Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 1 of 45

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

Lisa M. Johnson

Brownsburg, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Bruce K. Pond,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 9, 2018

Court of Appeals Case No.

90A02-1709-PC-2226

Appeal from the Wells Circuit 

Court

The Honorable Kenton W. 

Kiracofe, Judge

Trial Court Cause No.

90C01-1309-PC-6

Barnes, Judge.
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Case Summary

[1] Bruce Pond appeals the post-conviction court’s denial of his petition for postconviction relief. We affirm.

Issues

[2] Pond raises eight issues, which we consolidate and restate as:

I. whether the post-conviction court properly 

denied his motion for change of judge;

II. whether the post-conviction court properly 

denied his motion for finding of reckless mens 

rea;

III. whether the post-conviction court properly 

excluded certain evidence;

IV. whether the post-conviction court properly 

denied Pond’s claim of ineffective assistance of 

trial counsel; and

V. whether the post-conviction court properly 

denied Pond’s claim of ineffective assistance of 

appellate counsel.

Facts

[3] The facts, as stated in Pond’s direct appeal, follow:

On July 22, 2011, Pond was drinking beer with his son Blake and 

a family friend on the back porch of his mother’s house in 

Ossian, Indiana. Pond became annoyed with a light shining 

from the pier of a neighboring pond. Matt Michuda (Michuda) 

along with his four year old son Jacob and two friends were 

fishing off the pier. Pond went inside the house, obtained a .22 
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caliber rifle, and fired two shots toward the area where the light 

was shining. One of the shots hit Jacob in the right temple. 

Jacob cried for his father who picked him up and carried him 

back to Michuda’s nearby home. An ambulance arrived and 

took Jacob to a hospital where he was later pronounced dead.

Officers arrived at the scene in the early morning hours of July 

23, 2011. After interviewing Matt’s friends, officers learned that 

the shots had come from Pond’s mother’s home. Officers 

contacted Pond, Blake, and the family friend and all three came 

to the police station where they were interviewed. Each one 

denied knowing anything about the shooting. In particular,

Pond denied possessing any guns. However, later that day, 

Pond’s friend called the police to change his story and admitted 

that Pond had shot the rifle and that Blake had hid it before the 

officers arrived. After executing a search warrant, the officers 

located the rifle behind a barn on Pond’s mother’s property. 

Blake also later admitted that Pond had fired the shots and 

instructed him to hide the rifle behind the barn. Pond was 

arrested later that day and upon learning that Jacob had died 

admitted to possessing the rifle and firing the shots.

On July 25, 2011, the State filed an Information charging Pond 

with Count I, reckless homicide, a Class C felony, I.C. § 35-42-1-

5 and Count II, unlawful possession of a firearm by a domestic 

batterer, a Class A misdemeanor, I.C. § 35-47-4-6(a). On August 

2, 2011, the State filed an Amended Information amending 

Count I to murder, a felony, I.C. § 35-42-1-1(1).

On December 16, 2011, the State filed an additional Information, 

charging Pond with Count III, voluntary manslaughter, a Class 

A felony, I.C. § 35-42-1-3(a). That same day, Pond entered into 

a plea agreement with the State in which he agreed to plead 

guilty to Count III in exchange for the State’s dismissal of Counts 

I and II as well as a charge of invasion of privacy in a separate 

case. The State also agreed to obtain written confirmation from 
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the United States Attorney’s Office that federal charges would 

not be brought against Pond for unlawful possession of a firearm. 

The plea agreement left Pond’s sentence to the trial court’s 

discretion, but capped the sentence at forty years. The trial court 

accepted Pond’s plea agreement and scheduled a sentencing 

hearing.

On January 17, 2012, the trial court conducted the sentencing 

hearing. The State argued that the following factors justified 

aggravating Pond’s sentence: the harm suffered by Jacob was 

greater than the elements required to prove the offense; Jacob’s 

age; Pond’s criminal history and probationary status at the time 

of the crime; and his failure to cooperate with law enforcement. 

Pond argued that his prior offenses were dissimilar and minor in 

comparison to the instant offense, that the State and Jacob’s 

family benefitted from his guilty plea, and that he was 

remorseful. Although finding that Pond had no intent to kill 

Jacob, the trial court concluded that the mitigating factors 

advanced by Pond were of little or no weight while the 

aggravating factors were sufficiently supported and outweighed 

the mitigating factors. As a result, the trial court sentenced Pond 

to forty years of incarceration and ordered him to pay $9,958.64 

as restitution, which was later amended to $9,800.44.

Pond v. State, No. 90A05-1202-CR-73, slip op. at 2-4 (Ind. Ct. App. Sept. 19, 

2012), trans. denied.

[4] Pond appealed his sentence, arguing that the trial court abused its discretion 

when it sentenced him and that the trial court erred when it ordered him to pay 

restitution. We found no abuse of discretion and affirmed Pond’s forty-year 

sentence. We also found no error in the restitution order. Our supreme court 

denied transfer.
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[5] Pond filed a petition for post-conviction relief on September 13, 2013, and he

filed a motion for change of judge on September 23, 2013, with a supporting 

affidavit. After a hearing, the post-conviction court denied the motion for 

change of judge. Pond then filed two amended petitions for post-conviction 

relief alleging ineffective assistance of trial counsel and appellate counsel. In 

July 2016, Pond filed a second motion for change of judge, which the postconviction court denied. Pond also filed a “Motion for Finding of Reckless 

Mens Rea Due to State’s Concession in Brief of Appellee,” which the postconviction court also denied. Appellant’s App. Vol. III p. 71.

[6] At the evidentiary hearing, the post-conviction court excluded certain evidence 

offered by Pond, including the curriculum vitae (“CV”) and report of a ballistics 

expert, the CV and testimony of a crime scene reconstruction expert, and 

Pond’s DOC mental health records. The post-conviction court also excluded 

the CV and report of a toxicologist. The post-conviction court entered findings 

of fact and conclusions thereon denying Pond’s amended petition for postconviction relief. Pond filed a motion to correct error, arguing that he was 

entitled to a change of judge for two additional reasons. The post-conviction 

court denied the motion, and Pond now appeals. 

Analysis

[7] Pond appeals the post-conviction court’s denial of his petition for postconviction relief. A court that hears a post-conviction claim must make 

findings of fact and conclusions of law on all issues presented in the petition. 

Pruitt v. State, 903 N.E.2d 899, 905 (Ind. 2009) (citing Ind. Post-Conviction 
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Rule 1(6)). “The findings must be supported by facts and the conclusions must 

be supported by the law.” Id. Our review on appeal is limited to these findings 

and conclusions. Id. Because the petitioner bears the burden of proof in the 

post-conviction court, an unsuccessful petitioner appeals from a negative 

judgment. Id. (citing P-C.R. 1(5)). “A petitioner appealing from a negative 

judgment must show that the evidence as a whole ‘leads unerringly and 

unmistakably to a conclusion opposite to that reached by the trial court.’” Id.

(quoting Allen v. State, 749 N.E.2d 1158, 1164 (Ind. 2001), cert. denied). Under 

this standard of review, “[we] will disturb a post-conviction court’s decision as 

being contrary to law only where the evidence is without conflict and leads to 

but one conclusion, and the post-conviction court has reached the opposite 

conclusion.” Id.

I. Motion for Change of Judge

[8] Pond argues that the post-conviction court erred by denying his motions for 

change of judge. Indiana Post-Conviction Rule 1(4)(b) provides:

Within ten [10] days of filing a petition for post-conviction relief 

under this rule, the petitioner may request a change of judge by 

filing an affidavit that the judge has a personal bias or prejudice 

against the petitioner. The petitioner’s affidavit shall state the 

facts and the reasons for the belief that such bias or prejudice 

exists, and shall be accompanied by a certificate from the 

attorney of record that the attorney in good faith believes that the 

historical facts recited in the affidavit are true. A change of judge 

shall be granted if the historical facts recited in the affidavit 

support a rational inference of bias or prejudice. For good cause 

shown, the petitioner may be permitted to file the affidavit after 

the ten [10] day period. 
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[9] The rule “requires the judge to examine the affidavit, treat the historical facts 

recited in the affidavit as true, and determine whether these facts support a 

rational inference of bias or prejudice.” Lambert v. State, 743 N.E.2d 719, 728 

(Ind. 2001) (quoting State ex rel. Whitehead v. Madison County Cir. Ct., 626 N.E.2d 

802, 803 (Ind. 1993)), cert. denied. A change of judge is neither “automatic” nor 

“discretionary;” rather, it requires a legal determination by the trial court. Id. 

