Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 1 of 23

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

Cynthia M. Carter

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Evan Matthew Comer

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Chad Malone,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

July 23, 2020

Court of Appeals Case No.

19A-PC-2207

Appeal from the Wayne Circuit 

Court

The Honorable David Kolger, 

Judge

Trial Court Cause No.

89C01-1404-PC-7

Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 2 of 23

Case Summary

[1] Chad Malone appeals the denial of his petition for post-conviction relief, 

claiming that his trial counsel was ineffective on several grounds, including the 

alleged failure to interview witnesses prior to trial and failure to proffer a jury 

instruction on criminal recklessness, a lesser included offense of attempted 

murder. Malone also contends that he is entitled to relief because “an 

unconstitutional conflict of interest arose” when the deputy prosecutor who 

tried his attempted murder case declined to recuse herself because she had 

previously represented him as defense counsel in an unrelated marijuana case. 

Appellant’s Brief at 33.

[2] We affirm.

Facts and Procedural History

[3] In Malone’s direct appeal, this court summarized the facts regarding his 

convictions on two counts of class A felony attempted murder, as follows: 

One afternoon in September 2011, Valerie Grubbs had a 

disagreement with Carey Parkhurst and Corey Groce. Valerie 

told Malone about it, and they drove around looking for Carey 

and [Groce]. They found the pair sitting in a gray sedan in the 

drive-through lane of a nearby McDonald’s in Richmond. As 

[Grubbs] pulled her car alongside the sedan, Malone pulled out a 
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gun and fired six shots at Carey and [Groce]. [Grubbs] and 

Malone fled the scene. 

Carey and [Groce] were treated for gunshot wounds at a local 

hospital. Carey had been shot in the chest and right arm. 

[Groce] had also been shot in the arm. [Groce’s] wounds 

required surgery in which veins from his leg were used to repair 

veins in his arm. Both eventually recovered, though [Groce] has 

numbness in his arm and limited use of his hand. 

Malone v. State, No. 89A01-1302-CR-71, slip op. at 2 (Ind. Ct. App. Oct. 29, 

2013). Following the shootings, the State charged Malone, who was twenty 

years old at the time, with two counts of attempted murder, a Class A felony. 

[4] Several days after the shooting, Malone’s mother, Tammy Tellas, agreed to be 

interviewed by a Richmond police detective. Tellas told the detective that she 

and Groce had been previously involved in a romantic relationship and had 

lived together at some point. She recounted an incident that had occurred 

several weeks earlier, where Groce burglarized her apartment, kicked in an air 

conditioning unit, and injured Malone’s stepfather, Cairo Hardin. 

[5] Malone was represented by three different public defenders while his case was 

pending. The trial court granted a total of six continuances prior to trial, and 

about two weeks before the trial was to commence, Malone retained attorney 

David Jordan (trial counsel) to represent him. Trial counsel immediately 

requested a continuance, stating that Malone’s family had recently acquired 

funds to hire private counsel. The trial court denied this seventh request to 
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continue the trial and that same day, the State moved to amend the charging 

information against Malone as follows: 

COUNT I:

[O]n or about September 16th, 2011, in Wayne County, State of 

Indiana, Chad Malone did intentionally engage in a substantial 

step toward the commission of the criminal offense of Murder, 

to-wit: Chad Malone intentionally attempted to kill Corey Groce by 

discharging a firearm causing a bullet to strike Corey Groce 

about the body. . . .

COUNT II:

[O]n or about September 16th, 2011, in Wayne County, State of 

Indiana, Chad Malone did intentionally engage in a substantial 

step toward the commission of the criminal offense of Murder, 

to-wit: Chad Malone intentionally attempted to kill Casey 

Parkhurst by discharging a firearm causing a bullet to strike 

Casey Parkhurst about the body. . . .

Appellant’s Appendix at 102 (emphasis added). The original charging 

information did not include language that Malone “intentionally” attempted to 

kill the victims. 

[6] Shortly after Malone retained trial counsel, Malone’s public defender provided 

trial counsel with the case file that included nearly 200 exhibits, discovery 

materials, and a list of nearly forty witnesses, one of which was Tellas. Among 

those materials was a copy of the statement Tellas provided to the Richmond 

police detective. Trial counsel reviewed Tellas’s statement and decided not to 
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investigate Tellas’s allegations regarding the prior burglary and battery incident. 

