FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL B. TROEMEL GREGORY F. ZOELLER
Lafayette, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
FILED
Aug 13 2012, 9:33 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
ANASTAZIA SCHMID, )
)
Appellant-Defendant, )
)
vs. ) No. 79A04-1110-PC-618
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE CIRCUIT COURT
The Honorable Rex W. Kepner, Special Judge
Cause No. 79C01-0502-PC-1
August 13, 2012
OPINION - FOR PUBLICATION
MAY, Judge
Anastazia Schmid appeals the denial of her petition for post-conviction relief. She
raises four issues:
1. Whether her trial counsel was ineffective for failing to raise the defense of
“Justified Reasonable Force” pursuant to Ind. Code § 35-41-3-11;
2. Whether her trial counsel was ineffective for failing to demand a second
competency hearing after the court found Schmid competent to stand trial;
3. Whether her trial counsel was ineffective for failing to communicate an
alleged plea offer to Schmid; and
4. Whether her trial counsel was ineffective for failing to call Schmid to testify in
her own defense.
We affirm.
FACTS AND PROCEDURAL HISTORY
The facts of Schmid’s crimes were set forth in the opinion issued in response to her
direct appeal of her convictions of Class C felony battery by means of a deadly weapon,1
Class C felony criminal recklessness by means of a deadly weapon,2 Class B felony
aggravated battery,3 Class C felony battery resulting in serious injury,4 murder, a felony,5 and
two counts of Class D felony criminal recklessness:6
Schmid has an extensive history of psychological problems that began when
she was a young girl. By 2001, when she was twenty-eight years of age, she
1
Ind. Code § 35-42-2-1.
2
Ind. Code § 35-42-2-2.
3
Ind. Code § 35-42-2-1.5.
4
Ind. Code § 35-42-2-1.
5
Ind. Code § 35-42-1-1.
6
Ind. Code § 35-42-2-2.
2
had been married and divorced and was living with her boyfriend, Tony
Heathcote (Heathcote), the victim. Schmid’s prior marriage had produced a
daughter, and, on March 2, 2001, Schmid was informed that Heathcote
allegedly had molested her daughter. Upon receiving this news, Schmid
became very upset. Two days later, on March 4, 2001, Schmid and Heathcote
were having sexual relations at their home using restraints, a dog collar, a
leash, and a blindfold when Heathcote suggested that Schmid play the part of
the little girl and Heathcote would play the part of the daddy. This statement
caused Schmid to think of her daughter. At that time, Schmid obtained a knife
and began stabbing Heathcote who was blindfolded and restrained at the
ankles. Heathcote was stabbed thirty-nine (39) times and died. Later, Schmid
indicated that at the time of the stabbing she had heard a voice telling her that
she was the messiah and that Heathcote was evil and needed to be eliminated.
Following a jury trial, Schmid was convicted with verdicts of guilty but
mentally ill. This appeal ensued.
Schmid v. State, 804 N.E.2d 174, 177 (Ind. Ct. App. 2004), trans. denied.
In her direct appeal, Schmid argued the trial court erred when it denied her motion to
continue due to the addition of private counsel, there was insufficient evidence to support her
convictions, the trial court erred when it admitted testimony of the State’s expert witness who
testified regarding Schmid’s sanity, and the trial court erred by “refusing to give her tendered
instruction on the consequences of the different verdicts from which the jury could choose.”
Id. at 182. We affirmed.
On February 7, 2005, Schmid filed a pro se petition for post conviction relief. She
amended the petition five years later. The post-conviction court held a hearing and on
August 18, 2011, denied Schmid’s petition.
DISCUSSION AND DECISION
Post-conviction proceedings afford petitioners a limited opportunity to raise issues
that were unavailable or unknown at trial and on direct appeal. Davidson v. State, 763
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N.E.2d 441, 443 (Ind. 2002). As post-conviction proceedings are civil in nature, the
petitioner must prove her grounds for relief by a preponderance of the evidence. Id. A party
appealing a negative post-conviction judgment must establish the evidence is without conflict
and, as a whole, unerringly points to a conclusion contrary to that reached by the post-
conviction court. Id. Where, as here, the post-conviction court makes findings of fact and
conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we do not defer to
the court’s legal conclusions, but “the findings and judgment will be reversed only upon a
showing of clear error – that which leaves us with a definite and firm conviction that a
mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (quoting
State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997), cert. denied, 523 U.S. 1079 (1998)). The
post-conviction court is the sole judge of the weight of the evidence and the credibility of
witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
All the arguments Schmid raises in this appeal assert her trial attorneys were
ineffective. We review claims of ineffective assistance of counsel under the two-part test
announced in Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail, a claimant
must show counsel’s performance fell below an objective level of reasonableness based on
prevailing professional norms, Taylor v. State, 882 N.E.2d 777, 781 (Ind. Ct. App. 2008), and
that deficient performance resulted in prejudice. Id.
