Clarence Stout a/k/a Larry Cornell v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Jul 21 2016, 6:54 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
Indiana Supreme Court
this Memorandum Decision shall not be Court of Appeals
and Tax Court
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
John T. Wilson Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Clarence Stout a/k/a, July 21, 2016
Larry Cornell, Court of Appeals Cause No.
Appellant-Petitioner, 48A04-1509-PC-1411
Appeal from the Madison Circuit
v. Court
The Honorable Thomas Newman,
State of Indiana, Jr., Judge
Appellee-Respondent. Trial Court Cause No.
48D03-1102-PC-5
Barnes, Judge.
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Case Summary
[1] Clarence Stout (a/k/a Larry Clinton Cornell) appeals the denial of his petition
for post-conviction relief (“PCR petition”), which challenged his conviction for
Class A felony child molesting. We affirm.
Issue
[2] The sole issue before us is whether the post-conviction court properly concluded
that Stout received effective assistance of trial counsel.
Facts
[3] In 1984, Stout was charged with molesting his niece, ten-year-old K.C., earlier
that year. Stout’s first trial resulted in a conviction for Class A felony child
molesting and a fifty-year sentence, which our supreme court affirmed on direct
appeal. Stout v. State, 528 N.E.2d 476 (Ind. 1988). However, Stout
subsequently filed a petition for post-conviction relief; we reversed the denial of
the petition and remanded for a new trial. Stout v. State, 580 N.E.2d 676 (Ind.
Ct. App. 1991).
[4] Stout’s attorney for his second trial, Mark Maynard, did not represent him
during his first trial. Maynard retrieved Stout’s case file, participated in
discovery with the State, hired a private investigator, and filed a notice of intent
to pursue an insanity defense. At one point, Stout filed a motion to remove
Maynard as his attorney, but later he orally withdrew this motion before the
trial court. The doctors appointed to examine Stout in light of his proposed
insanity defense confirmed that Stout suffered from post-traumatic stress
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disorder (“PTSD”) related to his service in Vietnam; the doctors also found that
Stout had pedophilia. At the outset of the trial, Stout insisted in open court that
Maynard withdraw the insanity defense, against Maynard’s advice. At trial,
Maynard cross-examined K.C. regarding inconsistencies in statements she had
given to various persons and inconsistencies in her testimony in the first trial.
Maynard did the same with another niece who also claimed Stout had
improperly touched her. Maynard lodged objections during trial, including to
testimony by a counselor asked to address inconsistencies in K.C.’s statements
and testimony. Stout testified on his behalf and admitted to molesting K.C., as
well as several other children, but he denied threatening her with deadly force,
as was required to support a Class A felony molesting conviction at the time of
the offense. Maynard argued to the jury that it should only convict Stout of
Class C felony child molesting.
[5] The jury found Stout guilty as charged. At sentencing, Maynard submitted
extensive testimony and documentation of Stout’s military service and PTSD
diagnosis and argued that those factors warranted mitigating weight.
Nevertheless, in light of Stout’s admitted molestation of numerous children and
criminal record of sex crimes against children, the trial court imposed the
maximum sentence of fifty years. On appeal, Stout argued error in the
admission of evidence of a prior rape of a cousin and other “depraved sexual
instinct” evidence and in the counselor’s testimony regarding K.C., that there
was insufficient evidence to support his Class A felony conviction, that his
sentence was cruel, unusual, and manifestly unreasonable, and that his
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presentence report contained improper statements by the probation officer. We
rejected these arguments and affirmed. Stout v. State, 612 N.E.2d 1076 (Ind. Ct.
App. 1993), trans. denied.
[6] In 2011, Stout filed a pro se PCR petition and declined representation by the
State Public Defender’s Office.1 Stout asserted several grounds upon which
Maynard’s assistance allegedly was ineffective. He claimed Maynard “failed to
investigate or hold a deposition on the States’ witnesses, [did not] put a defense
together, and he only used evidence provided by the state without question or
proof of fact.” App. p. 15. He also alleged Maynard failed to object to
vouching testimony and to present supposed evidence that K.C. was an
incompetent witness who had recently attempted to kill herself, her husband,
and her child at the time of trial. He claimed Maynard failed to call witnesses
who had been subpoenaed to trial to testify on his behalf. Stout further asserted
that Maynard failed to present evidence of his military service and PTSD. He
also raised independent claims that his sentence violated Blakely v. Washington,
542 U.S. 296, 124 S. Ct. 2531 (2004).
[7] By the time of the hearing on Stout’s PCR petition on October 20, 2014, he had
been released from the Department of Correction, having served his sentence.
