BAILEY, Judge.
Darren Witt appeals the denial of his petition for post-conviction relief, wherein he challenged his sentence of life without parole ("LWOP") imposed following his plea of guilty to Murder. We affirm.
Witt presents two issues for review:
In October of 1995, Witt was charged with murdering Jamie Haley by inflicting multiple stab wounds.
A hearing was conducted on November 1 and 4, 1996. Dr. Douglas Caruana, a clinical psychologist who had examined Witt pursuant to defense counsel's request, testified that he had administered an IQ test and Witt had scored 79. Dr. Caruana opined that Witt's adjusted score was "roughly in the 76 range." (App.463.) He indicated that the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders ("DSM") defined "significantly subaverage intellectual functioning" at about 70 or below. (App. 464.)
Dr. George Batacan, a psychiatrist who had been appointed by the trial court, evaluated Witt and reviewed documentation relative to Witt's mental and functional capabilities.
Following the hearing, the trial court issued an order reflecting its determination that Witt was not mentally retarded. In November 1996, Witt and the State entered into an "open plea" agreement. See Witt v. State, 867 N.E.2d 1279, 1280 (Ind.2007). The State amended the charging information by adding a charge of Robbery as a Class A felony, Indiana Code Section 35-42-5-1, and substituting a request for a sentence of LWOP for its earlier death penalty request. Witt agreed to plead guilty to Murder and Robbery; in exchange, the State agreed to recommend that Witt receive a LWOP sentence. "Witt said he would agree that a sentence of life without parole was appropriate." Witt, 867 N.E.2d at 1280. On December 6, 1996, after accepting Witt's guilty plea, the trial court sentenced him to LWOP.
During the next nine and one-half years, Witt did not seek direct or collateral review of his convictions or sentence. See id. On May 5, 2006, he filed a petition for
On August 24, 2007, Witt filed a pro se petition for post-conviction relief, which was subsequently amended with the assistance of counsel. On February 12 and May 22, 2009, an evidentiary hearing was conducted. On April 9, 2010, the post-conviction court issued its findings of fact, conclusions of law, and order denying Witt post-conviction relief. This appeal ensued.
The petitioner in a post-conviction proceeding bears the burden of establishing the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); 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 of the post-conviction court unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. 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, findings of fact are accepted unless they are clearly erroneous and no deference is accorded 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.
Witt seeks to have his sentence of LWOP vacated and a term of years imposed. He contends that he is entitled to this remedy because his sentence violates Indiana Code Section 35-50-2-9(a), which provides in relevant part: "the state may not proceed against a defendant under this section [Death sentence; life imprisonment without parole] if a court determines at a pretrial hearing under IC 35-36-9 that the defendant is an individual with mental retardation."
A person who pleads guilty is not permitted to challenge the propriety of that conviction on direct appeal; however, he is entitled to contest on direct appeal the merits of the trial court's sentencing decision where the trial court has exercised sentencing discretion, that is, where the sentence is not fixed by the plea agreement. Collins v. State, 817 N.E.2d 230, 231 (Ind.2004). "[B]ecause a post-conviction relief proceeding is not a substitute for direct appeal but rather a process for raising issues unknown or not available at
Despite procedural default and notwithstanding the Indiana Supreme Court's determination that Witt had failed to diligently pursue a belated appeal, Witt insists that he may now challenge his sentence as contrary to statute because his claim was "not available to be raised on direct appeal" and "it would be a miscarriage of justice to fail to consider the claim." Appellant's Reply Brief at 1-2.
He points to Saylor v. State, 808 N.E.2d 646, 650-51 (Ind.2004), a case in which the Indiana Supreme Court found it "not appropriate to carry out a death sentence that was the product of a procedure that has since been revised in an important aspect that renders the defendant ineligible for the death penalty." He also directs our attention to Schiro v. State, 669 N.E.2d 1357, 1358 (Ind.1996), wherein the Court reversed a death sentence in light of a decision handed down some years after Schiro's conviction, which "requir[ed] an express judicial response to a jury recommendation against death." Witt argues that these decisions suggest that extraordinary post-conviction remedies should be available when there have been significant changes in the "legal landscape" after conviction. Appellant's Reply Brief at 2.
