Michael T. Shoun, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2026)

MEMORANDUM DECISION

Case Summary

[1] In December of 2015, Michael Shoun was convicted of murder and, in January of 2016, was sentenced to life imprisonment without parole (“LWOP”). In January of 2017, Shoun's sentence was affirmed on direct appeal. See Shoun v. State, 67 N.E.3d 635 (Ind. 2017). Shoun petitioned for post-conviction relief (“PCR”), claiming that he had received ineffective assistance of both trial and appellate counsel. Following an evidentiary hearing, the post-conviction court denied Shoun's petition. Shoun challenges the denial of his PCR petition on appeal, arguing that he received ineffective assistance of both trial and appellate counsel and that his LWOP sentence is illegal because he suffers from an intellectual disability. Concluding that neither trial nor appellate counsel rendered ineffective assistance and that Shoun's LWOP sentence is not illegal, we affirm.

Facts and Procedural History

[2] The facts, as laid out in the Indiana Supreme Court's decision from Shoun's direct appeal, are as follows:

In November 2013, Michael Shoun was dating Tiana Alter, who was 17 years old at that time. Shoun was approximately 8–9 years older than Alter and had been dating her since she was 13. Alter lived with Shoun's sister, Aeirel. Shoun was supposed to be residing in a work release facility as part of his sentence for a class C felony being a habitual traffic offender conviction; however, Shoun was a fugitive from the facility and was staying in Alter's room at his sister's home.

Both Alter and Shoun used synthetic drugs. Alter would fall into a deep sleep as a result of her drug use, while Shoun would become paranoid as a result.

On November 2, 2013, several members of Shoun's family gathered at Aeirel's home for a small party, including Shoun's cousin, Michael Lewis. Aeirel was not home, and while Shoun and Alter were there, they spent most of the time in Alter's room with the door shut, apparently smoking synthetic marijuana.

When Shoun came out of the bedroom, Lewis noticed blood on him. Lewis asked Shoun why he was bleeding and Shoun indicated that it was not his blood. Fearing something bad had happened, Lewis then asked to be let into the room. At about the same time, Aeirel returned home and heard a loud noise, like someone being thrown into the wall. She came out to the hallway to find Lewis asking Shoun to be let into the room.

Once let into the room, Shoun saw Alter rolled up inside carpet that had been pulled up from the floor. He saw and smelled a large amount of blood. He shook Alter's shoulder and called out her name, but she did not respond; she was cold to the touch.

Shoun told Lewis he needed help to get rid of the body and then started talking about satellites, the devil and empires. Lewis told the others that Alter was dead and he and Aeirel decided to leave the home. Aerial called 911 and reported that she believed her brother killed his girlfriend.

When police arrived at the home, they found Shoun in the basement throwing and breaking things. Shoun told police not to come downstairs, but when they did, they found him sitting against the wall with a shirt covering his hands. Shoun told police to leave or else “it's going to blow up.” (Tr. 372.) After multiple officers arrived and drew their weapons, Shoun eventually complied and allowed himself to be handcuffed. He told one of the officers “she's dead.” (Tr. 413.)

Officers brought Shoun upstairs to the living room and they checked the rest of the home. They located Alter's body in her bedroom. Police arrested Shoun and placed him in a patrol car, where he was belligerent and argumentative. During a pat-down search, police recovered Alter's identification and a hand-rolled cigarette that Shoun said contained K2 (a synthetic marijuana) from Shoun's person. On the way to the station, Shoun sometimes made nonsensical statements such as quoting nursery rhymes, discussing Martin Luther King and commenting on the fact that the sheriff's department was conveniently located near the landfill because there were a lot of bodies in the landfill. While at the police station, Shoun's behavior was sometimes lucid and cooperative and at other times argumentative and aggressive. He continued to make nonsensical statements.

Meanwhile, a crime scene investigator arrived at the scene. He entered Alter's room, unrolled the carpet, noticed a large area of blood staining on the carpet and the floor and found Alter's body to have a large abdominal injury with her entrails showing. He found a knife blade under Alter's left arm, a knife handle and another knife nearby. Testing revealed Alter's DNA on both knives. The investigator also found three synthetic drug packages in the room, two of which were empty.

