Shawn McWhorter v. State of Indiana

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.
Mar 18 2014, 9:41 am
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARIO GARCIA GREGORY F. ZOELLER
CHRISTOPHER H. WEINTRAUT Attorney General of Indiana
Brattain Minnix Garcia
Indianapolis, Indiana JOSPEH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SHAWN MCWHORTER, )
)
Appellant-Defendant, )
)
vs. ) No. 73A01-1309-PC-375
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE SHELBY CIRCUIT COURT
The Honorable Charles D. O’Connor, Judge
Cause No. 73C01-1212-PC-022
March 18, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Shawn McWhorter (“McWhorter”) pleaded guilty in Shelby Circuit Court to Class
B felony criminal deviate conduct and Class C felony robbery and was sentenced to an
aggregate term of twenty-eight years incarceration. After this court rejected his direct
appeal, McWhorter filed a petition for post-conviction relief claiming ineffective
assistance of trial counsel. The post-conviction court denied McWhorter’s petition.
McWhorter appeals and claims that the trial court clearly erred in determining that he was
not denied the effective assistance of trial counsel due to his counsel’s failure to
investigate McWhorter’s mental health.
We affirm.
Facts and Procedural History
The facts underlying McWhorter’s convictions were set forth in our not-for-
publication memorandum decision in McWhorter’s direct appeal:
The relevant facts follow. On or about July 25, 2007, during the early
morning hours, McWhorter was driving his car when he saw two girls, who
were under the age of sixteen at the time, on the side of the road.
McWhorter admitted at his guilty plea hearing that he used the threat of
force to cause one of the girls to submit to deviate sexual conduct and to
commit robbery by taking money from the other girl.
On November 14, 2007, the State charged McWhorter with criminal
deviate conduct as a class A felony, sexual misconduct with a minor as a
class A felony and as a class B felony, two counts of criminal confinement
as class B felonies, attempted sexual misconduct with a minor as a class A
felony, armed robbery as a class B felony, impersonation of a public
servant as a class D felony, and intimidation as a class D felony.
McWhorter and the State entered into a Joint Motion to Enter Plea of
Guilty and Advisement of Rights and Waiver dated September 18, 2009
and file-stamped on September 23, 2009. In the Joint Motion, McWhorter
agreed to enter a plea of guilty for criminal deviate conduct as a class B
felony and robbery as a class C felony. Section A of the Joint Motion
indicated that the sentence was “OPEN.” Section D included the additional
term of the plea that “[t]he Judge to determine whether counts ... run
concurrent or consecutive to each other and whether our case is
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concurrent/consecutive to Marion County.” Paragraph 6 of a separate
Advisement of Rights and Waiver, also dated September 18, 2009 and
signed by McWhorter and the State, provided in part:
If you plead guilty to an offense with sentencing to be
determined by the Court, you waive your right to have any
court review the reasonableness of the sentence, including but
not limited to appeals under Indiana Rule of Appellate
Procedure 7(B) and you agree and stipulate that the sentence
of the court is reasonable and appropriate in light of your
nature and character.
On October 20, 2009, the trial court conducted a guilty plea hearing and
took McWhorter's plea under advisement. Also at the hearing, the court
told McWhorter that the agreement between the State and McWhorter
contained a provision under which McWhorter waived the right to appeal
his sentence.
On November 19, 2009, the trial court held a sentencing hearing. The
court accepted McWhorter's plea of guilty as set forth in the Joint Motion.
The court found several aggravating factors and one mitigating factor,
assigned the aggravating factors substantial weight and the mitigating
factor minimal weight, and found that the aggravating factors justified an
enhanced sentence. The court then sentenced McWhorter to twenty years
executed for the criminal deviate conduct conviction and eight years
executed for the robbery conviction, and ordered the sentences to be served
consecutive to each other and consecutive to a sentence imposed in a
separate case in Marion Superior Court 3 under Cause Number 49G03-
0710-FA-210802 . . . . The court also confirmed that McWhorter
understood that he “may be entitled to take an appeal” and that any appeal
must be filed within thirty days after sentencing or the denial of a motion to
correct error.
McWhorter v. State, 73A01-0912-CR-573, 2010 WL 2812715, slip op. at 2-4 (Ind. Ct.