Stout did not present any testimony at the hearing, but rather simply read from
1
Originally, the post-conviction court treated this petition as a successive PCR petition and dismissed it
because Stout had not obtained permission from this court to file a successive PCR petition. Upon request by
Stout, however, this court determined that Stout’s petition should not be treated as a successive petition and
remanded to the post-conviction court for further proceedings.
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his PCR petition. Maynard was not subpoenaed to appear at the hearing.2
Stout was permitted to submit several affidavits or letters in support of his PCR
petition, most of which were twenty years old. Several of the documents
accused Maynard of being intoxicated during Stout’s trial; however, the trial
court had addressed those claims before sentencing and stated that it had not
observed any signs that Maynard had been intoxicated. An affidavit from
Stout’s mother, Alpha Harlow, related allegations regarding K.C.’s mental
health and troubled background, including that K.C. and her husband had tried
to commit suicide before Stout’s second trial. A letter written by Stout’s
stepfather, Clarence Harlow, stated that he had been subpoenaed to testify at
trial but was not called. A letter written by a Barbara Howard claimed she
could have testified as a “rebutle [sic] witness” and “could have testified against
one of the witness [sic] that the State called which would have ruined her
credibility, and I could have testified to the fact that, although Randy Cornell
said I was violated by the defendant, I was never violated by the defendant.”
Ex. F. Randy Cornell did not testify at Stout’s second trial. Howard’s letter
also related that her aunt, Ruth Nevin, had come to her house demanding that
Howard give her some evidence related to the case, and attempting to persuade
Howard that “we should do all what [sic] we could to keep Stout” in jail. Id.
Nevin likewise did not testify at Stout’s second trial.
2
The Indiana Roll of Attorneys indicates that Maynard is still practicing law.
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[8] Although the State had asserted in its response to Stout’s PCR petition that it
may assert laches as a defense, it did not present any evidence on that defense at
the PCR hearing. On August 13, 2015, the post-conviction court denied Stout’s
PCR petition. Stout was appointed counsel to pursue an appeal from this
denial.
Analysis
[9] A post-conviction relief petitioner bears the burden of proving grounds for relief
by a preponderance of the evidence. Hollowell v. State, 19 N.E.3d 263, 268-69
(Ind. 2014). A petitioner appealing the denial of post-conviction relief is in the
position of appealing from a negative judgment. Id. at 269. “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.” Id. The post-conviction court here
also entered findings of fact and conclusions of law, in accordance with Indiana
Post-Conviction Rule 1(6). We do not defer to the post-conviction court’s legal
conclusions, but we will reverse its findings and judgment only upon a showing
of clear error, which is error that leaves us with a definite and firm conviction
that a mistake has been made. Id.
[10] To establish a claim alleging violation of the Sixth Amendment right to
effective assistance of counsel, a defendant must establish the two components
set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013). “First, a defendant must
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show that counsel’s performance was deficient.” Id. Counsel’s representation
is deficient only if it fell below an objective standard of reasonableness and
counsel made errors so serious that counsel was not functioning as “counsel”
guaranteed to the defendant by the Sixth Amendment. Id. In analyzing an
attorney’s performance, we give deference to his or her choice of strategy and
tactics. Ward v. State, 969 N.E.2d 46, 64 (Ind. 2012).
[11] “Second, a defendant must show that the deficient performance prejudiced the
defense.” Passwater, 989 N.E.2d at 770. To establish prejudice, a defendant
must show that counsel’s errors were so serious as to deprive the defendant of a
fair trial, meaning a trial that’s result is reliable. Id. A defendant must establish
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Id.
[12] On appeal, Stout contends that the letters or affidavits he submitted in support
of his PCR petition demonstrate that Maynard failed to provide him an
adequate defense because he did not challenge K.C.’s mental state or otherwise
call witnesses who purportedly could have challenged the State’s case. We note
that Stout did not present Maynard’s testimony at the PCR hearing. When a
post-conviction relief petitioner claims ineffective assistance of counsel but fails
to call available counsel to testify, it may be inferred that counsel would not
have corroborated any claims of ineffective assistance. Oberst v. State, 935
N.E.2d 1250, 1254 (Ind. Ct. App. 2010), trans. denied.
