Bruce K. Pond v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 09 2018, 9:40 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lisa M. Johnson Curtis T. Hill, Jr.
Brownsburg, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bruce K. Pond, May 9, 2018
Appellant-Defendant, Court of Appeals Case No.
90A02-1709-PC-2226
v. Appeal from the Wells Circuit
Court
State of Indiana, The Honorable Kenton W.
Appellee-Plaintiff. Kiracofe, Judge
Trial Court Cause No.
90C01-1309-PC-6
Barnes, Judge.
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Case Summary
[1] Bruce Pond appeals the post-conviction court’s denial of his petition for post-
conviction relief. We affirm.
Issues
[2] Pond raises eight issues, which we consolidate and restate as:
I. whether the post-conviction court properly
denied his motion for change of judge;
II. whether the post-conviction court properly
denied his motion for finding of reckless mens
rea;
III. whether the post-conviction court properly
excluded certain evidence;
IV. whether the post-conviction court properly
denied Pond’s claim of ineffective assistance of
trial counsel; and
V. whether the post-conviction court properly
denied Pond’s claim of ineffective assistance of
appellate counsel.
Facts
[3] The facts, as stated in Pond’s direct appeal, follow:
On July 22, 2011, Pond was drinking beer with his son Blake and
a family friend on the back porch of his mother’s house in
Ossian, Indiana. Pond became annoyed with a light shining
from the pier of a neighboring pond. Matt Michuda (Michuda)
along with his four year old son Jacob and two friends were
fishing off the pier. Pond went inside the house, obtained a .22
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caliber rifle, and fired two shots toward the area where the light
was shining. One of the shots hit Jacob in the right temple.
Jacob cried for his father who picked him up and carried him
back to Michuda’s nearby home. An ambulance arrived and
took Jacob to a hospital where he was later pronounced dead.
Officers arrived at the scene in the early morning hours of July
23, 2011. After interviewing Matt’s friends, officers learned that
the shots had come from Pond’s mother’s home. Officers
contacted Pond, Blake, and the family friend and all three came
to the police station where they were interviewed. Each one
denied knowing anything about the shooting. In particular,
Pond denied possessing any guns. However, later that day,
Pond’s friend called the police to change his story and admitted
that Pond had shot the rifle and that Blake had hid it before the
officers arrived. After executing a search warrant, the officers
located the rifle behind a barn on Pond’s mother’s property.
Blake also later admitted that Pond had fired the shots and
instructed him to hide the rifle behind the barn. Pond was
arrested later that day and upon learning that Jacob had died
admitted to possessing the rifle and firing the shots.
On July 25, 2011, the State filed an Information charging Pond
with Count I, reckless homicide, a Class C felony, I.C. § 35-42-1-
5 and Count II, unlawful possession of a firearm by a domestic
batterer, a Class A misdemeanor, I.C. § 35-47-4-6(a). On August
2, 2011, the State filed an Amended Information amending
Count I to murder, a felony, I.C. § 35-42-1-1(1).
On December 16, 2011, the State filed an additional Information,
charging Pond with Count III, voluntary manslaughter, a Class
A felony, I.C. § 35-42-1-3(a). That same day, Pond entered into
a plea agreement with the State in which he agreed to plead
guilty to Count III in exchange for the State’s dismissal of Counts
I and II as well as a charge of invasion of privacy in a separate
case. The State also agreed to obtain written confirmation from
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the United States Attorney’s Office that federal charges would
not be brought against Pond for unlawful possession of a firearm.
The plea agreement left Pond’s sentence to the trial court’s
discretion, but capped the sentence at forty years. The trial court
accepted Pond’s plea agreement and scheduled a sentencing
hearing.
On January 17, 2012, the trial court conducted the sentencing
hearing. The State argued that the following factors justified
aggravating Pond’s sentence: the harm suffered by Jacob was
greater than the elements required to prove the offense; Jacob’s
age; Pond’s criminal history and probationary status at the time
of the crime; and his failure to cooperate with law enforcement.
Pond argued that his prior offenses were dissimilar and minor in
comparison to the instant offense, that the State and Jacob’s
family benefitted from his guilty plea, and that he was
remorseful. Although finding that Pond had no intent to kill
Jacob, the trial court concluded that the mitigating factors
advanced by Pond were of little or no weight while the
aggravating factors were sufficiently supported and outweighed
the mitigating factors. As a result, the trial court sentenced Pond
to forty years of incarceration and ordered him to pay $9,958.64
as restitution, which was later amended to $9,800.44.
Pond v. State, No. 90A05-1202-CR-73, slip op. at 2-4 (Ind. Ct. App. Sept. 19,
2012), trans. denied.
[4] Pond appealed his sentence, arguing that the trial court abused its discretion
when it sentenced him and that the trial court erred when it ordered him to pay
restitution. We found no abuse of discretion and affirmed Pond’s forty-year
sentence. We also found no error in the restitution order. Our supreme court
denied transfer.
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[5] Pond filed a petition for post-conviction relief on September 13, 2013, and he
filed a motion for change of judge on September 23, 2013, with a supporting
affidavit. After a hearing, the post-conviction court denied the motion for
change of judge. Pond then filed two amended petitions for post-conviction
relief alleging ineffective assistance of trial counsel and appellate counsel. In
July 2016, Pond filed a second motion for change of judge, which the post-
conviction court denied. Pond also filed a “Motion for Finding of Reckless
Mens Rea Due to State’s Concession in Brief of Appellee,” which the post-
conviction court also denied. Appellant’s App. Vol. III p. 71.
[6] At the evidentiary hearing, the post-conviction court excluded certain evidence
offered by Pond, including the curriculum vitae (“CV”) and report of a ballistics
expert, the CV and testimony of a crime scene reconstruction expert, and
Pond’s DOC mental health records. The post-conviction court also excluded
the CV and report of a toxicologist. The post-conviction court entered findings
of fact and conclusions thereon denying Pond’s amended petition for post-
conviction relief. Pond filed a motion to correct error, arguing that he was
entitled to a change of judge for two additional reasons. The post-conviction
court denied the motion, and Pond now appeals.
Analysis
[7] Pond appeals the post-conviction court’s denial of his petition for post-
conviction relief. A court that hears a post-conviction claim must make
findings of fact and conclusions of law on all issues presented in the petition.
Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009) (citing Ind. Post-Conviction
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Rule 1(6)). “The findings must be supported by facts and the conclusions must
be supported by the law.” Id. Our review on appeal is limited to these findings
and conclusions. Id. Because the petitioner bears the burden of proof in the
post-conviction court, an unsuccessful petitioner appeals from a negative
judgment. Id. (citing P-C.R. 1(5)). “A petitioner appealing from a negative
judgment must show that the evidence as a whole ‘leads unerringly and
unmistakably to a conclusion opposite to that reached by the trial court.’” Id.(quoting Allen v. State, 749 N.E.2d 1158, 1164 (Ind. 2001), cert. denied). Under
this standard of review, “[we] will disturb a post-conviction court’s decision as
being contrary to law only where the evidence is without conflict and leads to
but one conclusion, and the post-conviction court has reached the opposite
conclusion.” Id.I. Motion for Change of Judge
[8] Pond argues that the post-conviction court erred by denying his motions for
change of judge. Indiana Post-Conviction Rule 1(4)(b) provides:
Within ten [10] days of filing a petition for post-conviction relief
under this rule, the petitioner may request a change of judge by
filing an affidavit that the judge has a personal bias or prejudice
against the petitioner. The petitioner’s affidavit shall state the
facts and the reasons for the belief that such bias or prejudice
exists, and shall be accompanied by a certificate from the
attorney of record that the attorney in good faith believes that the
historical facts recited in the affidavit are true. A change of judge
shall be granted if the historical facts recited in the affidavit
support a rational inference of bias or prejudice. For good cause
shown, the petitioner may be permitted to file the affidavit after
the ten [10] day period.
