Court of Appeals of Indiana | Memorandum Decision 71A04-1509-PC-1394 | June 9, 2016 Page 1 of 9

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

Scott L. Barnhart

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Jodi Kathryn Stein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Matthew McKinnon,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 9, 2016

Court of Appeals Case No.

71A04-1509-PC-1394

Appeal from the St. Joseph 

Superior Court

The Honorable John M. 

Marnocha, Judge

Trial Court Cause No.

71D02-1304-PC-9

Altice, Judge.

Case Summary
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[1] Matthew McKinnon appeals from the denial of his petition for post-conviction 

relief (PCR petition). On appeal, he asserts that the post-conviction court erred 

in rejecting his claim of ineffective assistance of trial counsel.

[2] We affirm.

Facts & Procedural History

[3] The facts underlying McKinnon’s conviction were set forth by this court in an 

unpublished memorandum decision on direct appeal as follows: “On 

November 24, 2004, several witnesses saw McKinnon shoot Brian Pope, Jr. at a 

house on Corby Street in South Bend. Pope died as a result of the shooting.” 

McKinnon v. State, 71A03-0602-CR-70, slip op. at 2 (Ind. Ct. App. July 27, 

2006). The State charged McKinnon with murder on December 1, 2004, and a 

public defender was appointed to represent him. 

[4] A three-day jury trial commenced on October 11, 2005. McKinnon’s trial 

counsel elected not to give an opening statement. During the State’s case-inchief, two witnesses identified McKinnon as the shooter and a third witness 

testified that McKinnon told him while in jail together that he killed the victim. 

McKinnon’s defense was comprised of testimony from one witness who 

claimed McKinnon was not present at the time of the shooting. McKinnon 

ultimately chose not to testify as to his whereabouts. During closing argument, 

McKinnon’s trial counsel argued that the State’s witnesses were lying, pointed 

out inconsistencies in the evidence, and relied on the testimony that McKinnon 

was not present. The jury found McKinnon guilty as charged. The trial court 
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subsequently entered judgment of conviction and sentenced him to fifty-seven 

years imprisonment. In a direct appeal to this court, McKinnon argued only 

that the trial court abused its discretion in denying his motion for mistrial. This 

court rejected McKinnon’s argument and thereby affirmed his conviction and 

sentence.

[5] In July 2007 McKinnon filed a PCR petition, which was dismissed without 

prejudice in April 2009. On April 24, 2013, McKinnon filed a second PCR 

petition, which he amended on December 1, 2014. The PCR court held an 

evidentiary hearing on March 2, 2015, at which McKinnon’s trial counsel 

testified. 

[6] Evidence presented at the post-conviction hearing indicated that trial counsel 

met with McKinnon six times prior to trial. Trial counsel maintained that he 

reviewed discovery and discussed defense strategies with McKinnon. Trial 

counsel explained that although several witnesses identified McKinnon as the 

shooter, McKinnon insisted that he was not present at the time of the shooting. 

McKinnon claimed he was with family. As a result, trial counsel filed a belated 

notice of alibi on October 5, 2005, less than a week before his scheduled jury 

trial. In the notice, trial counsel named McKinnon’s wife, his mother, and his 

stepfather as alibi witnesses. Trial counsel testified that he could not secure 

these witnesses and that he informed McKinnon of the difficulty he was 

encountering with respect to presenting an alibi defense. Trial counsel stated 

that he believed a claim of self-defense or sudden heat would have been more 

viable if McKinnon had been present at the time of the shooting. Trial counsel 
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testified that he explained the alternate defense theories to McKinnon, but 

McKinnon kept insisting that he was not present at the time of the shooting. 

[7] In light of McKinnon’s asserted alibi defense, the State filed a motion in limine 

requesting, in part, that McKinnon be precluded from eliciting the fact that the 

victim had a gun in his pocket at the time of the shooting. The trial court 

granted the State’s motion in limine in this respect, but indicated that such 

evidence could become relevant depending on evidence produced and 

McKinnon’s theory of defense at trial. The trial court specifically noted that 

such evidence could become relevant if McKinnon presented a claim of selfdefense. Trial counsel testified that he did not ask the court to reconsider its 

ruling in this regard because the evidence was in conflict with the asserted 

defense. 