We presume that a judge is not biased against a party. Id. Under the rule, the 

post-conviction court is disqualified from hearing a case only if the judge holds 

“a personal bias or prejudice.” Ind. Post-Conviction Rule 1(4)(b). “Typically, 

a bias is ‘personal’ if it stems from an extrajudicial source—meaning a source 

separate from the evidence and argument presented at the proceedings.” Id. 

The court’s adverse rulings on judicial matters do not indicate a personal bias 

toward a defendant. Harrison v. State, 707 N.E.2d 767, 790 (Ind. 1999), cert. 

denied. 

[10] Pond filed two motions for change of judge in the post-conviction proceedings. 

The first motion was filed ten days after his petition for post-conviction relief 

was filed. The second motion was filed in July 2016. In the first motion, Pond 

raised several allegations that he was entitled to a change of judge. In the 

second motion, Pond raised additional allegations. After the post-conviction 

court entered findings of fact and conclusions thereon denying Pond’s petition 

for post-conviction relief, Pond filed a motion to correct error raising additional 

arguments that he was entitled to a change of judge. On appeal, Pond argues 

that he was entitled to a change of judge because: (1) the judge was involved, as 
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a deputy prosecutor, in prior criminal prosecutions of Pond and used those 

convictions as aggravators in this case; (2) the judge made “baseless findings 

that Pond’s post-conviction counsel presented false evidence” and granted the 

State’s “motions before Pond had an opportunity to respond;” (3) the judge 

displayed emotion during sentencing and said that the case made him sick; (4) 

the judge refused to consider evidence regarding Pond’s character and 

background at sentencing and post-conviction hearings; (5) the judge has a 

“personal connection” to the victim’s grandparents; (6) the judge had a 

professional relationship with the former and current prosecuting attorneys; and 

(7) the judge made comments during the post-conviction proceedings about 

“riffraff.”

1

 Appellant’s Br. pp. 33-34. 

[11] Pond first argues that he was entitled to a change of judge because the judge 

was the deputy prosecutor in two other criminal cases against Pond, and Pond 

pled guilty to misdemeanor battery in both of those cases. Pond acknowledges 

that this is not a basis for automatic recusal. However, relying on Dishman v. 

State, 525 N.E.2d 284, 285 (Ind. 1988), he argues that recusal is required if 

“there is any factual dispute concerning the prior cases.” Appellant’s Br. p. 35. 

Pond does not explain what the factual dispute is regarding the prior battery 

 

1

Pond also argues the post-conviction court used an incorrect legal standard in ruling on his motion for 

change of judge. Pond argues only that “the court found that some of the facts, in Pond’s affidavit and 

change of judge motion, were ‘inaccurate,’ ‘false,’ and/or ‘misleading.’” Appellant’s Br. p. 34. Pond fails to 

identify which facts were found inaccurate, false, and/or misleading and fails to include any other 

explanation in his argument. Pond has waived this argument by failing to provide cogent reasoning. See Ind. 

Appellate Rule 46(A)(8)(a).
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cases. In both cases, Pond pled guilty. He attempted to minimize his conduct 

during the sentencing hearing in this case; the fact remains, though, that Pond 

pled guilty in those cases. There is no factual dispute that would have 

warranted the judge’s recusal here.

[12] Next, Pond argues that the judge made “baseless” allegations against his postconviction counsel that she presented false evidence. Appellant’s Br. p. 36. In 

support of this argument, Pond relies upon findings that the post-conviction 

court made in the denial of the first motion for change of judge and in the order 

denying the petition for post-conviction relief. Pond raised this issue in his 

motion to correct error. Pond also contends that the post-conviction court 

granted two of the State’s motions before his counsel could respond. In both 

orders, the post-conviction court pointed out statements by Pond’s counsel that 

it considered misleading. These arguments do not demonstrate that the postconviction court was biased against Pond. Rather, these orders are in the 

nature of an adverse ruling on a judicial matter.

[13] Next, Pond argues that he was entitled to a change of judge because the judge 

wiped tears from his eyes when the victim’s mother made a statement during 

the sentencing hearing and because the judge said during the sentencing hearing 

that the case made him “sick to [his] stomach.” Exhibits Vol. V p. 24 (Ex. 1B 

p. 60). The fact that a judge uses “emotional language” in describing a 

defendant’s character and crime does not demonstrate personal bias or 

prejudice outside of the judicial function. Lambert, 743 N.E.2d at 729. 

Moreover, “[t]he mere fact a judge cries does not, in itself, demonstrate bias or 
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prejudice.” Cook v. State, 612 N.E.2d 1085, 1088 (Ind. Ct. App. 1993). Trial 

court judges are not required to be emotionless. Pond failed to demonstrate 

that he was entitled to a change of judge on this basis.

[14] Next, Pond argues he was entitled to a change of judge because the judge 

“explicitly refused to consider almost all of the evidence that was submitted on 

Pond’s behalf at sentencing.” Appellant’s Br. p. 41. Specifically, several people 

submitted letters on Pond’s behalf for sentencing. Regarding those letters, the 

trial court stated:

The Court also notes several letters filed with the presentence 

investigation report by family and friends of Mr. Pond’s. I note 

what appears to me to be only three of those letters were written 

by someone who actually knew Mr. Pond prior to this tragic 

event, those remaining letters are well meaning, but I think it’s 

hard to assess someone’s character when they have known them 

for less than six months and that Mr. Pond was incarcerated for 

that period of time that they have known him, so I place little 

weight on those letters. I think they speak to who he is today, 

but not maybe who [he] was on July 23rd. Of the letters that 

knew Mr. Pond prior to July 23rd [the] first letter talks about, 

one of his friends, Robert Levitz indicates that, basically says that 

he is compelled to ask for his, plead for Mr. Pond’s innocence. 

That response in the letter makes me think he either doesn’t 

believe what happened or completely misunderstands the actions 

of Mr. Pond, so I place little weight on that letter. The second 

letter is from Mr. Pond’s fiancé or girlfriend who describes him in 

the letter as a good person and she testified that way today 

despite the fact that she is a victim of an Allen County conviction 

for domestic violence at the hands of Mr. Pond. Ms. Klepper 

must, might find it however she wants, but the fact of the matter 

is Defendant pled guilty to that crime. She may wish to 

minimize it, but he pled guilty to that. So either he lied when he 
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pled guilty to it or something, I don’t know, but it happened and 

he was convicted of it. Last letter is written by his son, Blake 

Pond who calls, describes or characterizes this incident as an 

accident.

Exhibits Vol. V pp. 21-22 (Ex. 1B pp. 57-58). It is incorrect to suggest that the 

judge refused to consider the letters; rather, the trial court assigned little weight 

to them, which was within the trial court’s prerogative. See Anglemyer v. State, 

868 N.E.2d 482, 491 (Ind. 2007) (“The relative weight or value assignable to 

reasons properly found or those which should have been found is not subject to 

review for abuse.”), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). The trial 

court assigning little weight to letters submitted on Pond’s behalf does not 

demonstrate personal bias or prejudice; rather, it is in the nature of an adverse 

ruling, which does not indicate a personal bias. Harrison, 707 N.E.2d at 790. 

Pond’s argument fails.

