Opinion
24A-PC-101
12-16-2024
Larry Fulbright, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Lisa Johnson Brownsburg, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana, Jesse R. Drum Assistant Section Chief, Criminal Appeals Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Anne Flannelly, Magistrate Trial Court Cause No. 49D30-1704-PC-12651
ATTORNEY FOR APPELLANT Lisa Johnson Brownsburg, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana, Jesse R. Drum Assistant Section Chief, Criminal Appeals Indianapolis, Indiana
MEMORANDUM DECISION
MAY, JUDGE.
[¶1] Larry Fulbright appeals the denial of his petition for post-conviction relief. He argues the post-conviction court erroneously determined he was not denied effective assistance of counsel at sentencing. The post-conviction court entered extensive findings and conclusions regarding counsel's performance and the lack of prejudice to Fulbright. Because evidence in the record supports the postconviction court's findings and conclusions, we affirm.
Facts and Procedural History
[¶2] When Fulbright challenged his sentence on direct appeal, we presented the following underlying facts:
In June 2011, Fulbright was living with his brother, K.F., who had two children, a three-year-old girl, Ky.F., and a four-year-old boy, Ko.F. On June 29, K.F. sent the children into Fulbright's room to pick up their toys while he went into the bathroom. Fulbright, who was high on heroin at the time, followed the children into his room, pulled down his shorts, and put his penis in Ky.F.'s mouth while Ko.F. watched. When K.F. came out of the bathroom, he found Fulbright sitting on the bed with his shorts around his ankles. The children immediately told their father what Fulbright had done. K.F. reported the molesting to the Indianapolis Metropolitan Police Department. During a brief investigation, Fulbright admitted putting his penis in his three-year-old niece's mouth. The State charged him with Class A felony child molesting and Class D felony conducting a performance harmful to minors. He pled guilty to both counts without a plea agreement, and the trial court held a sentencing hearing.
At the sentencing hearing, Fulbright's history of autism and drug abuse was presented. Fulbright was diagnosed with autism when he was in the first grade and placed in special-education classes. He also developed a significant drug habit while in school and, at the time of these crimes, was using up to two grams of heroin a day as well as regularly using marijuana. Despite his autism and addictions, Fulbright graduated from high school with a 3.5 grade point average and held a job that paid $800 per week. At the conclusion of the sentencing hearing, the court found the following mitigating factors: Fulbright had no criminal history; he accepted responsibility by pleading guilty; and he expressed remorse. And the court found multiple aggravating factors: the victims were under twelve years old; the effect on the victims was lasting and profound; Fulbright was in a position of trust with the victims; and he was using two grams of heroin a day. The court sentenced Fulbright to concurrent terms of thirty years for child molesting and 910 days for conducting a performance harmful to minors.Fulbright v. State, No. 49A02-1407-CR-449, 56 N.E.3d 729, *1 (Ind.Ct.App. May 23, 2016).
[¶3] On direct appeal, Fulbright challenged his thirty-year advisory sentence for Class A felony child molesting as inappropriate in light of his offense and character, and he asked that his sentence be reduced to twenty years. Fulbright claimed the nature of his offense justified reducing his sentence "because this was an isolated incident and he did not physically injure his niece or nephew." Id. at *2. We noted Fulbright had received the advisory term and held it was appropriate for Fulbright's crime. As for his character, Fulbright argued "his autism makes his sentence inappropriate[.]" Id. We explained:
[A]utism has not prevented Fulbright from carrying out other basic obligations-he graduated from high school and held a well-paying job for five years. Fulbright himself acknowledges that his autism "does not excuse his criminal conduct." The record indicates that Fulbright was capable of controlling his behavior and he did not have significant limitations on his functioning, and he has not presented evidence of a nexus between his autism and child molesting. Therefore, we accord Fulbright's condition little weight in our analysis of his character.Id. Because Fulbright had not demonstrated his advisory sentence was inappropriate, we affirmed.
