MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Feb 27 2017, 9:28 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
John Berry Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Berry, February 27, 2017
Appellant-Petitioner, Court of Appeals Case No.
49A05-1603-PC-553
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Clark H. Rogers,
Appellee-Respondent. Judge
Trial Court Cause No.
49F25-0902-PC-24179
Najam, Judge.
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Statement of the Case
[1] John Berry appeals the post-conviction court’s denial of his petition for post-
conviction relief. Berry raises a single issue for our review, namely, whether he
received ineffective assistance from his trial counsel. We affirm.
Facts and Procedural History
[2] The facts underlying Berry’s conviction and sentence were stated by our
supreme court in his direct appeal:
John Berry is a forty-one-year-old man who suffers from alcohol
dependence. Berry began abusing alcohol at the age of nine and
became a daily drinker by his sophomore year of high school.
He also used marijuana, cocaine, methamphetamine, LSD,
mushrooms, and ecstasy, but he stopped using these drugs at age
thirty. His drinking, however, continued.
Over the years, Berry has received rehabilitation treatment
multiple times without success. He also has several convictions
related to his alcohol use.
In 1999, Berry was diagnosed with bipolar disorder. He has been
hospitalized multiple times for a combination of symptoms
related to his drug and alcohol abuse and bipolar disorder. He
has been treated with mood-stabilizing, psychotropic,
antianxiety, and antidepressant medications.
On Monday, February 9, 2009, Berry went with his father, John
Berry III (Father), to a house Father was helping renovate.
Father parked his truck in front of the house. Tony Monday was
working on the bathroom ceramic tile when Berry and Father
arrived.
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Father greeted Monday, and Monday told Father that he had
borrowed the power drill and claw hammer during the weekend
and that those tools were in the bathroom. Father then took
Berry into one of the bedrooms where Berry was to do drywall
work, and Father told Berry where the drill and hammer were.
Berry went into the bathroom and told Monday that he was
“going to kill” him. Monday asked Berry why, and Berry told
Monday to “shut up” and repeated that he was “going to kill”
him. Berry then struck Monday in the head with the claw
hammer. Monday pleaded with Berry to stop, but Berry ignored
him and continued to strike Monday.
During this time, Father was in the living room area with his
back to the hallway leading to the bathroom. Eventually,
Monday exited the bathroom into the hallway, and Father turned
around to see Monday bleeding profusely from his head. Father
began attending to Monday’s injuries as Monday explained to
Father what happened. Father called 911.
Father then saw Berry in the kitchen, walking back and forth and
wiping the hammer with a towel. Father asked Berry, “Did you
hit him with the f* *king hammer?” Berry responded, “I guess
so.”
Father told Berry to go to the garage. Berry left through the back
door, walked to the front of the house, opened Father’s truck,
and placed the hammer and bloody towel in a chest of drawers
located in the covered bed of the truck. Berry then reentered the
house and told Father he could not find the garage. Father told
Berry where the garage was and that Berry should stay there.
Medics and police officers arrived soon after. Father told the
officers where Berry was, and they surrounded the garage. Berry
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initially refused to unlock the door and exit the garage, but
Father was eventually able to convince Berry to come out.
Police handcuffed Berry and began to question him. They
described Berry’s behavior as nonchalant and very calm; noted
that Berry’s speech was clear; and stated that Berry offered no
resistance. When asked where the hammer was, Berry told
police it was in a drawer in the truck and directed them to the
correct truck. When asked why he placed the hammer there,
Berry responded that Father told him to do so. Finally, when
asked why he hit Monday with the hammer, Berry gave
nonsensical answers, including that God told him to hit Monday
and that Monday was caught playing with an eagle. Berry was
then taken to the hospital, admitted to a mental health center,
and discharged several days later.
Monday suffered severe injuries. He underwent surgery to repair
his nose, his eyes, and his broken jaw. Titanium plates were
implanted into his skull, and he also lost sight in one eye.
Monday can no longer use his dentures due to the damage
inflicted to his jaw.
The State charged Berry with Class A felony attempted murder.
Berry interposed an insanity defense. A court-appointed
psychiatrist and court-appointed psychologist found Berry
competent to stand trial.
Berry waived his right to a trial by jury. After hearing expert and
lay testimony, the trial court found Berry guilty as charged,
rejecting his insanity defense. . . .
Berry v. State, 969 N.E.2d 35, 36-37 (Ind. 2012).
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[3] In his direct appeal, Berry argued that the trial court erred when it rejected his
insanity defense. Our court agreed, reversing his conviction on the basis that
Berry suffered from “settled insanity.” Id. at 36. However, the Indiana
Supreme Court granted transfer and affirmed the trial court “because there was
credible expert testimony that defendant’s behavior was caused by his voluntary
abuse of alcohol.” Id.