An autopsy revealed that parts of Alter's internal organs had been separated from their normal positions and entangled with her intestines. Her body had a large gaping wound over nine inches in length from the lower chest area to below the navel and multiple sharp force injuries to internal organs. Shoun inflicted so many cut and stab wounds to Alter's body that the forensic pathologist who completed her autopsy was unable to accurately count them. Shoun inflicted stab wounds to her stomach, rib cage, liver, diaphragm, kidneys, small and large intestines, pancreas, vena cava (the vein carrying blood from the lower body to the heart), her aorta (the main artery carrying blood from the heart to the body), and the membrane between her bladder and uterus. He completely severed a portion of her small intestine and completely cut out her spleen and right kidney. He repeatedly stabbed the pericardial sac surrounding her heart in a manner that could only be accomplished by stabbing up from below through her diaphragm. Other injuries indicated that Shoun may also have strangled Alter. Nearly all of Alter's wounds displayed bleeding that indicated the heart was beating when the wounds were inflicted, and thus, a vast majority of Alter's wounds were inflicted while she was still alive. Alter had alcohol and synthetic marijuana in her system.

The State charged Shoun with Alter's murder. Shortly after being appointed, Shoun's counsel requested a competency evaluation. Because the first two competency evaluations were in conflict about whether Shoun was competent, a third evaluation was ordered. It revealed that Shoun was competent. The State amended its charging information to request a sentence of life without parole (LWOP). It alleged two aggravating circumstances in support of LWOP: 1) that Shoun was in the custody of the Department of Correction [(“DOC”)] at the time of the murder; and 2) that Shoun mutilated Alter while she was alive.

Shoun filed a petition alleging that he suffers from an intellectual disability that makes him ineligible for a LWOP sentence. However, Shoun ultimately withdrew this petition, as Shoun's trial counsel believed this petition would not be successful. At a hearing, defense counsel explained that he wanted to “make a record as to what we've done so that people know that there was really no chance of us succeeding on that petition.” (Tr. 87.) Counsel then detailed the efforts undertaken, explaining that in addition to obtaining the court ordered evaluations and the earlier psychological evaluation that had been performed for use as mitigation evidence, counsel had spoken to Shoun's family members, obtained medical and school records, reviewed records from juvenile probation and the Bashor Home (where Shoun was placed for a time as a child) and spoken with Shoun's juvenile probation officer. After a review of all this evidence, defense counsel concluded that they could not meet their burden to prove Shoun suffered from an intellectual disability that manifested itself prior to the age of 22 and asked to withdraw the petition. The prosecutor stated that she had also gathered information and conferred with defense counsel and agreed that the defense could not prove the claim. Because Shoun withdrew his petition, the trial court cancelled the hearing on his petition and made no findings regarding the existence of an intellectual disability under the statute.

The case proceeded to a bifurcated jury trial. During the first phase, the jury found Shoun guilty of murder, a felony. Following the penalty phase, the jury found that the State proved beyond a reasonable doubt at least one of the statutory aggravating circumstances. The jury also found that the statutory aggravating circumstances outweighed the mitigating circumstances. The jury recommended a sentence of LWOP be imposed. Thereafter, the trial court sentenced Shoun to LWOP.

Shoun, 67 N.E.3d at 637–39.

[3] Shoun challenged his sentence on direct appeal, with the Indiana Supreme Court describing his appellate arguments as follows:

First, he argues that while his trial counsel withdrew his petition alleging that he is an individual with an intellectual disability (and thus, cannot be sentenced to LWOP), the trial court should have nevertheless found that Shoun did indeed suffer from an intellectual disability sua sponte, as there is ample evidence in the record that this is the case. Shoun claims that by failing to do so, the trial court committed fundamental error. Second, he argues that his sentence is unconstitutional under Article 1, Section 16 of the Indiana Constitution as it is disproportionate in light of his intellectual disability. Finally, he argues that his sentence is inappropriate pursuant to Indiana Appellate Rule 7(B), despite the horrific nature of the offense, again citing his intellectual disability.

Id. at 639 (emphasis in original).

[4] With regard to Shoun's first argument, the Indiana Supreme Court noted that that the State may not seek LWOP if the defendant “is an individual with an intellectual disability.” Id. The Indiana Supreme Court, however, rejected Shoun's argument, concluding that

in addition to reviewing court-ordered evaluations, Shoun's trial counsel also investigated this matter and, when withdrawing the motion for a hearing on his petition alleging Shoun had an intellectual disability, counsel ․ explained that Shoun's petition was not supported by counsel's investigation, which included communication with both Shoun's mother and his juvenile probation officer and review of his school records, juvenile probation records, records from a juvenile placement, and medical records. Specifically, counsel expressed his doubt that they could prove that Shoun's condition manifested itself prior to Shoun reaching age 22 as required by the Disability Chapter.․

Looking at the incomplete record on this issue, and with Shoun's own trial counsel conceding there was not enough evidence to prove Shoun's intellectual disability pursuant to the Disability Chapter, it cannot be said that the trial court committed fundamental error when it did not find on its own that Shoun had an intellectual disability.