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[9] The rule “requires the judge to examine the affidavit, treat the historical facts
recited in the affidavit as true, and determine whether these facts support a
rational inference of bias or prejudice.” Lambert v. State, 743 N.E.2d 719, 728
(Ind. 2001) (quoting State ex rel. Whitehead v. Madison County Cir. Ct., 626 N.E.2d
802, 803 (Ind. 1993)), cert. denied. A change of judge is neither “automatic” nor
“discretionary;” rather, it requires a legal determination by the trial court. Id.We presume that a judge is not biased against a party. Id. Under the rule, the
post-conviction court is disqualified from hearing a case only if the judge holds
“a personal bias or prejudice.” Ind. Post-Conviction Rule 1(4)(b). “Typically,
a bias is ‘personal’ if it stems from an extrajudicial source—meaning a source
separate from the evidence and argument presented at the proceedings.” Id.The court’s adverse rulings on judicial matters do not indicate a personal bias
toward a defendant. Harrison v. State, 707 N.E.2d 767, 790 (Ind. 1999), cert.
denied.
[10] Pond filed two motions for change of judge in the post-conviction proceedings.
The first motion was filed ten days after his petition for post-conviction relief
was filed. The second motion was filed in July 2016. In the first motion, Pond
raised several allegations that he was entitled to a change of judge. In the
second motion, Pond raised additional allegations. After the post-conviction
court entered findings of fact and conclusions thereon denying Pond’s petition
for post-conviction relief, Pond filed a motion to correct error raising additional
arguments that he was entitled to a change of judge. On appeal, Pond argues
that he was entitled to a change of judge because: (1) the judge was involved, as
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a deputy prosecutor, in prior criminal prosecutions of Pond and used those
convictions as aggravators in this case; (2) the judge made “baseless findings
that Pond’s post-conviction counsel presented false evidence” and granted the
State’s “motions before Pond had an opportunity to respond;” (3) the judge
displayed emotion during sentencing and said that the case made him sick; (4)
the judge refused to consider evidence regarding Pond’s character and
background at sentencing and post-conviction hearings; (5) the judge has a
“personal connection” to the victim’s grandparents; (6) the judge had a
professional relationship with the former and current prosecuting attorneys; and
(7) the judge made comments during the post-conviction proceedings about
“riffraff.”1 Appellant’s Br. pp. 33-34.
[11] Pond first argues that he was entitled to a change of judge because the judge
was the deputy prosecutor in two other criminal cases against Pond, and Pond
pled guilty to misdemeanor battery in both of those cases. Pond acknowledges
that this is not a basis for automatic recusal. However, relying on Dishman v.
State, 525 N.E.2d 284, 285 (Ind. 1988), he argues that recusal is required if
“there is any factual dispute concerning the prior cases.” Appellant’s Br. p. 35.
Pond does not explain what the factual dispute is regarding the prior battery
1
Pond also argues the post-conviction court used an incorrect legal standard in ruling on his motion for
change of judge. Pond argues only that “the court found that some of the facts, in Pond’s affidavit and
change of judge motion, were ‘inaccurate,’ ‘false,’ and/or ‘misleading.’” Appellant’s Br. p. 34. Pond fails to
identify which facts were found inaccurate, false, and/or misleading and fails to include any other
explanation in his argument. Pond has waived this argument by failing to provide cogent reasoning. See Ind.
Appellate Rule 46(A)(8)(a).
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cases. In both cases, Pond pled guilty. He attempted to minimize his conduct
during the sentencing hearing in this case; the fact remains, though, that Pond
pled guilty in those cases. There is no factual dispute that would have
warranted the judge’s recusal here.
[12] Next, Pond argues that the judge made “baseless” allegations against his post-
conviction counsel that she presented false evidence. Appellant’s Br. p. 36. In
support of this argument, Pond relies upon findings that the post-conviction
court made in the denial of the first motion for change of judge and in the order
denying the petition for post-conviction relief. Pond raised this issue in his
motion to correct error. Pond also contends that the post-conviction court
granted two of the State’s motions before his counsel could respond. In both
orders, the post-conviction court pointed out statements by Pond’s counsel that
it considered misleading. These arguments do not demonstrate that the post-
conviction court was biased against Pond. Rather, these orders are in the
nature of an adverse ruling on a judicial matter.
[13] Next, Pond argues that he was entitled to a change of judge because the judge
wiped tears from his eyes when the victim’s mother made a statement during
the sentencing hearing and because the judge said during the sentencing hearing
that the case made him “sick to [his] stomach.” Exhibits Vol. V p. 24 (Ex. 1B
p. 60). The fact that a judge uses “emotional language” in describing a
defendant’s character and crime does not demonstrate personal bias or
prejudice outside of the judicial function. Lambert, 743 N.E.2d at 729.
Moreover, “[t]he mere fact a judge cries does not, in itself, demonstrate bias or
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prejudice.” Cook v. State, 612 N.E.2d 1085, 1088 (Ind. Ct. App. 1993). Trial
court judges are not required to be emotionless. Pond failed to demonstrate
that he was entitled to a change of judge on this basis.
[14] Next, Pond argues he was entitled to a change of judge because the judge
“explicitly refused to consider almost all of the evidence that was submitted on
Pond’s behalf at sentencing.” Appellant’s Br. p. 41. Specifically, several people
submitted letters on Pond’s behalf for sentencing. Regarding those letters, the
trial court stated:
The Court also notes several letters filed with the presentence
investigation report by family and friends of Mr. Pond’s. I note
what appears to me to be only three of those letters were written
by someone who actually knew Mr. Pond prior to this tragic
event, those remaining letters are well meaning, but I think it’s
hard to assess someone’s character when they have known them
for less than six months and that Mr. Pond was incarcerated for
that period of time that they have known him, so I place little
weight on those letters. I think they speak to who he is today,
but not maybe who [he] was on July 23rd. Of the letters that
knew Mr. Pond prior to July 23rd [the] first letter talks about,
one of his friends, Robert Levitz indicates that, basically says that
he is compelled to ask for his, plead for Mr. Pond’s innocence.
That response in the letter makes me think he either doesn’t
believe what happened or completely misunderstands the actions
of Mr. Pond, so I place little weight on that letter. The second
letter is from Mr. Pond’s fiancé or girlfriend who describes him in
the letter as a good person and she testified that way today
despite the fact that she is a victim of an Allen County conviction
for domestic violence at the hands of Mr. Pond. Ms. Klepper
must, might find it however she wants, but the fact of the matter
is Defendant pled guilty to that crime. She may wish to
minimize it, but he pled guilty to that. So either he lied when he
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pled guilty to it or something, I don’t know, but it happened and
he was convicted of it. Last letter is written by his son, Blake
Pond who calls, describes or characterizes this incident as an
accident.
Exhibits Vol. V pp. 21-22 (Ex. 1B pp. 57-58). It is incorrect to suggest that the
judge refused to consider the letters; rather, the trial court assigned little weight
to them, which was within the trial court’s prerogative. See Anglemyer v. State,
868 N.E.2d 482, 491 (Ind. 2007) (“The relative weight or value assignable to
reasons properly found or those which should have been found is not subject to
review for abuse.”), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). The trial
court assigning little weight to letters submitted on Pond’s behalf does not
demonstrate personal bias or prejudice; rather, it is in the nature of an adverse
ruling, which does not indicate a personal bias. Harrison, 707 N.E.2d at 790.
Pond’s argument fails.