Moreover, his "miscarriage of justice" argument presupposes that he is mentally retarded when this factual assertion has been determined to the contrary. After hearing evidence from co-workers, two court-appointed experts and one defense expert, the trial court in Witt's pretrial hearing found that Witt was not, in fact, mentally retarded. Witt now contends that the trial court should not have commissioned re-testing but should have relied upon his grade school testing and resulting diagnosis of mild mental retardation.
Witt claims that his attorneys were ineffective because they: (1) failed to uncover
To establish a post-conviction claim alleging a 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, 80 L.Ed.2d 674 (1984). "First, a defendant must show that counsel's performance was deficient." Id. at 687, 104 S.Ct. 2052. This requires a showing that counsel's representation fell below an objective standard of reasonableness and that "counsel made errors so serious that counsel was not functioning as `counsel' guaranteed to the defendant by the Sixth Amendment." Id. "Second, a defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial," that is, a trial where the result is reliable. Id. 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." Id. at 694, 104 S.Ct. 2052. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. Further, counsel's performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000).
Witt claims that the judge who sentenced him was biased, in that he believed Witt to be beyond rehabilitation. Witt points to the judge's sentencing statement in a separate case. On July 10, 1995, Judge Letsinger sentenced Witt for an earlier Attempted Rape conviction, stating:
(Ex. Vol. pg 302.) Witt claims that his attorneys should have read the prior sentencing transcript and discovered the judge's alleged bias. Had they done so, he argues, they would have been prepared to move for a change of judge in the instant matter.
We "strongly presume" that counsel provided adequate assistance and exercised reasonable professional judgment in all significant decisions. McCary v. State, 761 N.E.2d 389, 392 (Ind.2002). In this instance, Witt has not rebutted that presumption. He has not directed our attention to any legal authority or expert testimony indicating that an attorney is reasonably expected to review the transcripts of prior cases involving his or her client to discern possible bias on the part of the judge presiding in the matter for which the attorney is currently providing representation. Accordingly, Witt has not shown that his attorneys' performance in this regard fell below professional norms.
Witt also faults his attorneys for not doing more at his pretrial hearing to establish that he is mentally retarded. First, he claims that the attorneys failed to correct a false assumption that an I.Q. score of 70 or below was a prerequisite for a finding of mental retardation. Second, Witt claims that the attorneys should have insisted that the juvenile testing be relied upon to the exclusion of adult testing. Finally, he insists that the attorneys failed to properly present evidence of a "Flynn effect."
At the post-conviction hearing, Dr. Caruana testified that, if asked about "cutoffs," he would maintain that Witt "does not quite fall below a cutoff." (P.C.R. Tr. 68.) However, he opined that too much attention had been focused on "numbers"
Pruitt v. State, 834 N.E.2d 90, 106 (Ind. 2005). The trial court properly considered IQ tests, including adult tests, and other evidence of adaptive functioning.
Finally, there is no evidence that Witt's attorneys should have had knowledge of and argued for application of the "Flynn effect" at the pretrial hearing. The "Flynn effect" is a phenomenon first identified by Professor James Flynn in 1984 and refers to the gradual and incremental rising of IQ test scores as the test ages. Witt contends that it became widely accepted in 1998, and concedes that this was subsequent to his evaluation, hearing, and decision to plead guilty.
(App.101-02.) At the post-conviction hearing, Dr. Caruana described the projected effect upon Witt's IQ scores as follows: an "adjusted" 1978 score of 75 would reduce to 73, a 1983 score of 76 would reduce to 73, and the 1988 score of 74 would reduce to 69. (P.C.R. Tr. 109.) However, application of the "Flynn effect" would not necessarily, or even probably, have resulted in a finding of mental retardation. As explained by Dr. Ingersoll, although an IQ range of "up to 75" can be consistent with mental retardation, the DSM makes clear "that there has to be some very significant deficits in adaptive functioning in order for a clinician to diagnose." (Tr. 529.) Here, the evidence of Witt's adaptive functioning did not suggest such "significant deficits," as he was capable of self-care, social relationships, employment, and holding a driver's license.
In sum, counsels' efforts and strategies, although they did not ultimately achieve the result desired by Witt, were not so unreasonable as to constitute ineffective assistance of counsel.
Witt cannot prevail upon his attempt to present a free-standing claim of sentencing error. Moreover, he did not establish that he was denied the effective assistance of counsel. The post-conviction court properly denied Witt's petition for relief.
Affirmed.
ROBB, J., and BROWN, J., concur.
