Ryan Tyrone McMullen, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] In 2010, Ryan Tyrone McMullen was convicted of various drug offenses and sentenced to fifty years. After an unsuccessful direct appeal and denial of his requests for post-conviction relief, sentence modification, and federal habeas corpus relief, the trial court granted sentence modification, suspending McMullen's original sentence to probation and later reducing the remaining term of his probation. Following that modification, the United States Court of Appeals for the Seventh Circuit reversed and remanded to the district court for an evidentiary hearing on McMullen's claim of ineffective assistance of counsel at the original sentencing hearing.

[2] The parties submitted a joint status report to the district court agreeing to convert a probation revocation hearing pending in the trial court to a resentencing hearing, which they agreed would resolve the habeas issue. At that hearing, the trial court identified aggravators and mitigators and resentenced McMullen to the same fifty-year sentence as he received in 2010. McMullen appeals, asserting that he should have been resentenced to no more than his modified sentence, and alleges violations of due process.

[3] We affirm.

Facts & Procedural History

[4] Following an August 2010 jury trial, McMullen, age twenty-four, was convicted of Class A felony possession of cocaine, Class C felony possession of cocaine, and Class D felony possession of marijuana in Cause No. 27C01-0904-FA-134 (FA-134). The trial court vacated the Class C felony possession of cocaine conviction based on double jeopardy concerns.

[5] In sentencing McMullen, the trial court considered the presentence investigation report (PSI), which mentioned McMullen's troubled childhood, including parents with criminal records, suffering abuse by his mother's boyfriend, and placement with his grandmother at age seven. McMullen's counsel, Joe Keith Lewis (Attorney Lewis), did not present evidence regarding McMullen's childhood or mental health but argued that the PSI referred to McMullen suffering abuse and/or neglect and that most of McMullen's criminal history was minor. In sentencing McMullen, the trial court identified his lengthy criminal history and his failure to report for incarceration after being released from jail as aggravating factors, and it recognized the undue hardship that McMullen's incarceration would have on his dependents as the sole mitigating factor. The court sentenced McMullen to the statutory maximum of fifty years in September 2010.¹

[6] McMullen appealed, asserting that the trial court erred in admitting seized evidence and claiming that his sentence was inappropriate. This court affirmed in an unpublished memorandum decision. McMullen v. State, No. 27A02-1009-CR-1165 (Ind. Ct. App. June 23, 2011) (mem.), trans. denied. In upholding his sentence, we observed McMullen's offenses “were part of an ongoing drug-dealing enterprise located in a family housing complex” and that he had an “appalling juvenile and adult criminal record.” Id. at *5-6. The court viewed his numerous firearms-related convictions to be “particularly disturbing.” Id. at *6.

[7] McMullen filed a petition for post-conviction relief (PCR) on December 7, 2011, and an amendment thereto in February 2017. McMullen raised seven issues, including, as relevant here, whether his trial counsel was ineffective in failing to conduct “proper research and investigation into McMullen's health, character, and background” and in failing to present additional evidence at sentencing regarding McMullen's troubled childhood. See Appellant's Appendix at 28, 41 (order denying PCR). Before any hearing occurred, McMullen filed, in March 2017, a motion for modification of sentence (MSM). The trial court granted McMullen's request to conduct a joint hearing on the MSM and the PCR.