Trial counsel believed that the State would likely consider those circumstances 

as Malone’s motive and intent for shooting Groce. Trial counsel did not 

interview Tellas, Grubbs, or Hardin prior to trial.

[7] During the jury trial that commenced on December 11, 2012, the State called 

both Hardin and Grubbs to testify. Grubbs testified that on the day of the 

shooting, she and Malone were at an apartment building picking up some 

items. While Malone was in the apartment, Grubbs waited in the car and at 

some point, she saw Groce’s vehicle approach and “almost side-swipe” her car. 

Trial Transcript at 610. Grubbs identified the occupants of the vehicle as 

Parkhurst and Groce. Grubbs testified that she exited her vehicle, threw up her 

arms and “start[ed] screaming [and] calling them names.” Id. When Malone 

returned to the car, he got into the passenger seat and Grubbs then began 

chasing Groce. 

[8] After noticing Groce’s vehicle in a drive-through lane at a nearby McDonald’s, 

Grubbs pulled up and stopped her vehicle. Malone immediately pulled out a 

gun and began shooting into Groce’s car. Grubbs testified that she was aware 

of some “bad blood” between Groce and Malone. Id. at 611. At that point, 

trial counsel objected, and there was no further questioning regarding the 

existence of any feud between Malone and Groce.

[9] At the conclusion of the three-day trial, Malone was found guilty as charged. 

Thereafter, Malone was sentenced to thirty-five years on Count I and to forty 
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years on Count II, to be served consecutively, for an aggregate term of seventyfive years. The trial court identified several aggravating factors, including 

Malone’s criminal history, and that the offenses had been committed in the 

presence of a minor. The trial court also noted that the nature and 

circumstances of the crime went beyond “the minimal conduct necessary to 

violate the applicable statutes,” that Malone had violated a protective order 

when committing the underlying offenses, that Malone was in violation of 

probation and pretrial release, and that Malone had violated the terms of his 

bond by committing the underlying offenses. See id. at 872-79. The trial court 

rejected Malone’s age as a mitigating factor and afforded minimal weight to 

Malone’s troubled childhood as a mitigator. The trial court also concluded that 

Groce’s alleged inducement or facilitation of the crimes was not a statutory 

mitigating circumstance. 

[10] Malone appealed to this court, claiming that his sentence was inappropriate and 

that the trial court abused its discretion in denying his seventh motion for a 

continuance. We affirmed Malone’s convictions and sentence in an 

unpublished memorandum decision on October 29, 2013. 

[11] On April 23, 2018, Malone filed an amended petition for post-conviction relief,

claiming that trial counsel was ineffective for failing to: (1) interview various 

witnesses prior to trial; (2) object to the State’s amendments of the charging 

information; (3) proffer a jury instruction for criminal recklessness; (4) present 

adequate mitigating evidence at sentencing; and (5) object to an alleged conflict 

of interest concerning the deputy prosecutor who tried Malone’s case.
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[12] Following a hearing on May 15, 2019, the post-conviction court entered 

findings of fact and conclusions of law denying Malone’s request for relief. It 

determined that trial counsel was well-prepared, employed reasonable strategies 

on Malone’s behalf, and his decision not to object to the State’s amended 

charging information was reasonable because the amendments merely clarified 

the State’s burden of proof. 

[13] The post-conviction court also noted that trial counsel had received all of the 

relevant documents and materials from Malone’s previous attorneys, that 

Malone failed to show how an additional continuance would have benefited 

him, and that it was a reasonable strategy for trial counsel to proceed without 

requesting an instruction on the lesser-included offense of criminal 

recklessness. Moreover, it determined that trial counsel’s decision to not focus 

on the contentious relationship between Malone and Groce was a reasonable 

strategy because the State likely would have used that circumstance as evidence 

of Malone’s specific intent and motive to commit the offenses. 

[14] The post-conviction court concluded that the deputy prosecutor had no duty to 

recuse herself from the attempted murder trial, inasmuch as her representation 

of Malone as defense counsel in the prior marijuana case was wholly unrelated 

to the attempted murder case, and the prior case was resolved two years before 

the attempted murder offenses. Finally, the court concluded that trial counsel 

was not ineffective for not investigating and presenting alleged mitigating 

evidence of “juvenile brain development,” or offering evidence that Groce in 
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some way provoked the attack. PCR Appendix Vol. II at 147-48. Malone now 

appeals.