[15] Next, Pond argues that the judge had a personal connection to the victim’s
grandparents. The judge disclosed during the underlying proceedings that he
attended the same church as the victim’s grandfather and that he sporadically
participated in an organization with the victim’s grandfather. The judge noted
that he was not “social friends” with the victim’s grandfather and that he did
not believe an issue of impartiality arose. The parties did not object to the judge
presiding over the criminal case. During the post-conviction proceedings, Pond
raised the issue in his motion for change of judge. Our courts have held that a
judge is not necessarily disqualified because of social relationships with the
victim or victim’s family. See, e.g., Simmons v. State, 504 N.E.2d 575, 581 (Ind.
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1987) (holding that a change of judge was not required where the judge was a
friend of the victim’s father because they were both members of the bar); Bixler
v. State, 471 N.E.2d 1093, 1100-1101 (Ind. 1984) (holding that a change of judge
was not mandated where the judge went to the same church as the victim’s
family and had prepared a will for the stepfather of the victim’s mother), cert.
denied; McKinney v. State, 873 N.E.2d 630, 640 (Ind. Ct. App. 2007) (holding
that the defendant failed to demonstrate bias or prejudice where the victim’s
mother was a former employee of the judge), trans. denied. Here, Pond
demonstrated only that the judge was a member of the same church as the
victim’s grandfather and that they were involved in the same organization.
Pond has failed to demonstrate the type of relationship that would have
required recusal.
[16] Next, Pond argues that the judge had a professional relationship with the
former and current prosecutors. Specifically, the former prosecutor, who
prosecuted the case at the trial level and at the beginning of the post-conviction
proceedings, was the judge’s former employer, and they had been partners at a
private law firm. The current prosecutor was the judge’s co-worker at the
prosecutor’s office, and they had been partners at a private law firm. Pond
concedes that “[a] judge’s former professional associations with a prosecuting
attorney are not automatic grounds for recusal.” Appellant’s Br. p. 47.
However, he contends that the additional relationships as partners in a private
firm differentiates this case. We disagree. Pond has failed to cite any authority
or facts that suggest the judge’s former business relationships with the former
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and current prosecutors demonstrate a personal bias or prejudice against the
petitioner. See, e.g., Broome v. State, 687 N.E.2d 590, 596-97 (Ind. Ct. App.
1997) (holding that the defendant was not entitled to a change of judge where
the judge, as a former prosecutor, hired, trained and supervised the prosecutor
on the defendant’s case), summarily affirmed in relevant part by Broome v. State, 694
N.E.2d 280, 281 (Ind. 1998).
[17] Finally, Pond argues that the judge made off-the-record comments after one of
the post-conviction hearings regarding “riffraff” at a local street fair and having
individuals with outstanding warrants arrested at the street fair. Appellant’s Br.
p. 48. According to Pond, these comments would “cause an objectively
reasonable person to believe that the court sees criminal defendants . . . as
‘riffraff’ who need to be kept out of Wells County.” Id. Pond made this
argument in his motion to correct error, which the post-conviction court denied.
“Expressions of impatience, dissatisfaction, annoyance, and even anger do not
establish bias or partiality.” Rondeau v. State, 48 N.E.3d 907, 913 (Ind. Ct. App.
2016), trans. denied. The comments did not specifically reference Pond or the
case at issue. The fact that the judge expressed annoyance at people with
criminal histories and active arrest warrants attending the street fair does not
establish that the judge had a personal bias or prejudice against the petitioner.
See, e.g., Matheney v. State, 688 N.E.2d 883, 897 (Ind. 1997) (“The articulation of
observations by one judge to fellow judges concerning what the former
perceives to be a trend on the part of defendants or post-conviction petitioners
does not indicate bias.”), cert. denied.
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II. Motion for Finding of Reckless Mens Rea
[18] During the post-conviction proceedings, Pond filed a “Motion for Finding of
Reckless Mens Rea Due to State’s Concession in Brief of Appellee.” In the
motion, Pond argued that, on direct appeal, the State described the shooting as
a “reckless act” in its Appellee’s Brief and that the statement “constitutes a
judicial admission which is conclusive on the State.” Appellant’s App. Vol. III
p. 71. Pond requested that the post-conviction court “make a factual finding
that Pond acted with a reckless mental state, and not a knowing or intentional
mental state.” Id. In response to the motion, the post-conviction court found:
Mr. Pond raised in the—raised three issues with the Court of
Appeals, which the Court of Appeals consolidated into—or
restated into two: one, issue of restitution, which this doesn’t
reflect; and then the other being whether or not the Court—trial
court—abused its discretion in sentencing. Um—the defendant’s
conviction came following a plea of guilty. His mens rea was
established in the—um—plea, and in his admission to the factual
basis at that time. The—as I have read the—um—one page of
the context portion of the—um — it would be the—uh—
appellee’s brief, it is not discussing his mens rea, and it was not
an issue on appeal so I don’t believe that it’s—um—a key point—
uh—to address his culpability because that was already—it was
not an issue on appeal, and was—um—had been decided at the
trial court, but not raised at the appellate level. So I’m going to
overrule and deny the defend—or the petitioner’s Motion for
Finding of Reckless Mens Rea Due to Concession Brief of
Appellee.
Tr. Vol. II p. 62.
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[19] On appeal, Pond contends that the State was bound by the “concession” found
in its direct appeal Appellee’s Brief and that “Pond should have been relieved of
the burden of proving he acted recklessly.” Appellant’s Brief p. 49. We begin
by noting the purpose of post-conviction proceedings. Indiana Post-Conviction
Rule 1(1)(a) provides:
Any person who has been convicted of, or sentenced for, a crime
by a court of this state, and who claims:
(1) that the conviction or the sentence was in violation of the
Constitution of the United States or the constitution or laws of
this state;
(2) that the court was without jurisdiction to impose sentence;
(3) that the sentence exceeds the maximum authorized by law, or
is otherwise erroneous;
(4) that there exists evidence of material facts, not previously
presented and heard, that requires vacation of the conviction or
sentence in the interest of justice;
(5) that his sentence has expired, his probation, parole or
conditional release unlawfully revoked, or he is otherwise
unlawfully held in custody or other restraint;
(6) that the conviction or sentence is otherwise subject to
collateral attack upon any ground of alleged error heretofore
available under any common law, statutory or other writ,
motion, petition, proceeding, or remedy;
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may institute at any time a proceeding under this Rule to secure
relief.
It is unclear how Pond’s motion fits within any of these conditions, and Pond
has not clarified this matter.
[20] Moreover, even if we address this issue, Pond’s argument fails. “[A] clear and
unequivocal admission of fact, or a formal stipulation that concedes any
element of a claim or defense, is a binding judicial admission.” Bandini v.
Bandini, 935 N.E.2d 253, 265 (Ind. Ct. App. 2010). “To constitute a judicial
admission, the attorney must make ‘a clear admission of a material fact.’”
Saylor v. State, 55 N.E.3d 354, 363 (Ind. Ct. App. 2016) (quoting 32 C.J.S.
Evidence § 599 (2008)), trans. denied. “‘Improvident or erroneous statements or
admissions’ resulting from ‘unguarded expressions or mistake or mere casual
remarks, statements[,] or conversations’ are not judicial admissions.” Id.
(quoting Collins v. State, 174 Ind. App. 116, 366 N.E.2d 229, 232 (1977)).
“‘[B]efore a statement by an attorney can be held to be [a judicial] admission it
must be given a meaning consistent with the context in which it is found.’” Id.(quoting 32 C.J.S., supra, § 599).