[15] Next, Pond argues that the judge had a personal connection to the victim’s 

grandparents. The judge disclosed during the underlying proceedings that he 

attended the same church as the victim’s grandfather and that he sporadically 

participated in an organization with the victim’s grandfather. The judge noted

that he was not “social friends” with the victim’s grandfather and that he did 

not believe an issue of impartiality arose. The parties did not object to the judge 

presiding over the criminal case. During the post-conviction proceedings, Pond 

raised the issue in his motion for change of judge. Our courts have held that a 

judge is not necessarily disqualified because of social relationships with the 

victim or victim’s family. See, e.g., Simmons v. State, 504 N.E.2d 575, 581 (Ind. 
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1987) (holding that a change of judge was not required where the judge was a 

friend of the victim’s father because they were both members of the bar); Bixler 

v. State, 471 N.E.2d 1093, 1100-1101 (Ind. 1984) (holding that a change of judge 

was not mandated where the judge went to the same church as the victim’s 

family and had prepared a will for the stepfather of the victim’s mother), cert. 

denied; McKinney v. State, 873 N.E.2d 630, 640 (Ind. Ct. App. 2007) (holding 

that the defendant failed to demonstrate bias or prejudice where the victim’s 

mother was a former employee of the judge), trans. denied. Here, Pond 

demonstrated only that the judge was a member of the same church as the 

victim’s grandfather and that they were involved in the same organization. 

Pond has failed to demonstrate the type of relationship that would have 

required recusal. 

[16] Next, Pond argues that the judge had a professional relationship with the 

former and current prosecutors. Specifically, the former prosecutor, who 

prosecuted the case at the trial level and at the beginning of the post-conviction 

proceedings, was the judge’s former employer, and they had been partners at a 

private law firm. The current prosecutor was the judge’s co-worker at the 

prosecutor’s office, and they had been partners at a private law firm. Pond 

concedes that “[a] judge’s former professional associations with a prosecuting 

attorney are not automatic grounds for recusal.” Appellant’s Br. p. 47. 

However, he contends that the additional relationships as partners in a private 

firm differentiates this case. We disagree. Pond has failed to cite any authority

or facts that suggest the judge’s former business relationships with the former 
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and current prosecutors demonstrate a personal bias or prejudice against the 

petitioner. See, e.g., Broome v. State, 687 N.E.2d 590, 596-97 (Ind. Ct. App. 

1997) (holding that the defendant was not entitled to a change of judge where 

the judge, as a former prosecutor, hired, trained and supervised the prosecutor 

on the defendant’s case), summarily affirmed in relevant part by Broome v. State, 694 

N.E.2d 280, 281 (Ind. 1998).

[17] Finally, Pond argues that the judge made off-the-record comments after one of 

the post-conviction hearings regarding “riffraff” at a local street fair and having 

individuals with outstanding warrants arrested at the street fair. Appellant’s Br. 

p. 48. According to Pond, these comments would “cause an objectively 

reasonable person to believe that the court sees criminal defendants . . . as 

‘riffraff’ who need to be kept out of Wells County.” Id. Pond made this 

argument in his motion to correct error, which the post-conviction court denied. 

“Expressions of impatience, dissatisfaction, annoyance, and even anger do not 

establish bias or partiality.” Rondeau v. State, 48 N.E.3d 907, 913 (Ind. Ct. App. 

2016), trans. denied. The comments did not specifically reference Pond or the 

case at issue. The fact that the judge expressed annoyance at people with 

criminal histories and active arrest warrants attending the street fair does not 

establish that the judge had a personal bias or prejudice against the petitioner. 

See, e.g., Matheney v. State, 688 N.E.2d 883, 897 (Ind. 1997) (“The articulation of 

observations by one judge to fellow judges concerning what the former 

perceives to be a trend on the part of defendants or post-conviction petitioners 

does not indicate bias.”), cert. denied.
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II. Motion for Finding of Reckless Mens Rea

[18] During the post-conviction proceedings, Pond filed a “Motion for Finding of 

Reckless Mens Rea Due to State’s Concession in Brief of Appellee.” In the 

motion, Pond argued that, on direct appeal, the State described the shooting as 

a “reckless act” in its Appellee’s Brief and that the statement “constitutes a 

judicial admission which is conclusive on the State.” Appellant’s App. Vol. III 

p. 71. Pond requested that the post-conviction court “make a factual finding 

that Pond acted with a reckless mental state, and not a knowing or intentional 

mental state.” Id. In response to the motion, the post-conviction court found:

Mr. Pond raised in the—raised three issues with the Court of 

Appeals, which the Court of Appeals consolidated into—or 

restated into two: one, issue of restitution, which this doesn’t 

reflect; and then the other being whether or not the Court—trial 

court—abused its discretion in sentencing. Um—the defendant’s 

conviction came following a plea of guilty. His mens rea was 

established in the—um—plea, and in his admission to the factual 

basis at that time. The—as I have read the—um—one page of 

the context portion of the—um — it would be the—uh—

appellee’s brief, it is not discussing his mens rea, and it was not 

an issue on appeal so I don’t believe that it’s—um—a key point—

uh—to address his culpability because that was already—it was 

not an issue on appeal, and was—um—had been decided at the 

trial court, but not raised at the appellate level. So I’m going to 

overrule and deny the defend—or the petitioner’s Motion for 

Finding of Reckless Mens Rea Due to Concession Brief of 

Appellee.

Tr. Vol. II p. 62.
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[19] On appeal, Pond contends that the State was bound by the “concession” found 

in its direct appeal Appellee’s Brief and that “Pond should have been relieved of 

the burden of proving he acted recklessly.” Appellant’s Brief p. 49. We begin 

by noting the purpose of post-conviction proceedings. Indiana Post-Conviction 

Rule 1(1)(a) provides:

Any person who has been convicted of, or sentenced for, a crime 

by a court of this state, and who claims:

(1) that the conviction or the sentence was in violation of the 

Constitution of the United States or the constitution or laws of 

this state;

(2) that the court was without jurisdiction to impose sentence;

(3) that the sentence exceeds the maximum authorized by law, or 

is otherwise erroneous;

(4) that there exists evidence of material facts, not previously 

presented and heard, that requires vacation of the conviction or 

sentence in the interest of justice;

(5) that his sentence has expired, his probation, parole or 

conditional release unlawfully revoked, or he is otherwise 

unlawfully held in custody or other restraint;

(6) that the conviction or sentence is otherwise subject to 

collateral attack upon any ground of alleged error heretofore 

available under any common law, statutory or other writ, 

motion, petition, proceeding, or remedy;
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may institute at any time a proceeding under this Rule to secure 

relief.

It is unclear how Pond’s motion fits within any of these conditions, and Pond 

has not clarified this matter. 

[20] Moreover, even if we address this issue, Pond’s argument fails. “[A] clear and 

unequivocal admission of fact, or a formal stipulation that concedes any 

element of a claim or defense, is a binding judicial admission.” Bandini v. 

Bandini, 935 N.E.2d 253, 265 (Ind. Ct. App. 2010). “To constitute a judicial 

admission, the attorney must make ‘a clear admission of a material fact.’” 

Saylor v. State, 55 N.E.3d 354, 363 (Ind. Ct. App. 2016) (quoting 32 C.J.S. 

Evidence § 599 (2008)), trans. denied. “‘Improvident or erroneous statements or 

admissions’ resulting from ‘unguarded expressions or mistake or mere casual 

remarks, statements[,] or conversations’ are not judicial admissions.” Id. 

(quoting Collins v. State, 174 Ind. App. 116, 366 N.E.2d 229, 232 (1977)). 

“‘[B]efore a statement by an attorney can be held to be [a judicial] admission it 

must be given a meaning consistent with the context in which it is found.’” Id. 

(quoting 32 C.J.S., supra, § 599). 

[21] In addressing Pond’s direct appeal sentencing argument, the State described the 

nature of Pond’s offense and stated, “Pond did not take responsibility for his 

reckless act.” Appellant’s App. Vol. III p. 73. We do not consider this 

statement, which was made in the context of addressing a sentencing argument

on direct appeal, to be a clear admission of material fact in the context of these 

post-conviction proceedings. The State was addressing Pond’s sentencing 
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argument after he pled guilty to voluntary manslaughter. Pond’s mens rea had 

already been conclusively established by his guilty plea. Pond’s mens rea was 

not, and could not have been, an issue in his direct appeal. The State’s 

statement was merely part of an argument addressing Pond’s sentence, not a 

concession that Pond should have been convicted of reckless homicide rather 

than voluntary manslaughter as provided in his guilty plea. See, e.g., Bandini, 

935 N.E.2d at 266 (holding that a statement of wife’s counsel was not an 

unequivocal admission but was part of an argument that husband was aware of 

the decree and his waiver of retirement pay post-dated the decree). The postconviction court properly denied Pond’s motion. 

