ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER STEVE CARTER
Public Defender of Indiana Attorney General of Indiana
LISA MALMER JOHNSON RICHARD C. WEBSTER
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
COURT OF APPEALS OF INDIANA
KEVIN L. MCCARTY, )
vs. ) No. 49A04-0306-PC-296
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-0006-CF-112552
February 4, 2004
OPINION FOR PUBLICATION
Kevin McCarty entered a plea of guilty to two counts of child molestation
as Class A felonies.
See footnote He sought post-conviction relief and his petition was
denied. McCarty raises a single issue on appeal, which we restate as
whether McCarty was denied effective assistance of counsel when his counsel failed at
sentencing to offer evidence of McCartys mental impairment and other potential mitigating circumstances.
We reverse.See footnote
McCarty was charged with four counts of child molesting, two as Class A
felonies and two as Class C felonies. Counsel was appointed to represent
McCarty, and McCarty eventually agreed to plead guilty to the two Class A
felonies. The plea agreement provided for a maximum executed sentence of forty
years. After a sentencing hearing, the trial court imposed a sentence of
forty years on each count, with the sentences to be served concurrently.
McCartys counsel did not raise as mitigating circumstances at the sentencing hearing that
McCarty was mentally retarded, had himself been molested, and had a troubled family
background. McCarty sought post-conviction relief, asserting his trial counsel was ineffective for
failing to investigate or raise those potential mitigators.
McCarty presented testimony at his post-conviction hearing from a professor of psychological science
and developmental psychology that McCarty had been in special education classes and that
his IQ was between 68 and 70.See footnote When he was twenty years
old, tests revealed McCarty was functioning at a ten-to-thirteen-year-old level.See footnote The psychologist
testified that mentally retarded people tend to exercise poor judgment and have difficulty
controlling their anger and other impulses because they sometimes do not learn from
Trial counsel met with McCarty only once before the guilty plea hearing.
He testified that based on his interaction with McCarty, McCarty did not appear
mentally disabled. Counsel therefore did not pursue an investigation of McCartys mental
status. Counsel did not recall whether he had read McCartys lengthy confession,
which included McCartys statement that he had been molested. He did not
recall whether he reviewed McCartys court file or whether he had received a
call from McCartys sister about McCartys family background. Counsel did not secure
the services of an investigator or a mental health professional nor did he
try to obtain McCartys school or mental health records. He did not
recall whether he and McCarty discussed McCartys family history and background or whether
McCarty had offered him any direction in terms of presenting evidence at the
DISCUSSION AND DECISION
Standard of Review
Post-conviction proceedings are not super appeals through which convicted persons can raise issues
they failed to raise at trial or on direct appeal. Rather, they
afford petitioners a limited opportunity to raise issues that were unavailable or unknown
at trial and on direct appeal. Bahm v. State, 789 N.E.2d 50,
57 (Ind. Ct. App. 2003), affd on rehg 794 N.E.2d 444 (Ind. Ct.
App. 2003). Post-conviction proceedings are civil in nature, and petitioners bear the
burden of proving their grounds for relief by a preponderance of the evidence.
Id. When a petitioner appeals the denial of post-conviction relief, he
appeals from a negative judgment; consequently, we may not reverse the post-conviction courts
judgment unless the petitioner demonstrates the evidence, as a whole, leads unerringly and
unmistakably to a decision opposite that reached by the post-conviction court. Id.
We accept the post-conviction courts findings of fact unless they are clearly
erroneous, but we do not have to give deference to the post-conviction courts
conclusions of law. Id. On appeal, we may not reweigh the
evidence or reassess the credibility of the witnesses. Id.
To prevail with an ineffective assistance of counsel claim, a defendant must show
counsels performance was so deficient that he was not functioning as the counsel
guaranteed by the Sixth Amendment and that this deficient performance prejudiced the defendant.
Games v. State, 684 N.E.2d 466, 468 (Ind. 1997), modified on rehg
on other grounds 690 N.E.2d 211 (Ind. 1997). The petitioner must demonstrate
both deficient performance and resulting prejudice. Ben-Yisrayl v. State, 729 N.E.2d 102,
106 (Ind. 2000), rehg denied, cert. denied 534 U.S. 830 (2001). A
deficient performance is that which falls below an objective standard of reasonableness.
Counsels performance is presumed effective, and a petitioner must offer strong and convincing
evidence to overcome this presumption. Id.
Prejudice exists when there is a reasonable probability that the result of the
proceeding would have been different but for defense counsels inadequate representation. Id.
