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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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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