Court of Appeals of Indiana | Memorandum Decision 19A-PC-2189 | February 19, 2020 Page 1 of 16

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

P. Jeffrey Schlesinger

Merrillville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Tyler G. Banks

Supervising Deputy Attorney General

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

LeVohn Harrison Brown,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

February 19, 2020

Court of Appeals Case No.

19A-PC-2189

Appeal from the Huntington 

Circuit Court

The Hon. Davin G. Smith, Judge 

Trial Court Cause No. 

35C01-1806-PC-6

Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2189 | February 19, 2020 Page 2 of 16

Case Summary

[1] In 2000, LeVohn Brown beat his three-year-old daughter to death, with the

specific cause of her death being a skull fracture. Prior to trial, Brown was 

examined by Dr. Stephen Ross, Psy.D., who concluded that he was not insane 

when he killed his daughter and was competent to stand trial. Brown was 

convicted of murder and sentenced to life imprisonment without parole. After 

Brown’s first direct appeal, he was resentenced to life imprisonment without

parole, and his conviction and sentence were affirmed following his second 

direct appeal. 

[2] In September of 2017, Brown filed a petition for post-conviction relief (“PCR”), 

claiming that he had received ineffective assistance of trial and appellate 

counsels. Brown argued that his trial counsel had rendered ineffective 

assistance by failing to emphasize evidence of his mental condition during

sentencing. Brown contended that appellate counsel had been ineffective for (1) 

failing to claim ineffective assistance of trial counsel and (2) failing to challenge 

the procedure the trial court used when resentencing Brown to life 

imprisonment without parole. The post-conviction court denied Brown’s PCR 

petition in full. Brown contends that the post-conviction court erroneously 

denied his PCR petition. Because we disagree, we affirm. 

Facts and Procedural History

[3] The facts supporting Brown’s murder conviction are summarized as follows:

Throughout the day on Friday, February 4, 2000, LeVohn Brown 

disciplined his three-year-old daughter, MicKenzie, by striking 
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her repeatedly with a wooden paddle. Blows were administered 

to the middle of her back, her lower back and her bottom. Brown 

also struck MicKenzie across the face with his hand and knocked 

on her head as one would knock on a door. When MicKenzie 

did not respond in any way to this punishment, Brown became 

increasingly upset. That evening, when Brown struck MicKenzie 

on the back of the head with the paddle, she fell to the floor and 

Brown yelled at her to get up and stop crying. The next day, 

after another blow, MicKenzie’s eyes failed to focus, her left side 

became numb, and she could neither walk nor control her bodily 

functions. Brown continued to beat MicKenzie throughout the 

weekend, but left town on Monday, February 7th. When Brown 

returned on Thursday, February 10th, the violence resumed. 

Brown repeatedly struck MicKenzie and let her fall when she was 

unable to stand. Throughout these events, Brown did not contact 

anyone regarding MicKenzie’s medical condition, but during the 

investigation told Detective Ron Hoschstetler, from the 

Huntington City Police Department, that he thought she seemed 

“fine.”

MicKenzie died on Friday, February 11, 2000. 

Brown v. State, 799 N.E.2d 1064, 1065–66 (Ind. 2003). 

[4] On February 14, 2000, the State charged Brown with murder and, on June 7, 

2000, filed an information seeking a sentence of life imprisonment without

parole because MicKenzie had been younger than twelve when Brown killed 

her. Brown filed a notice of mental disease or defect. See Ind. Code § 35-50-2-

9(12). 

[5] The trial court then appointed three mental-health experts to examine Brown. 

One of those experts was Dr. Ross, who, after his examination, filed a twentytwo-page report of his findings (“the Report”), dated June 20, 2000. Regarding

the events leading to MicKenzie’s death, Brown told Dr. Ross, “I know I could 
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have handled this better, I just got so angry, I snapped. When I look back, I 

shouldn’t have hit her with the board.” Direct Appeal Appellant’s App. p. 191. 