Id. at 640–41. The Indiana Supreme Court also rejected Shoun's second and third arguments, concluding that his sentence was not disproportionate or inappropriate. Id. at 641–42. In sum, the Indiana Supreme Court concluded that

Shoun makes three arguments that his LWOP sentence is inappropriate, each hinged primarily on his assertion that he suffers from an intellectual disability. However, Shoun's own trial counsel did not believe he could make the required statutory showing to prove this intellectual disability and withdrew the petition for such a determination. Because the record on this issue is incomplete, the trial court did not commit fundamental error by not finding sua sponte that Shoun suffered from an intellectual disability. We also find that because the nature and quality of Shoun's alleged intellectual disability is uncertain and the nature of the crime so severe, Shoun's sentence is proportioned to the offense and thus, does not violate Article 1, Section 16 of the Indiana Constitution. Finally, looking at the severe nature of the crime and Shoun's character, Shoun's sentence is not inappropriate pursuant to Appellate Rule 7(B).

Id. at 642–43 (emphasis in original).

[5] On July 18, 2017, Shoun filed a pro-se PCR petition. On March 15, 2024, Shoun, by counsel, filed an amended PCR petition, alleging that he had received ineffective assistance of both trial and appellate counsel and that his LWOP sentence was an illegal sentence. The post-conviction court conducted an evidentiary hearing on January 13 and 14, 2025.

[6] Shoun had been represented at trial by attorneys Peter Todd, Clifford Williams, and Luke Krizek. The post-conviction court “took judicial notice that [Attorney Williams's] date of death was December 16, 2017, and [Attorney Todd's] date of death was June 29, 2020.” Appellant's PCR App. Vol. II p. 187. Attorney Krizek testified during the evidentiary hearing.

[7] Attorney Krizek testified that he had appeared as a member of Shoun's defense team shortly before trial as a way to gain experience and claimed that he had been “just along for the ride” because, at the time, he “was very green, very new, and was more just watching.” PCR Tr. Vol. II p. 26. Attorney Krizek had reviewed evidence, but had not conducted investigations, interviewed witnesses, or decided on witnesses or exhibits for the penalty phase of trial. Attorney Krizek remembered having reviewed the jury instructions and verdict forms but did not recall having had any concerns about either.

[8] Shoun's appellate counsel, Donald Shuler, testified that in representing Shoun, he had reviewed “everything” to “evaluate what issues [he thought were] worth being raised[.]” PCR Tr. Vol. II p. 37. Attorney Shuler noted that, at the time of Shoun's direct appeal, there had been “developing case law ․ in Indiana and around the country” on the question of whether LWOP was appropriate for an individual who suffered from an intellectual disability, “so that was an area [Shuler] thought that was worth exploring and seemed that had a better chance, maybe, to try to get some relief[.]” PCR Tr. Vol. II p. 38. Though he reviewed the jury instructions and verdict forms, Shuler did not find what he believed would be a meritorious appellate challenge. While Shuler recalled that the record demonstrated that Shoun had been in restraints during a portion of the penalty phase, he did not recall that the use of restraints had generated any issues worth raising on appeal.

[9] Dr. Robert Chambers, an addictions psychiatrist who had not evaluated or interviewed Shoun, opined that Shoun suffers from “a significant cognitive intellectual disability and that this has been present since childhood.” PCR Tr. Vol. II p. 61. Dr. Chambers further opined that it was “not likely” that Shoun's illicit drug use had caused “such pronounced cognitive disability.” PCR Tr. Vol. II p. 64. Dr. Chambers claimed that Shoun's intellectual impairment could “greatly amplify” and “cause psychotic and delirium-like episodes” caused by the use of synthetic marijuana. PCR Tr. Vol. II p. 67. Dr. Chambers opined that mild intellectual disability fits within the statutory definition of intellectual disability.

[10] Dr. Stephanie Wade, a clinical psychologist who had interviewed Shoun and testified at his trial, opined that Shoun had an IQ of seventy. At Shoun's trial, Dr. Wade had opined that, based on Shoun's IQ and her evaluation of Shoun, he “had a mild intellectual disability.” PCR Tr. Vol. II p. 116. At the PCR evidentiary hearing, Dr. Wade testified that considering Shoun's IQ together with other mental health and school records, she opined that Shoun met the statutory definition for having an intellectual disability, stating that he had “significantly subaverage intellectual functioning.” PCR Tr. Vol. II p. 107. Dr. Wade acknowledged that service providers had previously described Shoun as having good communication skills and as being “intelligent, hard-working, and persistent.” PCR Tr. Vol. II p. 121. She further acknowledged that Shoun had been described as being “attentive, teachable, able to think independently, and develop respect.” PCR Tr. Vol. II p. 123.

