DeRyan Cook, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] After his murder conviction was affirmed on direct appeal, DeRyan Cook filed a petition for post-conviction relief. He argued his appellate counsel was ineffective for failing to raise sufficiency of the evidence as an issue on appeal. The post-conviction court denied his petition, and Cook now asserts the same argument on appeal. We affirm.

Facts and Procedural History

[2] Cook previously sought reversal of his murder conviction on direct appeal to this Court. Cook v. State, 119 N.E.3d 1092 (Ind. Ct. App. 2019), trans. denied. Thus, we recount some of the relevant facts as relayed in that opinion.

On June 4, 2017, Michael Turpin's (“Turpin”) truck broke down. After unsuccessfully attempting to find someone to pick him up, he and Jamie Baker (“Baker”) decided to walk to a friend's house on the other side of town. As they walked across a Walgreen's parking lot at approximately 12:30 a.m. the following morning, Turpin noticed twenty-year-old Cook approach them from a nearby gas station. Cook gave Turpin a “fucked up look,” and Turpin told Baker to walk faster. As Turpin and Baker began to walk down a residential street, Turpin turned around and noticed that Cook was standing in front of the Walgreen's and staring at them. Turpin told Baker to “pick up the pace.” A few minutes later, Turpin heard Cook's footsteps behind them. Cook yelled at Turpin and Baker to “get on the f[*****]g ground” and began shooting at them. Turpin turned around and got a clear view of Cook, whose face was illuminated by a street light. Turpin grabbed Baker and heard “like three more shots” and then a click. Cook took off running, and Turpin realized that Baker had been shot in the center of her back. Baker died before emergency personnel arrived at the scene.

Cook returned to his nearby apartment where several of his roommates were listening to a police scanner. Cook told roommate Alexander Southard (“Southard”) that he “had to do it” and that he had “shot four and saved five.” Cook later told Southard that he had gone out to rob somebody and that he had seen Turpin and Baker walking down the street. According to Cook, Baker was carrying a purse and “if she wasn't going to give it up [I] was going to shoot her and that's what happened.” Cook further explained to Southard that he had told Turpin and Baker “to lay down or whatever and they took off running.” According to Cook, he had then shot them. Cook also told Southard that he had used a .40 caliber handgun.

A few days later, Southard told the police what Cook had told him about Baker's murder. Turpin then identified Cook in a photo array, and Cook was brought in for questioning by Detective Peter DeYoung (“Detective DeYoung”). Cook told Detective DeYoung that he had been with Jerome Height (“Height”) when Height had attempted to rob and had then shot Baker. Cook told the detective that he, Cook, had run back to his apartment after the shooting and cried. Cook also stated that he did not “mess around with guns.” Cook later admitted to the detective that he had had possession of the murder weapon a week before the murder and that he had given it to Height. Cook also admitted that he had stood at the Walgreen's, had watched Turpin and Baker, and had then followed them. While Cook was following the couple, he had heard gunshots and had taken off running. Cook was sure that Height had fired the shots.

Cook was arrested and charged with murder and felony murder. The State also requested that Cook's sentence be enhanced pursuant to Indiana Code § 35-50-2-11 because he had knowingly used a firearm in the commission of the crime.

At trial, Turpin identified Cook as the shooter․ Detective DeYoung testified that he had followed up on his interview with Cook by questioning Height, who had denied shooting Baker. During cross-examination of Detective DeYoung, defense counsel requested a hearing outside the presence of the jury and asked the trial court to allow her to ask the detective “if he had received information from Karen Montgomery [ (“Detective Montgomery”) ] that Jerome Height [had] allegedly confessed to committing the shooting.” ․

* * *

The State pointed out that the statement that Cook sought to admit was a jail house conversation in which Height had allegedly told Geonovan Bailey (“Bailey”) that he had shot Baker. Bailey had then allegedly told Detective Montgomery what Height had told him, and Detective Montgomery had allegedly told Detective DeYoung what Bailey had told her․ The trial court concluded that Cook's proffered evidence was hearsay and excluded it.

Id. at 1094-95 (internal record citations omitted).

[3] The jury ultimately found Cook guilty of murder, and he admitted to carrying out the murder with a firearm. Id. He was sentenced to fifty-five years for the murder and an additional ten years for the firearm enhancement, an aggregate sentence of sixty-five years. Id. at 1096. On direct appeal, Cook made two arguments: (1) the trial court abused its discretion in excluding evidence of Height's confession; and (2) his sixty-five-year sentence was inappropriate in light of the nature of the offense and his character. Id. at 1096, 1097. A panel of this Court affirmed his conviction, finding the trial court did not abuse its discretion in excluding the evidence, as it was multiple hearsay and did not fall into any exception to the hearsay rule, and that Cook's sentence was not inappropriate. Id. at 1097, 1098.

[4] Cook then filed a petition for post-conviction relief, asserting appellate counsel was ineffective for failing to raise a stronger issue on appeal, specifically, that there was insufficient evidence to convict Cook of murder. After a hearing and taking the matter under advisement, the post-conviction court denied Cook's petition, finding he had failed to show appellate counsel was ineffective by not raising that issue. Cook appeals from this denial.