Brown was also asked whether he had any “mental problems” or 

“psychological difficulties,” to which he responded, “No, in my opinion, 

nothing major going on.” Direct Appeal Appellant’s App. p. 62. 

[6] Dr. Ross also administered psychological testing. During one test called the 

Structured Interview of Reported Symptoms (“SIRS”), Dr. Ross observed 

evidence of malingering, specifically that Brown “attempt[ed ...] to over-report 

symptoms.” Direct Appeal Appellant’s App. p 65. From the SIRS testing data, 

Dr. Ross concluded that Brown “[was] not endorsing symptoms of extreme 

psychological disturbances.” Direct Appeal Appellant’s App. p 65. In another 

psychological test, Dr. Ross observed “an attempt on [Brown’s] part to 

exaggerate psychological symptoms.” Direct Appeal Appellant’s App. p 196. 

[7] Dr. Ross also administered a Rorschach inkblot test and made the following 

observations: 

A review of the defendant’s valid protocol suggests that he is 

currently in a state of chronic emotional overload. That is, he 

feels overwhelmed by feelings of anxiety and pessimism. He is 

prone to a distortion of reality which may result in difficulties in 

maintaining an adequate adjustment in some situations for any 

period of time. Though the defendant reported no symptoms of 

psychoses or delusions during the clinical interview, the 

Rorschach suggests the possibility of distorted thinking when 

under moments of high stress and emotional overload. [....] It is 

quite possible that the defendant’s anger at his daughter became 

so intense that his having hit her may have been more of a 

reflexive response than one thoroughly thought out. There 
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appeared to be little pre-meditation associated with this alleged 

offense. However, his behavior and lack of appropriate attention 

to his daughter’s medical needs do appear intentional and 

evidence forethought. 

[....]

There was one very important feature of the defendant’s 

Rorschach protocol which needs to be understood by the court. 

He is prone to emotional overload and feeling overwhelmed by 

anger and anxiety. It is quite possible that his response to his 

daughter’s statement made to him on the night of the alleged 

offense was one born out of extreme anger and impulsivity. 

When under high moments of stress, he may experience very 

brief moments of distorted reality. However, the defendant’s selfpresentation during the clinical interview does not suggest that he 

is currently out of contact with reality. 

Direct Appeal Appellant’s App. pp. 68–69. 

[8] Dr. Ross’s report also covered Brown’s history in the Air Force, from which 

Brown had been discharged. The report indicated that the Air Force had found 

two substantiated charges of spousal abuse and one unsubstantiated child-abuse 

charge. In his conclusion that Brown was competent to stand trial and not 

insane when he killed MicKenzie, Dr. Ross opined that “on the date of the 

alleged offense, [Brown] did not appear to evidence any signs of psychoses, 

disordered thinking, or impairment in reality testing such that he was not able 

to appreciate the wrongfulness of the alleged act.” Direct Appeal Appellant’s 

App. p. 73. 

[9] At trial, Brown’s strategy was to admit to hitting his daughter and argue that he 

should be convicted of the lesser-included offense of reckless homicide. The 

State addressed this strategy in its rebuttal closing argument: 
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[Trial Counsel] Swanson again said, this case needs to be 

reserved for the most heinous of crimes. And that’s not the 

situation for a reckless homicide (inaudible). Well, let’s put 

reckless homicide in perspective. Under the law that’s just as 

serious as driving a vehicle when your license has been 

suspended for the rest of your life. Under the law, reckless 

homicide is just as serious as loan-sharking. Under the law, 

reckless homicide is just as serious as someone who signs another 

person’s name to a check and then tries to cash it. That’s how 

serious reckless homicide (inaudible). 

Trial Tr. p. 428. Brown’s trial counsel Donald Swanson objected, arguing that 

the State was impermissibly arguing about penalties in the guilt phase. The trial 

court overruled the objection, and Swanson did not make a motion for a 

mistrial or ask for an admonition.