[8] At the July 2017 evidentiary hearing, the trial court received the PSI and testimony from McMullen and Attorney Lewis. Lewis, trained in representing capital clients, testified that he did not investigate McMullen's background beyond what was included the PSI and did not consider requesting a mental health evaluation, as he did not think that such “mitigation would stack up” in this case. See McMullen v. Brown, No. 2:19-cv-003560-JRS-MJD, 2020 WL 6263997 at *8 (S.D. Ind. Oct. 23, 2020) (outlining evidence presented at PCR hearing), vacated and remanded by McMullen v. Dalton, 83 F.4th 634 (7th Cir. 2023). McMullen's PCR counsel submitted affidavits from family members, friends, and a therapist who treated McMullen as a child, as well as a psychological report from the Youth Opportunity Center when McMullen was thirteen. PCR counsel also retained a psychologist who reviewed the aforementioned materials, conducted testing on McMullen, and prepared a report, which summarized McMullen's childhood as “complete chaos.” Id. at *10 (citing PCR transcript). Among other things, the report indicated that McMullen's mother was addicted to drugs including while pregnant with him, his father was not involved in his life, and his mother had boyfriends who abused her in front of McMullen. One boyfriend also abused McMullen, and he was placed with a grandmother who left him alone on weekends when he was seven to eleven years old while she visited a boyfriend. Id. The psychologist diagnosed McMullen with panic disorder, PTSD, substance use disorder, antisocial personality disorder, and possible depressive disorder. Id.

[9] On October 31, 2017, the trial court issued a detailed twenty-two-page order with findings and conclusions denying both the PCR and MSM. As to the PCR, in finding that Attorney Lewis did not provide ineffective assistance at sentencing, the trial court observed that Attorney Lewis “did assert that McMullen's troubled childhood was a mitigating factor at sentencing.” Appellant's Appendix at 41. The court also rejected the claim that Attorney Lewis should have called witnesses as “such testimony, to the extent that it had any value at all, would have been cumulative of facts already established by the [PSI] and arguments already offered by Lewis.” Id. at 41-42. Further, the court determined, McMullen had not established how his troubled childhood “excuse[d] his decision to engage in the illegal business of drug dealing.” Id. at 42.

[10] With regard to the MSM, the trial court noted that Grant County Community Corrections (GCCC) had obtained a conduct report from the Indiana Department of Correction (DOC) that revealed “eight major conduct reports.” Id. at 47. Although GCCC was not currently recommending sentence modification and was not willing to accept McMullen into Re-Entry Court at that time, GCCC outlined conditions under which it would consider McMullen for Re-Entry Court in the future: McMullen serve half of his time before modification; he complete DOC rehabilitative programming including substance abuse and anger management; and he remain free of conduct violations for one year before any modification. The trial court denied McMullen's MSM without prejudice but stated that if McMullen met GCCC's outlined conditions, the court would consider a future modification of McMullen's sentence, such that “the proverbial ball is in McMullen's court to show [ ] that he is willing to make a future life change.” Id. at 48. A panel of this court affirmed the trial court's denial of PCR in an unpublished decision. McMullen v. State, No. 27A02-1710-PC-2555 (Ind. Ct. App. June 27, 2018) (mem.), trans. denied.

[11] On July 26, 2019, McMullen sought habeas corpus relief in the United States District Court for the Southern District of Indiana, alleging, in part, that Attorney Lewis had provided ineffective assistance of counsel at sentencing.² The district court reviewed the evidence from both the sentencing and PCR hearings and found that trial counsel's performance at sentencing was, in fact, deficient, as “he conducted no independent investigation into McMullen's background despite red flags in his [PSI]” that “should have prompted trial counsel to delve into [ ] McMullen's background,” which failures left the sentencing court without a comprehensive view of McMullen's “traumatic childhood and related mental health issues.” McMullen, 2020 WL 6263997 at *9, 10-11. The district court denied habeas relief, however, concluding that the Indiana Court of Appeals reasonably applied federal law when it determined that McMullen was not prejudiced and that Attorney Lewis was not ineffective. McMullen appealed to the Seventh Circuit, filing his notice of appeal on November 24, 2020.

