Court of Appeals of Indiana | Memorandum Decision 49A04-1406-PC-282 | April 17, 2015 Page 1 of 24

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.

APPELLANT PRO SE

Chad McKinney

Michigan City, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Justin F. Roebel

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Chad McKinney,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent

April 17, 2015

Court of Appeals Case No.

49A04-1406-PC-282

Appeal from the Marion Superior 

Court

The Honorable Clark H. Rogers,

Judge

Trial Court Cause No. 49F25-0312-

PC-222387

Bradford, Judge.

Case Summary

[1] In 2006, Appellant-Petitioner Chad McKinney was convicted of the murder of 

Anthony Laurenzo. His conviction was affirmed on direct appeal. McKinney 
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subsequently filed a petition for post-conviction relief (“PCR”), in which he 

alleged that he had received ineffective assistance of both trial and appellate 

counsel. Following an evidentiary hearing, the post-conviction court denied 

McKinney’s petition. McKinney appealed this determination. 

[2] On appeal, McKinney again alleges that he received ineffective assistance of 

both trial and appellate counsel. McKinney also alleges that he received 

ineffective assistance of post-conviction counsel. Concluding that McKinney 

has failed to establish that he received ineffective assistance of trial, appellate, or 

post-conviction counsel, we affirm. 

Facts and Procedural History

[3] Our opinion in McKinney’s prior direct appeal, which was handed down on 

September 17, 2007, instructs us as to the underlying facts and procedural 

history leading to this post-conviction appeal:

On the night of December 19, 2003, Dominick Bruno (“Dominick”) 

and [Laurenzo], who had been a groomsman in Dominick’s wedding, 

procured some LSD and then went to Dancer’s Show Club in 

Indianapolis. Both men consumed some of the LSD before entering 

the club. After a few minutes, Laurenzo began acting abnormally, 

alternating between periods of quiet with his head between his knees 

and periods where he had a great deal of energy, was shaking, and was 

yelling, “Oh, Jesus.” Tr. p. 222. The club’s doorman saw Laurenzo 

crying and rubbing his chest and believed that Laurenzo was 

hallucinating. Eventually, the doorman asked Dominick to take 

Laurenzo out of the club.
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About that time, Dominick received a call from his wife, Connie. 

Connie, who was eight-and-a-half months pregnant, was at the 

couple’s trailer home with their young son, Joseph. Connie told 

Dominick that McKinney, who had also been a groomsman in 

Dominick’s wedding, was at the home and needed to see him. 

According to Connie, McKinney had been drinking whiskey and 

seemed sad. Dominick and Laurenzo left the club and drove to the 

Brunos’ home. During the drive, Laurenzo was swinging his arms and 

talking with God and Jesus. Twice during the drive, Dominick pulled 

over to calm Laurenzo.

After they arrived at Dominick’s home, Dominick led Laurenzo 

inside. McKinney was lying on the floor near the door, and Laurenzo 

stepped on him. Laurenzo was still swinging his arms, and he hit 

McKinney. McKinney pulled Laurenzo onto a couch and started 

hitting him before Dominick and Connie separated them. Dominick 

told McKinney that Laurenzo was “on a bad trip” from the LSD, that 

he was “not trying to hurt nobody,” and that McKinney should leave 

him alone. Id. at 230. At that point, Laurenzo was foaming at the 

mouth and claiming that he was God and “the most powerful man in 

the world.” Id. at 77-78. Connie tried to give Laurenzo a glass of 

milk, but Laurenzo threw it or knocked it out of her hand. Dominick 

left the room to check on Joseph and returned to find McKinney 

beating Laurenzo up again, and Dominick again separated the two.

McKinney eventually left the trailer, but he returned approximately 

ten minutes later with a purple Crown Royal bag and a white glove. 

By that point, Laurenzo had “actually started to listen” to Dominick 

“a little bit.” Id. at 232. Nonetheless, McKinney removed a small 

pistol from the purple bag and pointed it at Laurenzo. McKinney then 

fired a shot while the gun was pointed at the ground. Dominick told 

McKinney, “Look, you just shot a bullet. You need to go. I got a son 

here, I’ve got a pregnant wife. You know this is not good. You need 

to leave now.” Id. at 236-37. McKinney placed the gun on an 

entertainment center but did not leave. Laurenzo was still standing 

and claiming to be God and the most powerful man in the world. 