[¶4] Then, on April 1, 2017, Fulbright filed a petition for post-conviction relief in which he asserted that he had received ineffective assistance of counsel because his trial counsel had failed to conduct a reasonable investigation of Fulbright's character traits and mental limitations prior to the sentencing hearing. The post-conviction court held a bifurcated hearing on Fulbright's petition on June 30, 2022, and September 1, 2022. During the hearing, post-conviction counsel for Fulbright called Fulbright and his trial counsel, Benjamin Jaffe, as witnesses. Fulbright offered as evidence the records from the underlying proceedings, an affidavit from his mother, the curriculum vitae of Dr. Robin Kohli, Psy.D., HSPP, and a psychological assessment of Fulbright conducted by Dr. Kohli on November 16, 2021.
[¶5] On January 2, 2024, the post-conviction court entered an order that contained detailed findings and conclusions, including the following:
FINDINGS OF FACT
* * * * *
6. The record shows that Benjamin Jaffe, as appointed counsel, represented Fulbright throughout the pretrial period, guilty plea hearing, and sentencing.
7. Benjamin Jaffe began practicing law in 1999. He worked for the Marion County Public Defender Agency through 2018. After defending cases in misdemeanor court for one year followed by two years in D-felony court, Mr. Jaffe began handling a major felony caseload in Court Four from 2002 to 2017, and then his final year with that office was in Court One. During his time in Court Four, he served as a supervisor from 2015-17. Mr. Jaffe has currently tried one hundred fifteen jury trials as criminal defense counsel. At the time he represented Fulbright in 2011, Mr. Jaffe estimates having tried sixty or seventy jury trials and having handled and tried many child molesting and other high level sex crimes cases.
Mr. Jaffe looked at the court records prior to the PCR hearing and saw that he represented Fulbright as well as some of the basic circumstances of the case, but he has no independent recollection of Fulbright or this case. Mr. Jaffe agreed that the record shows Fulbright pleaded guilty to child molesting, open sentencing, on the day of trial. Given that Fulbright pleaded guilty on the day of trial, Mr. Jaffe believes that he and the State were prepared for trial.
Mr. Jaffe no longer recalls what he did to prepare for sentencing. When asked if he considered having Fulbright evaluated by a mental health professional prior to sentencing, Mr. Jaffe responded that - although he does not specifically remember - based on his standard practice at the time, if that is something he had contemplated as a necessity, it would have been done. Mr. Jaffe testified that not doing so may have been
based on his interactions with Fulbright, or there may have been another reason why he chose not to seek such an evaluation. The fact that Mr. Jaffe moved forward at sentencing without requesting a continuance or requesting resources for an evaluation tells him that he did not believe that doing so would have led to additional relevant mitigating evidence.
When reviewing the court record recently, Mr. Jaffe saw mention that Fulbright was autistic, but he no longer recalls Fulbright's level of autism or how substantial it was. Mr. Jaffe is well-educated and aware regarding autism because his son has high-functioning Asperger's. Mr. Jaffe added that the Public Defender Agency did not have social workers or mitigation specialists at that time. Mr. Jaffe would have based his decision as to whether or not to pursue a mental health evaluation for sentencing mainly on his own interactions with Fulbright and Fulbright's ability to understand and communicate. Mr. Jaffe knows that sometimes low-functioning people mask it well, but he did not perceive that to be the situation with Fulbright.
Mr. Jaffe does not recall if he considered calling any of Fulbright's family members or friends as witnesses at sentencing, or submitting letters from them. Mr. Jaffe added that often family members do not communicate with him or do not have anything to add. In addition, the victims in Fulbright's case were his brother's children, so that would have been an added challenge in knowing where other family members stood.
8. Petitioner Larry Fulbright's post-conviction testimony included that: his attorney Mr. Jaffe told him things but Fulbright did not understand what Mr. Jaffe was talking about; most of their conversations were regarding the guilty plea; when asked if Mr. Jaffe talked with him about what would happen at the sentencing hearing, Fulbright responded that he does not remember and that he has "a hard time remembering things;" Fulbright denied that Mr. Jaffe asked him any questions about
his mental status or autism or mentioned the possibility of having Fulbright evaluated by a psychologist.