Discussion and Decision

I. Standard of Review

[15] Our standard of review in post-conviction proceedings is well-settled: 

[P]ost-conviction proceedings do not grant a petitioner a ‘superappeal’ but are limited to those issues available under the Indiana 

Post-Conviction Rules. Post-conviction proceedings are civil in 

nature, and petitioners bear the burden of proving their grounds for 

relief by a preponderance of the evidence. Ind. Post-Conviction 

Rule 1(5). A petitioner who appeals the denial of PCR faces a 

rigorous standard of review, as the reviewing court may consider 

only the evidence and the reasonable inferences supporting the 

judgment of the post-conviction court. The appellate court must 

accept the post-conviction court’s findings of fact and may reverse 

only if the findings are clearly erroneous. If a PCR petitioner was 

denied relief, he or she must show that the evidence as a whole leads 

unerringly and unmistakably to an opposite conclusion than that 

reached by the post-conviction court.

Jent v. State, 120 N.E.3d 290, 92-93 (Ind. Ct. App. 2019), trans. denied (quoting 

Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (internal citations 

omitted), trans. denied).

II. Ineffective Assistance of Counsel

[16] Malone argues that he is entitled to post-conviction relief because trial counsel 

was ineffective for failing to: (a) interview and present witnesses; (b) object to 
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the State’s amendment of the charging information; (c) proffer instructions on 

the lesser-included offense of criminal recklessness; (d) present exculpatory and 

mitigating evidence at sentencing; and (e) object to the deputy prosecutor’s 

potential conflict of interest. 

[17] The Sixth Amendment to the United States Constitution guarantees a person 

accused of a crime the “right to be represented by counsel.” United States v. 

Cronic, 466 U.S. 648, 655 (1984). In ineffective assistance of counsel cases, 

reversal is appropriate where a defendant shows both that counsel’s 

performance fell below an objective standard of reasonableness and that said 

deficient performance so prejudiced the defendant as to deprive him of a fair 

trial. Pennycuff v. State, 745 N.E.2d 804, 811 (Ind. 2001) (citing Strickland v. 

Washington, 466 U.S. 668, 697 (1984)). There is a strong presumption that 

counsel rendered adequate assistance and made all significant decisions in the 

exercise of reasonable professional judgment. Id. Judicial scrutiny of counsel’s 

performance is highly deferential and should not be exercised through the 

distortions of hindsight. Id. Isolated poor strategy, inexperience, or bad tactics 

do not necessarily amount to ineffectiveness of counsel. Id. When considering 

ineffective assistance of counsel claims, we “judge the reasonableness of 

counsel’s challenged conduct on the facts of the particular case, viewed as of the 

time of counsel’s conduct.” Id. (citing Strickland, 466 U.S. at 690). A claim that 

trial counsel was ineffective may be disposed of on the prejudice inquiry alone. 

Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999); Lee v. State, 91 N.E.3d 

978, 984 (Ind. Ct. App. 2017), trans. denied. 
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1. Potential Witnesses

[18] Malone argues that trial counsel was ineffective for failing to “do his 

groundwork” by not fully investigating and interviewing several potential 

witnesses prior to trial. Appellant’s Brief at 20. More specifically, Malone claims 

that trial counsel’s failure to interview the potential witnesses about the 

contentious relationship that he had with Groce prevented the discovery of 

evidence demonstrating that Groce was not merely an “innocent” victim. Id. at 

16, 27.

[19] Counsel has a duty to make reasonable investigations or to make a reasonable 

decision that a particular investigation is unnecessary. Ritchie v. State, 875 

N.E.2d 706, 719 (Ind. 2007). A “less than complete investigation” of a 

particular witness is not deficient performance if “reasonable professional 

judgments support the limitation on investigation.” Strickland, 466 U.S. at 690-

91. In those circumstances, the duty to investigate gives way to reasonable trial 

strategy. See Wilkes v. State, 984 N.E.2d 1236, 1244-45 (Ind. 2013). In reviewing 

counsel’s trial performance, “strategic choices made after thorough 

investigation of law and facts relevant to plausible options are virtually 

unchallengeable.” Knowles v. Mirzayance, 556 U.S. 111, 124 (2009) (citing 

Strickland, 466 U.S. at 690); see also McKnight v. State, 1 N.E.3d 193, 201 (Ind. 