Connie told Laurenzo to sit down, and Laurenzo approached her “like 

he was going to hit [her] or something.” Id. at 88. Connie told 
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Laurenzo, “I’m pregnant and you’re not going to hit me,” and 

Laurenzo did not do anything to her. Id.

Connie then called 911 to get help for Laurenzo. While she was on 

the phone, McKinney approached Laurenzo, put him in a headlock, 

pushed the gun against his temple, and shot him in the head. 

Laurenzo immediately fell to the floor. Dominick saw McKinney 

drop the gun, and McKinney left the trailer. Laurenzo died of “a 

through-and-through contact gunshot wound to the head.” Id. at 322. 

Dominick and Connie gave statements to the police and identified 

McKinney as the shooter. Police found a gun broken into several 

pieces on the floor of the trailer.

After McKinney was arrested, he reported to a doctor at the Marion 

County Jail that he had a bullet lodged in his hand. He subsequently 

removed the bullet himself using a razor blade and gave it to a guard. 

Testing showed that the bullet had been fired from the gun recovered 

by police. Furthermore, McKinney’s wound was consistent with the 

exit wound on Laurenzo’s head because the exit wound indicated that 

something was resting against Laurenzo’s skin, possibly McKinney's 

hand. Finally, DNA testing showed that Laurenzo’s blood was on the 

barrel of the recovered gun and on McKinney’s jacket.

The [Appellee-Respondent the State of Indiana (the “State”)] charged 

McKinney with murder, a felony. A jury trial was held on August 15-

17, 2005. During the noon recess on August 15, Judge Patricia 

Gifford (“Judge Gifford”) became aware that Laurenzo’s mother had 

worked for her in the early 1980s. Judge Gifford brought counsel into 

her chambers and advised them of her former relationship with 

Laurenzo’s mother. McKinney’s attorney indicated that she had 

known this information from the beginning and had not asked for 

recusal because she felt that Judge Gifford is fair.

During the trial, Connie testified that she heard a “pop” then looked 

over and saw Laurenzo falling. Ex. p. 304. The prosecutor asked 

Connie whether she saw a gun at that point, and she said “no.” Id. at 

305. Regarding Dominick’s testimony that McKinney dropped the 
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gun to the floor after shooting Laurenzo and the fact that the gun was 

found in several pieces on the floor, David Brundage (“Brundage”), 

the State’s firearms expert, was asked whether dropping the weapon 

would cause it to fall apart. He responded:

Not in my opinion. One, the magazine has to be out of 

the gun. Two, the safety has to be forward or to a firing 

position, then the slide has to be drawn all the way back 

before it can be lifted up and in my opinion that couldn’t 

be done with—in a dropping situation. Has to be—that 

would have to be done on purpose.

Id. at 614-15. On August 17, 2005, the last day of the trial, the jury 

was unable to reach a verdict, and the trial court declared a mistrial 

and scheduled another pre-trial conference.

Two days later, McKinney’s attorney filed a motion asking Judge 

Gifford to grant a change of judge pursuant to Indiana Rule of 

Criminal Procedure 12(B) (“Criminal Rule 12(B)”) based upon Judge 

Gifford’s former relationship with Laurenzo’s mother. Judge Gifford 

denied the motion, finding that McKinney had failed to file it within 

ten days of his plea of not guilty as required by Indiana Rule of 

Criminal Procedure 12(D) (“Criminal Rule 12(D)”) and that “[n]o 

facts have been alleged that would cause an objective person to have a 

reasonable basis for doubting the judge’s impartiality [.]” Appellant’s 

Supp. App. p. 3.

The second jury trial commenced on April 24, 2006. When the 

prosecutor asked Connie whether she saw a gun after hearing a 

gunshot, she testified, in contrast to her testimony at the first trial, 

“When [McKinney] turned around—when he turned around he had 

his hands—he opened his hands like this and he said, ‘What do you 

want me to do?’ And the gun fell and hit the floor.” Tr. p. 91. On 

cross-examination, McKinney’s counsel asked Connie whether her 

testimony “differs radically” from her testimony during the first trial, 

and Connie responded, “Yes.” Id. at 140. This exchange led to the 

following question from the jury: “[I]f your testimony is different 

today than it was previously, why did you change it?” Id. at 142. 

Connie answered, “Because I was assured that no matter what 

happened, me and my children were going to be safe.” Id. 
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McKinney’s counsel immediately moved for a mistrial, arguing that 

Connie’s response to the jury’s question implied that McKinney is 

dangerous and had threatened her. The trial court denied the motion. 