[12] Meanwhile, back in the state trial court, on November 19, 2020, McMullen filed a renewed motion for modification of sentence (Renewed MSM) in FA-134, notifying the trial court that he had completed a number of DOC classes, including substance abuse and anger management, obtained an Associate's Degree and earned some credits toward a Bachelor's Degree, and been conduct-free for at least three years. Maintaining that he had met and exceeded the GCCC's stipulations, he asked the trial court to modify his sentence pursuant to Ind. Code § 35-38-1-17. Following a hearing, the trial court granted McMullen's Renewed MSM on March 30, 2021, modifying its FA-134 sentencing order. Specifically, the court suspended the remainder of McMullen's executed sentence in FA-134, directing McMullen to participate in the Community Transition Program (CTP) and Re-Entry Court and, upon graduation from the Reentry Court program, McMullen was to be released to formal supervised probation, with the court reserving the right to modify probation to informal probation or shorten McMullen's suspended sentence. Appellant's Appendix at 53.

[13] A couple of months later, in May 2021, the trial court issued an order stating that McMullen had been approved for and would serve 120 days on CTP,³ that McMullen's “modified DOC release date” was September 21, 2021, and that the remainder of his time was to be served on probation with an end date of September 28, 2049. Id. at 56. On April 4, 2022, McMullen and his probation officer filed an Agreement Modifying Conditions of Probation, stating that McMullen had graduated from Re-Entry Court and “is now eligible for a 33.33% reduction of ․ the remaining probation term to be served,” and, if granted, the new end date for probation would be July 18, 2040. Id. at 57 (emphasis added). The court approved the agreement on May 6, 2022. Id. at 15.

[14] Thereafter, back in federal court, on September 29, 2022, the State moved to dismiss McMullen's appeal to the Seventh Circuit, arguing it was moot. Specifically, the State's position was that McMullen's federal claim was that he was sentenced following an unfair sentencing hearing and that the only relief he was requesting, and only the relief he could receive, would be a new sentencing hearing but that McMullen had already received a new hearing and sentencing when his sentence was modified by the trial court. Thus, the State maintained, “McMullen is no longer sentenced under the state-court judgment that he challenges” and the Seventh Circuit could not grant McMullen any relief, making his appeal moot. Appellee's Appendix at 3. McMullen opposed dismissal, asserting that his release from prison and placement on probation did not moot his appeal. He argued that his fifty-year sentence “is suspended, but persists,” as his probation may be revoked at any time, and “[w]ith the spect[e]r of his fifty-year sentence always looming ․ McMullen retains a concrete interest in the outcome of this appeal.” Id. at 5. The Seventh Circuit denied the State's motion to dismiss on October 12, 2022.

[15] The Seventh Circuit issued its decision on October 4, 2023, McMullen v. Dalton, 83 F.4th 634 (7th Cir. 2023), initially addressing its rejection of the State's claim that McMullen's federal appeal was moot:

The state contends this appeal should be dismissed because McMullen's sentence has expired. A new sentence was imposed, the state believes, when the state trial court modified McMullen's sentence․ The state reads ․ [I.C. § 35-38-1-17] to mean that a new sentence is imposed each time the state court modifies a sentence․ We do not agree with the state's reading ․ [McMullen's] sentence was suspended. He is therefore serving the remainder of the initially imposed sentence, but on probation.

Id. at 640-41.

[16] The Seventh Circuit then determined that McMullen had satisfied 28 U.S.C. § 2254(d) on his claim of ineffective assistance of counsel and vacated the district court's decision. But finding that “state court records here lack sufficient factual information,” the Seventh Circuit remanded to the district court for an evidentiary hearing for that court to determine whether McMullen's trial attorney had a strategic reason for failing to present certain mitigating evidence at sentencing and “whether a writ of habeas corpus should issue.” Id. at 637-38; see also Appellee's Appendix at 49.

[17] Back in the trial court, on December 28, 2023, the State filed a petition for revocation of McMullen's probation in FA-134 and an amended petition to revoke on March 11, 2024, alleging that he had committed new crimes.⁴ The alleged violations were set for hearing.