Ct. App. 2013).

[20] In support of his claim, Malone directs us to the testimony of various witnesses 

at the post-conviction hearing, which suggests that Groce provoked Malone
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because of the previous home invasion and physical assault against a member 

of Malone’s family. Malone claims that Tellas would have testified that she 

and Groce had dated at some point, and that Groce had allegedly burglarized 

her residence and had stabbed her husband (Malone’s stepfather) several 

months before the shootings. 

[21] Trial counsel’s defense strategy, however, focused on the lack of Malone’s 

specific intent, in that his actions were not intended to cause either victim’s 

death. That strategy negated the only material element of the offense that was 

seriously disputed. None of the incidents the witnesses were expected to 

describe directly involved Malone, and they had occurred weeks or months 

prior to the shootings. Moreover, there was nothing novel about this evidence 

that would have established a lack of specific intent on Malone’s part. To the 

contrary, as the post-conviction court observed, such evidence could have 

provided the jury with a motive for the shootings, i.e., that Groce had 

previously dated Malone’s mother, burglarized her home, and stabbed his 

stepfather. 

[22] We also note that criminal charges relating to the shootings were pending 

against Grubbs at the time of Malone’s trial.1

 Grubbs’s testimony about 

Malone’s contentious relationship with Groce could very well have prompted 

her to exercise her right against self-incrimination, thereby preventing that 

1 Grubbs admitted that she had provided the transportation to Malone for the purpose of shooting the 

victims.
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evidence from being offered at trial. In fact, trial counsel successfully objected 

to the State’s questioning of Grubbs when she was asked about the alleged 

ongoing feud between Malone and Groce. Moreover, as with the proposed 

testimony from Tellas, the admission of such testimony from Grubbs would 

have provided the jury with Malone’s motive for shooting the victims and 

would have undermined trial counsel’s lack of specific intent to kill defense.

[23] In sum, to focus on the contentious relationship between Groce and Malone 

would effectively have supported the State’s theory of the case. Trial counsel

chose a reasonable defense to try to negate the specific intent element of the 

charged offenses, and to that end, he made the strategic decision to not provide 

the jury with any evidence of motive. Thus, trial counsel exercised a sound trial 

strategy not to pursue further investigation and interview the potential witnesses

identified by Malone. Thus, we reject Malone’s claim that trial counsel was

ineffective on this basis.

2. Continuance

[24] Malone argues that trial counsel was ineffective for failing to request a 

continuance after the State amended the charging information. Malone claims 

that the amendments affected his substantial rights and necessarily required 

additional time for trial counsel to adequately prepare for trial. 

[25] The State correctly acknowledges that the purpose of a petition for postconviction relief is to raise issues unknown or unavailable to a defendant at the 

time of the original trial and appeal. Taylor v. State, 840 N.E.2d 324, 330 (Ind. 
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2006). If an issue was raised on direct appeal, but decided adversely to the 

petitioner, it is res judicata, thus precluding its review in post-conviction 

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

715 N.E.2d 1242, 1248 (Ind. 1999). In other words, 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). 

[26] We note that 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). Thus, 

“where 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). 

[27] In this case, Malone argued on direct appeal that the trial court abused its 

discretion in denying his motion for a continuance “because he wished to be 

represented by private counsel.” Slip op. at 4. At the post-conviction level, 

Malone asserted that trial counsel was ineffective for failing to advance a proper 

argument for requesting the continuance, i.e., there was a substantive change to 

the charging information that would have allowed him to “properly investigate 

the case and develop the criminal recklessness theory.” Appellant’s Reply Brief at 

30-31. 
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[28] Contrary to the State’s contention, we do not view Malone’s claim on postconviction relief as using “different language” to rephrase an issue that was 

adversely decided on direct appeal. Thus, the doctrine of res judicata is

inapplicable here, and we will address Malone’s ineffective assistance of 

counsel claim. See Reed, 856 N.E.2d at 1195 (holding that the doctrine of res 

judicata did not bar the defendant’s claim on post-conviction relief where, 

although a sentencing issue was raised on direct appeal, no argument was made

that the defendant’s sentence was improper because it was governed by the 

provisions of a specific statute that limits a court’s authority to impose 

consecutive sentences in certain circumstances). 