App. July 19, 2010).
On direct appeal, McWhorter challenged the propriety of his sentence under
Indiana Appellate Rule 7(B). A panel of this court concluded that, based on the language
in his plea agreement, McWhorter waived his right to appeal his sentence. Id. at 7. Still,
we held that, even if McWhorter had not waived his right to appeal, his sentence was not
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inappropriate in light of the nature of the offense and the character of the offender. Id. at
12.
McWhorter filed a petition for post-conviction relief on December 5, 2012. After
the State responded, the post-conviction court held a hearing on the matter on May 2,
2013. The post-conviction court entered an order denying McWhorter’s petition on
August 6, 2013. McWhorter now appeals.
Post-Conviction Standard of Review
Post-conviction proceedings are not “super appeals” through which convicted
persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State,
761 N.E.2d 389, 391 (Ind. 2002). Rather, post-conviction proceedings afford petitioners
a limited opportunity to raise issues that were unavailable or unknown at trial and on
direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). A post-conviction
petitioner bears the burden of establishing grounds for relief by a preponderance of the
evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). On appeal 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, 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. Id. at 643-44.
Where, as here, the post-conviction court makes findings of fact and conclusions
of law in accordance with Indiana Post-Conviction Rule 1(6), we cannot affirm the
judgment on any legal basis, but rather, must determine if the court’s findings are
sufficient to support its judgment. Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct.
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App. 2011), aff’d of reh’g, 947 N.E.2d 962. Although we do not defer to the post-
conviction court’s legal conclusions, we review the post-conviction court’s factual
findings under a clearly erroneous standard. Id. Accordingly, we will not reweigh the
evidence or judge the credibility of witnesses, and we will consider only the probative
evidence and reasonable inferences flowing therefrom that support the post-conviction
court’s decision. Id.Effective Assistance of Trial Counsel
McWhorter claims that the trial court erred in concluding that he was not denied
the effective assistance of trial counsel. The law regarding claims of ineffective
assistance of trial counsel was summarized in Timberlake v. State as follows:
A defendant claiming a violation of the right to effective assistance of
counsel must establish the two components set forth in Strickland v.
Washington, 466 U.S. 668 (1984). First, the defendant must show that
counsel’s performance was deficient. This requires a showing that
counsel’s representation fell below an objective standard of reasonableness,
and that the errors were so serious that they resulted in a denial of the right
to counsel guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the defense.
To establish prejudice, a defendant 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.
Counsel is afforded considerable discretion in choosing strategy and
tactics, and we will accord those decisions deference. A strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.
The Strickland Court recognized that even the finest, most experienced
criminal defense attorneys may not agree on the ideal strategy or the most
effective way to represent a client. Isolated mistakes, poor strategy,
inexperience, and instances of bad judgment do not necessarily render
representation ineffective. The two prongs of the Strickland test are
separate and independent inquiries. Thus, [i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed.
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753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations omitted). We address both
prongs of the Strickland analysis below.
A. Deficient Performance
McWhorter claims that his trial counsel’s performance was deficient because he
failed to adequately investigate McWhorter’s mental health issues. Specifically, he notes
that the pre-sentence investigation report (“PSI”) prepared in the present case referenced
a PSI for McWhorter prepared in another case in Marion County. The Marion County
PSI indicated that McWhorter had mental health issues, including treatment for bipolar
disorder, depression, and suicidal tendencies. McWhorter’s trial counsel, however,
questioned McWhorter about the Marion County PSI, and McWhorter told him that the
Marion County PSI was simply incorrect. And at the guilty plea hearing, McWhorter
told the trial court that he did not suffer from any mental illness.
McWhorter argues that his trial counsel should have further investigated his
mental health so that this could have been argued as a mitigating circumstance at
sentencing. In support of his position, McWhorter cites McCarty v. State, 802 N.E.2d
959 (Ind. Ct. App. 2004), trans. denied. In McCarty, the defendant was mentally
disabled, but his trial counsel failed to discover or investigate this in order to present this
fact as mitigating at sentencing. On appeal from the denial of McCarty’s post-conviction
petition, the court held that the performance of defendant’s counsel was deficient because
he met with the defendant only once, failed to interview his family members, review the
court file, obtain his educational and mental health records, or consult with a mental
health professional. Id. at 964-65.