9. The evidence is for the State and against the Petitioner.
CONCLUSIONS OF LAW
* * * * *
In his petition, Fulbright claims that trial counsel did not conduct a reasonable investigation of Fulbright's background, including his mental status and character, prior to sentencing. Petitioner argues that an adequate investigation would have revealed that Fulbright had substantial cognitive limitations which affected his judgment and impulse control, and that he had many positive character traits. Petitioner further argues a reasonable probability of a more favorable outcome of the sentencing hearing had said limitations and character traits been more fully presented.
* * * * *
The post-conviction evidence shows that Mr. Jaffe's handling of the investigation of mitigating evidence prior to sentencing was reasonable and not deficient. ["]Strickland [v. Washington, 466 U.S. 668 (1984), reh'g denied] does not guarantee perfect representation, only a reasonably competent attorney." Hinesley v. State, 999 N.E.2d 975, 983 (Ind.Ct.App. 2013)[, reh'g denied, trans. denied].
At Fulbright's sentencing, trial counsel facilitated a statement from Fulbright in which Fulbright expressed sincere remorse, and he also confirmed that he had been in protective custody due to threats from inmates because of the nature of his
charges. T.R. 15-18. Further, Mr. Jaffe's zealous argument at sentencing included the following:
I don't think there's anything to indicate here that he's... a dangerous person or anything in that regard. You see from the risk assessment. presentence investigation report, Judge, but on page eight of nine they do indicate at the top of that page that his overall risk assessment for a score. puts him in the low risk category to reoffend. I would agree with that, Judge. He has no criminal history prior to this. He's held a fulltime job for at least four years delivering medical supplies and worked sixty hours a week. So he worked a lot. He had a couple of close friends. To me that's a plus. . I disagree with a couple of the issues they bring up as possible problems. He did graduate high school despite the fact that he was in special education classes. He could have hung his hat on I'm autistic, I can't do this. He didn't do that. He got through everything and he worked and so I think that shows some very good things about him. It shows that he is capable of doing what he needs to do. Clearly there needs to be some kind of counseling, some kind of way to address what's going on with him and he's going to get through sex offender treatment while incarcerated. If you think it's appropriate he's going to be on sex offender probation as well so there's going to be a way to monitor him. He's going to have to be on a registry once he gets out. So there are going to be a lot of things there to address the behavior and I don't think a lengthy incarceration is necessary in this case. And I don't think it's really justified. In terms of mitigation, he is sorry clearly in his statements here and what he said for what's - what was done, what he did. He pleaded guilty, Judge. I don't think it's an issue that he pled guilty the day of trial. Frankly, his mom basically kept telling him that she knew he didn't do it and. he was kind of holding out for her, I suppose, mental health, for
her to be able to deal with this. Mom had a lot of a lot of trouble dealing with this but I think it was more she knew it happened and just did not want to accept that this had happened. I mean, she has been on the phone with me and my supervisors breaking down and, you know, hysterical for months. So it was a very difficult thing for her. But once he realized that she accepted it, you know, he said well I want to plead guilty, I don't want to go to trial. You know, he never wanted that. So I think that's a significant mitigator, that he did accept responsibility, he is remorseful about what happened, he has no criminal history prior to this. That's a significant mitigator that can't be ignored. And I think all of the mitigators clearly outweigh the aggravators. The aggravators, while not insignificant, clearly don't rise to the level of the lack of criminal history or anything like that. So I think that they do outweigh the aggravators. In addition to that, Judge, and this is more of a practical issue, the credit time for this case is not like the normal cases we deal with. If he gets the minimum of twenty years on this, he's doing seventeen actual years. So he's doing a lot of time regardless of what you do. I believe the minimum is justified because of the lack of aggravators and the significant mitigators and that he's going to do that seventeen years is significant. ..[H]e appreciates that he's got a lot to do and he does indicate to me that once he gets out he's planning on moving with his father in Kentucky so he won't be around the family here... He was in protective custody. My understanding he was being threatened. He has been in protective custody basically in isolation the entire time he's been -- just about the entire time he's been in Marion County Jail. So the time that he's been doing here has been especially difficult for him and I'd just ask you to be mindful of that. As far as I know he hasn't had any fights or caused any problems on his own and I did ask if he was in a protective custody situation because of something he'd done or something else and they said no, it's for his own
protection so, you know -- my final recommendation just is what it is, Judge. I'd ask for the minimum executed time. I don't have any issue with whatever time you think is appropriate for the overall sentence and what you might want to suspend but it is going to be significant amount of executed time regardless of anything... Thank you.T.R. 24-29.