Later in the trial, the defense called Connie as a witness and asked her 

whether McKinney had ever threatened her, and she said, “No.” Id. at 

583.

Dominick also gave new testimony at the second trial. Specifically, he 

testified that before McKinney shot Laurenzo, McKinney had said, 

referring to Laurenzo, “We don’t need him anymore” and that 

McKinney had put the gun in Laurenzo’s mouth and said, “Do you 

want me to blow your head off, m* * * * * f* * * * *?” Id. at 234.

Brundage again served as the State’s firearms expert during the second 

trial. During the course of the testimony, he disassembled the gun and 

realized, contrary to his testimony at the first trial, that it could be 

disassembled without the magazine having been removed. When 

asked again whether dropping the gun would cause it to break into 

pieces, he responded, contrary to his testimony at the first trial, “Not 

normally, but in my business anything can happen, and I would never 

want to be totally conclusive that it could never happen.” Id. at 544. 

When asked whether he was changing his testimony, Brundage 

replied, “I would have to change that at this time to reflect that the 

magazine does not have to be in the gun, or out of the gun.” Id. at 

545. The prosecution did not notify the defense of any of these 

changes in testimony.

McKinney tendered lesser included offense instructions for the crimes 

of reckless homicide and criminal recklessness. The trial court refused 

to give the instructions, concluding that the evidence would not 

support convictions for these offenses. The jury found McKinney 

guilty of murder. Judge Gifford made the following statement at the 

sentencing hearing:

I think it’s unlikely to believe that the victim facilitated 

this crime by his actions since it was very much in 

evidence that he was not in control of his actions, that 

[McKinney] acted under a strong provocation. The 
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evidence did show that he did go out and get the gun and 

return after a period of time. That circumstances are not 

likely to happen again. These circumstances aren’t, but 

I’m not sure that another set might not. I would agree 

that in fact it might be a hardship to his children, 

however, I’ve not really seen any evidence that he was 

financially supporting the children. I’m not sure that they 

need his other support. There was one mitigator, the fact 

that his criminal history is minimal, at best. However, 

taking into consideration the evidence presented to the 

jury in which they found [McKinney] knowingly killed 

the victim in this matter, would override any mitigation[.]

Tr. p. 624-25. Judge Gifford sentenced McKinney to a prison term of 

fifty-five years, the presumptive sentence for murder.

McKinney v. State, 873 N.E.2d 630, 635-38 (Ind. Ct. App. 2007).

[4] On July 7, 2008, McKinney filed a pro se PCR petition. An attorney for the 

Office of the Public Defender of Indiana entered an appearance on August 28, 

2008, but subsequently withdrew his appearance on February 23, 2010. On 

September 30, 2010, McKinney filed a motion to withdraw his petition, without 

prejudice. The post-conviction court granted McKinney’s September 30, 2010 

motion to dismiss on October 4, 2010. 

[5] On January 23, 2012, McKinney filed a second pro se PCR petition. The postconviction court conducted a bifurcated evidentiary hearing on September 12, 

2013 and January 23, 2014. On May 22, 2014, the post-conviction court issued 

an order denying McKinney’s request for PCR. 

Discussion and Decision
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[6] Post-conviction procedures do not afford the petitioner with a super-appeal. 

Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a 

narrow remedy for subsequent collateral challenges to convictions, challenges 

which must be based on grounds enumerated in the post-conviction rules. Id. 

A petitioner who has been denied post-conviction relief appeals from a negative 

judgment and as a result, faces a rigorous standard of review on appeal. Dewitt 

v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942 

(Ind. Ct. App. 1999), trans. denied.

[7] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 

745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his 

claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); 

Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, 

a petitioner must convince this court that the evidence, taken as a whole, “leads 

unmistakably to a conclusion opposite that reached by the post-conviction 

court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without 

conflict and leads to but one conclusion, and the post-conviction court has 

reached the opposite conclusion, that its decision will be disturbed as contrary 

to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. 

The post-conviction court is the sole judge of the weight of the evidence and the 

credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). 

We therefore accept the post-conviction court’s findings of fact unless they are 

clearly erroneous but give no deference to its conclusions of law. Id.
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[8] McKinney claims that the post-conviction court erred in denying his PCR 

petition because the evidence demonstrates that he received ineffective 

assistance of both trial and appellate counsel. McKinney also claims that he 

received ineffective assistance of his PCR counsel. We will discuss each claim 

in turn. 