[8] On August 20, 2015, the post-conviction court issued its findings of fact and 

conclusions of law denying McKinnon the relief requested. Additional facts 

will be provided where necessary.

Discussion & Decision

[9] In a post-conviction proceeding, the petitioner bears the burden of establishing 

grounds for relief by a preponderance of the evidence. Bethea v. State, 983 

N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction 

relief, the petitioner stands in the position of one appealing from a negative 

judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In 

order to prevail, the petitioner must demonstrate that the evidence as a whole 
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leads unerringly and unmistakably to a conclusion opposite the post-conviction 

court’s conclusion. Id. Although we do not defer to a post-conviction court’s 

legal conclusions, we will reverse its findings and judgment only upon a 

showing of clear error, i.e., “that which leaves us with a definite and firm 

conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729 

N.E.2d 102, 106 (Ind. 2000)).

[10] A petitioner will prevail on a claim of ineffective assistance of counsel only 

upon a showing that counsel’s performance fell below an objective standard of 

reasonableness and that the deficient performance prejudiced the petitioner. Id. 

at 1138. To satisfy the first element, the petitioner must demonstrate deficient 

performance, which is “representation that 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. (quoting McCary v. 

State, 761 N.E.2d 389, 392 (Ind. 2002)). 

[11] To satisfy the second element, the petitioner must show prejudice, which is “a 

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

would have been different.” Id. at 1139. “A reasonable probability is one that 

is sufficient to undermine confidence in the outcome.” Kubsch v. State, 934 

N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668, 

694 (1984)). Because a petitioner must prove both deficient performance and 

prejudice in order to prevail on a claim of ineffective assistance of counsel, the 

failure to prove either element defeats such a claim. See Young v. State, 746 

N.E.2d 920, 927 (Ind. 2001) (holding that because the two elements of 
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Strickland are separate and independent inquiries, the court may dispose of the 

claim on the ground of lack of sufficient prejudice if it is easier).

[12] McKinnon argues that his trial counsel was ineffective for failing to adequately 

investigate and that such failure prevented him from presenting a “full-throated 

defense” to the jury. Appellant’s Brief at 9. Specifically, he faults his trial 

counsel for meeting with him only six times prior to trial and failing to hire an 

investigator or take any depositions. 

[13] The post-conviction court concluded that McKinnon presented “no evidence as 

to what [his trial counsel] should have done and how what he either did do or 

did not do on [McKinnon]’s behalf would likely have caused a different result 

at trial.” Appellant’s Appendix at 117. We agree with the post-conviction court. 

[14] We have before held that “establishing failure to investigate as a ground for 

ineffective assistance of counsel requires going beyond the trial record to show 

what investigation, if undertaken, would have produced.” McKnight v. State, 1 

N.E.3d 193, 201 (Ind. Ct. App. 2013) (citing Woods v. State, 701 N.E.2d 1208, 

1214 (Ind. 1998), cert. denied (1999)). “This is necessary because success on the 

prejudice prong of an ineffectiveness claim requires a showing of a reasonable 

probability of affecting the result.” Id. (quoting Woods, 701 N.E.2d at 1214). 

Here, McKinnon merely alleged that his trial counsel was ineffective by failing 

to investigate. McKinnon did not indicate what further investigation would 

have produced. McKinnon has not established any prejudice resulting from 

counsel’s performance. Moreover, as noted by this court on direct appeal, the 
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evidence supporting McKinnon’s conviction was “overwhelming.”1 McKinnon, 

slip. op. at 8. 