[A] court need not determine whether counsels performance was deficient before examining
the prejudice suffered by the defendant as a result of the alleged deficiencies.
Games, 684 N.E.2d at 468 (quoting Strickland v. Washington, 466 U.S. 668,
697 (1984), rehg denied 467 U.S. 1267 (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.
We believe counsels performance was deficient because he failed to present as mitigators
four circumstances McCarty asserts should have been before the court: 1) McCartys
mental disability, 2) McCartys own molestation as a child, 3) the likelihood he
could be successfully rehabilitated, and 4) the fact his confession went beyond what
the victims had reported.
The requirement that a sentencing court consider and articulate certain factors in imposing
a particular sentence applies to at least some sentences imposed after a guilty
See Abercrombie v. State, 275 Ind. 407, 411, 417 N.E.2d 316,
318 (1981). There, our supreme court remanded for a new sentencing hearing
and sufficient findings to support the sentence imposed because there was no statement
of reasons or of specific aggravating and mitigating circumstances which would support the
imposition of a one hundred-year sentence for Abercrombies four felony convictions. Id.
at 414, 417 N.E.2d at 320.
The court there noted a number of mitigating circumstances that the sentencing court
should have examined:
Some of the mitigating factors in this case were that there was no
death, no permanent physical impairment, no destruction of property, no weapons involved and
no evidence of deliberation. Beyond the actual facts of the crime itself,
the nature and background of the individual defendant should also be considered.
Here, defendants prior criminal record was not extensive and involved no crimes of
violence. The defendant showed remorse for the instant crime and agreed to
plead guilty and spare the victim the ordeal of a trial. Defendant
was holding a steady job and had the support of a good family
in the community. The unique and unplanned circumstances surrounding the incident tend
to show that the crime would not be likely to happen again.
Several members of defendants family wrote to the judge showing their concern for
and support of defendant.
Id. at 414, 417 N.E.2d at 319.
McCarty asserts ineffectiveness in counsels complete lack of preparation for the sentencing hearing,
(Br. of Petitioner-Appellant at 16), which lack of preparation caused counsel to overlook
the additional mitigators McCarty urges. In determining an appropriate sentence, all circumstances
of the particular crime and the background of the individual offender should be
considered . . . [t]his individualized sentencing process requires possession of the fullest
information possible concerning the defendants life and characteristics.
Thomas v. State, 562
N.E.2d 43, 47 (Ind. Ct. App. 1990).
We note initially that counsel met with McCarty only once. McCarty does
not contend this constitutes deficient performance per se, but it seems obvious that
evidence of only a single meeting between counsel and client in a multiple-felony
case would alert a reviewing court to the possibility of inadequate representation.
We acknowledge that McCarty had confessed to the charged crimes,
See footnote and counsel was
likely burdened by the relentless demands invariably faced by public defenders. However,
these circumstances do not excuse a perfunctory investigation of McCartys background for sentencing
purposes. Had counsel spent more time with McCarty in preparing for the
guilty plea and sentencing hearings, he might well have observed manifestations of his
clients mental retardation and sought more detailed information regarding his family history, sexual
victimization as a teenager, and potential for successful rehabilitation.
McCartys Mental Disability
McCartys counsel violated prevailing professional norms when he failed to interview McCartys family
members, review the court file, obtain McCartys educational and mental health records, or
consult with a mental health professional. In Prowell v. State, 741 N.E.2d
704, 714 (Ind. 2001), our supreme court found Prowells counsel ineffective for failing
to pursue available leads regarding mitigating evidence.
The State notes counsels testimony
that in his interaction with McCarty, McCarty appeared free of disability. Because
counsel was unaware of any disability, the State asserts he could not be
found ineffective for failing to present the disability as a mitigating circumstance.
However, McCarty notes red flags (Br. of Petitioner-Appellant at 19) that should have
put counsel on notice McCarty was mentally impaired. These include a letter
McCarty wrote to the court that exhibits extremely poor grammar, spelling and punctuation,
and a report by the Hamilton Center that was referred to, but not
included with, the presentence report. The Hamilton Center report indicated McCartys cognitive
functioning was at a low level.
2. McCartys Upbringing
The State asserts McCartys counsel was unaware of facts about McCartys life that
would have warranted investigation because McCarty had reported in interviews for his presentence
report that his home life was stable. Again, McCarty directs us to
red flags that should have warranted investigation by counsel. In the letter
to the court referred to above as an indicator of McCartys mental disability,
McCarty wrote he had been messed with when i was younger mine started
when i was 15teen and didnt stop till i was 17teen[.] (App.
at 56.) McCartys counsel did not recall whether he read the transcript
of McCartys confession, but testified he routinely does so. That transcript indicated
McCarty had been molested as an adolescent. The presentence report referred to
one incident of molestation when McCarty was fifteen.