It is apparent from trial counsel's argument that his knowledge of Fulbright's case and background was expansive, and that trial counsel had in-depth communications with Fulbright's mother, and he also investigated the details of his client's protective custody status with the jail.
Although Mr. Jaffee no longer has independent recall of the sentencing hearing, it is apparent from the record that, instead of arguing Fulbright's autism as a mitigating circumstance, Mr. Jaffee made a strategic decision to argue that Fulbright's ability to overcome his autism reflected positive character traits such as being hardworking and willing to follow through on his commitments. "Few points of law are as clearly established as the principle that [t]actical or strategic decisions will not support a claim of ineffective assistance." McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002), reh'g denied. "Counsel is afforded considerable discretion in choosing strategy and tactics and we will accord that decision deference." McCullough v. State, 973 N.E.2d 62, 75 (Ind.Ct.App. 2012), trans. denied. "The judicial scrutiny of counsel's performance is highly deferential and should not be exercised through the distortions of hindsight." Talley v. State, 736 N.E.2d 766, 769 (Ind.Ct.App. 2000).
Ultimately, the trial court adopted three of the mitigating circumstances set forth by Mr. Jaffe. See T.R. 31 (Trial court's sentencing statement included: "I find that the defendant does
not have history of criminal or delinquent behavior, that he does accept responsibility for his offense by his plea of guilty, and that he has expressed remorse.") Petitioner has not proven that trial counsel's investigation and presentation at sentencing constituted deficient performance. Accordingly, this claim fails.
Nor has petitioner met his burden of showing a reasonable probability of a more favorable outcome at sentencing if trial counsel had performed differently.
Firstly, the trial court had evidence before it regarding Fulbright's cognitive limitations. For instance, the Education section of the Presentence Report at p. 6, provided the following:
Mr. Fulbright reported that the last high school he attended was Ben Davis High School in Indianapolis, Indiana. He stated he graduated in 2002....He stated he was placed in special education classes from the first grade. He stated he was placed in special education classes because he is autistic. Fulbright reported his performance was good and he graduated with a 3.5 GPA. His GPA was not verified. He also reported his behavior toward his teachers and school staff was good. He stated his future educational plan is to maybe attend college and study General Studies.See also Presentence Report at p. 3 ("Mental Referrals: "The defendant was diagnosed with autism when he was in the first grade"); T.R. 10-11 (Trial counsel elicited from defendant's brother, [K.F.], on cross-examination at sentencing that Fulbright had been diagnosed with autism and was in special education classes).
While the post-conviction evaluation of Dr. Kohli, Petitioner's Exhibit 16, was more detailed - finding that
Fulbright was diagnosed with Autism Asperger's Syndrome and a learning disorder, with significantly below average intellectual ability, this Court does not find that the details therein would have created a reasonable probability of a more favorable sentence, especially in light of the strength of the multiple aggravating circumstances. See T.R. 31-33 (The trial court found as aggravating: [1] "that the victims of the offenses were under the age of twelve and that is at the time of the offense, three years of age - the young girl - and the young boy was four years of age at the time of the offense." [2] "The defendant was clearly in position of trust with them, having control over them at the time of the offense as well as being person who lived in their home." [3] "_ his long history of criminal substance abuse does not indicate to me that he has not at some risk to reoffend. So have some concerns about that. And that history of - you know, two grams of heroin on daily basis is lot. It's lot." [4] "I think, as well, the effect of the offense on both of the victims has been lasting and profound and it is very likely to continue.")