III. Exclusion of Evidence

[22] Next, Pond argues that the post-conviction court erred by excluding certain 

evidence from the post-conviction hearing. Specifically, Pond argues that the 

following evidence should have been admitted: (1) the report and CV of Arthur 

Borchers, an expert in ballistics; (2) the testimony and CV of Stephen Neese, a 

crime scene reconstruction expert; (3) Pond’s DOC mental health records from 

after the sentencing hearing; and (4) the report and CV of Daniel McCoy, a 

toxicologist. “A petitioner is entitled to present evidence on his behalf during 

post-conviction proceedings.” Diaz v. State, 934 N.E.2d 1089, 1093 (Ind. 2010). 

Indiana Post-Conviction Rule 1(5) provides in relevant part that “[t]he court 

may receive affidavits, depositions, oral testimony, or other evidence . . . .”

However, the petitioner “must comply with the established rules of procedure 

and evidence to assure both fairness and reliability in the ascertainment of guilt 
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and innocence.” Diaz, 934 N.E.2d at 1093. As the admission or exclusion of 

evidence is within the post-conviction court’s sound discretion, we defer to that 

court and will not disturb its ruling on review unless it has abused its discretion. 

Badelle v. State, 754 N.E.2d 510, 521 (Ind. Ct. App. 2001), trans. denied. Further, 

“[e]rrors in the admission or exclusion of evidence are to be disregarded as 

harmless error unless they affect the substantial rights of a party.” Barnhart v. 

State, 15 N.E.3d 138, 143 (Ind. Ct. App. 2014). 

A. Ballistics and Crime Scene Reconstructionist Evidence

[23] We first address the post-conviction court’s exclusion of Borchers’s report and 

CV and Neese’s testimony and CV. Borchers is a ballistics expert who 

analyzed “the probable trajectory of the bullet and the degree of bullet drop.” 

Appellant’s Br. p. 54. Neese is an accident reconstructionist who analyzed the 

lighting conditions and bullet trajectory. The State objected on the basis that 

the evidence was not relevant. Pond argued that the evidence was relevant to

show that his trial counsel failed to perform an adequate investigation before 

advising him to plead guilty. According to Pond, the evidence was relevant to 

his mens rea and a determination of whether voluntary manslaughter or 

reckless homicide was the proper charge. The post-conviction court determined 

that the evidence was not relevant. 

[24] We conclude that, even if the post-conviction court should have admitted the 

evidence at the post-conviction hearing, any error is harmless. This evidence 

relates to Pond’s allegation of ineffective assistance of trial counsel for counsel’s 

alleged failure to conduct a proper investigation. According to Pond, his trial 
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 19 of 45

counsel should have consulted a ballistics expert and a crime scene 

reconstruction expert before advising Pond regarding the guilty plea. 

[25] At the time of Pond’s offense, Indiana Code Section 35-42-1-3(a) provided: “A 

person who knowingly or intentionally . . . kills another human being . . . while 

acting under sudden heat commits voluntary manslaughter, a Class B felony. 

However, the offense is a Class A felony if it is committed by means of a deadly 

weapon.” “A person engages in conduct ‘knowingly’ if, when he engages in the 

conduct, he is aware of a high probability that he is doing so.” Ind. Code § 35-

41-2-2(b). On the other hand, Indiana Code Section 35-42-1-5 provided: “A 

person who recklessly kills another human being commits reckless homicide, a 

Class C felony.” “A person engages in conduct ‘recklessly’ if he engages in the 

conduct in plain, conscious, and unjustifiable disregard of harm that might 

result and the disregard involves a substantial deviation from acceptable 

standards of conduct.” I.C. § 35-41-2-2(c). 

[26] Pond implies that the experts would have demonstrated that, based on the 

lighting and bullet drop data, Pond was not aiming at people when he shot his 

weapon. However, before Pond pled guilty, his trial counsel discussed the 

weaknesses of the State’s case with Pond, specifically focusing on the mens rea 

element. He made Pond aware that a more appropriate charge would have 

been reckless homicide. Despite his knowledge that mens rea was a significant 

issue in the case, Pond weighed his options and pled guilty to voluntary 

manslaughter in exchange for the dismissal of other charges. Pond’s trial 

counsel testified that he believed that he discussed with Pond the possibility of 
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 20 of 45

needing a reconstructionist and a ballistics expert. At the time of the guilty 

plea, he had not moved forward with retaining such experts, but he had not 

ruled out retaining them either. When Pond pled guilty, the need for further 

investigation and hiring of experts was made unnecessary. We conclude, infra

Issue IV(B), that trial counsel’s performance related to the ballistics expert and 

crime scene reconstruction expert was not deficient. Even if the post-conviction 

court had admitted the evidence, the evidence would not have made Pond’s 

claim of ineffective assistance of counsel successful. Pond has failed to 

demonstrate that any error in the post-conviction court’s exclusion of this 

evidence affected his substantial rights. 

B. Toxicologist 

[27] Next, Pond argues that the post-conviction court erred by excluding the CV and 

report of Daniel McCoy. McCoy is a toxicologist and analyzed Pond’s possible 

blood alcohol content based on whether he weighed 290 pounds or 350 pounds 

and whether he had three beers or 5.5 beers between 7:00 p.m. and 11:00 p.m. 

McCoy opined: “It is unlikely that Mr. Pond would have been intoxicated or 

impaired at the time he fired his rifle.” Exhibits Vol. VII p. 114 (Petitioner’s 

Exhibit 29 p. 2). Pond argues that this evidence was relevant because his 

substance abuse and drinking on the night of the offense was used as an 

aggravator during sentencing. Pond argues that his trial counsel should have 

investigated his intoxication level to present evidence during sentencing that he 

was not intoxicated.
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 21 of 45

[28] It is undisputed that Pond was drinking alcohol on the evening of the offense 

and that he had prior convictions that related to substance abuse. The trial 

court’s only mention of Pond’s substance abuse during the sentencing statement 

follows:

The Court finds the criminal history of the Defendant shows 

what I would call an acceleration of violent or reckless behavior. 

There is a history of substance abuse laced throughout his 

criminal history and I think substance abuse played a factor into 

this night as well although he testified today that he was not 

intoxicated and I think his criminal history also and also the 

violations of probation show a continued disregard for the rule of 

law. 

Exhibits Vol. IV p. 57. There was varying evidence found during the 

investigation of the amount of alcohol consumed by Pond. McCoy’s report 

concerns Pond’s intoxication level at the time of the offense based on Pond’s 

claims of how much alcohol he consumed. However, his intoxication level 

simply was not found to be an aggravating circumstance. Rather, in the context 

of discussing Pond’s criminal history, the trial court noted that Pond had 

several substance abuse convictions and that substance abuse may have “played 

a factor” in the current offense too. Id. Pond has failed to demonstrate that the 

opinion of a toxicologist on his intoxication level was relevant to whether his 

trial counsel’s performance was effective. 

[29] Moreover, the post-conviction court found that evidence from a toxicologist 

would have been irrelevant and possibly harmful to Pond’s sentencing. First, 

the post-conviction court noted that, if Pond was proven to be sober, “it means 
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 22 of 45

Pond’s actions on the date in question were completely unaffected by alcohol, 

and he was fully aware of what he was doing; almost becoming an aggravating 

factor.” Appellant’s App. Vol. IV p. 15. Further, the post-conviction court 

noted that the toxicologist’s findings were based on Pond’s testimony as to how 

much alcohol he consumed, which conflicted with other evidence presented. 

Pond has failed to demonstrate that any error in the post-conviction court’s 

exclusion of this evidence affected his substantial rights. 

C. Mental Health Records 

[30] Next, Pond argues that the post-conviction court erred by excluding his DOC 

mental health records. According to Pond, the records would have 

demonstrated that his trial counsel should have arranged a mental health 

evaluation prior to sentencing. Pond contends that he was later diagnosed with 

post-traumatic stress disorder and depression as a result of Jacob’s death. This 

evidence would tend to show Pond’s remorse. However, Pond presented 

several witnesses at the sentencing hearing who testified regarding his remorse, 

and Pond himself testified regarding his remorse. Any error in the exclusion of 

this evidence is harmless given the cumulative evidence of Pond’s remorse. 