[11] Dr. Gerald Wingard, a psychologist who had completed a competency evaluation of Shoun prior to trial, opined that based on additional information he had reviewed in connection to the post-conviction proceedings, Shoun “had major adaptive deficits[.]” PCR Tr. Vol. II p. 139. Dr. Wingard indicated during the evidentiary hearing that he believed Shoun had “significant subaverage intelligence” and “substantial impairments in adaptive behavior[.]” PCR Tr. Vol. II pp. 147, 148. However, he specifically opined that Shoun had a mild intellectual disability, which was the same diagnosis that he had made “[b]ack in 2015[.]” PCR Tr. Vol. II p. 155.

[12] Sue Hobson had worked as a legal assistant to Shoun's trial counsel and had assisted on Shoun's case. Hobson described Attorney Williams's reputation as being “highly regarded, a very honest person. His word was his word. He was a good lawyer, and he cared about his clients. He genuinely cared about them.” PCR Tr. Vol. II p. 176. She described Attorney Todd's reputation as being “a straight shooter” who was thorough and invested in his casework. PCR Tr. Vol. II p. 178. Hobson was aware that trial counsel had petitioned to have Shoun declared ineligible for LWOP due to his alleged intellectual disability and that, after completing additional research, had withdrawn the petition because they had not believed it would have been successful.

[13] Clyde Brown, an investigator with the Elkhart County Public Defender's Office, testified that he had worked on Shoun's case. Based on his interactions with Shoun, Brown had not had any concerns about Shoun's intellectual functioning, having found him to be very cordial and able to understand conversations and engage in back-and-forth dialogue. Brown knew that Attorneys Williams and Todd had had good legal reputations, thoroughly managed their cases, and strategized with other attorneys about how to manage their cases. Jeffrey Majerek had worked with Attorneys Williams and Todd and knew that both had had a reputation for being thorough. Majerek also knew that Attorneys Williams and Todd “had spent hours, at least a couple of times” in Attorney Williams's office consulting with family members about Shoun's case. PCR Tr. Vol. III p. 27.

[14] While Shoun's first and fourth grade teachers acknowledged that Shoun had struggled in school, his first-grade teacher indicated that she did not know whether his struggles should have been “attributed to his home life and environment or mental ability.” PCR Ex. Vol. I p. 148. Though Shoun received additional help as needed, he had not been in special-education classes and had not had an individualized education plan. Both teachers indicated that no one from his defense team had spoken to them prior to trial.

[15] Shoun's sister, Ashley Griffin, testified that she, Aeirel, and Shoun had grown up in challenging circumstances; remembered that Shoun had struggled in school; and although she had not lived with Shoun since he was fourteen or fifteen years old, did not believe that he could live on his own. Otis Henderson, Shoun's former foster father, averred that Shoun had been placed with him and his wife when Shoun “was around 13 or 14 years old” and lived with them for “approximately six (6) months.” PCR Ex. Vol. I p. 151. Henderson averred that he had not had “any trouble with” Shoun, that Shoun had completed simple chores but had not cooked or done laundry while in Henderson's care, and that Shoun had “needed to learn to work before play.” PCR Ex. Vol. I p. 152.

[16] Mandala Gerber and Donald Wilkerson had served as jurors in Shoun's trial. Gerber indicated that she had seen Shoun wearing handcuffs and shackles “early on in the trial.” PCR Tr. Vol. II p. 239. Wilkerson recalled that “about a day before the deliberations, [he] had noticed that [Shoun] had handcuffs on.” PCR Tr. Vol. II p. 244. Wilkerson “did not notice anything with regards to the ankles or any other restrictions or restraints.” PCR Tr. Vol. II pp. 244–45.

[17] After taking the matter under advisement, on August 18, 2025, the post-conviction court denied Shoun's PCR petition. In doing so, the post-conviction court found as follows:

The evidence presented at trial and on post conviction does not establish that [Shoun] suffers from significant subaverage intellectual functioning and substantially impaired adaptive behavior that manifested before age twenty-two (22); therefore, under Ind. Code § 35-36-9-6, the Court finds that [Shoun's LWOP] sentence is not an illegal sentence. The Court further finds that neither trial counsel's nor appellate counsel's performance on any claim raised by [Shoun] in his Amended [PCR Petition] was deficient, and [Shoun] has not shown that the outcome of his case would have been any different had counsel performed otherwise. [Shoun] has not presented anything that would undermine confidence in his conviction or his [LWOP] sentence, or that had counsel presented any of the evidence at trial that was presented at the post conviction evidentiary hearing a reasonable probability exists that the result of his trial and sentence would have changed. For all these reasons, [Shoun] is not entitled to post conviction relief.