[18] Several months later, on June 27, 2024, the parties filed a Joint Status Report in the district court advising that, pursuant to settlement discussions, they agreed that a probation fact-finding hearing pending in the trial court “can be converted into a resentencing hearing – which would resolve this habeas case.” Appellee's Appendix at 46. The parties asked the district court to enter a conditional writ of habeas corpus directing the State to release McMullen unless it provided him with a new sentencing, which the parties agreed would “be satisfied by converting this probation-related Fact Finding Hearing to a new sentencing hearing.” Id. Thereafter, on July 16, 2024, the district court granted the joint request for a conditional writ of habeas corpus and directed the State to release McMullen from custody in FA-134 unless it provided him with a new sentencing hearing within 180 days.

[19] In September 2024, the State filed a Motion to Set New Sentencing Hearing, which was set for October 21, 2024. On McMullen's request, the hearing was continued and reset to December 3. On that date, the State appeared for hearing, but McMullen's counsel did not; the court contacted her, and she advised that she only represented McMullen in the habeas matter and would be withdrawing. The trial court appointed attorney Bruce Elliott for McMullen and set the matter for resentencing on December 27, 2024; on the court's own motion, the hearing was rescheduled and held on December 16, 2024.

[20] The court opened the hearing by recognizing on the record that the parties were present for “the resentencing” in FA-134. Transcript at 4. After summarizing the procedural history of both the state case and the federal habeas proceedings, the trial court asked the parties whether they wished to present evidence. The court granted the State's request to take judicial notice of the evidence presented at trial and the PSI from the original sentencing. McMullen confirmed that he had “no objection to the court [ ] taking judicial notice of the [PSI] and the mitigation listed in that report.” Id. at 7. In addition, the trial court took judicial notice of “all the subsequent hearings related to sentencing, the sentence modification [and] PCR.” Id. at 8.

[21] McMullen gave a personal statement to the court, initially indicating that he had not expected to be in court that day, as he understood the hearing was going to be held on December 27th and “had prepared some testimony from other people on [sic] my family” for that date. Id. at 8. McMullen then thanked the court for his sentence modification and asked the court to “keep the benefit of my modification until the time that it was [sic] determined that I did violate my probation,” urging that he was not the same person that he was at age twenty-three, had taken DOC classes, succeeded with Re-Entry Court, and maintained a good relationship with his probation officer. Id. at 9.

[22] The parties debated the scope of resentencing, with the State arguing that, under the district court's order, the trial court was to resentence McMullen from the “first original sentencing order” such that the court was “sentencing anew,” while McMullen's counsel argued that the matter at hand was “a resentencing based upon the modification order, not the original sentence” and that “any [ ] resentencing be related to any time ․ remaining on probation.” Id. at 11, 13.

[23] The trial court agreed with the State, observing that that the Seventh Circuit had expressly rejected the State's argument that the modification constituted a new sentencing order and noting that McMullen could have withdrawn his habeas petition and accepted the benefit of the trial court's modification but chose not to. The court recognized that, despite being given numerous opportunities to prove himself, such as through CTP, Re-Entry Court, and probation, McMullen currently was facing serious probation violation allegations. Ultimately, the court found “no reason to deviate” from the sentence imposed in 2010.⁵ Id. at 16.

[24] The court issued a written sentencing order, expressly stating that the matter was before the court for resentencing pursuant to the district court's directive in the federal habeas action. The court recognized its previous modification of McMullen's original sentence but explained that it found “that modification [ ] to be a nullity” due to the intervening orders on habeas corpus and the resulting resentencing. Appellant's Appendix at 58 n.1. The court identified the following aggravators: McMullen's lengthy history of criminal or delinquent behavior, which includes numerous failures to abide by the terms and conditions of probation or other supervision; and the fact that McMullen failed to report to jail as directed to serve his sentence, such that the offenses in FA-134 “were committed while McMullen was a fugitive from this Court's warrant.” Id. at 58-59. The court accepted McMullen's proffered mitigators that he had a troubled childhood and resulting mental health issues and that his imprisonment may be a hardship on his dependents. The court then sentenced McMullen to fifty years executed at the DOC, along with the concurrent three-year term, less credit time as detailed in the court's order. McMullen now appeals.