IV. Ineffective Assistance of Trial Counsel

[31] Pond appeals the post-conviction court’s denial of his claim of ineffective 

assistance of trial counsel. To prevail on a claim of ineffective assistance of 

counsel, a petitioner must demonstrate both that his or her counsel’s 

performance was deficient and that the petitioner was prejudiced by the 
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 23 of 45

deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) 

(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 

(1984)), cert. denied. 

[32] A counsel’s performance is deficient if it falls below an objective standard of 

reasonableness based on prevailing professional norms. French v. State, 778 

N.E.2d 816, 824 (Ind. 2002). A strong presumption arises that counsel 

rendered adequate assistance and made all significant decisions in the exercise 

of reasonable professional judgment. McCullough v. State, 973 N.E.2d 62, 74 

(Ind. Ct. App. 2012), trans. denied. “[A] defendant must offer strong and 

convincing evidence to overcome this presumption.” Id. Isolated poor strategy, 

inexperience, or bad tactics does not necessarily constitute ineffective 

assistance. Id. 

[33] In analyzing prejudice in the context of a guilty plea, we review such ineffective 

assistance of counsel claims under Segura v. State, 749 N.E.2d 496 (Ind. 2001). 

Segura created two categories of claims and enunciated different treatments of 

each respective category, depending upon whether the ineffective assistance 

allegation related to (1) an unutilized defense or failure to mitigate a penalty, or 

(2) an improper advisement of penal consequences. Willoughby v. State, 792 

N.E.2d 560, 563 (Ind. Ct. App. 2003) (citing Segura, 749 N.E.2d at 507), trans. 

denied. 

[34] Here, Pond claims that his trial counsel was ineffective by: (1) failing to advise 

Pond that the evidence supported a finding of reckless homicide, not voluntary 
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 24 of 45

manslaughter; (2) failing to properly investigate and consult qualified experts; 

(3) failing to move for a change of judge; and (4) failing to investigate and

consult with experts in the context of the sentencing hearing. Each of Pond’s 

arguments fall under the first category of unutilized defense or failure to 

mitigate a penalty. “A petitioner alleging ineffective assistance of counsel in 

overlooking a defense leading to a guilty plea must show a reasonable 

probability that, had the defense been raised, the petitioner would not have 

pleaded guilty and would have succeeded at trial.” Helton v. State, 907 N.E.2d 

1020, 1023 (Ind. 2009). We will address each of Pond’s arguments separately.

A. Failure to Advise Regarding Mens Rea

[35] Pond first argues that his trial counsel was ineffective for failing to advise him 

that the evidence supported a finding of reckless homicide rather than voluntary 

manslaughter. According to Pond, “[t]he overwhelming weight of the evidence 

indicates Pond acted recklessly, not knowingly.” Appellant’s Br. p. 65. Pond 

contends that his trial counsel failed “to advise him that the evidence showed a 

reckless killing.” Id. at 66. 

[36] The post-conviction court rejected Pond’s argument and found, in part:

g. Here, the evidence indicates that while seated outside, 

Pond observed a light coming from a neighboring 

property. According to the witness, he became fixated on 

the light and became frustrated with the light, and said 

something about the light pissing him off because they 

were being nosy. Pond said he would like that they not 

shine the light in his direction. Ex. 22. P. 26-32 & Ex. 42, 

p. 20-24. Pond then got up from the table, went into the 
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 25 of 45

house, and returned with a .22 rifle. He then fired the rifle 

across the Michuda property, in the direction where the 

light had been. He then fired a second shot. Pond then 

says something to the effect of “that will teach them.” Ex. 

22, p. 34-44, emphasis added.

h. Pond was experienced with firearms, and had purchased 

the .22 rifle despite the prohibition placed on him by 

reason of his domestic battery conviction. Pond had 

sighted the rifle, and used it to shoot birds in his mother’s 

backyard. Therefore, Pond was certainly aware the rifle 

was a deadly weapon capable of causing severe injury or 

death the moment he pulled the trigger.

i. Pond’s attorney discussed with him all possible scenarios; 

specifically: going to trial on the murder and arguing for a 

lesser included offense, pleading guilty without the benefit 

of a plea, or pleading guilty in exchange that certain

offenses would be dismissed. Nordmann further discussed 

the potential sentences Pond might receive if he were 

convicted of murder, federal charges, and the other state 

charges.

j. Pond failed to establish that his attorney’s performance 

was deficient.

Appellant’s App. Vol. IV pp 10-11. 

[37] Pond’s trial counsel testified during the post-conviction hearing that he advised 

Pond that “a more appropriate charge would be reckless homicide.” Tr. Vol. II 

p. 111. His trial counsel discussed with him the elements of the various 

offenses and focused on the mens rea elements. His trial counsel had a “very 

lengthy” discussion with Pond regarding the legal definition of “knowingly.” 
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 26 of 45

Id. at 126. He discussed the strengths and weaknesses of the State’s case with 

Pond and the pros and cons of accepting the guilty plea offer. They discussed 

the strengths and weaknesses of each possible alternative during plea 

negotiations and potential consequences that Pond faced. We further note that, 

in exchange for the guilty plea, several other charges against Pond were 

dismissed or avoided. Ultimately, the decision to plead guilty to voluntary 

manslaughter was Pond’s decision. Pond has failed to demonstrate that his trial 

counsel’s performance on this issue was deficient. The post-conviction court’s 

finding is not clearly erroneous.

B. Failure to Investigate

[38] Next, Pond argues that his trial counsel was ineffective for failing to properly 

investigate and consult qualified experts. Specifically, Pond claims that his trial 

counsel should have consulted with a ballistics expert and a crime scene 

reconstructionist and investigated the crime scene. On this issue, the postconviction court found:

a. Defense counsel provided an adequate investigation, and 

considered retaining qualified experts prior to advising the 

defendant to plead guilty. 

b. Nordmann examined all of the evidence provided by the 

State of Indiana, including the report of the Bureau of 

Alcohol, Tobacco, and Firearms.

c. The manner of death and the identity of the shooter were 

never disputed in this case. 
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 27 of 45

d. Pond argues that an expert should have been consulted to 

help refute Pond acted with the appropriate mens rea 

when he shot the rifle. Pond’s lies to the investigators, his 

actions in hiding the gun, and his comments to the 

witnesses prior to the shooting and immediately after all 

suggest Pond was well aware of his actions and intended 

to shoot at or in the vicinity where he believed other 

person or persons to be.

e. Pond also argues now that the ballistics investigation 

conducted by the Bureau of Alcohol, Tobacco, and 

Firearms was inaccurate.

f. Again, the identity of the shooter or the cause of Jacob 

Michuda’s death was never disputed and Pond does not 

dispute it now.

g. Pond’s ballistic expert retained for the PCR hearing 

testified that the shot fired by Pond would have gone 

across the rear of Michuda’s property between their home 

and pool, over a patio. The rear patio and pool area are 

visible to Pond, and he was aware of it making Pond’s 

actions even more egregious because this is an area people 

would likely be, especially during a weekend evening in 

July.

h. Nordmann considered consulting an expert; however, 

Pond’s decision to enter a plea of guilty to voluntary 

manslaughter ended the need to pursue a ballistics expert.

i. Pond is essentially requesting the Court retry the case and 

reweigh the evidence, which it will not do.
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 28 of 45

j. Pond failed to establish his attorney’s investigation or 

decision not to hire an expert witness was deficient.

Appellant’s App. Vol. IV p. 12. 

[39] Pond’s trial counsel testified that he reviewed the State’s discovery, which 

included a report by the Bureau of Alcohol, Tobacco, Firearms and Explosives 

(“ATF”), attended depositions, interviewed Pond’s son and other witnesses, 

drove by the crime scene and Pond’s residence. Pond’s trial counsel testified 

that he believed that he discussed with Pond the possibility of needing a 

reconstructionist and a ballistics expert. At the time of the guilty plea, he had 

not moved forward with retaining such experts, but he had not ruled out 

retaining them either. Pond’s trial counsel specifically discussed with Pond that 

mens rea was the main issue in the case and made Pond aware of the various 

possible outcomes. Rather than move forward with a trial, Pond chose to plead 

guilty. Under such circumstances, we cannot say that Pond’s trial counsel’s 

performance was deficient. The post-conviction court’s findings on this issue 

are not clearly erroneous.