[10] The jury found Brown guilty of murder. In the penalty phase Swanson

admitted, inter alia, the Report. Swanson encouraged the jury to “carefully 

review” and take “careful note” of the Report. Trial Tr. p. 489. The jury 

returned a recommendation for a sentence of life imprisonment without parole. 

[11] At the final sentencing hearing, Swanson again offered the Report into 

evidence. Swanson told the trial court upon tendering the Report that “[i]t was 

submitted, I believe, at the sentencing phase of the uh, life without parole, but I 

would like the Court also to consider it here.” June 4, 2001, Tr. p. 4. The court 

responded, “[the Report] was in evidence at the date of the (indecipherable)—

15th of March at the second part of the jury trial, and that the Court has seen 

and has read this on several occasions.” June 4, 2001, Tr. p. 4. Swanson 

argued that Brown “had demonstrated to some degree uh, a mental instability 

uh, while it falls far short of a legal defense uh, it certainly should be a 
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consideration in this case.” June 4, 2001, Tr. p. 25. Swanson also argued that 

Brown had “no intent to kill his daughter when that blow uh, that fractured her 

skull was administered.” June 4, 2001, Tr. p. 25. In its order imposing life 

imprisonment without parole, the trial court found Brown’s honorable 

discharge from the military and lack of criminal history to be mitigating 

circumstances. The trial court found no other mitigating circumstances and 

that that the aggravating circumstance of MicKenzie’s age “far outweigh[ed] 

the mitigating circumstances.” Direct Appeal Supp. Appellant’s App. p. 256. 

[12] On direct appeal, Brown argued, and the State conceded, that the correct 

statutory sentencing factors for imposing a sentence of life imprisonment 

without parole had not been considered. Consequently, the Indiana Supreme 

Court ordered a new sentencing. Initially, the trial court issued a first amended 

sentencing order and imposed a sixty-five-year sentence. When the State 

objected, the trial court vacated this first amended order and set a new 

sentencing hearing. After this hearing, the trial court re-imposed a sentence of 

life imprisonment without parole. 

[13] Brown appealed a second time, arguing that the prosecutor had committed 

fundamental error by comparing reckless homicide to other crimes of the same 

punishment level. Brown, 799 N.E.2d at 1066. The Indiana Supreme Court 

concluded that, had counsel asked for an admonition, “it would have been 

appropriate for the trial court to instruct the jury that the prosecutor’s 

comments should be disregarded or that the penalty imposed for crimes may 

vary widely and the appropriate remedy is a matter for the court, not the jury, 
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to consider.” Id. The Indiana Supreme Court ultimately concluded, however,

that these improper comments did not rise to the level of fundamental error. Id. 

at 1067–68. 

[14] On September 22, 2017, Brown filed a petition for post-conviction relief

(“PCR”). In his PCR petition, Brown made allegations of ineffectiveness of 

both trial and appellate counsels. Brown argued that his trial counsel was 

ineffective for “failing to present sufficient evidence regarding [his] mental 

health status of the sentencing hearing.” PCR Appellant’s App. p. 10. As for 

appellate counsel, Brown alleged that

[a]ppellate counsel was ineffective due to failure to raise the issue 

of ineffective assistance of trial counsel for failing to present 

available evidence concerning Mr. Brown’s mental health at his 

sentencing hearing. Appellate counsel was also ineffective by 

failing to address the issue of the trial court’s sentencing Mr. 

Brown to a term of years at his second sentencing hearing and 

then, following objection by the state, issuing an amended order 

sentencing Mr. Brown to life incarceration without the 

opportunity for parole. 

PCR Appellant’s App. p. 10. 

[15] On May 14, 2019, the post-conviction court held an evidentiary hearing on 

Brown’s PCR petition. Swanson testified that he had represented defendants in 

twenty to twenty-five murder cases before Brown’s case. When asked whether 

the information in the Report could have been used, Swanson responded, “I 

think it could have been used. Would it have been effective? And my view was 

it would not have been effective.” PCR Tr. Vol. III p. 30. Swanson further 

added that he did not use the Report as a point of argument because he 
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“[p]robably didn’t feel at the time it would do any good with Judge McIntosh.” 