[15] Contrary to McKinnon’s claim, this case is unlike McCarty v. State, 802 N.E.2d 

959 (Ind. Ct. App. 2004). In McCarty, trial counsel met with his client only 

once. This court noted, “it seems obvious that evidence of only a single 

meeting between counsel and client in a multiple-felony case would alert a 

reviewing court to the possibility of inadequate representation.” Id. at 964. 

Here, McKinnon’s trial counsel met with McKinnon six times, discussed the 

evidence against him, and reviewed possible defense strategies. These 

circumstances are distinct from those in McCarty and do not immediately 

“alert” us that counsel provided deficient performance. McKinnon has not 

established that his counsel rendered deficient performance in this regard. 

[16] McKinnon also argues that his trial counsel was ineffective when, after 

abandoning2the alibi defense at trial, he failed to assert a claim of self-defense 

or sudden heat.3 Specifically, McKinnon argues that trial counsel should have 

requested reconsideration of the trial court’s grant of the State’s motion in 

limine, which precluded McKinnon from presenting evidence that the victim 

 

1 Two witnesses testified that McKinnon was the shooter and a third witness testified that while in jail with 

McKinnon, McKinnon admitted to shooting the victim.

2 We note that the record does not support McKinnon’s claim that trial counsel abandoned the alibi defense. 

The sole witness in his defense testified that he did not see McKinnon at the scene where the shooting 

occurred. During closing argument, counsel pointed out this evidence for the jury.

3

 The existence of circumstances demonstrating that a person who knowingly or intentionally kills another 

human being while acting under “sudden heat” commits voluntary manslaughter. See Ind. Code § 35-42-1-3.
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had a handgun in his pocket when he was shot. McKinnon maintains that this 

evidence would have supported the alternate defenses. 

[17] The post-conviction court concluded that trial counsel was not ineffective for 

not pursing a self-defense claim or a voluntary manslaughter defense. The postconviction court noted that trial counsel’s efforts to challenge the sufficiency of 

the evidence and to establish reasonable doubt were the best defenses he could 

present given McKinnon’s insistence that he was not present at the time of the 

shooting. 

[18] We find no error in the post-conviction court’s conclusion in this regard. 

McKinnon acknowledges that his trial counsel discussed the difficulty of 

pursuing an alibi defense. During the post-conviction hearing, McKinnon’s 

trial counsel testified that he also discussed with McKinnon the viability of 

presenting a claim of self-defense and/or mitigating factors in an effort to show 

that McKinnon acted in sudden heat. Trial counsel further testified that he was 

not going to force petitioner to pursue those defenses given that McKinnon was 

clearly asserting a different defense.4 

[19] Trial counsel’s decision to pursue only an alibi defense does not amount to 

deficient performance. By insisting that he was not present at the time of the 

shooting, McKinnon essentially stymied trial counsel’s defense strategy. 

 

4

In its order, the trial court credited trial counsel’s testimony and discounted McKinnon’s testimony that 

alternate defense theories were never discussed.
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McKinnon’s insistence that he was not present provided no basis for a claim 

that he acted in self-defense or under sudden heat.

[20] In turn, counsel’s performance was not deficient in failing to ask the trial court 

to reconsider its ruling on the admissibility of evidence regarding the presence

of a handgun in the victim’s pocket at the time of the shooting. Trial counsel 

testified that he made this decision because he believed McKinnon was going to 

testify as to his whereabouts. When McKinnon later chose not to testify, 

counsel believed it was too late to present evidence pertaining to self-defense or 

voluntary manslaughter. Trial counsel therefore proceeded by calling a witness 

who testified that McKinnon was not present when the victim was killed. 

McKinnon has not established that trial counsel’s decision was unreasonable 

under the circumstances. See Curtis v. State, 905 N.E.2d 410, 414 (Ind. Ct. App. 

2009) (“[c]ounsel is afforded considerable discretion in choosing strategy and 

tactics, and we will accord those decisions deference”), trans. denied. 

[21] In summary, McKinnon has failed to establish that he received ineffective 

assistance of trial counsel.

[22] Judgment affirmed. 

[23] Bailey, J. and Bradford, J., concur.