C. Failure to Move for Change of Judge

[40] Next, Pond argues that his trial counsel was ineffective for failing to move for a 

change of judge. On this issue, the post-conviction court found:

a. Pond was not deprived of effective assistance of counsel 

because his attorney did not request a change of judge. 
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 29 of 45

b. Indiana “law presumes that a judge is unbiased and 

unprejudiced.” O’Conner v. State, 789 N.E.2d 504 (Ind. Ct. 

App. 2003), citing James v. State, 716 N.E.2d 935, 940 (Ind. 

1990). Further, the Indiana Code of Judicial Conduct 

requires judges to perform all duties for that office “fairly 

and impartially” and without “bias or prejudice.” Indiana 

Judicial Canon 2(A), Rule 2.2 & 2.3. A judge is required 

by the judicial code to disqualify himself from any

proceeding in which his impartiality “might reasonably be 

questioned[.]” Id. The test for determining whether a 

judge should recuse himself or herself is “whether an 

objective person, knowledgeable of all the circumstances, 

would have a reasonable basis for doubting the judge’s 

impartiality.” O’Connor v. State, 789 N.E.2d 504, 511 (Ind. 

Ct. App. 2003), citing James, 716 N.E.2d at 940.

c. Here, after the State of Indiana listed the victim’s paternal 

grandfather, Mark Michuda, on the State’s witness list, the 

Court had the following exchange with the attorneys on 

the record.

I am a member of the same church as Mr. Michuda 

and know him, I’m not in a social relationship with 

him, but I know who he is, we are members of the 

same church. In addition, as is Mr. Michuda’s wife 

is also a member there. In addition, I am in an

organization with Mr. Michuda that Mr. Michuda 

is the President of. I was an officer of that 

organization, but have resigned as an officer in that 

organization. I don’t know that I have been

involved in or had any involvement in activities 

since Mr. Michuda has been the President. I would 

say my participation in the organization is probably 

if ask him probably sporadic at best, but I do want 

to make the parties aware of that relationship to one 
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 30 of 45

of the witnesses so that they are informed. Ex. 8, 

pg. 44.

The Court then further explained:

. . . like l said, I know Mr. Michuda, would know 

him on sight, but I’ve not been social friends of Mr. 

Michuda’s, simply attend the same church he 

attends. Quite frankly I don’t know when, I go to

different times than he typically goes, so I see him 

there occasionally, but l know is a regular attender 

there, but I don’t see him all the time, we go at 

different times. Ex. 8, pg. 45.

d. Nordmann, Pond’s attorney, considered filing a motion 

for change of judge. Based upon his experience in 

practicing in Northeast Indiana, his experience practicing 

in front of Judge Kiracofe, and his experience practicing 

against Judge Kiracofe when he was a deputy prosecutor, 

he decided against filing a change of judge. 

e. Therefore, Nordmann considered the issue, considered his 

options, and made a calculated decision to not file a 

motion for change of judge.

f. Pond has not shown that the actions of or the demeanor of 

the judge crossed the barrier of impartiality and prejudiced 

his case. “An adverse ruling alone is insufficient to show 

bias or prejudice.” O’Connor v. State, 789 N.E.2d 504, 511 

(Ind. Ct. App. 2003). 

g. Therefore, Pond was not denied effective assistance of 

counsel because his trial counsel did not request a change 

of judge. 
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 31 of 45

Appellant’s App. Vol. IV pp. 12-14.

[41] On appeal, Pond argues that his trial counsel should have requested that the 

trial judge recuse under Indiana Criminal Rule 12(B) because he had “a 

personal connection” to the victim’s grandparents, he had a “professional 

connection” to the prosecuting attorney, and he was involved in the prosecution 

of prior crimes against Pond as a deputy prosecutor. Appellant’s Br. p. 74. 

According to Pond, his trial counsel should have filed a motion for change of 

judge pursuant to Indiana Criminal Rule 12(B), which provides:

In felony and misdemeanor cases, the state or defendant may 

request a change of judge for bias or prejudice. The party shall 

timely file an affidavit that the judge has a personal bias or 

prejudice against the state or defendant. The affidavit shall state 

the facts and the reasons for the belief that such bias or prejudice 

exists, and shall be accompanied by a certificate from the 

attorney of record that the attorney in good faith believes that the 

historical facts recited in the affidavit are true. The request shall 

be granted if the historical facts recited in the affidavit support a 

rational inference of bias or prejudice.

[42] Pond’s trial counsel testified at the post-conviction hearing that he considered 

filing a motion for change of judge. However, he was familiar with the other 

judges in the area and ultimately decided that Judge Kiracofe “would be the 

best option.” Tr. Vol. II p. 107. The failure to file a motion for change of judge 

was a strategic decision that does not support a finding of deficient 

performance.
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 32 of 45

[43] Moreover, even if his trial counsel had filed the motion, it is unlikely that it 

would have been granted. We determined above, supra Issue I, that the trial 

judge’s relationship with the victim’s grandparents, prior representation of the 

State in prosecutions against Pond, and professional relationship with the 

prosecutors did not warrant a finding of personal bias or prejudice. The same 

analysis applies here. Consequently, the post-conviction court’s finding that 

Pond failed to demonstrate ineffective assistance of trial counsel on this issue is 

not clearly erroneous. 

D. Failure at Sentencing

[44] Finally, Pond argues that his trial counsel was ineffective for failing to 

investigate and consult with experts in the context of the sentencing hearing. 

On this issue, the post-conviction court found:

a. Pond was not denied effective assistance of counsel at the 

sentencing hearing. 

b. Following the guilty plea hearing, the Wells County 

Probation Department prepared a presentence 

investigation report (PSI), filed the same with the Court, 

and provided a copy to Pond’s trial counsel.

c. Nordmann advised Pond’s family and girlfriend to send in 

as many letters of support as possible to the probation 

department so they would include them in the presentence 

investigation report. 

d. At the sentencing hearing, Nordmann called two 

witnesses: Barbara Pond and Lynne Klepper, as well as 
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 33 of 45

Pond. Barbara Pond is Pond’s mother and Lynne Klepper 

is Pond’s girlfriend. In addition, seven letters were 

submitted to the probation department and were made a 

part of the presentence investigation report.

e. Pond presented no evidence that Nordmann refused to 

obtain a letter from or call as a witness anyone he 

requested.

f. Nordmann reviewed the presentence investigation report 

with Pond.

g. Nordmann researched the potential aggravators and 

mitigators that might exist in the case, and attempted to 

tailor the mitigating factors as best to suit the facts.

h. Pond now argues that at sentencing, Nordmann should 

have submitted letters from childhood friends of Pond, 

hired a toxicologist, hired a mental health professional to 

discuss Pond’s childhood physical abuse, and posttraumatic stress disorder (PTSD). 

i. “Sentencing lies within the discretion of the trial court.”

Thacker v. State, 709 N.E.2d 3, 9 (Ind. 1999), reh’g denied. 

If a trial court uses aggravating or mitigating 

circumstances to enhance the presumptive sentence, it 

must (1) identify all significant mitigating and aggravating 

circumstances; (2) state the specific reason why each 

circumstance is determined . . . to be mitigating or 

aggravating; and (3) articulate the court’s evaluation and 

balancing of the circumstances. Id. The trial court is not 

required to find the presence of mitigating circumstances, 

Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993). When 

a defendant offers evidence of mitigators, the trial court 

has the discretion to determine whether the factors are 
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 34 of 45

mitigating, and it is not required to explain why it does not 

find the proffered factors to be mitigating. Taylor v. State, 

681 N.E.2d 1105, 1112 (Ind. 1997). The trial court’s

assessment of the proper weight of mitigating and 

aggravating circumstances and the appropriateness of the 

sentence as a whole are entitled to great deference and will 

be set aside only upon a showing of a manifest abuse of

discretion. Thacker, 709 N.E.2d at 10. McCarty v. State, 

802 N.E.2d 959, 966-67 (Ind. Ct. App. 2004).

j. Seven letters were submitted to the Court through the 

presentence investigation report regarding Pond’s 

character. Pond now argues additional witnesses could 

have been called or statements procured regarding Pond’s

good character. As outlined in the presentencing 

investigation report, Pond had two convictions for battery, 

one conviction for domestic battery and invasion of 

privacy, has a history of substance abuse, he was 

consuming alcohol while on probation, possessed a 

firearm in violation of federal and state law and in 

violation of his probation conditions. His mother testified 

he applied for and received food stamps while Pond stated 

in the PSI that he earned $20 per hour restoring vehicles. 