PCR Tr. Vol. III p. 38. Swanson also testified that he had spoken to Dr. Ross 

before trial, even though he was not called as a witness. 

[16] Appellate counsel Gregory Lewis also testified. Lewis had spent his entire

career with the State Public Defender’s Office, starting in 1992, and had 

exclusively done appellate work in that time. When asked how he selected 

which issue to raise, Lewis responded that he “went with the only thing that 

[he] felt had a chance of succeeding at some level[,]” i.e., the prosecutorialmisconduct argument. PCR Tr. Vol. III p. 51. On August 26, 2019, the postconviction court denied Brown’s PCR petition in full. 

Discussion and Decision

Standard of Review

[17] Brown contends the post-conviction court erred in denying his PCR petition. 

Our standard for reviewing the denial of a PCR petition is well-settled:

In reviewing the judgment of a post-conviction court, appellate 

courts consider only the evidence and reasonable inferences 

supporting its judgment. The post-conviction court is the sole 

judge of the evidence and the credibility of the witnesses. To 

prevail on appeal from denial of post-conviction relief, the 

petitioner must show that the evidence as a whole leads 

unerringly and unmistakably to a conclusion opposite to that 

reached by the post-conviction court. [...] Only where the 

evidence is without conflict and leads to but one conclusion, and 

the post-conviction court has reached the opposite conclusion, 

will its findings or conclusions be disturbed as being contrary to 

law. 
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Hall v. State, 849 N.E.2d 466, 468, 469 (Ind. 2006) (internal citations and 

quotations omitted). 

I. Ineffective Assistance of Trial Counsel

[18] Brown contends that he received ineffective assistance of trial counsel. We 

review claims of ineffective assistance of counsel based upon the principles 

enunciated in Strickland v. Washington, 466 U.S. 668 (1984): 

Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 

L. Ed. 2d 674 (1984), a claim of ineffective assistance of counsel 

requires a showing that: (1) counsel’s performance was deficient 

by falling below an objective standard of reasonableness based on 

prevailing professional norms; and (2) counsel’s performance 

prejudiced the defendant so much that “there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different.” Id. at 687, 694, 

104 S. Ct. 2052; Lowery v. State, 640 N.E.2d 1031, 1041 (Ind. 

1994). [...] Failure to satisfy either prong will cause the claim to 

fail. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999). 

French v. State, 778 N.E.2d 816, 824 (Ind. 2002). 

[19] Moreover, counsel is given wide discretion in determining strategy and tactics, 

and therefore courts will accord these decisions deference. Timberlake v. State, 

753 N.E.2d 591, 603 (Ind. 2001). “A strong presumption arises that counsel 

rendered adequate assistance and made all significant decisions in the exercise 

of reasonable professional judgment.” Id. “Whether a lawyer performed 

reasonably under the circumstances is determined by examining the whole of 

the lawyer’s work on a case.” Oliver v. State, 843 N.E.2d 581, 591 (Ind. Ct. 

App. 2006), trans. denied. 
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[20] Brown notes that Dr. Ross found, inter alia, that the results of the Rorschach 

test suggested the possibility of distorted thinking when under moments of high 

stress and emotional overload and that Brown’s anger at his daughter became 

so intense that his hitting of her may have been more of a reflexive response 

than one that was well thought out. Brown argues that Swanson was 

ineffective for failing to argue at sentencing that Brown was under the influence 

of extreme mental or emotional disturbance when the murder was committed 

and that Brown’s capacity to appreciate the criminality of his conduct or to 

conform that conduct to the requirements of law was substantially impaired as 

a result of mental disease or defect. 