Counsel should also have brought to the courts attention McCartys seriously troubled family
background. (Br. of Petitioner-Appellant at 24.) McCarty elicited testimony at the
post-conviction hearing that a mentally retarded molestation victim from a dysfunctional family is
particularly prone as an adult to acting out behavior in the form of
child molestation. (Id.) The post-conviction court noted evidence of a difficult
childhood warrants little, if any, mitigating weight, citing Coleman v. State, 741 N.E.2d
697, 700 (Ind. 2000), rehg denied, cert. denied 534 U.S. 1057 (2001).
However, the Coleman court went on to say:
Nonetheless, it is certainly true that evidence about the defendants background and character
is relevant because of the belief, long held by this society, that defendants
who commit criminal acts that are attributable to a disadvantaged background, or to
emotional and mental problems, may be less culpable than defendants who have no
Id. (quoting California v. Brown, 479 U.S. 538, 545 (1987) (OConnor, J., concurring)).
3. Other Mitigating Factors
McCarty offered evidence at the post-conviction hearing that he would likely respond well
to treatment in that he can learn to better control his behavior and
exercise better judgment; that the victims did not sustain physical injury;
See footnote and that
he has accepted responsibility for his crimes and is remorseful.
v. State, 779 N.E.2d 84, 90 (Ind. Ct. App. 2002) (concluding the trial
court abused its discretion in not assigning mitigating weight to Cloums decision to
plead guilty when the guilty plea substantially benefited the State and Cloum presented
positive character evidence indicating the plea truly represented remorse and an acceptance of
The post-conviction court determined McCarty was not prejudiced by his counsels performance because
none of the information counsel could have presented rises to the level of
mitigation that would offset the three aggravating factors
the trial court found in
sentencing McCarty. (App. at 188.) It noted evidence of a difficult
childhood warrants little, if any, mitigating weight. Id. (quoting Coleman, 741 N.E.2d
at 700). The post-conviction court found McCartys mental condition was not a
mitigator because it was obvious from various statements McCarty had made that he
understood his conduct was criminal.
Finally, the post-conviction court noted McCartys presentence
report included information about McCartys own molestation; the trial court therefore presumably was
aware of that information.
Sentencing lies within the discretion of the trial court. Thacker v. State,
709 N.E.2d 3, 9 (Ind. 1999), rehg 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
courts 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 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 courts 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
The States entire argument that McCarty was not prejudiced by his counsels performance
is premised on the general rule that the trial court has discretion to
disregard or reject mitigating circumstances urged by a defendant, Bocko v. State, 769
N.E.2d 658, 667 (Ind. Ct. App. 2002), rehg denied, trans. denied 783 N.E.2d
702 (Ind. 2002), and is not obliged to give a mitigating circumstance the
same weight or credit as would the defendant. Abel v. State, 773
N.E.2d 276, 280 (Ind. 2002). Therefore, the State asserts, McCarty could not
show prejudice in the form of a reasonable probability that, but for counsels
errors, the result of the proceeding would have been different. Strickland, 466
U.S. at 694.
However, the prejudice McCarty suffered arose not because the court declined to
the mitigators but because the mitigating circumstances were not placed before the court
at all; the court was therefore unable to even consider them. McCarty
was prejudiced by trial counsels failure to investigate and present the available mitigation
evidence because it deprived the sentencing court of the information it needed to
make an informed decision and left the court little to balance against the
The dispositive question in determining whether a defendant is prejudiced by counsels failure
at sentencing to present mitigating evidence is what effect the totality of the
omitted mitigation evidence would have had on the sentence.
Coleman, 741 N.E.2d
at 702. The totality of that evidence in the case before us
includes evidence of McCartys mental disability, his troubled upbringing, his potential for successful
rehabilitation, his remorse and acceptance of responsibility, and the fact the victims did
not suffer physical injury. We turn now to the possible mitigating weight
of each of these facts.
