectual
baseline.
[66] While I would agree with the majority that under normal circumstances the
objective standard of reasonableness based on prevailing professional norms
would not require “counsel [to] have dug into the supporting records and
perhaps located a countering expert opinion” given the two 2015 competency
reports by Drs. Bentz and Porter, here, those normal circumstances ceased to
exist as soon as the juror handed the trial court the note questioning Martin’s
mental abilities. See Slip Op. p. 24. Even though counsel had pursued an
evaluation by Dr. Wingard and had read his competency evaluation of Martin
as having “a very significant intellectual disability,” Leatherman, as Martin’s
counsel, failed to recognize its importance and the presence of a possible legal
defense, and instead had to be guided by a layperson in advocating for Martin.
(Def’s Exh. A, p. 3). At that point, Leatherman was placed on notice that
Martin’s intellectual disability might become a prominent issue in the
proceedings—a notice that came to fruition with Martin’s first mistrial based on
her incompetence to stand trial. Even though Leatherman was very aware of
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Martin’s intellectual disability, he did not question the rather—surprising and
sudden—high passing score on MSH’s legal terminology test, nor did he
examine the underlying supporting documents, challenge Drs. Bentz’s and
Porter’s conclusions, or contact the experts who had declared Martin
incompetent for her first trial. All this came to a culmination at the second trial,
when Leatherman himself questioned Martin’s understanding of the
proceeding. Leatherman’s actions were not a matter of trial strategy.
Leatherman had evidence of Martin’s severe intellectual disability and there
were strong reasonable inferences that, at the time of the second trial, Martin,
even if she showed an initial understanding, was no longer competent given her
rapid decline in recalling the definitions of the legal terms after her drilling
classes ended. The record is rife with warning signs that Martin’s competency
to stand trial should have been placed in doubt based on her intellectual
disability, yet, despite all these indications, Leatherman failed to pursue a
competency hearing. Unlike the majority, I conclude that any reasonable
attorney, faced with these facts, would have believed there was a need to re-
challenge Martin’s competency.
[67] Accordingly, I conclude that Martin met her burden of establishing that, had
Leatherman requested a competency hearing, there is a reasonable probability
the outcome of her case would have been different. Leatherman was ineffective
for failing to challenge Martin’s competency to stand trial in 2016, and the post-
conviction court’s conclusion is clearly erroneous.
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