Nor does this Court see the facts in Dr. Kohli's report that Fulbright was molested while in elementary school by a babysitter as significant, for the reason that petitioner has not shown that he would have been willing to disclose said abuse to the trial court or to trial counsel at the time of the original sentencing. See Presentence Report at p. 5: "The defendant denied ever being the victim of any type of abuse."
As an aside the Court also notes that the victims' father and petitioner's brother, [K.F.], testified at sentencing that Fulbright functioned pretty normally with work and having a driver's license, despite his autism diagnosis, and in [K.F.]'s opinion his brother was "very capable of understanding what he did." T.R. 8-11. [K.F.] also noted that, in hindsight, the way his children acted around Fulbright makes him "believe it had been going on longer than just this time," T.R. 9, although the trial court did not consider this in its aggravating circumstances.
Lastly, as to petitioner's allegation that trial counsel was ineffective for failing to call any of Fulbright's family as witnesses at sentencing and failing to present evidence of positive character traits, the Indiana Supreme Court has consistently held that when an ineffective assistance of counsel claim is premised on the attorney's failure to present witnesses, "it is incumbent upon the petitioner to offer evidence as to who the witnesses were and what their testimony would have been." Lowery v. State, [6]40 N.E.2d 1031, 1047 (Ind. 1994). See also Fugate v. State, 608 N.E.2d 1370, 1373 (Ind. 1993) (concluding that petitioner could not establish that trial counsel was ineffective for failing to subpoena a witness in part because the petitioner did not provide an affidavit showing what the witness's testimony would have been). Mr. Jaffee noted that, because the victims were Fulbright's niece and nephew, that created some difficulties regarding knowing where other family members stood. The affidavit of Berdina Spears, Fulbright's mother, contained in Petitioner's post-conviction Exhibit 17, does not present evidence of a nexus between Fulbright's autism and child molesting. Petitioner has not met his burden of proving prejudice as to trial counsel's decision not to present character witnesses at sentencing.
Further, in Fulbright's direct appeal of his sentence, the appellate court found:
The record indicates that Fulbright was capable of controlling his behavior and he did not have significant limitations on his functioning, and he has not presented evidence of a nexus between his autism and child molesting. Therefore, we accord Fulbright's condition little weight in our analysis of his character.Fulbright v. State, No. 49A02-1407-CR-449, slip op. at p.6 (Ind.Ct.App. May 23, 2016). Even though the post-conviction assessment of Dr. Kohli sets forth additional details and facts
than those originally presented to the trial court, this Court finds that the appellate court's conclusion still applies and would remain unchanged by Fulbright's post-conviction psychological evaluation. This Post-Conviction Court is unpersuaded that petitioner's autism or low intellectual functioning significantly impaired his ability to control his behavior, or that there was a nexus between his autism or low intellectual functioning and the commission of the offenses.
Ultimately, given the strength and number of aggravating circumstances found by the trial court, as well as that the trial court did in fact objectively weigh and consider Fulbright's autism, this Court does not find a reasonable probability that an evaluation such as that prepared by Dr. Kohli would have resulted in a sentence of lower than the presumptive thirty-year sentence for A-felony child molesting, nor a sentence of lower than the 910-days concurrent for performance harmful to minors, which Fulbright originally received. Without prejudice, this claim fails.
Fullbright was not denied the effective assistance of counsel.(Appellant's App. Vol. 2 at 141-52) (errors in original). The post-conviction court therefore denied Fulbright's petition.
Discussion and Decision
[¶6] Fulbright appeals from the denial of his petition for post-conviction relief.
Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence. Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019), reh'g denied, cert. denied; Ind. Post-Conviction Rule 1(1)(b).
"The scope of potential relief is limited to issues unknown at trial or unavailable on direct appeal." Gibson, 133 N.E.2d at 681. "Issues available on direct appeal but not raised are waived, while issues litigated adversely to the defendant are res judicata." Id. The petitioner bears the burden of establishing his claims by a preponderance of the evidence. Id.; P.-C. R. 1(5).