Discussion and Decision

[5] “Post-conviction proceedings are civil proceedings in which a defendant may present limited collateral challenges to a conviction and sentence.” Weisheit v. State, 109 N.E.3d 978, 983 (Ind. 2018), reh'g denied, cert. denied. To succeed on his petition, Cook was required to prove his claims by a preponderance of the evidence. Id. Because the trial court denied his petition, he appeals from a negative judgment and must show on appeal “that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.” Hollowell v. State, 19 N.E.3d 263, 269 (Ind. 2014). While we do not defer to the post-conviction court's legal conclusions, its findings of fact and judgment will only be reversed if Cook shows they were clearly erroneous. Id.

[6] Cook sought post-conviction relief on the grounds that the appellate attorney for his direct appeal was ineffective. “Ineffective assistance of counsel claims are evaluated under the two-part test articulated in Strickland v. Washington, 466 U.S. 668 ․ (1984)[, reh'g denied].” Weisheit, 109 N.E.3d at 983. Under that test, Cook had to prove: (1) his appellate counsel's “performance was deficient based on prevailing professional norms;” and (2) that his appellate case was prejudiced by the deficient performance. Id. (citing Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012), reh'g denied).

[7] Here, Cook claimed that the two arguments pursued by appellate counsel— erroneous exclusion of evidence and inappropriate sentence—were “weaker than the argument that there was insufficient evidence to support [Cook's] conviction.” Appellant's Brief at 15. Thus, Cook's argument falls into the “waiver of issues” category of ineffective assistance of counsel claims. Bieghler v. State, 690 N.E.2d 188, 193-94 (Ind. 1997) (noting the decision to exclude certain issues in favor of others is a strategic decision for appellate counsel to make), reh'g denied, cert. denied. “When evaluating a claimed deficiency in appellate representation due to an omission of an issue, a post-conviction court is properly deferential to appellate counsel's choice of issues for appeal ‘unless such a decision was unquestionably unreasonable.’ ” Hampton v. State, 961 N.E.2d 480, 491 (Ind. 2012) (quoting Bieghler, 690 N.E.2d at 194). “[T]o prevail in such claim in post-conviction proceedings, it is not enough to show that appellate counsel did not raise some potential issue; instead, the defendant must show that the issue was one which a reasonable attorney would have thought availing.” Id. at 492. However, even if Cook proved deficient performance for omission of an issue, he still had to prove that he was prejudiced by that performance. Id. at 491. In other words, he had to show there was a reasonable probability that but for appellate counsel's deficient performance, the result of his direct appeal would have been different. Id.

[8] Cook contends that appellate counsel should have presented an insufficiency of the evidence argument in the direct appeal of his conviction. The standard of review for a sufficiency claim requires the appellate court to consider only the evidence most favorable to the verdict and prohibits it from reweighing evidence or judging witness credibility. Trejo v. State, 269 N.E.3d 871, 874-75 (Ind. Ct. App. 2025), trans. denied. The appellate court will affirm the conviction “unless no reasonable jury could have found ‘the elements of the crime proven beyond a reasonable doubt.’ ” Id. at 875 (quoting Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024)).

[9] In considering Cook's argument, the post-conviction court specifically noted the evidence presented against Cook at trial:

eyewitness testimony identifying [him] as the shooter; testimony from [his] roommate indicating [he] admitted to shooting the victim; photo array identification; and an interview of [him] whereby he admitted to having the murder weapon a week prior, in addition to stating he saw and watched the victims at the Walgreen[’]s prior to the shooting.

Appellant's App. Vol. 2 at 55. In light of this evidence and the standard of review governing sufficiency claims on direct appeal, the post-conviction court concluded that

appellate counsel's choice not to attack the sufficiency of evidence was reasonable. There was a substantial amount of evidence for the jury to conclude that [Cook] was guilty beyond a reasonable doubt. Appellate counsel's performance was not deficient and therefore does not meet the first prong needed in the Strickland analysis. This claim fails.

Id.

[10] We conclude the same. An argument made by appellate counsel that the evidence against Cook was insufficient to support his conviction would have necessarily been a request to reweigh the evidence and thus, we cannot say that appellate counsel's decision to forego that argument was “unquestionably unreasonable.” Hampton, 961 N.E.2d at 491 (quoting Bieghler, 690 N.E.2d at 194). There was ample evidence presented at trial to support his conviction, and any conflicting evidence would be viewed most favorably to the verdict. In fact, in the present appeal, Cook's only argument on this issue amounts to a request to reweigh the evidence. He provides a list of evidence that was absent at trial to identify Cook as the perpetrator and claims “[t]here was no evidence linking [him] to the crime, and the only testimony was from the sole eyewitness whose testimony was highly impeachable.” Appellant's Br. at 15. Eyewitness testimony, i.e., direct evidence, identifying Cook as the shooter from the same witness who had previously identified Cook in a photo array, was sufficient to support his conviction. And in light of the other circumstantial evidence identified by the post-conviction court that supported Cook's conviction, an attack on the eyewitness’ credibility would not have been a meritorious argument for appeal.

[11] And Cook's argument fails on the second prong for those very same reasons. Given that it was highly unlikely Cook's conviction would have been reversed had appellate counsel raised a sufficiency argument on direct appeal, he has failed to show he was prejudiced by its omission. Thus, Cook has failed to show appellate counsel's assistance was ineffective.

Conclusion

[12] Because Cook failed to prove his appellate counsel rendered ineffective assistance on his direct appeal, we affirm the post-conviction court's denial of his petition.

[13] Affirmed.

DeBoer, Judge.

Brown, J., and Altice, J., concur.