Appellant's PCR App. Vol. II p. 223.

Discussion and Decision

[18] “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); Collier v. State, 715 N.E.2d 940, 942 (Ind. Ct. App. 1999), trans. denied.

[19] 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 us that the evidence, taken as a whole, “leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745. “In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did.” Id. (emphasis in original). “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 witnesses.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

I. Neither Shoun's Trial nor Appellate Counsel Rendered Ineffective Assistance

[20] Shoun contends that the post-conviction court erred in rejecting his claims that both his trial and appellate counsel had rendered ineffective assistance. “The right to effective counsel is rooted in the Sixth Amendment of 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 functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” Id. (quoting Strickland, 466 U.S. at 686).

[21] 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. (internal quotation omitted). “We recognize that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the 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.

[22] Under the second prong, the petitioner must show that the deficient performance resulted in prejudice. Reed, 866 N.E.2d at 769. 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. (italics added, internal quotation omitted).

[23] 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).

[24] Additionally, “[t]he standard of review for appellate counsel is the same as for trial counsel in that the defendant must show appellate counsel was deficient in his or her performance and that the deficiency resulted in prejudice.” Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013). “[I]neffective assistance of appellate counsel claims generally fall into three categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well.” Hollowell v. State, 19 N.E.3d 263, 270 (Ind. 2014).

A. Trial Counsel

1. Trial Counsel did Not Render Ineffective Assistance in Their Handling of Shoun's Alleged Intellectual Disability

[25] Shoun contends that his trial counsel rendered ineffective assistance “when counsel failed to uncover significant, readily available evidence that [his] intellectual disability manifested prior to the age of twenty-two.” Appellant's Br. p. 40. For its part, the State contends that trial counsel did not render ineffective assistance in this regard because “Shoun failed to establish that he had subaverage intellectual functioning before the age of 22.” Appellee's Br. p. 48.

[26] It is undisputed that the State may not seek an LWOP sentence against a defendant who “is an individual with an intellectual disability.” Ind. Code § 35-50-2-9(a). The term “ ‘individual with an intellectual disability’ means an individual who, before becoming twenty-two (22) years of age, manifests: (1) significantly subaverage intellectual functioning; and (2) substantial impairment of adaptive behavior; that is documented in a court ordered evaluative report.” Ind. Code § 35-36-9-2. “[T]he defendant must prove by clear and convincing evidence that the defendant is an individual with an intellectual disability.” Ind. Code § 35-36-9-4.

[27] The Indiana Supreme Court has recognized that “an IQ between 70 and 75 or lower” may indicate that an individual is of subaverage intellectual functioning. State v. McManus, 868 N.E.2d 778, 785 (Ind. 2007). However, “IQ tests alone are not necessarily conclusive, and courts may consider IQ scores together with other evidence of mental capacity.” Id. (internal quotation omitted). “Despite the court's ability to consider other factors such as work history, school history, and life functioning, we have held that IQ scores may be such that they show the person does not meet the intellectual component of” an intellectual disability. Id. (internal quotation omitted).

[28] Furthermore, “[t]o establish substantial impairment of adaptive behavior, the defendant must prove significant limitations in conceptual, social, and practical adaptive skills that manifested before the age of twenty-two.” Russell v. State, 234 N.E.3d 829, 845 (Ind. 2024), cert. denied.

Conceptual skills refer to things like communication, functional academics, and self-direction. Social skills refer to how well the person gets along with other people. And practical skills refer to community use, home living, health and safety, and self-care. The defendant's adaptive functioning in at least one domain must be sufficiently impaired that ongoing support is needed in order for the person to perform adequately in one or more life settings, and the deficits must be caused by the person's intellectual impairment.

Id. (internal quotations and brackets omitted).

[29] Prior to trial, defense counsel initially filed a petition alleging that Shoun was ineligible to receive an LWOP sentence because he suffered from an intellectual disability. In withdrawing the defense's petition alleging that Shoun suffered from an intellectual disability, Attorney Todd indicated that counsel had “done some examination of the evidence and feel that that is not going to be something that we could be successful in.” Trial Tr. Vol. I p. 87. Attorney Todd requested, and was granted, permission to “make a record as to what” defense counsel had done “so that people know that there was really no chance of us succeeding on that petition.” Trial Tr. Vol. I p. 87. Attorney Todd explained that

What happened in this case is that while we were preparing for mitigation we determined -- we had a psychologist administer an IQ test which demonstrated that he may be borderline intelligence. Based on that, I filed my petition for determination of mental retardation and began investigating.