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In contrast, here, McWhorter’s counsel did view the PSI and noticed the reference
to the Marion County PSI indicating that McWhorter suffered from mental health issues.
When he asked McWhorter about this, however, McWhorter denied the mental health
issues and claimed that the Marion County PSI was incorrect. Nor does McWhorter
claim that his trial counsel met with him only once. And McWhorter’s trial counsel
interviewed McWhorter’s mother, unlike the counsel in McCarty. Under these facts and
circumstances, we are unable to say that the trial court clearly erred in finding that the
performance of McWhorter’s counsel did not fall below an objective standard of
reasonableness for failing to further investigate McWhorter’s mental health. But even if
McWhorter’s counsel’s performance was deficient, this does not mean that he would
prevail.
B. Prejudice
As noted above, even if counsel’s performance is deficient, the defendant must
still prove that this deficient performance prejudiced the defense. Timberlake, 753
N.E.2d at 603. Here, even though McWhorter’s trial counsel did not ask the trial court to
consider McWhorter’s mental health as a mitigator, he did mention it to the trial court.
And the post-conviction judge, who was also the sentencing judge, found that he had
acknowledged that McWhorter was taking medication for his mental issues at
sentencing—a finding McWhorter does not attack on appeal. Thus, the trial court was at
least aware of McWhorter’s mental health issues at sentencing. Still, even if
McWhorter’s mental health issues had been formally proffered as a mitigator,
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McWhorter has not persuaded us that the trial court would have imposed a different
sentence.
Certainly, a defendant’s mental illness can be a mitigating factor in sentencing.
Ousley v. State, 807 N.E.2d 758, 762 (Ind. Ct. App. 2004). But this does not mean that a
defendant’s mental illness is automatically to be given significant mitigating weight. The
mitigating weight to be given to a defendant’s mental illness depends upon: (1) the extent
of the defendant’s inability to control his or her behavior due to the disorder or
impairment; (2) overall limitations on the defendant’s functioning; (3) the duration of the
mental illness; and (4) the extent of any nexus between the disorder or impairment and
the commission of the crime. Id.Here, McWhorter fails to explain how his mental illness affected his ability to
control his behavior. Nor did he present any evidence as to how his illness impaired his
ability to function. Perhaps most importantly, McWhorter presented no evidence with
regard to any nexus between his illness and his brutal attack on the victims in this case.
Indeed, according to the Marion County PSI, McWhorter reported that he had been
diagnosed with bipolar disorder and had attempted suicide. He also stated that he had
anxiety problems and heard voices which told him that he was “not good enough and
[was] not doing enough.” Ex. Vol., Defendant’s Ex. A, p. 13. McWhorter, however,
indicated that he was “not crazy,” was simply self-destructive, and “would never hurt
anyone else.” Id. at p. 14. Thus, even the PSI which noted McWhorter’s mental illness
failed to show how his mental illness was related to his criminal behavior. And at the
post-conviction hearing, McWhorter testified that he was suicidal and “hopeless” during
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sentencing. Tr. p. 16. He presented no evidence that his mental health had any nexus to
his crimes or culpability.
In addition to this, McWhorter has a significant criminal history that included five
felony convictions—one of them for rape. And the circumstances of McWhorter’s
crimes, as quoted from our opinion in his direct appeal, are particularly heinous: he
assaulted two girls, had forcible anal intercourse with one, and threatened to kill them if
they reported him. Under these facts and circumstances, even if we assume that
McWhorter’s trial counsel’s performance was deficient, McWhorter has not established
that he was prejudiced, i.e., that he would have received a different, more lenient
sentence.
Conclusion
The post-conviction court did not clearly err in concluding that McWhorter’s trial
counsel’s performance did not fall below an objective standard of reasonableness. And
even if McWhorter’s counsel had performed deficiently, McWhorter has failed to
demonstrate that he was prejudiced. Accordingly, the post-conviction court did not
clearly err in denying McWhorter’s petition for post-conviction relief.
Affirmed.
BRADFORD, J., and PYLE, J., concur.
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