[4] Thereafter, Berry filed his petition for post-conviction relief. In relevant part,
Berry asserted that his trial counsel, Michael Day, rendered ineffective
assistance when Day pursued an insanity defense in lieu of arguing that Berry
had committed a lesser-included offense to murder. The post-conviction court
held an evidentiary hearing on Berry’s petition. At that hearing, Day testified
that “it was pretty clear from the facts and the evidence that from the get go that
there was a mental defect at play here”; that the “insanity defense . . . was the
best route given all the evidence”; that he “would have lost
credibility . . . saying that . . . the insanity was . . . what was going on . . . [a]nd
then at the same time say[ing] well, if insanity doesn’t apply then what we have
here is . . . aggravated battery”; and that Berry’s argument in his petition was
based on “hindsight.” Post-Conviction Tr. at 4-6, 10. Crediting and relying on
Day’s testimony, the post-conviction court entered findings of fact and
conclusions of law denying Berry’s petition. This appeal ensued.
Discussion and Decision
[5] Berry appeals the post-conviction court’s denial of his petition for post-
conviction relief. Our standard of review in such appeals is clear:
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The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)
(citations omitted). When appealing the denial of post-
conviction relief, the petitioner stands in the position of one
appealing from a negative judgment. Id. To prevail on appeal
from the denial of post-conviction relief, a petitioner must show
that the evidence as a whole leads unerringly and unmistakably
to a conclusion opposite that reached by the post-conviction
court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
Further, the post-conviction court in this case made findings of
fact and conclusions of law in accordance with Indiana Post-
Conviction Rule 1(6). Although we do not defer to the post-
conviction court’s legal conclusions, “[a] post-conviction court’s
findings and judgment will be reversed only upon a showing of
clear error—that which leaves us with a definite and firm
conviction that a mistake has been made.” Ben-Yisrayl v. State,
729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted).
Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
[6] On appeal, Berry asserts that the post-conviction court erred when it found that
Day did not render ineffective assistance of counsel when Day pursued an
insanity defense in lieu of arguing for a lesser-included offense.
When evaluating an ineffective assistance of counsel claim, we
apply the two-part test articulated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
prong, “the defendant must show deficient performance:
representation that fell below an objective standard of
reasonableness, committing errors so serious that the defendant
did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
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second prong, “the defendant must show prejudice: a reasonable
probability (i.e. a probability sufficient to undermine confidence
in the outcome) that, but for counsel’s errors, the result of the
proceeding would have been different.” Id. (citing Strickland, 466
U.S. at 694, 104 S. Ct. 2052).
Id. at 274. Moreover, “strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable.”
Strickland, 466 U.S. at 690.
[7] According to Berry:
had Day researched the case of Thompson v. State, 804 N.E.2d
1146, 1149 [(Ind. 2004),] . . . he would have realized he had a
losing defense. The Indiana Supreme Court ruled in Thompson
that even if a defendant has expert witnesses testifying on his/her
behalf . . . the trial court can disregard their opinion[s] and rely
upon the testimony of lay witnesses, and that conflicting credible
expert testimony is sufficiently probative of sanity . . . . Day
knew that there were two lay witnesses testifying that [Berry] was
not insane and that Dr. Masbaum would be testifying that
[Berry’s] condition was either voluntary intoxication or
withdraw[al] from voluntary intoxication . . .
Appellant’s Br. at 3. Berry further takes issue with Day’s statement to the post-
conviction court that, absent the proper mens rea, “there was no crime here,”
and Berry also contends that Day’s expression of regret for not securing a better
outcome for Berry demonstrates that Day “should have went [sic] with the
lesser offense strategy.” Id. at 4.
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[8] Berry has not carried his burden on appeal. Thompson does not demonstrate
that Day’s strategy to pursue an insanity defense was unreasonable; rather,
Thompson merely recognizes that such questions are questions of fact, to be
credited or rejected by the fact-finder as it deems appropriate. Further, Day’s
statement to the post-conviction court that there was no crime absent the proper
mens rea was a correct statement. And Day’s regret for not securing a better
outcome for Berry does not impugn the reasonableness of Day’s decisions
during the course of the trial proceedings.
[9] Berry’s arguments on appeal are merely requests to reweigh the evidence
credited by the post-conviction court, which we will not do. The post-
conviction court found, based on Day’s testimony, that Day’s pursuit of the
insanity defense in lieu of a lesser-included offense was objectively reasonable.
Again, Day testified that he had concluded that that strategy was the “best
route” in light of “the facts and the evidence” and that arguing an alternative
basis for liability would have lost him essential credibility. Post-Conviction Tr.
at 4-6, 10. Indeed, this court agreed with Day’s assessment of the merits of the
insanity defense, although the Indiana Supreme Court ultimately reinstated
Berry’s conviction. In sum, the post-conviction court’s findings are supported
by the record, and the court’s findings support its judgment. Thus, we affirm
the post-conviction court’s denial of Berry’s petition for post-conviction relief.
[10] Affirmed.
Bailey, J., and May, J., concur.
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