As this court is aware, in order to be successful in such a petition we'd have to demonstrate that such a condition manifested before [Shoun] turned age 22. We contacted his mother, as we would for all the mitigation, she'd indicated there was no sign when he was growing up of being mentally impaired, although he was in special classes.

Based on that, we contacted the school, and it was found out that from their record keeper that they had destroyed all of his school records that would be relevant to this issue. My wife is a special ed teacher. I asked her if there may be somebody else in the school system who could find something. She directed me to another individual who confirmed that, in fact, his records were destroyed; and there was no indication that he had any sort of individual educational plan that involved -- involving special ed at all.

Based on that, we obtained his juvenile probation records because he'd been involved with county and the state through the juvenile probation. There was nothing in that, that would indicate that he suffered from any sort of mental impairment. We contacted the Bashor Home where he'd spent some time. They had an analysis of him in their records. Nothing indicated that he had any -- suffered from any mental retardation.

His medical records signify no medical – or mental retardation, and I contacted his juvenile public -- or juvenile probation officer who remembered [Shoun] and said there was nothing that came to her mind that would indicate that he had any sort of mental deficiencies at the time prior to age 22.

There was in one of the records an indication that his father had some mental retardation issues, but that's not anything that we could attribute to [Shoun]. And so based on that, your Honor, we don't think we'd have a good faith basis for moving forward, and we're asking that the Court withdraw our petition and cancel the November 9th hearing.

Trial Tr. Vol. I pp. 87–89.

[30] After Attorney Todd had withdrawn defense counsel's petition, the parties obtained a report detailing a psychological examination of Shoun that had been completed by the Elkhart Community Schools in 2001. The examination had been completed after the administration at his middle school had expressed concern about Shoun's “weak academic skills and defiant behavior” and had questioned “[t]he need for special education services[.]” DA App. Vol. II p. 37. Shoun was determined to have an IQ of “77” and “a borderline range of intellectual functioning.” DA App. Vol. II p. 39. However, testing on individual subject matters indicated that Shoun's scores were “within expected ranges and [did] not meet the learning disability discrepancy criteria.” DA App. Vol. II p. 39. After reviewing the results of Shoun's prior psychological examination, Attorney Todd told the trial court that the examination “kind of confirms my reasons for withdrawing the petition[.]” Trial Tr. Vol. I p. 94. The trial court “noted that also.” Trial Tr. Vol. I p. 94.

[31] Shoun argues that trial counsel was ineffective for failing to obtain evidence indicating that his alleged intellectual disability manifested before he turned twenty-two years of age. Shoun points to the testimony of Drs. Wade and Wingard and argues that defense counsel should have investigated his performance in school by interviewing his first and fourth grade teachers. Defense counsel engaged both Drs. Wade and Wingard prior to trial and, at the time, both found Shoun to suffer from a mild intellectual disability. The evidence provided by Shoun's first and fourth grade teachers during the post-conviction hearing was cumulative of evidence discovered by defense counsel prior to trial, that being that while Shoun struggled academically, he had not been enrolled in special-education classes or given an individualized education plan.

[32] Trial counsel referred to evidence that the defense team had discovered that would call into question the legitimacy of Shoun's claimed intellectual disability. Shoun's mother testified during the penalty phase of Shoun's trial that he had been “real popular” as a child. Trial Tr. Vol. IV p. 166. Shoun's mother indicated that while he had struggled in school, Shoun had not suffered from “any disability[.]” Trial Tr. Vol. IV p. 167. Aeirel testified that Shoun had changed later in life after he had started using synthetic marijuana.

[33] When Shoun was in the eighth grade, his IQ was determined to be seventy-seven. Records relating to his IQ determination indicate that Shoun had reached all developmental milestones within average ranges and, while he had shown a history of low average achievement in school, he had never been held back and had received no special services. Shoun had already been placed in a drug-treatment unit by that time. The record indicates that while Shoun only completed the ninth grade, he obtained a high school diploma in 2009.¹

[34] Prior to trial, Dr. Wingard determined that while Shoun appeared to suffer from a mild intellectual disability, his impaired cognitive functioning was “likely the result of limited intelligence, extensive drug use and/or possibly an inadequate educational experience.” DA Appellant's App. Vol. II p. 28. Dr. Stanley Hoffman indicated prior to trial that although he believed that Shoun's intellectual difficulties would likely pre-date the age of twenty-two because “IQ scores tend to remain stable over time[,]” Dr. Hoffman could “offer no objective proof of that[.]” DA Appellant's App. Vol. II p. 29.