Ineffective Assistance of Counsel

[9] The right to effective counsel is rooted in the Sixth Amendment to the United 

States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The 

Sixth Amendment recognizes the right to the assistance of counsel because it 

envisions counsel’s playing a role that is critical to the ability of the adversarial 

system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S. 

668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness 

must be whether counsel’s conduct so undermined the proper function of the 

adversarial process that the trial court cannot be relied on as having produced a 

just result.” Strickland, 466 U.S. at 686.

[10] A successful claim for ineffective assistance of counsel must satisfy two 

components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first 

prong, the petitioner must establish that counsel’s performance was deficient by 

demonstrating that counsel’s representation “fell below an objective standard of 

reasonableness, committing errors so serious that the defendant did not have 

the ‘counsel’ guaranteed by the Sixth Amendment.” Id. We recognize that 

even the finest, most experienced criminal defense attorneys may not agree on 
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the ideal strategy or most effective way to represent a client, and therefore, 

under this prong, we will assume that counsel performed adequately and defer 

to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 

(Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of 

bad judgment do not necessarily render representation ineffective. Id. 

[11] Under the second prong, the petitioner must show that the deficient 

performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner 

may show prejudice by demonstrating that there is “a reasonable probability 

(i.e. a probability sufficient to undermine confidence in the outcome) that, but 

for counsel’s errors, the result of the proceeding would have been different.” Id. 

A petitioner’s failure to satisfy either prong will cause the ineffective assistance 

of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently, 

“[a]lthough the two parts of the Strickland test are separate inquires, a claim 

may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 

(Ind. 2006) (citing Williams, 706 N.E.2d at 154). 

A. Ineffective Assistance of Trial Counsel

[12] McKinney argues that his trial counsel provided ineffective assistance in 

numerous regards, including (1) failing to call McKinney to testify during trial, 

(2) requesting that the trial court’s instructions to the jury include a self-defense 

jury instruction, (3) failing to call firearm and pathology experts to contest the 

testimony of the State’s expert witnesses, (4) failing to make a timely request for 

a change of judge, and (5) failing to present mitigating evidence at sentencing.
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1. Failing to Call McKinney to Testify During Trial

[13] McKinney asserts that his trial counsel provided ineffective assistance by failing 

to call him as a witness during trial. Specifically, McKinney states that counsel 

should have allowed him to present a claim that he acted in self-defense and 

that the gun accidentally fired. McKinney claims that he told his counsel that 

he wished to testify, but that his counsel would not let him. However, contrary 

to McKinney’s claim that he wished to testify at trial, McKinney’s trial counsel 

testified at the PCR evidentiary hearing that McKinney “expressed to me [that] 

he absolutely did not want to testify” as “there was some issue regarding ... the 

bullet that was lodged in his hand which he had removed at the jail. And also 

he ... he was very concerned that it might not be helpful to him.” PCR Tr. pp. 

23-24 (ellipses in original). Further, even if McKinney would have expressed a 

desire to testify, trial counsel further testified that she “would have advised 

against it and I probably did.” PCR Tr. p. 24. 

[14] In addition, trial counsel testified that it was the defense’s proffered theory that 

McKinney “was not the shooter. That the shooter in fact was Dominic[k]

Bruno.” Tr. p. 24. Allowing McKinney to provide an alternative theory that 

he acted in self-defense would have been in direct contrast to the proffered 

defense. Trial counsel made the tactical decision to present the theory that 

Dominick, not McKinney, was the shooter. Trial counsel presented evidence 

and argument during trial to support this theory. Specifically, trial counsel 

presented evidence which established the following:
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Dominic[k] Bruno, he was bi-polar and off his medication. I was able 

to establish he was off his medication. He’d had a history of erratic 

(inaudible) and sometimes violent behavior when he was not 

medicated. (Phone static) And we both (phone static) I believe it was 

established that the gun was allegedly dropped by Mr. McKinney or 

this is what I think the Bruno’s testified and that it shattered into 

pieces. Yet the gun was intact and had been reassembled and so our 

... our strategy was to try and get the jury to believe or at least to make 

a reasonable doubt that Mr. ... that Bruno had shot the gun and had 

reassembled it, and handled it, before the police arrived. And that 

both of the Bruno’s [sic] had a motive emphatically because of not 

wanting Dominic[k] to go to prison and they would have a murder.