These factors do not reflect well on his character despite 

how many people might say he is of good character.

k. The Court is unclear how proving Pond’s intoxication or 

sobriety at the time of the shooting would have changed 

the Court’s decision on sentencing. Under Indiana law, 

intoxication is not a defense so it would not have been a

mitigating factor. If he was proven to be sober by utilizing 

a toxicologist, it means Pond’s actions on the date in 

question were completely unaffected by alcohol, and he 

was fully aware of what he was doing; almost becoming an

aggravating factor.
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 35 of 45

l. Further, because only Pond knows exactly how much 

alcohol he consumed on the date in question, the 

toxicologist’s findings would have been made on Pond’s 

testimony. Based upon the various statements from the 

witnesses, it is possible the Court would have disbelieved 

Pond’s statement concerning his consumption of alcohol.

m. Nordmann’s decision to not hire a toxicologist or failure to 

consider hiring a toxicologist is completely irrelevant.

n. Pond also argues that Nordmann should have obtained a 

mental health examination and then he could have 

presented to the Court the examination results to show 

Pond suffered PTSD and was remorseful.

o. Pond testified about his remorse at the sentencing hearing 

stating, “I would give my life in a second to bring that little 

boy back, but I can’t do that. I will live with that every 

day of my life from now on . . . I am so so so sorry for

bringing everybody so much grief, the Michudas for all 

their heartache, and my family for the embarrassment.”

Ex. 1B, pg. 32. The Indiana Supreme Court has held that 

a trial court’s determination of a defendant’s remorse is 

similar to a determination of credibility. As such, without 

evidence of some impermissible consideration by the trial 

court, a review court will accept its determination as to 

remorse. Stout v. State, 834 N.E.2d 707 (Ind. Ct. App. 

2005) citing Pickens v. State, 767 N.E.2d 530 (Ind. 2002).

p. Essentially, calling a mental health provider to testify 

regarding Pond’s remorsefulness would be akin to calling a 

witness to say the defendant is credible. 

q. The Indiana Court of Appeals found in Scott v. State that 

the sincerity of a defendant’s remorse was entitled to slight 
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 36 of 45

weight in light of the “unprovoked shooting of a randomly 

selected victim.” Scott v. State, 840 N.E.2d 376 (Ind. Ct. 

App. 2006). Here, even if an expert had been called to 

testify regarding Pond’s remorse, the Court could have 

given it slight weight given the unprovoked and random 

act that killed a child.

r. The Court is convinced Pond is remorseful. His actions 

resulted in the death of a four-year-old child and, 

consequently, will result in him spending forty (40) years 

in prison.

s. Pond also testified concerning childhood abuse he received 

from his father. The prosecutor asked him why it was 

relevant as a mitigating factor. Pond replied he didn’t 

know. The Court also fails to find why this is a mitigating

factor. 

t. “[A] court need not determine whether counsel’s 

performance was deficient before examining the prejudice 

suffered by the defendant as a result of the alleged 

deficiencies.” Games[ v. State], 684 N.E.2d [466, ]468

[(Ind. 1997)] (quoting Strickland v. Washington, 466 U.S. 

668, 697, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), reh’g 

denied 467 US. 1267, 82 L. Ed. 2d 864, 104 S. Ct. 3562 

(1984)). If it is easier to dispose of an ineffectiveness claim 

on the ground of lack of sufficient prejudice, that course 

should be followed. Id.

u. Pond has failed to prove that there is a reasonable 

probability that the result of the sentencing hearing would 

have been different had Nordmann called additional 

character witnesses, submitted more letters of support, 

called a toxicologist, and obtained an evaluation from a 

mental health examination.
Court of Appeals of Indiana | Memorandum Decision 90A02-1709-PC-2226| May 9, 2018 Page 37 of 45

v. Therefore, the Court finds that Pond was not denied 

effective assistance of counsel at the sentencing hearing.

Appellant’s App. Vol. IV pp. 14-16.

[45] On appeal, Pond argues that his trial counsel was ineffective for failing to 

investigate and present mitigators, failing to have Pond evaluated by a mental 

health professional, and failing to consult with a toxicologist. We will address 

each argument separately.

1. Mitigators

[46] Pond argues that his trial counsel should have performed a better investigation 

into proposed mitigators, asked more individuals to write letters or testify at 

sentencing, and better prepared Pond’s mother and girlfriend to testify. 

According to Pond, a better investigation would have revealed that Pond was 

experiencing considerable mental distress, had positive character traits and 

remorse, and suffered childhood abuse from his father. 

[47] At the sentencing hearing, Pond’s trial counsel presented seven letters of 

support for Pond and his mother and girlfriend testified in support of him. 

Pond testified regarding his remorse and childhood abuse by his father. There 

is no evidence that additional evidence in support of these arguments would 

have resulted in a shorter sentence. The post-conviction court found that Pond 

had failed to demonstrate a reasonable probability that the result of the 

sentencing hearing would have been different if his trial counsel had presented 

additional evidence, and we agree. Pond’s argument fails.
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2. Mental Health Professional

[48] Next, Pond argues that his trial counsel should have presented evidence from a 

mental health professional to show that he suffered from PTSD and depression 

as a result of the offense. According to Pond, this evidence “would have shown 

his remorse and corroborated the testimony that he would never deliberately

harm a child.” Appellant’s Br. p. 79. Again, Pond’s trial counsel presented 

evidence of Pond’s remorse. Pond testified: 

I would give my life in a second to bring that little boy back, but I 

can’t do that. I will live with that every day of my life from now 

on and the holidays stunk so bad not because I was in jail but 

because of the family, that little guy they didn’t have him around 

at Christmas. . . . I am so so so sorry for bringing everybody so 

much grief, the Michudas for all their heartache, and my family 

for the embarrassment.

Ex. Vol. IV p. 174. The proposed evidence was cumulative of other evidence 

presented of Pond’s remorse. The post-conviction court found no evidence of a 

reasonable probability that the result of the sentencing hearing would have been 

different if Pond’s trial counsel had presented evidence of a mental health 

examination, and we agree. The post-conviction court’s finding on this issue is 

not clearly erroneous. 

3. Toxicologist

[49] Finally, Pond argues that his trial counsel was ineffective for failing to present 

evidence from a toxicologist at the sentencing hearing. He argues that the 

toxicologist would have demonstrated that Pond was not intoxicated at the time 
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of the offense. We conclude that Pond was not prejudiced by his trial counsel’s 

failure to present such evidence.

[50] Pond claims that his substance abuse and alcohol consumption on the night of 

the offense were used as an aggravating factor. As noted when discussing the 

admission of the toxicologist’s report, Pond’s intoxication level simply was not 

found to be an aggravating factor. Rather, in the context of discussing Pond’s 

criminal history, the trial court noted that Pond had several substance abuse 

convictions and that substance abuse may have “played a factor” in the current 

offense too. Exhibits Vol. IV p. 57. The post-conviction court correctly found 

that evidence from a toxicologist would have been irrelevant and possibly 

harmful to Pond’s sentencing. The post-conviction court noted that, if Pond 

was proven to be sober, “it means Pond’s actions on the date in question were 

completely unaffected by alcohol, and he was fully aware of what he was doing; 

almost becoming an aggravating factor.” Appellant’s App. Vol. IV p. 15. 

