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COA finds petitioner failed to show trial counsel was ineffective

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In affirming a post-conviction court’s judgment, the Indiana Court of Appeals found a convicted child molester failed to carry his burden in claiming that his attorney was ineffective.

Ian McCullough was convicted of two counts of Class A felony child molesting and one court of Class C felony child molesting. After his convictions were affirmed on direct appeal, he sought post-conviction relief on the grounds that he received ineffective assistance of trial counsel.

The post-conviction court denied McCullough’s petition.

On appeal in Ian McCullough vs. State of Indiana, 49A02-1106-PC-57, McCullough argues that his trial counsel was ineffective on numerous grounds including that counsel failed to object to evidence of prior uncharged misconduct and to the prosecutor’s references to that misconduct; failed to adequately cross-examine the state’s investigators; failed to make an offer of proof when the trial court excluded his expert’s testimony; failed to present expert evidence of child memory; failed to present certain evidence; and failed to request the jury instruction as mandated by the Protected Person Statute.

The COA noted that to be successful in the claim of ineffective assistance of counsel, the petitioner must demonstrate both that his counsel’s performance was deficient and that the petitioner was prejudiced by the deficient performance.

In reviewing the claim, the COA concluded that McCullough failed to carry his burden to show that the evidence, as a whole, leads unerringly and unmistakably to a conclusion different from that of the post-conviction court.

Judge Elaine Brown dissented. She wrote, “While some of the errors by trial counsel may not individually be sufficient to prove ineffective representation, when viewed cumulatively counsel’s overall performance fell below the prevailing professional norms….”


 

 

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

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