PCR Tr. pp. 24-25. Again, we defer to counsel’s strategic and tactical 

decisions. Smith, 765 N.E.2d at 585. Because the PCR record demonstrates 

that trial counsel presented a plausible theory on defense which, if successful, 

would have resulted in an acquittal, we conclude that the post-conviction court 

did not err in determining that trial counsel did not provide ineffective 

assistance in this regard.

2. Requesting a Self-Defense Jury Instruction

[15] McKinney also asserts that his trial counsel provided ineffective assistance by 

requesting a self-defense jury instruction. McKinney, however, did not raise 

this issue in his January 23, 2012 PCR petition.1 As such, this claim is 

unavailable here because “[i]ssues not raised in the petition for post-conviction 

 

1

 McKinney’s PCR petition included a claim that his trial counsel was ineffective for failing to 

call him as a witness during trial and for attempting to provide jury instructions on the lesserincluded offenses of reckless homicide. It did not, however, include a claim that trial counsel 

provided ineffective assistance by requesting a self-defense jury instruction. 
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relief may not be raised for the first time on post-conviction appeal.” Allen v. 

State, 749 N.E.2d 1158, 1171 (Ind. 2001) (citing Ind. Post-Conviction Rule 1(8)

which provides that “[a]ll grounds for relief available to a petitioner under this 

rule must be raised in his original petition.”)

3. Failing to Call Firearms and Pathology Experts to Contest the Testimony of 

the State’s Expert Witnesses

[16] McKinney asserts that his trial counsel provided ineffective assistance by failing 

to call a firearm and a pathology expert to contest the testimony of the State’s 

expert witnesses. McKinney, however, did not raise these issues in his January 

23, 2012 PCR petition. Again, these claims are unavailable here because 

“[i]ssues not raised in the petition for post-conviction relief may not be raised 

for the first time on post-conviction appeal.” Allen, 749 N.E.2d at 1171. 

[17] Further, even if McKinney had preserved these issues, he did not provide any 

evidence, be that affidavits or sworn testimony, from potential witnesses 

indicating what their testimony would have been. Without this evidence, 

McKinney cannot establish a claim of ineffective assistance or prejudice 

because we have no way to judge trial counsel’s performance in this regard. See 

Hunter v. State, 578 N.E.2d 353, 355 (Ind. 1991) (providing that the court could 

not say that counsel’s performance was ineffective because it had no idea what 

the potential witnesses would have testified about and, as a result, have no basis 

to judge counsel’s performance).
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4. Failing to Make a Timely Request for a Change of Judge

[18] McKinney further asserts that his trial counsel provided ineffective assistance by 

failing to file a timely motion for a change of judge. McKinney claims that trial 

counsel was ineffective in this regard because Judge Gifford was biased or 

prejudiced against him because Laurenzo’s mother was a former employee of 

Judge Gifford. 

[19] As we recognized in McKinney’s direct appeal, trial counsel initially made the 

tactical decision not to request a change of judge because of her belief that a 

change of judge was unnecessary “because Judge Gifford is fair,” McKinney, 

873 N.E.2d at 639, and because she had a good relationship with Judge 

Gifford. Trial counsel also indicated that when she did ultimately file a motion 

for a change of judge, she “could not point to any specific instances of bias.” 

PCR Tr. p. 27. Trial counsel went on to state,

In other words, in my experience and I had been an attorney, you 

know, for I think at [that] time around fifteen, eighteen years, and did, 

you know, hundreds and hundreds of cases and in that time handled 

hundreds and hundreds of cases and I could not prove that she was 

treating me or [McKinney] any different than she’d treat any other 

defense counsel or defendant. I couldn’t point to anything in 

particular. And then as I conducted further research into that I learned 

that ... she had in fact fired this employee certainly or well before this 

shooting occurred and didn’t, to quote, unquote “could not stand her”. 

Now I don’t know whether that’s true because I never discussed that 

with Judge Gifford and I think she couldn’t discuss her employee 

issues with me. But it’s my understanding they didn’t have a very 

good relationship to begin with.
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PCR Tr. p. 27. Trial counsel did eventually file a motion for a change of judge, 

which was denied by the trial court. In discussing the filing and denial of the 

motion during the PCR evidentiary hearing, trial counsel further stated the 

following:

It’s my recollection that I did file a motion for change of judge.... I 

didn’t feel that I had not timely filed it. I think I filed within a certain

time asking that (inaudible) and make sure that it was factually 

accurate and try and justify filing the motion, which I did. And [I] 

should also state again there that I had indicated I did not see bias. 