[21] In addressing Pond’s direct appeal sentencing argument, the State described the
nature of Pond’s offense and stated, “Pond did not take responsibility for his
reckless act.” Appellant’s App. Vol. III p. 73. We do not consider this
statement, which was made in the context of addressing a sentencing argument
on direct appeal, to be a clear admission of material fact in the context of these
post-conviction proceedings. The State was addressing Pond’s sentencing
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argument after he pled guilty to voluntary manslaughter. Pond’s mens rea had
already been conclusively established by his guilty plea. Pond’s mens rea was
not, and could not have been, an issue in his direct appeal. The State’s
statement was merely part of an argument addressing Pond’s sentence, not a
concession that Pond should have been convicted of reckless homicide rather
than voluntary manslaughter as provided in his guilty plea. See, e.g., Bandini,
935 N.E.2d at 266 (holding that a statement of wife’s counsel was not an
unequivocal admission but was part of an argument that husband was aware of
the decree and his waiver of retirement pay post-dated the decree). The post-
conviction court properly denied Pond’s motion.
III. Exclusion of Evidence
[22] Next, Pond argues that the post-conviction court erred by excluding certain
evidence from the post-conviction hearing. Specifically, Pond argues that the
following evidence should have been admitted: (1) the report and CV of Arthur
Borchers, an expert in ballistics; (2) the testimony and CV of Stephen Neese, a
crime scene reconstruction expert; (3) Pond’s DOC mental health records from
after the sentencing hearing; and (4) the report and CV of Daniel McCoy, a
toxicologist. “A petitioner is entitled to present evidence on his behalf during
post-conviction proceedings.” Diaz v. State, 934 N.E.2d 1089, 1093 (Ind. 2010).
Indiana Post-Conviction Rule 1(5) provides in relevant part that “[t]he court
may receive affidavits, depositions, oral testimony, or other evidence . . . .”
However, the petitioner “must comply with the established rules of procedure
and evidence to assure both fairness and reliability in the ascertainment of guilt
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and innocence.” Diaz, 934 N.E.2d at 1093. As the admission or exclusion of
evidence is within the post-conviction court’s sound discretion, we defer to that
court and will not disturb its ruling on review unless it has abused its discretion.
Badelle v. State, 754 N.E.2d 510, 521 (Ind. Ct. App. 2001), trans. denied. Further,
“[e]rrors in the admission or exclusion of evidence are to be disregarded as
harmless error unless they affect the substantial rights of a party.” Barnhart v.
State, 15 N.E.3d 138, 143 (Ind. Ct. App. 2014).
A. Ballistics and Crime Scene Reconstructionist Evidence
[23] We first address the post-conviction court’s exclusion of Borchers’s report and
CV and Neese’s testimony and CV. Borchers is a ballistics expert who
analyzed “the probable trajectory of the bullet and the degree of bullet drop.”
Appellant’s Br. p. 54. Neese is an accident reconstructionist who analyzed the
lighting conditions and bullet trajectory. The State objected on the basis that
the evidence was not relevant. Pond argued that the evidence was relevant to
show that his trial counsel failed to perform an adequate investigation before
advising him to plead guilty. According to Pond, the evidence was relevant to
his mens rea and a determination of whether voluntary manslaughter or
reckless homicide was the proper charge. The post-conviction court determined
that the evidence was not relevant.
[24] We conclude that, even if the post-conviction court should have admitted the
evidence at the post-conviction hearing, any error is harmless. This evidence
relates to Pond’s allegation of ineffective assistance of trial counsel for counsel’s
alleged failure to conduct a proper investigation. According to Pond, his trial
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counsel should have consulted a ballistics expert and a crime scene
reconstruction expert before advising Pond regarding the guilty plea.
[25] At the time of Pond’s offense, Indiana Code Section 35-42-1-3(a) provided: “A
person who knowingly or intentionally . . . kills another human being . . . while
acting under sudden heat commits voluntary manslaughter, a Class B felony.
However, the offense is a Class A felony if it is committed by means of a deadly
weapon.” “A person engages in conduct ‘knowingly’ if, when he engages in the
conduct, he is aware of a high probability that he is doing so.” Ind. Code § 35-
41-2-2(b). On the other hand, Indiana Code Section 35-42-1-5 provided: “A
person who recklessly kills another human being commits reckless homicide, a
Class C felony.” “A person engages in conduct ‘recklessly’ if he engages in the
conduct in plain, conscious, and unjustifiable disregard of harm that might
result and the disregard involves a substantial deviation from acceptable
standards of conduct.” I.C. § 35-41-2-2(c).
[26] Pond implies that the experts would have demonstrated that, based on the
lighting and bullet drop data, Pond was not aiming at people when he shot his
weapon. However, before Pond pled guilty, his trial counsel discussed the
weaknesses of the State’s case with Pond, specifically focusing on the mens rea
element. He made Pond aware that a more appropriate charge would have
been reckless homicide. Despite his knowledge that mens rea was a significant
issue in the case, Pond weighed his options and pled guilty to voluntary
manslaughter in exchange for the dismissal of other charges. Pond’s trial
counsel testified that he believed that he discussed with Pond the possibility of
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needing a reconstructionist and a ballistics expert. At the time of the guilty
plea, he had not moved forward with retaining such experts, but he had not
ruled out retaining them either. When Pond pled guilty, the need for further
investigation and hiring of experts was made unnecessary. We conclude, infra
Issue IV(B), that trial counsel’s performance related to the ballistics expert and
crime scene reconstruction expert was not deficient. Even if the post-conviction
court had admitted the evidence, the evidence would not have made Pond’s
claim of ineffective assistance of counsel successful. Pond has failed to
demonstrate that any error in the post-conviction court’s exclusion of this
evidence affected his substantial rights.
B. Toxicologist
[27] Next, Pond argues that the post-conviction court erred by excluding the CV and
report of Daniel McCoy. McCoy is a toxicologist and analyzed Pond’s possible
blood alcohol content based on whether he weighed 290 pounds or 350 pounds
and whether he had three beers or 5.5 beers between 7:00 p.m. and 11:00 p.m.
McCoy opined: “It is unlikely that Mr. Pond would have been intoxicated or
impaired at the time he fired his rifle.” Exhibits Vol. VII p. 114 (Petitioner’s
Exhibit 29 p. 2). Pond argues that this evidence was relevant because his
substance abuse and drinking on the night of the offense was used as an
aggravator during sentencing. Pond argues that his trial counsel should have
investigated his intoxication level to present evidence during sentencing that he
was not intoxicated.
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[28] It is undisputed that Pond was drinking alcohol on the evening of the offense
and that he had prior convictions that related to substance abuse. The trial
court’s only mention of Pond’s substance abuse during the sentencing statement
follows:
The Court finds the criminal history of the Defendant shows
what I would call an acceleration of violent or reckless behavior.
There is a history of substance abuse laced throughout his
criminal history and I think substance abuse played a factor into
this night as well although he testified today that he was not
intoxicated and I think his criminal history also and also the
violations of probation show a continued disregard for the rule of
law.
Exhibits Vol. IV p. 57. There was varying evidence found during the
investigation of the amount of alcohol consumed by Pond. McCoy’s report
concerns Pond’s intoxication level at the time of the offense based on Pond’s
claims of how much alcohol he consumed. However, his intoxication level
simply was not found to be an aggravating circumstance. Rather, in the context
of discussing Pond’s criminal history, the trial court noted that Pond had
several substance abuse convictions and that substance abuse may have “played
a factor” in the current offense too. Id. Pond has failed to demonstrate that the
opinion of a toxicologist on his intoxication level was relevant to whether his
trial counsel’s performance was effective.
[29] Moreover, the post-conviction court found that evidence from a toxicologist
would have been irrelevant and possibly harmful to Pond’s sentencing. First,
the post-conviction court noted that, if Pond was proven to be sober, “it means
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Pond’s actions on the date in question were completely unaffected by alcohol,
and he was fully aware of what he was doing; almost becoming an aggravating
factor.” Appellant’s App. Vol. IV p. 15. Further, the post-conviction court
noted that the toxicologist’s findings were based on Pond’s testimony as to how
much alcohol he consumed, which conflicted with other evidence presented.