When, as here, the petitioner "appeals from a negative judgment denying post-conviction relief, he 'must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.'" Gibson, 133 N.E.2d at 681 (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000)).Bell v. State, 173 N.E.3d 709, 714-15 (Ind.Ct.App. 2021).
[¶7] Where the post-conviction court enters findings of fact and conclusions of law in accordance with Post-Conviction Rule 1(6), we do not defer to the trial court's legal conclusions, but we review the post-conviction court's factual findings for clear error. McDowell v. State, 102 N.E.3d 924, 929 (Ind.Ct.App. 2018), trans. denied. We do not reweigh the evidence or judge the credibility of the witnesses. Id. We consider the probative evidence and all reasonable inferences therefrom in the light most favorable to the post-conviction court's ruling. Id.
[¶8] We also acknowledge that the magistrate who presided over Fulbright's postconviction proceedings - The Honorable Anne Flannelly - also presided over Fulbright's criminal trial. In such a circumstance, "the post-conviction court's findings and judgment are entitled to greater than usual deference." Reeves v. State, 174 N.E.3d 1134, 1140 (Ind.Ct.App. 2021), trans. denied. See also State v. Dye, 784 N.E.2d 469, 476 (Ind. 2003) (judge who served both at criminal trial and post-conviction hearing was "in an exceptional position to assess not only the weight and credibility of the factual evidence, but also the probable impact" of alleged errors).
[¶9] On appeal, Fulbright challenges the post-conviction court's determination that his trial counsel did not provide ineffective assistance at sentencing by failing to present additional mitigating evidence. The Sixth Amendment to the United States Constitution states a defendant in a criminal prosecution is entitled "to have the assistance of counsel for his defense." U.S. Const., Am. VI. This right requires that counsel be effective. Strickland v. Washington, 466 U.S. 668, 686 (1984), reh'g denied. "Generally, to prevail on a claim of ineffective assistance of counsel a petitioner must demonstrate both that his counsel's performance was deficient and that the petitioner was prejudiced by the deficient performance." Davis v. State, 139 N.E.3d 246, 261 (Ind.Ct.App. 2019), trans. denied.
[¶10] Counsel is deficient if his performance falls below the objective standard of reasonableness established by prevailing professional norms. Id. There is a strong presumption that trial counsel provided effective representation, and the petitioner must rebut that presumption with strong evidence. Warren v. State, 146 N.E.3d 972, 977 (Ind.Ct.App. 2020), trans. denied, cert. denied, 141 S.Ct. 858 (2020). "Isolated poor strategy, inexperience, or bad tactics does not necessarily constitute ineffective assistance of counsel." McCullough v. State, 973 N.E.2d 62, 74 (Ind.Ct.App. 2012), trans. denied.
[¶11] "To meet the appropriate test for prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Davis, 139 N.E.3d at 261 (internal citation omitted). If a petitioner cannot succeed on the prejudice prong of his claim, we need not address whether counsel's performance was deficient. Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2018). When a petitioner alleges counsel was ineffective for failing to present mitigating evidence at sentencing, we assess the prejudice prong by considering whether the additional evidence presented during post-conviction proceedings would have impacted the sentence imposed. Coleman v. State, 741 N.E.2d 697, 702 (Ind. 2000), reh'g denied, cert. denied, 534 U.S. 1057 (2001), reh'g denied, 534 U.S. 1158 (2002).
[¶12] The post-conviction court determined that Fulbright's counsel provided reasonably competent assistance and that Fulbright was not prejudiced. Fulbright challenges each of those determinations. We begin by addressing the prejudice prong of the Strickland analysis because "most ineffective assistance of counsel claims can be resolved by a prejudice inquiry alone." Reeves, 174 N.E.3d at 1140 (quoting French v. State, 778 N.E.2d 816, 824 (Ind. 2002)).
A. Failure to call character witnesses
[¶13] Fulbright first asserts his trial counsel was ineffective because he did not call character witnesses at sentencing who would have been supportive of Fulbright. We note that, to demonstrate counsel should have called additional witnesses, a post-conviction petitioner must offer evidence about what testimony would have been given if the witnesses had been called. Reeves, 174 N.E.3d at 114142. Herein, the only witness for whom Fulbright provided the required expected testimony was his mother, Berdina Spears. Accordingly, we address only whether Fulbright was prejudiced by counsel's failure to call his mother to testify on his behalf at sentencing.