[21] For several reasons, we conclude that Swanson’s performance was not 

deficient. First, further focus on the Report was unnecessary, as Swanson 

admitted it and urged the trial court to consider it. Swanson also specifically 

argued that Brown was suffering from “a mental instability” and that should 

“certainly” be considered by the trial court. June 4, 2001, Tr. p. 25. Moreover, 

when the Report was admitted, the trial judge stated that he had seen it and 

read it on several occasions. With the trial court stating its familiarity with the 

Report due to multiple readings, we cannot say that it was deficient 

performance to decline to belabor the point. Cf. Bradford v. State, 988 N.E.2d 

1192, 1202 (Ind. Ct. App. 2013) (“His counsel could have reasonably decided 

that using the officer’s deposition testimony to further impeach [a witness] 

would belabor the point and distract the jury[.]”), trans. denied. Indeed, 

Swanson’s approach to Brown’s sentencing appears to reflect this concern, 
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namely, that emphasizing the Report would not have been effective with the 

sentencing judge in this case. As mentioned, trial counsel is given wide 

discretion in determining strategy and tactics, and therefore courts will afford

these decisions deference. See Timberlake, 753 N.E.2d 603. Brown points to 

nothing in the record that would cause us to question the reasonableness of 

Swanson’s approach. 

[22] Second, emphasizing the Report would almost certainly have had the effect of 

emphasizing those portions of the Report that undercut Brown’s claim of severe 

mental illness or did not reflect well on Brown for other reasons. For one thing, 

the Report indicated that Brown was malingering or exaggerating symptoms in 

two of the psychological tests that he took. Moreover, the Report related that 

“[w]hen recounting the circumstances around his daughter’s death, [Brown] 

evidenced no tearfulness or excessive guilt[,]” which could easily be seen as a 

lack of remorse. Direct Appeal Appellant’s App. p. 62. The Report also 

recounted that Brown had had two substantiated allegations of spousal abuse 

made against him when he was in the Air Force. While the Report lends some 

support to a claim of serious mental-health issues, it also contained much 

information that undercut that claim and otherwise cast Brown in a negative

light. In the end, we conclude that Swanson’s performance was not deficient 

for failing to emphasize the Report in his sentencing argument.

[23] Even if Swanson’s performance had been deficient, Brown has failed to 

establish that could have been prejudiced thereby. To the extent that the Report 

mentions “chronic emotional overload[,]” Ross defined this term as being 
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“overwhelmed by feelings of anxiety and pessimism.” Direct Appeal 

Appellant’s App. p. 68. Evidence that a person was anxious and pessimistic 

when he beat his three-year-old daughter to death would seem to be 

insignificant when compared with the gruesome aggravating circumstance. 

Further, it seems to us that “anxiety and pessimism” by itself does not meet the 

statutory mitigating circumstances of being under the influence of extreme 

mental or emotional disturbance when the murder was committed or show that 

Brown’s capacity to appreciate the criminality of his conduct was substantially 

impaired by a mental disease or defect. Ind. Code § 35-50-2-9(c)(2), -9(c)(6); see 

Mull v. State, 770 N.E.2d 308, 315, 315 n.3 (Ind. 2002) (affirming the rejection 

of these two mitigating circumstances when the defense’s psychologist 

diagnosed the defendant with borderline personality disorder, alcohol 

dependence, impulsiveness, immaturity, depression, disassociation, difficulty in 

decision making, impaired memory skills, disengagement, impoverishment of 

self-interest and law intelligence). Neither Brown’s argument nor our review of 

the record convinces us that emphasizing a small portion of Dr. Ross’s 

extensive report would have created a reasonable probability of a different 

sentence from the trial court judge.

II. Ineffective Assistance of Appellate Counsel

[24] We review claims of ineffective assistance of appellate counsel using the same 

standard applicable to claims of trial counsel ineffectiveness. Ben-Yisrayl v. 

State, 729 N.E.2d 102, 106 (Ind. 2000). The petitioner must show that appellate 

counsel was deficient in his performance and that the deficiency resulted in 
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prejudice. Id. Ineffective assistance claims at the appellate level of proceedings 

generally fall into three basic categories: (1) denial of access to an appeal; (2) 

waiver of issues; and (3) failure to present issues well. Bieghler v. State, 690 

N.E.2d 188, 193-95 (Ind. 1997). 