Pond has failed to demonstrate that any error in the post-conviction court’s
exclusion of this evidence affected his substantial rights.
C. Mental Health Records
[30] Next, Pond argues that the post-conviction court erred by excluding his DOC
mental health records. According to Pond, the records would have
demonstrated that his trial counsel should have arranged a mental health
evaluation prior to sentencing. Pond contends that he was later diagnosed with
post-traumatic stress disorder and depression as a result of Jacob’s death. This
evidence would tend to show Pond’s remorse. However, Pond presented
several witnesses at the sentencing hearing who testified regarding his remorse,
and Pond himself testified regarding his remorse. Any error in the exclusion of
this evidence is harmless given the cumulative evidence of Pond’s remorse.
IV. Ineffective Assistance of Trial Counsel
[31] Pond appeals the post-conviction court’s denial of his claim of ineffective
assistance of trial counsel. To prevail on a claim of ineffective assistance of
counsel, a petitioner must demonstrate both that his or her counsel’s
performance was deficient and that the petitioner was prejudiced by the
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deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000)
(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984)), cert. denied.
[32] A counsel’s performance is deficient if it falls below an objective standard of
reasonableness based on prevailing professional norms. French v. State, 778
N.E.2d 816, 824 (Ind. 2002). A strong presumption arises that counsel
rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment. McCullough v. State, 973 N.E.2d 62, 74
(Ind. Ct. App. 2012), trans. denied. “[A] defendant must offer strong and
convincing evidence to overcome this presumption.” Id. Isolated poor strategy,
inexperience, or bad tactics does not necessarily constitute ineffective
assistance. Id.[33] In analyzing prejudice in the context of a guilty plea, we review such ineffective
assistance of counsel claims under Segura v. State, 749 N.E.2d 496 (Ind. 2001).
Segura created two categories of claims and enunciated different treatments of
each respective category, depending upon whether the ineffective assistance
allegation related to (1) an unutilized defense or failure to mitigate a penalty, or
(2) an improper advisement of penal consequences. Willoughby v. State, 792
N.E.2d 560, 563 (Ind. Ct. App. 2003) (citing Segura, 749 N.E.2d at 507), trans.
denied.
[34] Here, Pond claims that his trial counsel was ineffective by: (1) failing to advise
Pond that the evidence supported a finding of reckless homicide, not voluntary
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manslaughter; (2) failing to properly investigate and consult qualified experts;
(3) failing to move for a change of judge; and (4) failing to investigate and
consult with experts in the context of the sentencing hearing. Each of Pond’s
arguments fall under the first category of unutilized defense or failure to
mitigate a penalty. “A petitioner alleging ineffective assistance of counsel in
overlooking a defense leading to a guilty plea must show a reasonable
probability that, had the defense been raised, the petitioner would not have
pleaded guilty and would have succeeded at trial.” Helton v. State, 907 N.E.2d
1020, 1023 (Ind. 2009). We will address each of Pond’s arguments separately.
A. Failure to Advise Regarding Mens Rea
[35] Pond first argues that his trial counsel was ineffective for failing to advise him
that the evidence supported a finding of reckless homicide rather than voluntary
manslaughter. According to Pond, “[t]he overwhelming weight of the evidence
indicates Pond acted recklessly, not knowingly.” Appellant’s Br. p. 65. Pond
contends that his trial counsel failed “to advise him that the evidence showed a
reckless killing.” Id. at 66.
[36] The post-conviction court rejected Pond’s argument and found, in part:
g. Here, the evidence indicates that while seated outside,
Pond observed a light coming from a neighboring
property. According to the witness, he became fixated on
the light and became frustrated with the light, and said
something about the light pissing him off because they
were being nosy. Pond said he would like that they not
shine the light in his direction. Ex. 22. P. 26-32 & Ex. 42,
p. 20-24. Pond then got up from the table, went into the
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house, and returned with a .22 rifle. He then fired the rifle
across the Michuda property, in the direction where the
light had been. He then fired a second shot. Pond then
says something to the effect of “that will teach them.” Ex.
22, p. 34-44, emphasis added.
h. Pond was experienced with firearms, and had purchased
the .22 rifle despite the prohibition placed on him by
reason of his domestic battery conviction. Pond had
sighted the rifle, and used it to shoot birds in his mother’s
backyard. Therefore, Pond was certainly aware the rifle
was a deadly weapon capable of causing severe injury or
death the moment he pulled the trigger.
i. Pond’s attorney discussed with him all possible scenarios;
specifically: going to trial on the murder and arguing for a
lesser included offense, pleading guilty without the benefit
of a plea, or pleading guilty in exchange that certain
offenses would be dismissed. Nordmann further discussed
the potential sentences Pond might receive if he were
convicted of murder, federal charges, and the other state
charges.
j. Pond failed to establish that his attorney’s performance
was deficient.
Appellant’s App. Vol. IV pp 10-11.
[37] Pond’s trial counsel testified during the post-conviction hearing that he advised
Pond that “a more appropriate charge would be reckless homicide.” Tr. Vol. II
p. 111. His trial counsel discussed with him the elements of the various
offenses and focused on the mens rea elements. His trial counsel had a “very
lengthy” discussion with Pond regarding the legal definition of “knowingly.”
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Id. at 126. He discussed the strengths and weaknesses of the State’s case with
Pond and the pros and cons of accepting the guilty plea offer. They discussed
the strengths and weaknesses of each possible alternative during plea
negotiations and potential consequences that Pond faced. We further note that,
in exchange for the guilty plea, several other charges against Pond were
dismissed or avoided. Ultimately, the decision to plead guilty to voluntary
manslaughter was Pond’s decision. Pond has failed to demonstrate that his trial
counsel’s performance on this issue was deficient. The post-conviction court’s
finding is not clearly erroneous.
B. Failure to Investigate
[38] Next, Pond argues that his trial counsel was ineffective for failing to properly
investigate and consult qualified experts. Specifically, Pond claims that his trial
counsel should have consulted with a ballistics expert and a crime scene
reconstructionist and investigated the crime scene. On this issue, the post-
conviction court found:
a. Defense counsel provided an adequate investigation, and
considered retaining qualified experts prior to advising the
defendant to plead guilty.
b. Nordmann examined all of the evidence provided by the
State of Indiana, including the report of the Bureau of
Alcohol, Tobacco, and Firearms.
c. The manner of death and the identity of the shooter were
never disputed in this case.
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d. Pond argues that an expert should have been consulted to
help refute Pond acted with the appropriate mens rea
when he shot the rifle. Pond’s lies to the investigators, his
actions in hiding the gun, and his comments to the
witnesses prior to the shooting and immediately after all
suggest Pond was well aware of his actions and intended
to shoot at or in the vicinity where he believed other
person or persons to be.
e. Pond also argues now that the ballistics investigation
conducted by the Bureau of Alcohol, Tobacco, and
Firearms was inaccurate.
f. Again, the identity of the shooter or the cause of Jacob
Michuda’s death was never disputed and Pond does not
dispute it now.
g. Pond’s ballistic expert retained for the PCR hearing
testified that the shot fired by Pond would have gone
across the rear of Michuda’s property between their home
and pool, over a patio. The rear patio and pool area are
visible to Pond, and he was aware of it making Pond’s
actions even more egregious because this is an area people
would likely be, especially during a weekend evening in
July.
h. Nordmann considered consulting an expert; however,
Pond’s decision to enter a plea of guilty to voluntary
manslaughter ended the need to pursue a ballistics expert.
i. Pond is essentially requesting the Court retry the case and
reweigh the evidence, which it will not do.
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j. Pond failed to establish his attorney’s investigation or
decision not to hire an expert witness was deficient.
Appellant’s App. Vol. IV p. 12.