“Prejudice occurs when the defendant demonstrates that ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting
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Strickland, 466 U.S. at 694). We need not consider whether counsel’s performance fell
below the objective standard if that performance would have not changed the outcome.
Strickland, 466 U.S. at 687.
1. Justified Reasonable Force Defense
At trial, Schmid’s defense team offered the insanity defense, see Ind. Code § 35-41-3-
11(b)(1), and presented evidence Schmid experienced auditory and visual hallucinations
when committing the crimes. Schmid argues counsel should have raised the “Justified
Reasonable Force” defense and she was prejudiced because, if counsel had done so, she
would have been found not guilty.
The “Justified Reasonable Force” defense, also known as the “Battered Women’s
Syndrome” defense and the “effects of battery” defense, is also codified in Ind. Code § 35-
41-3-11:
(b) This section applies under the following circumstances when the defendant
in a prosecution raises the issue that the defendant was at the time of the
alleged crime suffering from the effects of battery as a result of the past course
of conduct of the individual who is the victim of the alleged crime:
(1) The defendant raises the issue that the defendant was not
responsible as a result of mental disease or defect under section 6 of
this chapter, rendering the defendant unable to appreciate the
wrongfulness of the conduct at the time of the crime.
(2) The defendant claims to have used justifiable reasonable force
under section 2 of this chapter. The defendant has the burden of going
forward to produce evidence from which a trier of fact could find
support for the reasonableness of the defendant’s belief in the
imminence of the use of unlawful force or, when deadly force is
employed, the imminence of serious bodily injury to the defendant or a
third person or the commission of a forcible felony.
(c) If a defendant proposes to claim the use of justifiable reasonable force
under subsection (b)(2), the defendant must file a written motion of that intent
with the trial court not later than:
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(1) twenty (20) days if the defendant is charged with a felony; or
(2) ten (10) days if the defendant is charged only with one (1) or more
misdemeanors;
before the omnibus date. However, in the interest of justice and upon a
showing of good cause, the court may permit the filing to be made at any time
before the commencement of the trial.
The post-conviction court concluded:
[Schmid’s trial counsel] argued to the jury that Schmid did not know what she
was doing at the time of [the] stabbing. In order to show the stabbing was
justifiable, he would logically argue she made a conscious decision to stab
[Heathcote]. The two are at least partially inconsistent, if not entirely
inconsistent.
***
The facts did not support a defense of justifiable reasonable force because
Tony was tied to a bed. There was no imminent threat to her. Schmid had not
been physically abused for approximately five (5) months. Schmid did not
stab Tony to prevent immediate or impending injury to herself.
***
Since the use of “justifiable reasonable force” defense is within the insanity
defense statute, the best the defendant could hope for would be a verdict of
Not Guilty By Reason of Insanity. This verdict form was given to the jury.
(App. at 91-92.)
The State argues trial counsels’ decision not to pursue the Justifiable Reasonable
Force defense was a strategic decision based on the evidence available at trial. We agree. As
the post-conviction court found, the State’s evidence at trial indicated Heathcote was bound
when Schmid stabbed him. That would likely make it difficult for the defense to argue the
“imminence of the use of unlawful force” required to show she acted with justifiable
reasonable force. Therefore, Schmid has not demonstrated counsel was ineffective for
declining to advance the Justified Reasonable Force defense. Nor has she demonstrated
raising the defense would have changed the outcome of her trial.
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2. Competency Hearing
It is a violation of due process to convict a defendant who is incompetent to stand
trial. Gibbs v. State, 952 N.E.2d 214, 219 (Ind. Ct. App. 2011), trans. denied. A defendant is
not competent to stand trial when she is unable to understand the proceedings and assist in
the preparation of her defense. Id. Schmid was initially found incompetent, but was then
found competent to stand trial. She argues her trial counsel should have asked for another
competency hearing. We disagree.
The post-conviction court found:
Conclusions of Law on Issue (A)(4):
A. I.C. 35-36-3-2 does not require a hearing for a finding by the court after
a defendant attains the ability to understand the proceedings and assist
in the preparation of the defendant’s defenses.
B. Based on [the] testimony of [Schmid’s trial counsel], Schmid was able
to assist and communicate with her attorneys.