[35] A family assessment dated March 15, 2000, indicated that Shoun “appears to be of average intellect.” PCR Ex. Vol. I p. 218. A drug-treatment plan dated April 24, 2001, when Shoun was fourteen, indicated that Shoun was “intelligent and has good communication skills. [Shoun] also is able to think independently.” PCR Ex. Vol. I p. 190. Shoun's grades improved during periods of structured supervision but regressed during periods in which he had less structure and poor attendance. In 2002, Shoun was found to have used the lack of structure in his home life “to manipulate many opportunities.” PCR Ex. Vol. II p. 2. We conclude that the records demonstrating Shoun's ability to do well academically and to come across as an intelligent person of average intellect during periods when he experienced structure in his homelife supports the finding that Shoun did not suffer from subaverage intellectual function or substantial impairment of adaptive behavior prior to the age of twenty-two.

[36] The record demonstrates that, after determining that Shoun was likely unable to prove that he suffered from significantly subaverage intellectual functioning and substantial impairment of his adaptive behavior, trial counsel made the strategic and tactical decision to withdraw its petition asserting that he was ineligible for LWOP because he was an individual with an intellectual disability as defined by Indiana Code section 35-36-9-2. Given the conflicting evidence in the record relating to Shoun's intellectual abilities and level of adaptive behavior, we will not second-guess trial counsels’ tactical and strategic decision in this regard. See Strickland, 466 U.S. at 690 (“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]”); Danks v. State, 733 N.E.2d 474, 486 (Ind. Ct. App. 2000) (“[W]e do not second-guess strategic decisions requiring reasonable professional judgment even if the strategy or tactic, in hindsight, did not best serve the defendant's interests.”), trans. denied.

[37] The post-conviction court determined that

Counsel is not required to seek out every opportunity for available information as long as the investigation that is completed, and the decisions made subsequent to that investigation are reasonable. Strickland, supra, 466 U.S. at 690–91. Based on the foregoing, the Court finds that trial counsel's investigation, the records trial counsel requested and received, and the witnesses and experts relied upon by trial counsel to assess and determine [Shoun's] intellectual status were more than adequate under the Strickland standard. The Court also finds that trial counsel's decision not to move forward with the Petition Alleging [Intellectual Disability] was a reasonable strategic decision under the circumstances. The Court further finds that the additional evidence presented at the post conviction hearing does not establish that [Shoun] was an individual with an intellectual disability which manifested before he turned twenty-two (22) years of age as defined in Ind. Code § 35-36-9-2 and would not have affected the outcome of his case. For all these reasons, [Shoun's] claims of ineffective assistance of trial counsel for failure to investigate and present witnesses fail.

Appellant's PCR App. Vol. II p. 209 (emphases in original). Upon reviewing both the evidence available to defense counsel at the time of trial and the additional evidence presented by Shoun during the post-conviction proceedings, we cannot say that the evidence “leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745. We therefore affirm the post-conviction court's determination that trial counsel did not render ineffective assistance with regard to its handling of Shoun's claimed intellectual disability.

2. Trial Counsel did Not Render Ineffective Assistance by Failing to Object to Shoun Wearing Restraints During the Penalty Phase

[38] Shoun next contends that his trial counsel “were ineffective for failing to object to the trial court restraining [him] during the penalty phase.” Appellant's Br. p. 63. Shoun asserts that an objection would have been sustained because, by the time of his trial, it was well-settled that the use of visible restraints during trial was only permissible if the defendant was too dangerous to be in the courtroom unrestrained. Appellant's Br. pp. 63–64 (citing Stephenson v. Wilson, 619 F.3d 664, 668 (7th Cir. 2010)). Shoun also argues that the use of restraints is inherently prejudicial and should only have been used as a “ ‘last resort.’ ” Appellant's Br. p. 65 (quoting Ill. v. Allen, 397 U.S. 337, 344 (1970)). For its part, the State contends that “Shoun failed to show that his trial counsel were ineffective for not objecting to Shoun's choice to wear his jail uniform, which included restraints, and the post-conviction court did not err when it reached the same conclusion.” Appellee's Br. p. 64.

[39] During the penalty phase of Shoun's trial, the following exchange occurred between the trial court and Shoun:

[The Court]: ․ Mr. Shoun, the sheriff's department reported to the Court this morning that you did not want to appear in your street clothes. You wanted to wear a jail uniform. Is that correct, sir?