[29] Ind. Code § 35-34-1-5 (d) provides that when the State amends a charging 

information, the trial court “shall upon motion by the defendant order any 

continuance of the proceeding which may be necessary to accord the defendant 

adequate opportunity to prepare his defense.” The ultimate question is whether 

the defendant “had a reasonable opportunity to prepare for and defend against 

the charges.” Stafford v. State, 890 N.E.2d 744, 752 (Ind. Ct. App. 2008). 

[30] In this case, the amendments removed language from the original charging 

information alleging that Malone “knowingly or intentionally” attempted to kill 

Groce and Parkhurst and replaced it with language alleging that Malone 

“intentionally attempted to kill” Groce and Parkhurst. Appendix at 16, 102. In 

accordance with Spradlin v. State, specific intent to kill is an essential element of 

the crime of attempted murder. 569 N.E.2d 948, 951 (Ind. 1991). Hence, the 

State’s amendments merely replaced an incorrect mens rea element with the 
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correct one. Additionally, the amendments added no charges against Malone, 

they did not alter the time, date, or location of the alleged offenses, and the 

identities of the victims were not changed. In short, the amendments were nonsubstantive changes to the charging information that did not affect any of 

Malone’s substantial rights. 

[31] There was also no testimony from trial counsel at the post-conviction hearing 

suggesting that he had relied on the State’s initial erroneously-charged mens rea 

while formulating Malone’s defense. To the contrary, trial counsel possessed 

all the evidence necessary to proceed with his chosen defense, even after the 

amendments. Thus, Malone would not have been entitled to a continuance,

even had trial counsel requested one. 

[32] For all of these reasons, we conclude that Malone has failed to demonstrate that 

trial counsel was ineffective on this basis. 

3. Lesser Included Offense Instructions

[33] Malone argues that trial counsel was ineffective for failing to proffer 

instructions on the lesser included offense of criminal recklessness. Malone 

claims that there was no strategic reason for not requesting such an instruction 

and the “all or nothing defense made no sense” under these circumstances. He 

maintains that the jury should have been given the option to find him guilty of 

criminal recklessness.
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[34] The offense of murder is committed when “[a] person . . . knowingly or 

intentionally kills another human being.” Ind. Code § 35-42-1-1. An individual 

attempts to commit murder when he, “acting with the culpability required for 

the commission of the crime,” engages “in conduct that constitutes a substantial 

step toward the commission” of murder. Ind. Code § 35-41-5-1(a). 

I.C. § 35-42-2-2 provides that criminal recklessness is committed when a 

defendant “recklessly, knowingly or intentionally . . . inflicts serious bodily 

injury on another person.” 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).

[35] At the post-conviction hearing, the evidence established that Malone’s trial 

counsel considered offering a criminal recklessness instruction but ultimately 

decided against doing so. Trial counsel was concerned that such an instruction 

would likely prompt the State to offer its own instructions for Class B felony 

battery. Hence, trial counsel believed that convicting Malone of a Class B 

felony offense would have “been a promising way to ensure that convictions 

and sentences on Class B felonies would have [likely] . . . ensure[d] that 

[Malone] was going to get a boat load of time with convictions on some lesser 

includeds.” PCR Transcript at 175. Counsel also believed that “there was . . . 

overwhelming evidence that [Malone] committed the B felony, so [he] didn’t 

want them in because I liked where we were at . . . the time the jury got the 

case.” Id. at 177-78. 
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[36] Although Malone asserts that his trial counsel’s “all-or-nothing strategy” 

regarding jury instructions was unreasonable because the jury may have been 

persuaded to convict him of a lesser alternative to a Class A felony, this is 

precisely the type of critical evaluation of counsel’s performance that is not 

permitted. See Premo v. Moore, 562 U.S. 115, 125 (2011) (observing that 

Strickland does not permit counsel’s performance to be evaluated with the 

benefit of hindsight). As our Supreme Court commented in Page, “[i]t is not 

sound policy for this Court to second-guess an attorney through the distortions 

of hindsight.” 615 N.E.2d at 896. Hence, trial counsel’s pursuit of an acquittal 

in this case, rather than taking the chance of a conviction for a serious felony,

was a reasonable strategic choice at the time. Thus, we cannot say that trial 

counsel’s decision to not pursue an instruction on lesser-included offenses 

amounted to ineffective assistance of counsel.