Which probably was true because I did not in fact see bias from the 

Bench.

PCR Tr. pp. 27-29 (brackets added).

[20] Upon reviewing the trial court’s denial of the motion for a change of judge that 

was ultimately filed by McKinney’s trial counsel, we concluded on appeal that 

“even if McKinney’s motion had been timely filed, [McKinney] failed to make 

a showing of bias or prejudice.” McKinney, 873 N.E.2d at 640. In reaching this 

conclusion, we stated the following: “McKinney argues that ‘[t]he personal 

relationship between the judge and her former employee support a rational 

inference of bias and prejudice.’” Appellant’s Br. p. 8. However, 

approximately twenty years had passed since Laurenzo’s mother had worked 

with Judge Gifford, and McKinney’s affidavit did not allege any facts 

suggesting that any relationship existed between the two after that employment 

was terminated.” Id. 
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[21] The record demonstrates that trial counsel initially made the tactical decision to 

refrain from filing a motion for a change of judge. Again, we defer to counsel’s 

strategic and tactical decisions. Smith, 765 N.E.2d at 585. Furthermore, even if 

counsel could possibly be found to have provided deficient performance by 

failing to file the motion for a change of judge sooner, McKinney has failed to 

prove that he was prejudiced by trial counsel’s decision in this regard. The 

record is devoid of any evidence which would suggest that the trial court acted 

with bias toward McKinney or that the eventual outcome of his trial would 

have been any different had a timely motion for a change of judge been granted. 

Likewise, the record is devoid of any evidence which would suggest that the 

length of the sentence imposed following the jury’s finding of guilt would have 

been any different had a timely motion for a change of judge been granted. As 

such, McKinney’s claim in this regard must fail because he has failed to prove 

both deficient performance and prejudice. See Williams, 706 N.E.2d at 154 

(providing that a petitioner’s failure to satisfy either prong will cause the 

ineffective assistance of counsel claim to fail). 

5. Failing to Present Mitigating Evidence at Sentencing

[22] McKinney also asserts that his trial counsel provided ineffective assistance for 

failing to present mitigating evidence at sentencing. Specifically, McKinney 

claims that his trial counsel failed to present the following mitigating evidence: 

(a) the circumstances of the crime, including that McKinney claimed to have 

been provoked; (b) circumstances of the crime unlikely to reoccur; and (c) 

McKinney’s children would be unduly burdened by his incarceration.
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a. Circumstances of the Crime

[23] McKinney claims that, given the opportunity to testify to the circumstances of 

the crime, he could have convinced the trial court that he was provoked and 

committed “at most a Reckless Homicide.” Appellant’s Br. p. 31. We disagree 

and conclude that McKinney’s claim must fail because he has failed to prove 

that he was prejudiced, i.e., that the outcome of the sentencing hearing would 

have been different if trial counsel had presented McKinney’s desired evidence. 

[24] The evidence presented at trial was that of an execution-style killing. In finding 

McKinney guilty of murder, the jury found that the evidence showed that 

McKinney knowingly or intentionally killed Laurenzo. In considering whether 

McKinney suffered any potential prejudice due to the exclusion of McKinney’s 

desired evidence, we refer back to our prior decision on direct appeal in which 

we stated that:

It is undisputed that Laurenzo was incapacitated and acting out. 

However, Dominick told McKinney multiple times that Laurenzo did 

not intend to hurt anybody and that he was only having a negative 

reaction to the drugs in his system. In addition, McKinney had several 

opportunities to remove himself from the situation. At one point he 

did leave, only to return with the gun and shoot Laurenzo. To the 

extent that McKinney was provoked by Laurenzo, we noted above 

that the jury could have reasonably concluded that the deadly force 

used by McKinney was not proportionate to the requirements of the 

situation. 