Further, the post-conviction court noted that the toxicologist’s findings were 

based on Pond’s testimony as to how much alcohol he consumed, which 

conflicted with other evidence in the case. Consequently, the post-conviction 

court concluded that Pond failed to prove a reasonable probability that the 

result of the sentencing hearing would have been different if Pond’s trial 

counsel had presented evidence from a toxicologist. We cannot say that the 

post-conviction court’s finding is clearly erroneous.
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V. Ineffective Assistance of Appellate Counsel

[51] Pond next argues that his appellate counsel was ineffective. Claims of 

ineffective assistance of appellate counsel are reviewed using the same standard 

applicable to claims of trial counsel ineffectiveness. Bieghler v. State, 690 N.E.2d 

188, 193 (Ind. 1997), cert. denied. These claims generally fall into three 

categories: (1) denying access to the appeal, (2) waiver of issues, and (3) failure 

to present issues well. Pond argues that his appellate counsel was ineffective 

because: (1) there were “substantial deficiencies in the Appellant’s Appendix 

and record;” (2) there were grammatical errors in the Appellant’s Brief; (3) 

Pond’s character, letters written on his behalf, a lack of disciplinary issues in the 

jail, and his childhood abuse were not mentioned in the Appellant’s Brief; (4) 

the Appellant’s Brief did not mention the suggested statutory mitigators found 

by the probation department; (5) the statement of the facts did not contain 

citations to the record; and (6) appellate counsel failed to provide a separate 

analysis of abuse of discretion and inappropriate sentence, resulting in waiver of 

the inappropriate sentence issue. According to Pond, if the appropriateness 

issue had been considered, there is a reasonable probability that this court 

would have reduced his sentence.

[52] On this issue, the post-conviction court found:

a. The Court finds that Pond’s arguments on these issues fail. 

b. Following the sentencing hearing, Pond sought an appeal 

of the Court’s sentencing decision.
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c. Pond chose to be represented by Benjamin Nordmann.

d. The Indiana Court of Appeals issued a Memorandum 

Decision on September 19, 2012, which found the trial 

court had not abused its discretion, and affirmed the trial 

court’s decision on Pond’s sentence.

* * * * *

g. Because Pond’s appeal followed a guilty plea, the only 

issue before the Court were issues related to sentencing.

h. Here, Pond argues Nordmann’s appellate representation 

was inadequate for several reasons, including that the 

Appellant’s Appendix did not include the charging 

informations, the probable cause affidavit, the notice of 

appeal, or any pleadings or orders that were filed or issued 

prior to December 16, 2011. He also argues it is deficient 

because it contains “quite a few typographical errors, 

capitalization errors, and grammatical errors.” Pond’s 

proposed findings of fact, paragraph 276.

i. Pond’s claim of alleged appellate counsel ineffectiveness 

appears to fall into the third category: inadequate 

presentation as highlighted in the Bieghler decision.

j. In Bieghler, the Indiana Supreme Court found that claims 

of inadequate presentation are the most difficult to 

advance and reviewing tribunals to support. The Supreme 

Court found this to be true for two reasons:

First, these claims essentially require the reviewing 

tribunal to review specific issues it has already 

adjudicated to determine whether the new record 
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citations, case references, or arguments would have 

had any marginal effect on its previous decision. 

Thus, this kind of ineffectiveness claim, as 

compared to the others mentioned, most implicates 

concerns of finality, judicial economy, and repose 

while least affecting assurance of a valid conviction. 

Second, an Indiana appellate court is not limited in 

its review of issues to the facts and cases cited and 

arguments made by the appellant’s counsel. We 

commonly review relevant portions of the record, 

perform separate legal research, and often decide 

cases based on legal arguments and reasoning not 

advanced by either party. While impressive 

appellate advocacy can influence the decisions 

appellate judges make and does make our task 

easier, a less than top notch performance does not 

necessarily prevent us from appreciating the full 

measure of an appellant’s claim. Bieghler v. State, 

690 N.E.2d 188, 195 (Ind. 1997).

k. Here, Pond has failed to demonstrate that Nordmann’s 

performance on the appeal was deficient. Further, 

assuming arguendo the performance was deficient, Pond 

has failed to demonstrate that he was prejudiced by the

deficient performance.

Appellant’s App. Vol. IV pp. 16-18.

[53] Even if we assume that appellate counsel’s performance was deficient, we 

cannot say that Pond was prejudiced by the alleged deficiencies. Pond’s 

arguments appear to be in the category of “failure to present issues well.” 

Bieghler, 690 N.E.2d at 195. To the extent that Pond’s appellate counsel failed 

to present the abuse of discretion argument well, “an ineffectiveness challenge 
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resting on counsel’s presentation of a claim must overcome the strongest 

presumption of adequate assistance.” Id. at 196. “Judicial scrutiny of counsel’s 

performance, already ‘highly deferential,’ Spranger v. State, 650 N.E.2d 1117, 

1121 (Ind. 1995), is properly at its highest.” Id. “Relief is only appropriate 

when the appellate court is confident it would have ruled differently.” Id. Pond 

has made no showing that the alleged deficiencies in the Appellant’s Brief, 

Appellant’s Appendix, or record impacted his appeal in any way or that, 

without those deficiencies, his appeal would have been successful. 

[54] The main thrust of his argument seems to be that an argument that his sentence 

was inappropriate under Indiana Appellate Rule 7(B) would have been 

successful. Although appellate counsel mentioned Appellate Rule 7(B), he 

waived the issue by failing to make a separate argument regarding the issue. See 

Pond, No. 90A05-1202-CR-73, slip op. at 9 n.1. However, even if Pond’s 

appellate counsel had properly raised the Appellate Rule 7(B) issue, the 

argument is unlikely to have been successful.

[55] Appellate Rule 7(B) provides that we may revise a sentence authorized by 

statute if, after due consideration of the trial court’s decision, we find that the 

sentence is inappropriate in light of the nature of the offenses and the character 

of the offender. When considering whether a sentence is inappropriate, we 

need not be “extremely” deferential to a trial court’s sentencing decision. 

Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must 

give due consideration to that decision. Id. We also understand and recognize 

the unique perspective a trial court brings to its sentencing decisions. Id. Under 
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this rule, the burden is on the defendant to persuade the appellate court that his 

or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 

2006). 

[56] The principal role of Rule 7(B) review “should be to attempt to leaven the 

outliers, and identify some guiding principles for trial courts and those charged 

with improvement of the sentencing statutes, but not to achieve a perceived 

‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 

2008). We “should focus on the forest—the aggregate sentence—rather than 

the trees—consecutive or concurrent, number of counts, or length of the 

sentence on any individual count.” Id. When reviewing the appropriateness of 

a sentence under Rule 7(B), we may consider all aspects of the penal 

consequences imposed by the trial court in sentencing the defendant, including 

whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 

1023, 1025 (Ind. 2010). 

[57] The nature of Pond’s offense is that he was annoyed by a moving light on a 

neighbor’s property, retrieved his gun, fired two shots, and said, “That will 

teach them.” PSI p. 23. Four-year-old Jacob was shot in the forehead, and he 

died a few hours later. Pond had his son hide the firearm and initially denied 

any involvement in the shooting. Pond admitted his involvement only after his 

son and other visitor during the incident came forward. 

[58] As for Pond’s character, he has multiple prior convictions, including for 

domestic battery, battery, invasion of privacy, and operating while intoxicated. 
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His probation has been revoked twice, and he was on probation at the time of 

this offense. He expressed remorse for shooting Jacob and pled guilty. 

Testimony and letters were presented at the sentencing hearing regarding 

Pond’s good character.

[59] Even if Pond’s appellate counsel had properly presented the Appellate Rule 

7(B) issue, we cannot say that Pond’s sentence would have been found 

inappropriate. Given the nature of the offense and Pond’s criminal history, the 

likelihood of Pond’s forty-year sentence being reduced on direct appeal was 

slight. Pond has failed to demonstrate that, but for his appellate counsel’s 

alleged deficiencies, his sentence would have been reduced. The postconviction court’s findings denying Pond’s ineffective assistance of appellate 

counsel claim are not clearly erroneous.

Conclusion

[60] The post-conviction court properly denied Pond’s petition for post-conviction 

relief. We affirm.

[61] Affirmed.

Vaidik, C.J., and Pyle, J., concur.