[39] Pond’s trial counsel testified that he reviewed the State’s discovery, which
included a report by the Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”), attended depositions, interviewed Pond’s son and other witnesses,
drove by the crime scene and Pond’s residence. Pond’s trial counsel testified
that he believed that he discussed with Pond the possibility of needing a
reconstructionist and a ballistics expert. At the time of the guilty plea, he had
not moved forward with retaining such experts, but he had not ruled out
retaining them either. Pond’s trial counsel specifically discussed with Pond that
mens rea was the main issue in the case and made Pond aware of the various
possible outcomes. Rather than move forward with a trial, Pond chose to plead
guilty. Under such circumstances, we cannot say that Pond’s trial counsel’s
performance was deficient. The post-conviction court’s findings on this issue
are not clearly erroneous.
C. Failure to Move for Change of Judge
[40] Next, Pond argues that his trial counsel was ineffective for failing to move for a
change of judge. On this issue, the post-conviction court found:
a. Pond was not deprived of effective assistance of counsel
because his attorney did not request a change of judge.
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b. Indiana “law presumes that a judge is unbiased and
unprejudiced.” O’Conner v. State, 789 N.E.2d 504 (Ind. Ct.
App. 2003), citing James v. State, 716 N.E.2d 935, 940 (Ind.
1990). Further, the Indiana Code of Judicial Conduct
requires judges to perform all duties for that office “fairly
and impartially” and without “bias or prejudice.” Indiana
Judicial Canon 2(A), Rule 2.2 & 2.3. A judge is required
by the judicial code to disqualify himself from any
proceeding in which his impartiality “might reasonably be
questioned[.]” Id. The test for determining whether a
judge should recuse himself or herself is “whether an
objective person, knowledgeable of all the circumstances,
would have a reasonable basis for doubting the judge’s
impartiality.” O’Connor v. State, 789 N.E.2d 504, 511 (Ind.
Ct. App. 2003), citing James, 716 N.E.2d at 940.
c. Here, after the State of Indiana listed the victim’s paternal
grandfather, Mark Michuda, on the State’s witness list, the
Court had the following exchange with the attorneys on
the record.
I am a member of the same church as Mr. Michuda
and know him, I’m not in a social relationship with
him, but I know who he is, we are members of the
same church. In addition, as is Mr. Michuda’s wife
is also a member there. In addition, I am in an
organization with Mr. Michuda that Mr. Michuda
is the President of. I was an officer of that
organization, but have resigned as an officer in that
organization. I don’t know that I have been
involved in or had any involvement in activities
since Mr. Michuda has been the President. I would
say my participation in the organization is probably
if ask him probably sporadic at best, but I do want
to make the parties aware of that relationship to one
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of the witnesses so that they are informed. Ex. 8,
pg. 44.
The Court then further explained:
. . . like l said, I know Mr. Michuda, would know
him on sight, but I’ve not been social friends of Mr.
Michuda’s, simply attend the same church he
attends. Quite frankly I don’t know when, I go to
different times than he typically goes, so I see him
there occasionally, but l know is a regular attender
there, but I don’t see him all the time, we go at
different times. Ex. 8, pg. 45.
d. Nordmann, Pond’s attorney, considered filing a motion
for change of judge. Based upon his experience in
practicing in Northeast Indiana, his experience practicing
in front of Judge Kiracofe, and his experience practicing
against Judge Kiracofe when he was a deputy prosecutor,
he decided against filing a change of judge.
e. Therefore, Nordmann considered the issue, considered his
options, and made a calculated decision to not file a
motion for change of judge.
f. Pond has not shown that the actions of or the demeanor of
the judge crossed the barrier of impartiality and prejudiced
his case. “An adverse ruling alone is insufficient to show
bias or prejudice.” O’Connor v. State, 789 N.E.2d 504, 511
(Ind. Ct. App. 2003).
g. Therefore, Pond was not denied effective assistance of
counsel because his trial counsel did not request a change
of judge.
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Appellant’s App. Vol. IV pp. 12-14.
[41] On appeal, Pond argues that his trial counsel should have requested that the
trial judge recuse under Indiana Criminal Rule 12(B) because he had “a
personal connection” to the victim’s grandparents, he had a “professional
connection” to the prosecuting attorney, and he was involved in the prosecution
of prior crimes against Pond as a deputy prosecutor. Appellant’s Br. p. 74.
According to Pond, his trial counsel should have filed a motion for change of
judge pursuant to Indiana Criminal Rule 12(B), which provides:
In felony and misdemeanor cases, the state or defendant may
request a change of judge for bias or prejudice. The party shall
timely file an affidavit that the judge has a personal bias or
prejudice against the state or defendant. The affidavit shall state
the facts and the reasons for the belief that such bias or prejudice
exists, and shall be accompanied by a certificate from the
attorney of record that the attorney in good faith believes that the
historical facts recited in the affidavit are true. The request shall
be granted if the historical facts recited in the affidavit support a
rational inference of bias or prejudice.
[42] Pond’s trial counsel testified at the post-conviction hearing that he considered
filing a motion for change of judge. However, he was familiar with the other
judges in the area and ultimately decided that Judge Kiracofe “would be the
best option.” Tr. Vol. II p. 107. The failure to file a motion for change of judge
was a strategic decision that does not support a finding of deficient
performance.
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[43] Moreover, even if his trial counsel had filed the motion, it is unlikely that it
would have been granted. We determined above, supra Issue I, that the trial
judge’s relationship with the victim’s grandparents, prior representation of the
State in prosecutions against Pond, and professional relationship with the
prosecutors did not warrant a finding of personal bias or prejudice. The same
analysis applies here. Consequently, the post-conviction court’s finding that
Pond failed to demonstrate ineffective assistance of trial counsel on this issue is
not clearly erroneous.
D. Failure at Sentencing
[44] Finally, Pond argues that his trial counsel was ineffective for failing to
investigate and consult with experts in the context of the sentencing hearing.
On this issue, the post-conviction court found:
a. Pond was not denied effective assistance of counsel at the
sentencing hearing.
b. Following the guilty plea hearing, the Wells County
Probation Department prepared a presentence
investigation report (PSI), filed the same with the Court,
and provided a copy to Pond’s trial counsel.
c. Nordmann advised Pond’s family and girlfriend to send in
as many letters of support as possible to the probation
department so they would include them in the presentence
investigation report.
d. At the sentencing hearing, Nordmann called two
witnesses: Barbara Pond and Lynne Klepper, as well as
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Pond. Barbara Pond is Pond’s mother and Lynne Klepper
is Pond’s girlfriend. In addition, seven letters were
submitted to the probation department and were made a
part of the presentence investigation report.
e. Pond presented no evidence that Nordmann refused to
obtain a letter from or call as a witness anyone he
requested.
f. Nordmann reviewed the presentence investigation report
with Pond.
g. Nordmann researched the potential aggravators and
mitigators that might exist in the case, and attempted to
tailor the mitigating factors as best to suit the facts.
h. Pond now argues that at sentencing, Nordmann should
have submitted letters from childhood friends of Pond,
hired a toxicologist, hired a mental health professional to
discuss Pond’s childhood physical abuse, and post-
traumatic stress disorder (PTSD).
i. “Sentencing lies within the discretion of the trial court.”
Thacker v. State, 709 N.E.2d 3, 9 (Ind. 1999), reh’g denied.