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[13] As the State suggests, any decision by Maynard to challenge K.C.’s credibility
or competency to testify based on her mental health would have been a very
dicey proposition that easily could have backfired on Stout. That is to say,
especially with reference to K.C.’s alleged attempted suicide before the second
trial, well after Stout’s molestation of her, the jury may have inferred that Stout
at least was partially to blame for her troubled mental state. Maynard may well
have reasonably decided to avoid that topic entirely.
[14] As for other rebuttal evidence Stout suggests Maynard failed to present, Stout
does not adequately explain how such evidence would have been relevant or
useful in his second trial. For example, Howard stated in her letter that she
could have attacked the credibility of one of the State’s female witnesses, but
fails to identify who that witness was. She also said that she could have
rebutted Randy Cornell’s claim that Stout had “violated” her, but Cornell did
not testify at Stout’s second trial. Ex. F. Likewise, Howard’s discussion of her
aunt, Ruth Nevin, has no apparent connection to any evidence presented at
Stout’s second trial, given that Nevin did not testify. Similarly, other vague
references in the letters and affidavits to uncalled, potential “rebuttal” witnesses
fail to explain exactly what they could have rebutted in the State’s case. In
sum, it is impossible to say how Stout was prejudiced by Maynard’s failure to
call these witnesses, let alone whether it was an unreasonable decision for
Maynard not to call them.
[15] We also reject Stout’s overall, more general claim that Maynard failed to
investigate his case or provide an adequate defense. Maynard obtained funds
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from the trial court to hire a private investigator. He attempted to pursue an
insanity defense on Stout’s behalf, but Stout insisted that the defense be
withdrawn. Maynard clearly had familiarized himself with previous statements
given by witnesses and conducted cross-examination based on those statements.
Maynard objected to an instance of purported vouching by a counselor for
K.C.’s testimony, which we reviewed on direct appeal. Ultimately, in light of
the evidence against Stout, Maynard decided to pursue a defense strategy of
attempting to persuade the jury to convict him of only a Class C instead of a
Class A felony, based on Stout’s own testimony admitting to the molestation of
K.C. but denying he had threatened her with deadly force. Such a strategy is
not necessarily unreasonable. See Christian v. State, 712 N.E.2d 4, 6 (Ind. Ct.
App. 1999) (citing Underwood v. Clark, 939 F.2d 473, 474 (7th Cir. 1991)). Stout
fails to explain why it was an unreasonable strategy in his case. Maynard’s
overall performance during trial was not deficient and did not prejudice Stout.
[16] Stout also challenges Maynard’s performance in relation to his sentencing. 3 We
observe that Stout has already served his sentence for this conviction and has
been released from the Department of Correction. “Once ‘sentence has been
served, the issue of the validity of the sentence is rendered moot.’” Lee v. State,
816 N.E.2d 35, 40 n.2 (Ind. 2004) (quoting Irwin v. State, 744 N.E.2d 565, 568
3
To the extent Stout raised independent claims in his PCR petition that his sentence was imposed in
violation of Blakely v. Washington, those claims clearly are not available on collateral review, given that
Stout’s case was final long before Blakely was decided in 2004. See, e.g., Gutermuth v. State, 868 N.E.2d 427
(Ind. 2007).
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(Ind. Ct. App. 2001)). In any event, we cannot perceive how Maynard
provided ineffective assistance with respect to Stout’s sentence. Stout seems to
suggest that Maynard failed to present mitigating evidence regarding Stout’s
military service and resulting PTSD, but, in fact, Maynard did thoroughly
present such evidence and argued to the trial court that it was mitigating.
Additionally, given Stout’s extensive history of molesting children, both
resulting in criminal convictions and not, the trial court’s imposition of a
maximum sentence was entirely justified, and Stout would not have been
prejudiced, even if Maynard had failed to present mitigating evidence or could
have been more thorough in presenting it. Stout has failed to establish that
Maynard was ineffective with respect to sentencing.
Conclusion
[17] Stout failed to establish that he received ineffective assistance of trial counsel;
thus, the post-conviction court did not clearly err in denying his PCR petition.
We affirm.
[18] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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