Discussion & Decision

[25] McMullen contends the trial court “violated [his] fundamental due process rights by resentencing [him] as his sentence had been modified” and asks us to vacate the resentencing order. Appellant's Brief at 12. We generally review sentencing decisions, including those of a resentencing court, for an abuse of discretion. See Russell v. State, 234 N.E.3d 829, 847 (Ind. 2024) (reviewing whether resentencing court abused discretion by rejecting proposed mitigators), cert. denied. To the extent McMullen claims his due process rights were violated, he raises questions of law, which we review de novo. See id. at 857 (where defendant argued he was deprived of due process due to lack of fair procedure at resentencing).

[26] Initially, we address McMullen's argument that the trial court “committed fundamental error by proceeding with a resentencing hearing” where he “was re-exposed to a new evaluation of aggravators and mitigators[.]” Appellant's Brief at 15. To the extent he is suggesting that he should not have been resentenced at all, we observe that McMullen expressly agreed in the Joint Status Report filed with the district court to resolve the habeas issue by converting a probation revocation fact-finding hearing pending in the trial court to a resentencing hearing. See Appellee's Appendix at 46. And when the State thereafter filed a motion asking the trial court to set “a new sentencing hearing,” McMullen posed no objection, nor was any opposition voiced when the trial court, at the start of the hearing, stated that the parties were “here for a resentencing in” FA-134. Transcript at 4; Appellee's Appendix at 52. In any event, McMullen provides no argument or analysis in support of fundamental error, a very narrow and specific doctrine, and thus his fundamental error argument is waived. See Ind. Appellate Rule 46(A)(8).

[27] McMullen's primary argument appears to be that the “sentence modification and sentence reduction was strip[p]ed from him” and that it was error for him to be sentenced to any more than the modified sentence. Appellant's Brief at 15. He provides no authority for that proposition. Moreover, our courts have held – in the context of remand from this court to the trial court for resentencing – that “[a]bsent changed circumstances, [a defendant] is only entitled to a sentence that is not harsher than the first.” Gootee v. State, 942 N.E.2d 111, 114 (Ind. Ct. App. 2011) (quoting Hicks v. State, 729 N.E.2d 144, 146 (Ind. 2000)), trans. denied. Here, McMullen's new sentence was not harsher than his original sentence.

[28] McMullen also argues that the previously-ordered reduction of his sentence “was not addressed at the resentencing hearing.” Appellant's Brief at 14. We disagree. The parties engaged in dialogue with the trial court and presented argument regarding whether the resentencing should be from the original sentence or from the date of modification, with the trial court ultimately rejecting McMullen's argument that he should be afforded the benefit of his prior sentence modification. Thus, contrary to his claim, his modified sentence was addressed at the resentencing hearing.

[29] McMullen urges that “the whole intention” of the Seventh Circuit's opinion was overlooked, as that court “remanded for an evidentiary hearing on whether trial counsel conducted an adequate investigation into McMullen's mental health.” Id. at 15. However, what the parties agreed to – in the Joint Status Report submitted to the district court on remand – was “a resentencing hearing,” or “a new sentencing hearing,” and, as the State points out, “the parties did not agree to limit the trial court's sentencing discretion.” Appellee's Brief at 14; Appellee's Appendix at 46. And at the resentencing hearing, the trial court took judicial notice of “all of the [prior] hearings related to sentencing.” Transcript at 8. That is, the trial court considered: the original sentencing hearing and PSI; sentence modification proceedings, including evidence of completion of DOC programming, CTP, and Re-Entry court; and the PCR proceedings, which included additional witnesses and the psychologist's report and mental health diagnoses. The court also noted that McMullen was alleged to have violated his probation by committing “a host of” new offenses, “strikingly similar” in behavior to the offenses of which he was convicted in FA-134. Appellant's Appendix at 58; see also Transcript at 16 (court recognizing that McMullen had pending probation violations). With all that before it, the trial court identified aggravators and mitigators, this time including McMullen's troubled childhood and resulting mental health issues as a mitigator, and imposed the same fifty-year sentence. On this record, McMullen has not persuaded us that his fundamental due process rights were violated when the trial court resentenced him to fifty years less credit time.⁶