If a trial court uses aggravating or mitigating
circumstances to enhance the presumptive sentence, it
must (1) identify all significant mitigating and aggravating
circumstances; (2) state the specific reason why each
circumstance is determined . . . to be mitigating or
aggravating; and (3) articulate the court’s evaluation and
balancing of the circumstances. Id. The trial court is not
required to find the presence of mitigating circumstances,
Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993). When
a defendant offers evidence of mitigators, the trial court
has the discretion to determine whether the factors are
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mitigating, and it is not required to explain why it does not
find the proffered factors to be mitigating. Taylor v. State,
681 N.E.2d 1105, 1112 (Ind. 1997). The trial court’s
assessment of the proper weight of mitigating and
aggravating circumstances and the appropriateness of the
sentence as a whole are entitled to great deference and will
be set aside only upon a showing of a manifest abuse of
discretion. Thacker, 709 N.E.2d at 10. McCarty v. State,
802 N.E.2d 959, 966-67 (Ind. Ct. App. 2004).
j. Seven letters were submitted to the Court through the
presentence investigation report regarding Pond’s
character. Pond now argues additional witnesses could
have been called or statements procured regarding Pond’s
good character. As outlined in the presentencing
investigation report, Pond had two convictions for battery,
one conviction for domestic battery and invasion of
privacy, has a history of substance abuse, he was
consuming alcohol while on probation, possessed a
firearm in violation of federal and state law and in
violation of his probation conditions. His mother testified
he applied for and received food stamps while Pond stated
in the PSI that he earned $20 per hour restoring vehicles.
These factors do not reflect well on his character despite
how many people might say he is of good character.
k. The Court is unclear how proving Pond’s intoxication or
sobriety at the time of the shooting would have changed
the Court’s decision on sentencing. Under Indiana law,
intoxication is not a defense so it would not have been a
mitigating factor. If he was proven to be sober by utilizing
a toxicologist, it means Pond’s actions on the date in
question were completely unaffected by alcohol, and he
was fully aware of what he was doing; almost becoming an
aggravating factor.
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l. Further, because only Pond knows exactly how much
alcohol he consumed on the date in question, the
toxicologist’s findings would have been made on Pond’s
testimony. Based upon the various statements from the
witnesses, it is possible the Court would have disbelieved
Pond’s statement concerning his consumption of alcohol.
m. Nordmann’s decision to not hire a toxicologist or failure to
consider hiring a toxicologist is completely irrelevant.
n. Pond also argues that Nordmann should have obtained a
mental health examination and then he could have
presented to the Court the examination results to show
Pond suffered PTSD and was remorseful.
o. Pond testified about his remorse at the sentencing hearing
stating, “I would give my life in a second to bring that little
boy back, but I can’t do that. I will live with that every
day of my life from now on . . . I am so so so sorry for
bringing everybody so much grief, the Michudas for all
their heartache, and my family for the embarrassment.”
Ex. 1B, pg. 32. The Indiana Supreme Court has held that
a trial court’s determination of a defendant’s remorse is
similar to a determination of credibility. As such, without
evidence of some impermissible consideration by the trial
court, a review court will accept its determination as to
remorse. Stout v. State, 834 N.E.2d 707 (Ind. Ct. App.
2005) citing Pickens v. State, 767 N.E.2d 530 (Ind. 2002).
p. Essentially, calling a mental health provider to testify
regarding Pond’s remorsefulness would be akin to calling a
witness to say the defendant is credible.
q. The Indiana Court of Appeals found in Scott v. State that
the sincerity of a defendant’s remorse was entitled to slight
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weight in light of the “unprovoked shooting of a randomly
selected victim.” Scott v. State, 840 N.E.2d 376 (Ind. Ct.
App. 2006). Here, even if an expert had been called to
testify regarding Pond’s remorse, the Court could have
given it slight weight given the unprovoked and random
act that killed a child.
r. The Court is convinced Pond is remorseful. His actions
resulted in the death of a four-year-old child and,
consequently, will result in him spending forty (40) years
in prison.
s. Pond also testified concerning childhood abuse he received
from his father. The prosecutor asked him why it was
relevant as a mitigating factor. Pond replied he didn’t
know. The Court also fails to find why this is a mitigating
factor.
t. “[A] court need not determine whether counsel’s
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged
deficiencies.” Games[ v. State], 684 N.E.2d [466, ]468
[(Ind. 1997)] (quoting Strickland v. Washington, 466 U.S.
668, 697, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), reh’g
denied 467 US. 1267, 82 L. Ed. 2d 864, 104 S. Ct. 3562(1984)). If it is easier to dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice, that course
should be followed. Id.u. Pond has failed to prove that there is a reasonable
probability that the result of the sentencing hearing would
have been different had Nordmann called additional
character witnesses, submitted more letters of support,
called a toxicologist, and obtained an evaluation from a
mental health examination.
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v. Therefore, the Court finds that Pond was not denied
effective assistance of counsel at the sentencing hearing.
Appellant’s App. Vol. IV pp. 14-16.
[45] On appeal, Pond argues that his trial counsel was ineffective for failing to
investigate and present mitigators, failing to have Pond evaluated by a mental
health professional, and failing to consult with a toxicologist. We will address
each argument separately.
1. Mitigators
[46] Pond argues that his trial counsel should have performed a better investigation
into proposed mitigators, asked more individuals to write letters or testify at
sentencing, and better prepared Pond’s mother and girlfriend to testify.
According to Pond, a better investigation would have revealed that Pond was
experiencing considerable mental distress, had positive character traits and
remorse, and suffered childhood abuse from his father.
[47] At the sentencing hearing, Pond’s trial counsel presented seven letters of
support for Pond and his mother and girlfriend testified in support of him.
Pond testified regarding his remorse and childhood abuse by his father. There
is no evidence that additional evidence in support of these arguments would
have resulted in a shorter sentence. The post-conviction court found that Pond
had failed to demonstrate a reasonable probability that the result of the
sentencing hearing would have been different if his trial counsel had presented
additional evidence, and we agree. Pond’s argument fails.
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2. Mental Health Professional
[48] Next, Pond argues that his trial counsel should have presented evidence from a
mental health professional to show that he suffered from PTSD and depression
as a result of the offense. According to Pond, this evidence “would have shown
his remorse and corroborated the testimony that he would never deliberately
harm a child.” Appellant’s Br. p. 79. Again, Pond’s trial counsel presented
evidence of Pond’s remorse. Pond testified:
I would give my life in a second to bring that little boy back, but I
can’t do that. I will live with that every day of my life from now
on and the holidays stunk so bad not because I was in jail but
because of the family, that little guy they didn’t have him around
at Christmas. . . . I am so so so sorry for bringing everybody so
much grief, the Michudas for all their heartache, and my family
for the embarrassment.
Ex. Vol. IV p. 174. The proposed evidence was cumulative of other evidence
presented of Pond’s remorse. The post-conviction court found no evidence of a
reasonable probability that the result of the sentencing hearing would have been
different if Pond’s trial counsel had presented evidence of a mental health
examination, and we agree. The post-conviction court’s finding on this issue is
not clearly erroneous.
3. Toxicologist
[49] Finally, Pond argues that his trial counsel was ineffective for failing to present
evidence from a toxicologist at the sentencing hearing. He argues that the
toxicologist would have demonstrated that Pond was not intoxicated at the time
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of the offense. We conclude that Pond was not prejudiced by his trial counsel’s
failure to present such evidence.
[50] Pond claims that his substance abuse and alcohol consumption on the night of
the offense were used as an aggravating factor. As noted when discussing the
admission of the toxicologist’s report, Pond’s intoxication level simply was not
found to be an aggravating factor. Rather, in the context of discussing Pond’s
criminal history, the trial court noted that Pond had several substance abuse
convictions and that substance abuse may have “played a factor” in the current
offense too. Exhibits Vol. IV p. 57. The post-conviction court correctly found
that evidence from a toxicologist would have been irrelevant and possibly
harmful to Pond’s sentencing. The post-conviction court noted that, if Pond
was proven to be sober, “it means Pond’s actions on the date in question were
completely unaffected by alcohol, and he was fully aware of what he was doing;
almost becoming an aggravating factor.” Appellant’s App. Vol. IV p. 15.