1. McCartys Mental Disability
McCarty was prejudiced by counsels failure to bring to the courts attention McCartys
mental disability. Our supreme court has indicated that, at least in some
circumstances, mental retardation must be given weight as a mitigator. In Young
v. State, 696 N.E.2d 386, 391 (Ind. 1998), Young argued his 195-year sentence
was manifestly unreasonable because the trial court failed to consider as a mitigating
factor his mental disabilities. The trial court recorded no mitigating factors, but
our supreme court noted the record clearly indicated Young functions with the mental
capacity of a child. Id. The trial court had determined during
a pre-trial conference that Young was mentally retarded and therefore could not be
sentenced to life without parole under Ind. Code § 35-50-2-9 (1998).
sentencing Young to 195 years, however, the court virtually imposed life without parole
anyway. Id. at 392. The court accordingly found Youngs sentence to
be manifestly unreasonable because that mitigator was given no weight. Id.
And see Atkins v. Virginia, 536 U.S. 304, 306 (2002) (because of their
disabilities in areas of reasoning, judgment, and control of their impulses, mentally retarded
persons do not act with the level of moral culpability that characterizes the
most serious adult criminal conduct).
2. The Other Mitigators
McCarty was also prejudiced because the court was unable to consider other potentially
mitigating evidence. An adequate investigation by counsel, he notes, would have revealed
the troubled family history, which caused psychological damage directly linked to McCartys offenses.
(Br. of Petitioner-Appellant at 24.) As post-conviction testimony indicated, adequate investigation
and evaluation by a mental health professional would have revealed McCarty stands a
good chance of being successfully rehabilitated. (Id. at 26.) While counsel
noted at sentencing that McCarty had confessed, he did not mention that the
confession went beyond what the victims had reported. McCarty notes the victims
statements alone would have supported only the Class C charges and not the
Class A charges to which McCarty agreed to plead guilty.
Appellate courts are and should be reluctant to second-guess the decisions
that trial counsel must make in representing clients, as well as the decisions
that trial courts must make in sentencing criminal defendants. This reluctance is
perhaps even greater in the case of a guilty plea, with its emphasis
on finality and expediency, provided that the defendant has knowingly, voluntarily, and intelligently
waived his rights.
Assuming, as we have determined here, that trial counsel performed deficiently in failing
to investigate potential mitigating circumstances, we must make the difficult determination whether there
is a reasonable probability the result of the sentencing proceeding would have been
different but for counsels inadequate representation. Much of this difficulty is due
to Indianas sentencing scheme, which provides for relatively wide ranges of punishment in
the most serious felony classes
and properly vests trial courts with substantial discretion
in considering aggravating and mitigating circumstances and in determining punishments appropriate in light
of the nature of the offense and the character of the offender.
Given the subjectivity inherent in the sentencing process, a reviewing court is hard
pressed to conclude there is a reasonable probability that the trial court would
have imposed a lesser sentence had it been presented with additional mitigating evidence
that trial counsel should have brought to light.
McCarty characterizes his forty-year sentence for two Class A felonies as significantly aggravated,
noting that it is only ten years below the maximum of fifty years.
(Br. of Petitioner-Appellant at 31.) Viewed another way, however, his sentence
is only ten years
above the presumptive of thirty years. In any
event, we reluctantly conclude there is a reasonable probability the trial court would
have imposed a lesser sentence had it been fully informed of McCartys mental
retardation and traumatic background. Given the demonstrated unwillingness of the trial and
post-conviction court to reconsider McCartys sentence in light of this information, we exercise
our appellate jurisdiction under Article 7, Section 6 of the Indiana Constitution and
revise McCartys sentence to the presumptive term of thirty years.
Counsels failure to investigate and present to the court numerous potentially mitigating circumstances
constituted deficient performance, and there is a reasonable probability the result of the
sentencing proceeding would have been different had defense counsel presented those mitigating circumstances
to the court for its consideration. We accordingly reverse the denial of
McCartys petition for post-conviction relief and revise McCartys sentence.
BROOK, C.J., and DARDEN, J., concur.
Ind. Code § 35-42-4-3.
We heard oral argument on October 28, 2003, at the University of
Southern Indiana in Evansville. We thank the school for its hospitality and
commend counsel for the quality of their appellate advocacy.
An IQ of 100 is considered average. To be diagnosed as mentally
retarded, a person must have an IQ significantly below average, below 70 to
75. If a person scores below 70 on a properly administered and scored
IQ test, he or she is in the bottom 2 percent of the
American population. Andrea D. Lyon, Cruel and Unusual, Illinois Issues (June 2002),
Thus, McCarty notes, at the time of the offenses his intellectual and
emotional age was approximately equivalent to that of his victims. (Br. of
Petitioner-Appellant at 22.)