[¶14] Regarding testimony from Fulbright's mother, the post-conviction court determined: "The affidavit of Berdina Spears, Fulbright's mother, contained in Petitioner's post-conviction Exhibit 17, does not present evidence of a nexus between Fulbright's autism and child molesting. Petitioner has not met his burden of proving prejudice as to trial counsel's decision not to present character witnesses at sentencing." (Appellant's App. Vol. 2 at 151.)
[¶15] The affidavit from Fulbright's mother explains that Fulbright would not have graduated from high school if he had been in "regular classes" because he "cannot learn in a large group." (Exhibit 17.) She asserts Fulbright has difficulty focusing on tasks, needs simple instructions, easily gets frustrated, struggles to balance a checkbook, required multiple attempts to obtain a driver's license, sometimes associates with the wrong people, and is easily influenced. None of Spears's assertions about Fulbright's difficulties suggest the then twenty-seven-year-old Fulbright should not have known better than to put his penis in the mouth of his three-year-old niece while his four-year-old nephew watched. Fulbright - according to his own argument at sentencing - was capable of working sixty-hour weeks delivering medical supplies and of maintaining friendships, which suggests Fulbright is not as helpless as his mother suggests. The evidence favorable to the judgment supports the postconviction court's determination that Fulbright was not prejudiced by his counsel's failure to present testimony from Fulbright's mother at sentencing.
B. Failure to obtain a psychological evaluation
[¶16] Fulbright next argues trial counsel was ineffective because he failed to present an evaluation from a mental health professional. Fulbright notes the presentence investigation report contained information about his autism diagnosis but argues "the PSI did not reveal the full extent of Fulbright's impairment, and it did not include an evaluation by a mental health professional." (Appellant's Br. at 20-21.) Fulbright claims he "is substantially impaired." (Id. at 21.)
[¶17] However, the post-conviction court explicitly determined:
. . . This Post-Conviction Court is unpersuaded that petitioner's autism or low intellectual functioning significantly impaired his ability to control his behavior, or that there was a nexus between his autism or low intellectual functioning and the commission of the offenses.(Appellant's App. Vol. 2 at 151.) While Fulbright points to evidence in the psychological report that permits the inferences that he wishes the postconviction court would have drawn, we may not reweigh the evidence or look only at the evidence favorable to Fulbright. See McDowell, 102 N.E.3d at 929 (stating standard of review). The post-conviction court was not required to accept the psychological report as a more accurate estimation of Fulbright's functional ability than the fact that Fulbright was capable of maintaining a fulltime job delivering medical supplies.
[¶18] The post-conviction court also determined:
Ultimately, given the strength and number of aggravating circumstances found by the trial court, as well as that the trial court did in fact objectively weigh and consider Fulbright's autism, this Court does not find a reasonable probability that an evaluation such as that prepared by Dr. Kohli would have resulted in a sentence of lower than the presumptive thirty-year sentence for A-felony child molesting, nor a sentence of lower than the 910-days concurrent for performance harmful to minors, which Fulbright originally received. Without prejudice, this claim fails.(Appellant's App. Vol. 2 at 151-52.) The aggravating circumstances included the victims being three and four years old, Fulbright's position of trust with the victims, his history of illegal drug abuse, and the impact on the victims. The post-conviction court magistrate - who also sentenced Fulbright - is in a much better position than we are to determine the probable impact of the omitted evidence on the sentence that was imposed. Because there is evidence in the record to support the post-conviction court's decision, we affirm.
Conclusion
[¶19] Because the evidence in the record supports the findings and conclusions underlying the post-conviction court's determination that Fulbright was not prejudiced by his trial counsel's failure to call additional character witnesses or obtain a psychological evaluation prior to sentencing, we affirm the postconviction court's denial of Fulbright's petition for post-conviction relief.
[¶20] Affirmed.
Brown, J., and Pyle, J., concur.