McKinney, 873 N.E.2d at 645-46 (citation omitted). We also note that 

McKinney has failed to present any additional evidence during the PCR 

proceedings that would indicate that he was prejudiced by counsel’s failure to 
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present McKinney’s additional desired evidence. As such, McKinney has failed 

to establish that he was prejudiced by his trial counsel’s failure to present his 

desired evidence during the sentencing hearing.

b. Circumstances Unlikely to Reoccur

[25] McKinney claims that his trial counsel failed to present evidence supporting the 

alleged mitigating factor that the circumstances of the crime were unlikely to 

reoccur. Despite McKinney’s claim in this regard, however, the record 

demonstrates that this alleged mitigating factor was presented to and explicitly 

rejected by the trial court. As such, trial counsel cannot be found ineffective for 

failing to raise this allegedly mitigating factor at sentencing.

c. Undue Burden by McKinney’s Incarceration

[26] McKinney also claims that his trial counsel was ineffective for failing to call the 

mother of his children to testify at sentencing to the undue burden that would 

be placed upon the children if McKinney were sent to prison. The record 

demonstrates that McKinney’s trial counsel made the tactical decision not to 

call the mother of McKinney’s children to testify at sentencing. In explaining 

this tactical decision during the PCR evidentiary hearing, trial counsel stated 

that: 

The issue with regards to having the mother of the children testify was 

that she was a very hostile witness at the time. She (inaudible) I had a 

... interviewed her extensively. She had indicated to me that if she 

were called to testify she would be harmful to Mr. McKinney and 

would not say anything in his favor. In fact stated that she would like 

to see him go to prison. And she [was] very angry with him at the 

time. I’m not sure what all the details were of that. But I also recall 
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my notes which indicated that I met with Mr. McKinney and 

discussed this with him and he thought it would not be a good idea to 

put her on as a witness given ... given her hostility.

PCR Tr. pp. 22-23. Again, we defer to counsel’s strategic and tactical 

decisions. Smith, 765 N.E.2d at 585.

[27] Furthermore, review of the record demonstrates that McKinney has failed to 

prove that he was prejudiced by his trial counsel’s strategic decision. In 

considering whether McKinney was prejudiced by the lack of his children’s 

mother’s testimony at sentencing, we previously stated that: 

McKinney fails to explain how the minimum sentence of forty-five 

years would cause any less hardship on his children than the fifty-fiveyear presumptive sentence actually imposed. Indeed, the difference 

between those two sentences “hardly can be argued to impose much, if 

any, additional hardship” on McKinney’s children.

McKinney, 873 N.E.2d at 645 (citation omitted). In addition, McKinney has 

provided no evidence suggesting that the trial court would have imposed a 

different sentence if trial counsel would have presented his allegedly desired 

evidence during sentencing. 

B. Ineffective Assistance of Appellate Counsel

[28] The standard of review for a claim of ineffective assistance of appellate counsel 

is the same as for trial counsel in that the petitioner must show appellate 

counsel was deficient in her performance and that the deficiency resulted in 

prejudice. Overstreet v. State, 877 N.E.2d 144, 165 (Ind. 2007) (citing Bieghler v. 

State, 690 N.E.2d 188, 193 (Ind. 1997)). Again, to satisfy the first prong, the 
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petitioner must show that counsel’s performance was deficient in that counsel’s 

representation fell below an objective standard of reasonableness and that 

counsel committed errors so serious that petitioner did not have the “counsel” 

guaranteed by the Sixth Amendment. Id. (citing McCary v. State, 761 N.E.2d 

389, 392 (Ind. 2002)). To show prejudice, the petitioner must show a 

reasonable probability that but for counsel’s errors the result of the proceeding 

would have been different. Id. (citing McCary, 761 N.E.2d at 392). “When 

raised on collateral review, ineffective assistance claims generally fall into three 

basic categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) 

failure to present issues well.” Id. (citing McCary, 761 N.E.2d at 193-95).

[29] In alleging ineffective assistance of appellate counsel, McKinney asserts that his 

counsel rendered ineffective assistance by failing “to raise the threat issue on 

direct appeal.” Appellant’s Br. p. 37 (emphasis removed). McKinney framed 

this issue in his PCR petition as whether his appellate counsel had provided 

ineffective assistance for “failing to appeal the Court’s denial of [his] motion for 

a mistrial after [the] State’s witness testified and implied through her testimony 

that the Petition had threatened her.” PCR App. p. 399. However, review of 

the record demonstrates that appellate counsel did raise this issue on direct 

appeal. See McKinney, 873 N.E.2d at 640-41 (providing that the trial court did 

not abuse its discretion in denying McKinney’s motion for a mistrial that 

related to the so-called threat issue because defense counsel elicited a 

clarification from the witness that McKinney had not threatened her and that 
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any error was harmless in light of the overwhelming evidence of McKinney’s 

guilt).