McCartys counsel placed before the court four mitigating factors: McCartys age,
his admission of guilt and acceptance of responsibility, his lack of significant criminal
history, and his apology to his family as expressed in a letter his
The State appears to characterize counsels failure to mention the mitigating circumstances
urged by McCarty as a deliberate choice made for strategic or tactical reasons,
(Br. of Appellee at 6), which choices generally do not demonstrate ineffective assistance
of counsel. See, e.g., State v. Miller, 771 N.E.2d 1284, 1288 (Ind.
Ct. App. 2002), rehg denied, trans. denied 792 N.E.2d 37 (Ind. 2003).
The State does not explain how that characterization can be reconciled with counsels
apparent lack of knowledge that many of those mitigating factors existed in McCartys
We are particularly troubled that McCartys trial counsel failed to notice
that the prosecutor at the guilty plea hearing recited only the facts establishing
the two Class C felony child molesting counts, not the two Class A
felony counts to which McCarty entered guilty pleas. (Compare Tr. of Guilty
Plea Hearing at 12-13 with Appellants App. at 29-30 (charging information)). McCartys
postconviction counsel also failed to mention this glaring oversight. The Class C
felony counts were dismissed pursuant to the agreement.
The State cites Prowell as authority for this assertion. There, counsel
was found ineffective for failing to adequately investigate Prowells mental illness. Counsel
suspected Prowell had a serious mental illness but did not consider seeking a
guilty but mentally ill plea agreement. This step is certainly not necessary
to effective counsel in every case. Here, however, there were obvious indications
that Prowells case did present substantial issues turning on the development of this
evidence. 741 N.E.2d at 714.
While the punctuation, grammar, and capitalization in this letter are indeed extremely
poor, as McCarty suggests, we decline to hold that such shortcomings necessarily indicate
retardation. Nevertheless, the letter should have prompted counsel to investigate McCartys allegations
of adolescent sexual abuse and the possibility that he suffered from a learning
disability or mental deficit.
We also take issue with McCartys characterization of his mental retardation
and severely disadvantaged background as directly linked to his offenses (Br. of Petitioner-Appellant
at 21, 25). A person with these attributes might be considered more
likely than another to engage in criminal activity, but to assert a definitive
correlation between these attributes and criminality is to paint with much too broad
McCarty cites Walker v. State, 747 N.E.2d 536, 538 (Ind. 2001) as
support for his statement that [t]he absence of physical injury has been recognized
as a mitigating circumstance in child molestation cases. (Br. of Petitioner-Appellant at
27.) Walker supports that premise only indirectly. The Walker court noted
there was no physical injury, but did not explicitly state that was a
mitigating factor. Rather, it said [a]lthough the absence of physical injury does
not bar an enhanced sentence, this is some distance from being the worst
offense or the most culpable offender. 747 N.E.2d at 538.
The court found as aggravating factors that McCarty had a criminal history,
prior attempts to rehabilitate him had been unsuccessful, and there were two victims.
We are concerned that this statement suggests the trial court might not
have distinguished between the legal standard for an insanity defense, i.e., that as
a result of mental disease or defect, McCarty was unable to appreciate the
wrongfulness of the conduct at the time of the offense, Ind. Code §
35-41-3-6(a), and the legal standard for determining whether a mental disability is a
mitigating circumstance. McCarty did not raise an insanity defense.
Our supreme court has held a mental condition may be a
mitigating circumstance even if it does not amount to a defense to a
See, e.g., Gambill v. State, 675 N.E.2d 668, 678 (Ind. 1996),
rehg denied. There, the court noted the Indiana Constitution requires that a
sentence be proportional to both the nature of the offense and the character
of the offender. There was overwhelming evidence Gambill was gravely mentally ill
when she committed the crime and she was diagnosed with paranoid schizophrenia.
The court found her mental illness, while not a defense to the crime,
is of substantial mitigating value . . . [b]ecause of the special circumstances
of this case, the Appellant is unlikely to commit another crime of this
That section provides the State may seek either a death sentence or
a sentence of life imprisonment without parole for murder by alleging, on a
page separate from the rest of the charging instrument, the existence of at
least one aggravating circumstance listed elsewhere in that section. However, the state
may not proceed against a defendant under this section if a court determines
at a pretrial hearing under IC 35-36-9 that the defendant is a mentally
Compare Ind. Code § 35-50-2-4 (thirty-year range for Class A felony)
and Ind. Code § 35-50-2-5 (fourteen-year range for Class B felony) with Ind.
Code § 35-50-2-6 (six-year range for Class C felony) and Ind. Code §
35-50-2-7 (two-and-one-half-year range for Class D felony).
See Ind. Appellate Rule 7(B).