[25] To prevail on a waiver-of-issues claim of ineffectiveness, “‘the defendant must 

overcome the strongest presumption of adequate assistance and judicial scrutiny 

is highly deferential.’” Garrett v. State, 992 N.E.2d 710, 724 (Ind. 2013) (quoting 

Ben-Yisrayl, 738 N.E.2d 253, 260–61 (Ind. 2000)). This is because the decision 

of which issues to raise “is one of the most important strategic decisions to be 

made by appellate counsel.” Bieghler, 690 N.E. 2d at 193. “Accordingly, when 

assessing these types of ineffectiveness claims, reviewing courts should be 

particularly deferential to [a] decision to exclude certain issues in favor of 

others, unless such a decision was unquestionably unreasonable.” Id. at 194.

[26] We must determine “whether the unraised issues are significant and obvious 

from the face of the record and [...] whether the unraised issues are ‘clearly 

stronger’ than the raised issues.” Garrett, 992 N.E.2d at 724 (citing Timberlake, 

753 N.E.2d at 605–06). If deficiency is proved, then the prejudice analysis 

“requires an examination of whether ‘the issues which [...] appellate counsel 

failed to raise would have been clearly more likely to result in reversal or an 

order for a new trial.’” Id. (quoting Bieghler, 690 N.E.2d at 194). Again, we 

afford significant deference to the decisions of appellate counsel regarding 

which claims to raise, as “the process of winnowing out weaker claims on 

appeal and focusing on those more likely to prevail, far from being evidence of 
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incompetence, is the hallmark of effective appellate advocacy.” Burger v. Kemp, 

483 U.S. 776, 784 (1987) (quoting Smith v. Murray, 477 U.S. 527, 536 (1986)) 

(quotation marks omitted). 

[27] Brown argues that his appellate counsel was ineffective for failing to argue that 

the trial court abused its discretion in sentencing him. This claim, however, is

waived for a failure to raise it below. The post-conviction rules require that all 

grounds for relief must be pled in the PCR petition. Ind. Post-Conviction Rule 

1(8) (“All grounds for relief available to a petitioner under this rule must be 

raised in his original petition.”). Failing to plead a ground for relief results in 

waiver pursuant to the post-conviction rules and the principle that new issues 

may not be raised for the first time on appeal. Id.; see also Canaan v. State, 683 

N.E.2d 227, 235 (Ind. 1997) (citing Howard v. State, 467 N.E.2d 1, 2 (Ind. 1984))

(“[C]laims not advanced until appellant’s brief in an appeal from the denial of 

post-conviction relief are waived.”). In his PCR petition, Brown contended that 

his appellate counsel was ineffective for (1) not arguing that trial counsel was 

ineffective for failing to emphasize Brown’s mental-health issues at sentencing 

and (2) failing to challenge the process by which Brown was first resentenced to 

a term of years before the trial court re-imposed a sentence of life imprisonment 

without parole. On appeal, he claims a different basis for appellate counsel’s 

ineffectiveness, that counsel should have raised the trial court’s failure to 

identify any mental-health issues as a mitigating circumstance. Because this 

was not the ground advanced in Brown’s PCR petition and decided by the postconviction court, it is waived for appellate consideration.
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[28] In any event, Brown does not even argue, much less establish, that the claim 

that the trial court abused its discretion in sentencing him was significant and 

obvious in the record, nor does he argue that this issue was clearly stronger than 

the prosecutorial-misconduct issue that was raised. To obtain relief on an 

ineffective-assistance-of-counsel claim, Brown must establish both deficient 

performance and prejudice, Ben-Yisrayl, 729 N.E.2d at 106, and, as the State 

points out, Brown has essentially failed to argue deficient performance. Brown 

has failed to establish that he received ineffective assistance of appellate 

counsel. 

[29] We affirm the judgment of the post-conviction court. 

Robb, J., and Altice, J., concur.