4. Alleged Mitigating Evidence

[37] Malone next claims that trial counsel was ineffective because Groce’s 

provocation of the ongoing dispute with Malone should have been presented as 

mitigating evidence at sentencing. Malone further contends that trial counsel 

should have presented evidence that juvenile offenders have reduced culpability 

for their actions because of their “attendant lack of wisdom and discernment.” 

Appellant’s Brief at 29.

[38] The right to effective counsel imposes an obligation on defense attorneys to 

investigate and present mitigating factors at sentencing that may reduce a 
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defendant’s overall sentence. Gibson v. State, 133 N.E.3d 673, 689 (Ind. 2019). 

The rule in Strickland, however, has never been construed to require counsel to 

investigate “every conceivable line of mitigating evidence no matter how 

unlikely the effort would be to assist the defendant at sentencing.” Wiggins v. 

Smith, 539 U.S. 510, 533 (2003) (citing Strickland, 466 U.S. at 689). As in all 

matters of trial strategy, counsel’s decision not to investigate certain mitigating 

evidence is entitled to broad judicial deference. See Gibson, 133 N.E.3d at 689.

Thus, a question of whether counsel performed deficiently in preparing for a 

defendant’s sentencing hearing hinges on whether the investigation supporting 

counsel’s penalty-phase strategy was reasonable, and “not whether counsel 

should have presented more in mitigation.” Ritchie, 875 N.E.2d at 719. 

[39] Malone suggests that the ongoing feud with Groce supported a mitigating 

circumstance that the victim “induced or facilitated the offense,” under Ind. 

Code § 35-38-1-7.1(b)(3). Although trial counsel testified at the post-conviction 

hearing that he did not explore the issue of the victim and Malone’s prior 

relationship, there was no evidence that Groce posed an immediate threat to 

Malone or to any of Malone’s family members, or that Groce did anything else 

to provoke the incident. Hence, we cannot say that trial counsel was ineffective 

in not offering evidence at sentencing that Groce may have induced or 

facilitated the commission of the offense. 

[40] Malone also contends that trial counsel was ineffective for failing to present 

scientific evidence or properly argue relevant case law at the sentencing hearing 

regarding a juvenile offender’s lack of brain development “and [his or her] 
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attendant lack of wisdom and discernment.” Appellant’s Brief at 29. Malone 

asserts that the trial court could have considered such evidence as a mitigating 

factor that may have resulted in a reduced sentence. 

[41] We initially observe that an argument at sentencing “focusing on chronological 

age is a common shorthand for measuring culpability, but for people in their 

teens and early twenties it is frequently not the end of the inquiry.” Ellis v. State, 

736 N.E.2d 731, 736 (Ind. 2000). Indeed, there are “relatively old offenders 

who seem clueless and relatively young ones who appear hardened.” Id. A 

finding of age as a mitigating circumstance is an individualized determination 

that turns on the facts of a particular case and is subject to the trial court’s broad 

sentencing discretion, particularly when it is being advanced for an offender 

who is no longer legally a juvenile. Johnson v. State, 725 N.E.2d 864, 868 (Ind. 

2000). 

[42] Malone directs us to Miller v. Alabama, 567 U.S. 460 (2012), where it was held 

that mandatory life imprisonment without parole sentences for juvenile 

offenders under eighteen years of age are categorically unconstitutional. The

Miller Court determined that sentencing courts must “take into account how 

children are different” based on a number of developmental factors, like 

“immaturity, impetuosity, and failure to appreciate risks and consequences.” 

Id. at 477-79; see also Taylor v. State, 86 N.E.3d 157, 166 (Ind. 2017) (where our 

Supreme Court, in reviewing the seventeen-year-old defendant’s life without 

parole sentence, observed that children lack maturity, are vulnerable to negative 

influences and pressures, and are less likely to show “irretrievable depravity”).
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This rule, however, applies to the sentencing of “children,” not adults, and

nothing in the Miller rationale addresses sentencing offenders who are over the 

age of eighteen at the time their offenses are committed. 