[30] McMullen separately argues that he was not afforded procedural due process protections at the resentencing hearing, specifically asserting that the hearing was conducted “with no opportunity for significant preparation,” as his counsel was appointed around thirteen days before the hearing, and a new PSI was not prepared before the resentencing hearing, which report he claims would have given the court complete and current information such as his completion of DOC programming, CTP, and Re-Entry Court. Appellant's Brief at 16. McMullen never asked for a continuance of the hearing nor for an updated PSI, and thus his arguments are waived. See e.g., Russell, 234 N.E.3d at 857 (finding defendant forfeited argument that he was deprived of procedural due process at resentencing where he failed to raise objection to sentencing procedure, or lack thereof, below). Regardless, at resentencing, the trial court was aware of and considered McMullen's successful completion of programs, indeed having granted his Renewed MSM based thereon, and the court also considered PCR evidence pertaining to McMullen's childhood and mental health. In sum, McMullen has not established any due process violation from a “lack of fair process at the resentencing hearing.” Appellant's Brief at 17.

[31] Judgment affirmed.

FOOTNOTES

1.   Thereafter, McMullen pled guilty in another cause and received a three-year sentence to be served consecutive to FA-134.

2.   According to an opinion subsequently issued by the Seventh Circuit, discussed infra, McMullen's writ was filed pro se and while he was incarcerated at Wabash Valley Correctional Facility in Carlisle, Indiana.

3.   CTP included probation, home detention/electronic monitoring, Re-Entry Court “and other services as necessary.” Appellant's Appendix at 56.

4.   The State charged McMullen on December 5, 2023, with Level 6 felony stalking, Class A misdemeanor domestic battery, and Class B misdemeanor criminal mischief in Cause No. 27D01-2312-F6-833. On March 12, 2024, the State charged him with Level 2 felony dealing in a narcotic drug, Level 5 felony dealing in methamphetamine, Level 5 felony possession of a narcotic drug, two counts of Level 5 felony neglect of a dependent, Level 5 felony unlawful carrying of a handgun, two counts of Level 6 felony maintaining a common nuisance, Class A misdemeanor possession of marijuana, and Class B misdemeanor unlawful use of a police radio in Cause No. 27D01-2403-F2-11.

5.   The Honorable Mark E. Spitzer presided over all of McMullen's proceedings in the Grant Circuit Court, from before the jury trial through postconviction and resentencing.

6.   To the extent any error occurred, it was invited error. The doctrine of invited error is grounded in estoppel and forbids a party from taking advantage of an error that he commits, invites, or which is the natural consequence of his own neglect or misconduct. Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005) (finding that the State had invited any error associated with merging convictions where State had “created [the] situation” by inviting the trial court to merge the convictions and “cannot now take advantage of that error on appeal”). Here, we agree with the State that McMullen's habeas argument was that his counsel was ineffective at the original sentencing hearing for not presenting enough mitigation evidence, and he sought a new sentencing hearing at which he could submit evidence of his social background and mental health. Appellee's Appendix at 11 (McMullen's opposition to State's motion to dismiss federal appeal). McMullen agreed to resolve the habeas case with a new sentencing hearing in the trial court, which is what he got. That he “appears to have buyer's remorse” is not a reason to reverse the trial court's sentencing decision. Appellee's Brief at 12.

Altice, Chief Judge.

Judges Pyle and DeBoer concur. Pyle, J. and DeBoer, J., concur.