Further, the post-conviction court noted that the toxicologist’s findings were
based on Pond’s testimony as to how much alcohol he consumed, which
conflicted with other evidence in the case. Consequently, the post-conviction
court concluded that Pond failed to prove a reasonable probability that the
result of the sentencing hearing would have been different if Pond’s trial
counsel had presented evidence from a toxicologist. We cannot say that the
post-conviction court’s finding is clearly erroneous.
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V. Ineffective Assistance of Appellate Counsel
[51] Pond next argues that his appellate counsel was ineffective. Claims of
ineffective assistance of appellate counsel are reviewed using the same standard
applicable to claims of trial counsel ineffectiveness. Bieghler v. State, 690 N.E.2d
188, 193 (Ind. 1997), cert. denied. These claims generally fall into three
categories: (1) denying access to the appeal, (2) waiver of issues, and (3) failure
to present issues well. Pond argues that his appellate counsel was ineffective
because: (1) there were “substantial deficiencies in the Appellant’s Appendix
and record;” (2) there were grammatical errors in the Appellant’s Brief; (3)
Pond’s character, letters written on his behalf, a lack of disciplinary issues in the
jail, and his childhood abuse were not mentioned in the Appellant’s Brief; (4)
the Appellant’s Brief did not mention the suggested statutory mitigators found
by the probation department; (5) the statement of the facts did not contain
citations to the record; and (6) appellate counsel failed to provide a separate
analysis of abuse of discretion and inappropriate sentence, resulting in waiver of
the inappropriate sentence issue. According to Pond, if the appropriateness
issue had been considered, there is a reasonable probability that this court
would have reduced his sentence.
[52] On this issue, the post-conviction court found:
a. The Court finds that Pond’s arguments on these issues fail.
b. Following the sentencing hearing, Pond sought an appeal
of the Court’s sentencing decision.
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c. Pond chose to be represented by Benjamin Nordmann.
d. The Indiana Court of Appeals issued a Memorandum
Decision on September 19, 2012, which found the trial
court had not abused its discretion, and affirmed the trial
court’s decision on Pond’s sentence.
*****
g. Because Pond’s appeal followed a guilty plea, the only
issue before the Court were issues related to sentencing.
h. Here, Pond argues Nordmann’s appellate representation
was inadequate for several reasons, including that the
Appellant’s Appendix did not include the charging
informations, the probable cause affidavit, the notice of
appeal, or any pleadings or orders that were filed or issued
prior to December 16, 2011. He also argues it is deficient
because it contains “quite a few typographical errors,
capitalization errors, and grammatical errors.” Pond’s
proposed findings of fact, paragraph 276.
i. Pond’s claim of alleged appellate counsel ineffectiveness
appears to fall into the third category: inadequate
presentation as highlighted in the Bieghler decision.
j. In Bieghler, the Indiana Supreme Court found that claims
of inadequate presentation are the most difficult to
advance and reviewing tribunals to support. The Supreme
Court found this to be true for two reasons:
First, these claims essentially require the reviewing
tribunal to review specific issues it has already
adjudicated to determine whether the new record
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citations, case references, or arguments would have
had any marginal effect on its previous decision.
Thus, this kind of ineffectiveness claim, as
compared to the others mentioned, most implicates
concerns of finality, judicial economy, and repose
while least affecting assurance of a valid conviction.
Second, an Indiana appellate court is not limited in
its review of issues to the facts and cases cited and
arguments made by the appellant’s counsel. We
commonly review relevant portions of the record,
perform separate legal research, and often decide
cases based on legal arguments and reasoning not
advanced by either party. While impressive
appellate advocacy can influence the decisions
appellate judges make and does make our task
easier, a less than top notch performance does not
necessarily prevent us from appreciating the full
measure of an appellant’s claim. Bieghler v. State,
690 N.E.2d 188, 195 (Ind. 1997).
k. Here, Pond has failed to demonstrate that Nordmann’s
performance on the appeal was deficient. Further,
assuming arguendo the performance was deficient, Pond
has failed to demonstrate that he was prejudiced by the
deficient performance.
Appellant’s App. Vol. IV pp. 16-18.
[53] Even if we assume that appellate counsel’s performance was deficient, we
cannot say that Pond was prejudiced by the alleged deficiencies. Pond’s
arguments appear to be in the category of “failure to present issues well.”
Bieghler, 690 N.E.2d at 195. To the extent that Pond’s appellate counsel failed
to present the abuse of discretion argument well, “an ineffectiveness challenge
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resting on counsel’s presentation of a claim must overcome the strongest
presumption of adequate assistance.” Id. at 196. “Judicial scrutiny of counsel’s
performance, already ‘highly deferential,’ Spranger v. State, 650 N.E.2d 1117,
1121 (Ind. 1995), is properly at its highest.” Id. “Relief is only appropriate
when the appellate court is confident it would have ruled differently.” Id. Pond
has made no showing that the alleged deficiencies in the Appellant’s Brief,
Appellant’s Appendix, or record impacted his appeal in any way or that,
without those deficiencies, his appeal would have been successful.
[54] The main thrust of his argument seems to be that an argument that his sentence
was inappropriate under Indiana Appellate Rule 7(B) would have been
successful. Although appellate counsel mentioned Appellate Rule 7(B), he
waived the issue by failing to make a separate argument regarding the issue. See
Pond, No. 90A05-1202-CR-73, slip op. at 9 n.1. However, even if Pond’s
appellate counsel had properly raised the Appellate Rule 7(B) issue, the
argument is unlikely to have been successful.
[55] Appellate Rule 7(B) provides that we may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, we find that the
sentence is inappropriate in light of the nature of the offenses and the character
of the offender. When considering whether a sentence is inappropriate, we
need not be “extremely” deferential to a trial court’s sentencing decision.
Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must
give due consideration to that decision. Id. We also understand and recognize
the unique perspective a trial court brings to its sentencing decisions. Id. Under
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this rule, the burden is on the defendant to persuade the appellate court that his
or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006).
[56] The principal role of Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). We “should focus on the forest—the aggregate sentence—rather than
the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. When reviewing the appropriateness of
a sentence under Rule 7(B), we may consider all aspects of the penal
consequences imposed by the trial court in sentencing the defendant, including
whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010).
[57] The nature of Pond’s offense is that he was annoyed by a moving light on a
neighbor’s property, retrieved his gun, fired two shots, and said, “That will
teach them.” PSI p. 23. Four-year-old Jacob was shot in the forehead, and he
died a few hours later. Pond had his son hide the firearm and initially denied
any involvement in the shooting. Pond admitted his involvement only after his
son and other visitor during the incident came forward.
[58] As for Pond’s character, he has multiple prior convictions, including for
domestic battery, battery, invasion of privacy, and operating while intoxicated.
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His probation has been revoked twice, and he was on probation at the time of
this offense. He expressed remorse for shooting Jacob and pled guilty.
Testimony and letters were presented at the sentencing hearing regarding
Pond’s good character.
[59] Even if Pond’s appellate counsel had properly presented the Appellate Rule
7(B) issue, we cannot say that Pond’s sentence would have been found
inappropriate. Given the nature of the offense and Pond’s criminal history, the
likelihood of Pond’s forty-year sentence being reduced on direct appeal was
slight. Pond has failed to demonstrate that, but for his appellate counsel’s
alleged deficiencies, his sentence would have been reduced. The post-
conviction court’s findings denying Pond’s ineffective assistance of appellate
counsel claim are not clearly erroneous.
Conclusion
[60] The post-conviction court properly denied Pond’s petition for post-conviction
relief. We affirm.
[61] Affirmed.
Vaidik, C.J., and Pyle, J., concur.
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