[43] Two additional cases, Roper v. Simmons, 543 U.S. 551, 569 (2005), and Graham

v. Florida, 560 U.S. 48, 68 (2011), discuss various scientific studies concerning 

the cognitive development of adolescent youth. In neither of those cases did the 

Court set forth firm rules as to how such evidence should be considered for 

mitigation purposes in criminal proceedings. Moreover, the limited holdings

and rationales advanced in Miller, Roper, and Graham, have no obvious 

applicability in Malone’s case, given that Malone was nearly twenty-one years 

old when he committed the charged offenses. 

[44] Even so, the trial court had substantial information before it at the sentencing 

hearing showing Malone’s developmental state and culpability. Specifically, 

the psychological evaluation that assessed Malone’s competency to stand trial

was attached to the presentence investigation report. During the evaluation, 

Malone told the interviewer that when he noticed Groce, “I’m shooting ‘em. I 

could’ve killed him. I wanted to scare them.” Pre-sentence Report at 24. When 

Malone was asked if he knew he could face legal consequences for his behavior, 

he stated, “I didn’t care,” and attempted to blame his behavior, at least in part, 

on his substance abuse. Id. Malone further stated that, after the shooting, he 

fled the scene and absconded to Indianapolis, where he remained until he 

surrendered to police.
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[45] In sum, there is no evidence suggesting that Malone had diminished culpability

and that his actions were directly traceable to his youth. Simply put, there was 

no compelling reason for the trial court to conclude that Malone’s age was a 

significant mitigator that warranted a lesser sentence. Hence, defense counsel’s 

lack of argument pursuant to Miller, Graham, and Roper was reasonable and, 

therefore, did not constitute the ineffective assistance of counsel. 

5. Conflict of Interest

[46] Malone next argues that he is entitled to post-conviction relief because trial 

counsel did not object to the deputy prosecutor’s potential conflict of interest in 

this case, inasmuch as the record shows that she had represented Malone as 

defense counsel in an unrelated criminal case two years before the instant 

offenses occurred. 

[47] To establish that counsel performed deficiently by failing to raise an objection at 

trial, the defendant must show that had defense counsel made the objection, the 

trial court “would have had no choice but to sustain it.” Taylor v. State, 689 

N.E.2d 699, 705 (Ind. 1997); Kimbrough v. State, 911 N.E.2d 621, 640 (Ind. Ct. 

App. 2009). As for instances relating to conflicts of interest in criminal settings, 

our Supreme Court has held that

[A] lawyer must be disqualified if it is shown that the controversy 

involved in the pending case is substantially related to a matter in 

which the lawyer previously represented another client. The test 

must be applied to the facts of each case to determine whether 

the issues in the prior and present cases are essentially the same 

or are closely interwoven therewith. 
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 22 of 23

Johnson v. State, 675 N.E.2d 678, 682 (Ind. 1996). Additionally, this court has 

determined that “[a]n actual conflict of interest arises where a prosecutor places 

himself in a situation inherently conducive to dividing his loyalties between his 

duties to the State and his personal interests.” Swallow v. State, 19 N.E.3d 396, 

399 (Ind. Ct. App. 2014). The primary concern in this analysis is “whether the 

prosecuting attorney gained any confidential information through their prior 

association” with a defendant and whether that information subsequently

“provided assistance to the prosecution.” Johnson, 675 N.E.2d at 682. 

[48] In this case, it is undisputed that the deputy prosecutor in the attempted murder 

case had previously represented Malone in a prior unrelated marijuana 

possession case. Malone has not established any link or connection between 

the two different criminal prosecutions. Moreover, both Malone and trial 

counsel acknowledged at the post-conviction relief hearing that no confidential 

information obtained from the prosecution of the marijuana case was ever 

placed before the jury during the attempted murder trial, and there was no 

allegation that the deputy prosecutor learned anything in the prior case that 

aided her prosecution of Malone for the instant offenses. Hence, there was no 

basis for her recusal, and the trial court would not have sustained trial counsel’s 

objection on the grounds that a conflict of interest existed, even if one had been 

made. Therefore, Malone’s claim of ineffective assistance of counsel on this 

basis, fails.

[49] Judgment affirmed.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2207 | July 23, 2020 Page 23 of 23

Bailey, J. and Crone, J., concur.