[30] As a general rule, when a reviewing court decides an issue on direct 

appeal, the doctrine of res judicata applies, thereby precluding its review 

in post-conviction proceedings. Ben-Yisrayl v. State, 738 N.E.2d 253, 

258 (Ind. 2000). The doctrine of res judicata prevents the repetitious 

litigation of that which is essentially the same dispute. Sweeney v. State, 

704 N.E.2d 86, 94 (Ind. 1998). And, a petitioner for post-conviction 

relief cannot escape the effect of claim preclusion merely by using 

different language to phrase an issue and define an alleged error. State 

v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000). “[W]here an issue, 

although differently designated, was previously considered and 

determined upon a criminal defendant’s direct appeal, the State may 

defend against defendant’s post-conviction relief petition on grounds of 

prior adjudication or res judicata.” Cambridge v. State, 468 N.E.2d 1047, 

1049 (Ind. 1984) (emphasis in original).

Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006).

[31] Because appellate counsel raised the “threat” issue on direct appeal, counsel 

cannot be said to have provided inefficient assistance for failing to do so. 

Further, to the extent that McKinney attempts to frame the issue in a different 

light by arguing in his PCR brief that appellate counsel was ineffective for 

failing to argue that the alleged “threat” issue constituted a so-called 

“evidentiary harpoon” on direct appeal, McKinney cannot escape the effect of 

res judicata by merely using different language to phrase the issue. See id. The 

post-conviction court, therefore, did not err in finding that McKinney did not 

suffer from ineffective assistance of appellate counsel.
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C. Ineffective Assistance of Post-Conviction Counsel

[32] McKinney last contends that his post-conviction counsel provided ineffective 

assistance by failing to present certain evidence during the evidentiary hearing. 

We note that the right to counsel in post-conviction proceedings is not 

guaranteed by either the Sixth Amendment of the United States Constitution or 

Article I, Section 13 of the Indiana Constitution. Daniels v. State, 741 N.E.2d 

1177, 1190 (Ind. 2001) (citing Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 

1989)).

A petition for post-conviction relief is not generally regarded as a 

criminal proceeding and does not call for a public trial within the 

meaning of these constitutional provisions. Carman v. State (1935), 208 

Ind. 297, 196 N.E. 78. It thus is not required that the constitutional 

standards be employed when judging the performance of counsel when 

prosecuting a post-conviction petition at the trial level or at the 

appellate level.

We therefore apply a lesser standard responsive more to the due course 

of law or due process of law principles which are at the heart of the 

civil post-conviction remedy. We adopt the standard that if counsel in 

fact appeared and represented the petitioner in a procedurally fair 

setting which resulted in a judgment of the court, it is not necessary to 

judge his performance by the rigorous standard set forth in [Strickland].

Baum, 533 N.E.2d at 1201 (footnote omitted). In fact, review of relevant 

authority indicates that only a finding that counsel abandoned his client justifies 

a finding of ineffective assistance by post-conviction counsel. See Waters v. State, 

574 N.E.2d 911, 912 (Ind. 1991) (providing that although petitioner’s postconviction counsel entered an appearance, counsel, in essence, abandoned his 

client and did not present any evidence in support of his client’s claim); Taylor v. 
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State, 882 N.E.2d 777, 784 (Ind. Ct. App. 2008) (providing that the petitioner’s 

post-conviction counsel provided ineffective assistance by effectively 

abandoning his client and did not present any evidence in support of his client’s 

claim).

[33] McKinney does not allege that he was abandoned by his post-conviction 

counsel. McKinney merely alleges that his post-conviction counsel should have 

presented additional evidence during the evidentiary hearing on McKinney’s 

PCR petition. Specifically, McKinney argues that his post-conviction counsel 

should have presented the testimony of an expert on the disease of Lupus, a 

pathology expert, and a firearms expert. However, despite McKinney’s 

assertion that his post-conviction counsel should have provided additional 

evidence during the evidentiary hearing, the record demonstrates that 

McKinney was afforded a procedurally-fair setting in which post-conviction 

counsel presented argument and evidence in support of McKinney’s claims. 

Because McKinney’s post-conviction counsel appeared and represented 

McKinney in a procedurally-fair setting, we need not judge counsel’s 

performance by the rigorous standard set forth in Strickland. See Baum, 533 

N.E.2d at 1201.

Conclusion

[34] In sum, we conclude that McKinney did not receive ineffective assistance from 

his trial, appellate, or post-conviction counsel. Accordingly, we affirm the postconviction court’s denial of McKinney’s PCR petition.
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[35] The judgment of the post-conviction court is affirmed.

Vaidik, C.J., and Kirsch, J., concur.