C. Further, it seems this issue was or could have been raised on appeal.
***
Conclusions of Law on Issue (A)(6):
A. Based on the opinions of Dr. Rahdert and Dr. DeSaii, Schmid was
competent to stand trial.
B. Schmid failed to prove how a hearing on her incompetence would have
resulted in a different outcome.
(App. at 96-97.)
After the court found Schmid incompetent, she was committed to a mental health
facility “for a few months.” (Tr. at 439.) On January 17, 2002, after Schmid was released
from the mental health facility, her trial counsel asked for an evaluation to determine
competency. The court appointed two doctors to determine Schmid’s competency, and both
determined she was competent to stand trial. At the PCR hearing, one of Schmid’s trial
7
counsel, Amy Hutchinson, testified she was able to communicate with Schmid during trial
and Schmid was able to understand the proceedings. Hutchinson testified she and other trial
counsel were able to communicate effectively with Schmid when they visited Schmid at the
jail.
In support of her contention she was incompetent to stand trial, Schmid presented
evidence to the post-conviction court that she was highly medicated during trial, and often
appeared “on edge” or “nervous,” (Id. at 441), during the court proceedings. Schmid’s
argument on appeal is a reiteration of her argument before the post-conviction court, and we
are not permitted to reweigh the evidence or judge the credibility of the witnesses before the
lower court. See Fisher, 810 N.E.2d at 679 (the post-conviction court is the sole judge of the
weight of the evidence and the credibility of witnesses). Accordingly, we will not disturb the
post-conviction court’s decision.
3. Counsel’s Failure to Communicate Alleged Plea Offer
Counsel have a duty to “inform their clients of plea agreements proffered by the
prosecution,” and “failure to do so constitutes ineffective assistance under the sixth and
fourteenth amendments.” Dew v. State, 843 N.E.2d 556, 568 (Ind. Ct. App. 2006), trans.
denied.
Schmid claims her trial counsel did not communicate a plea offer. The post-
conviction court found:
Facts Relating to Issue (A)(10):
A. [Schmid’s counsel] and [prosecuting attorney] briefly discussed a
resolution of the case while on break during the jury trial.
B. No firm offer was made by [prosecuting attorney].
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C. No offer was reduced to writing.
D. [Schmid’s counsel] did not communicate the discussion to Schmid
because he did not consider it a sincere offer and it was not in writing.
Conclusions of Law on Issue (A)(10):
A. In felony cases any plea agreement must be in writing.
B. Oral discussions of possible outcomes of a case are not a plea
agreement.
C. The restroom discussions were not “developments” or “proposals” as
defined in Lyles v. State, 382 N.E.2d, [sic] 991 (1978).
(App. at 98.)
Both Schmid’s counsel and the prosecutor testified during Schmid’s post-conviction
hearing that there was no plea offer; instead, they discussed a possible compromise that
would allow Schmid to plead guilty to Class C felony reckless homicide. Schmid’s counsel
testified he “spoke informally with the judge to try [to] obtain it and it just wasn’t going to
happen.” (Tr. at 370.) Schmid’s argument is an invitation to reweigh the evidence, which
we may not accept. See Fisher, 810 N.E.2d at 679 (the post-conviction court is the sole
judge of the weight of the evidence and the credibility of witnesses). Accordingly, we affirm
the decision of the post-conviction court.
4. Schmid’s Right to Testify
Schmid claims counsel denied her the right to testify in her own defense at trial.
During Schmid’s post-conviction hearing, her trial counsel conceded he and Schmid did not
discuss whether she would testify. The post-conviction court found:
A. Schmid has failed to prove that she requested to testify at trial[;]
B. Schmid has failed to prove that the outcome would have been different if
she had testified[; and]
C. Also, this issue was or could have been raised on appeal.
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(App. at 100.)
The testimony Schmid asserted during the post-conviction hearing she would have
offered at trial was cumulative of other testimony presented. It included details of the sexual
games Schmid and Heathcote played the night of his murder and of her state of mind while
she stabbed him. Schmid has not demonstrated she was prejudiced because she did not
testify. See, e.g., McCovens v. State, 539 N.E.2d 26, 30 (Ind. 1989) (error in the admission of
evidence not prejudicial if the evidence is merely cumulative of other evidence in the record).
CONCLUSION
As Schmid has not demonstrated counsels’ alleged errors were prejudicial, we affirm
the denial of her petition for post-conviction relief.
Affirmed.
FRIEDLANDER, J., and BARNES, J., concur.
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