[Shoun]: Yeah.

[The Court]: Okay. Do you still feel that way?

[Shoun]: Yeah.

[The Court]: All right. So is there anything I could do to talk you into wearing your street clothes?

[Shoun]: No.

[The Court]: All right. And you may notice around the bottom of the table we have put a black cloth to cover the front so that --

[Shoun]: So the jury can't see.

[The Court]: Right. That's so the jury can't see the leg irons you're wearing because you've chosen to wear you[r] jail clothes. I'm doing that in an accommodation for you. And I have also had one put on the state's table so that the two will look exactly the same. I wanted you to know that. That is being done for your benefit. I assume that's okay with you too.

[Shoun]: Yeah.

[The Court]: All right.

Trial Tr. Vol. IV pp. 97–98. The trial court revisited the issue, stating “[s]o we have this black cloth around the table which will hide the leg irons. The jury won't be able to see them; and if you keep your hands where they are right now, they won't be able to see them either. So that works for you?” Trial Tr. Vol. IV pp. 102–03. Shoun responded in the affirmative. The trial court revisited the issue a third time, stating that

I want to review what we've talked about here, Mr. Shoun, just to be sure we're clear. Number one, I've tried to talk you into wearing you[r] street clothes, and I asked the sheriff to bring them over when they brought you. So if you decided you wanted to wear your street clothes we could give you time to change into them here -- you know, for your appearance here in the courtroom. You've told me you don't want to wear your street clothes. You want to wear what you're wearing right now, which is a jail uniform and a long[-]sleeved white T-shirt underneath it. Is that correct?

Trial Tr. Vol. IV pp. 105–06. Shoun answered in the affirmative.

[40] At sentencing, the trial court noted that during the penalty phase of trial, Shoun had “insisted on appearing in his jail uniform.” Trial Tr. Vol. IV pp. 247–48. The trial court further noted that

I asked him specifically is there anything I could say or do to convince him to wear street clothes, civilian clothes, and the defendant declined the Court's offer and indicated that he would wear his jail uniform.

His jail uniform included the restraints that he was wearing; and in anticipation of this occurring the Court's administrative assistant made arrangements to acquire some black skirting which was placed around each of the two counsel tables so that there would be no distinguishing between the two of them. And that skirting hid from the jury's view the restraints that were on the defendant. The Court ordered that the table be covered with that skirting to hide the restraints so that they would not be seen.

And at the time that occurred the Court specifically advised the defendant that he did not have to stand up when the jury came in and out of courtroom if he chose not to do so, so that the jury would not be able to see his arm restraints.

The defendant made that election. He decided not to stand up; and from the jury's advantage point, they could not have seen the restraints on his arms or his legs because of the logistics of the courtroom. Again, he chose not to stand up, so the jury would not have been able to see his restraints.

Trial Tr. Vol. IV pp. 248–49.

[41] In denying Shoun's contention that his trial counsel had provided ineffective assistance by failing to object to the use of restraints, the post-conviction court concluded that, to the extent that there had been any error in the use of restraints, Shoun had invited the error. Specifically, the post-conviction court concluded that Shoun had “made the choice to wear his jail uniform, which included his restraints, and cannot now present this argument after having invited any error.” Appellant's PCR App. Vol. II p. 215.

[42] The doctrine of invited error “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.” Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018) (internal quotation omitted). “A party invites an error if it was part of a deliberate, well-informed trial strategy.” Miller v. State, 188 N.E.3d 871, 875 (Ind. 2022) (internal quotation omitted). “This means there must be evidence of counsel's strategic maneuvering at trial to establish invited error.” Id. (internal quotation omitted). The United States Supreme Court has previously noted “that it is not an uncommon defense tactic to produce the defendant in jail clothes in the hope of eliciting sympathy from the jury.” Estelle v. Williams, 425 U.S. 501, 508 (1976).

[43] We agree with the State that the record indicates that the trial court “tried to convince Shoun not to wear his jail unform” and “took pains to mitigate any negative perception of Shoun by putting a black cloth around both tables, allowing Shoun to choose whether he would stand up when the jury entered, and advising Shoun to keep his lands low so [the] restraints were not visible.” Appellee's Br. pp. 64–65. Shoun decided to wear his jail uniform and would not relent in this decision. Shoun, therefore waived his right to appear before the jury in civilian clothing without restraints.² See Howard v. State, 459 N.E.2d 29, 32 (Ind. 1984) (“It is clearly settled that the failure to object to being tried in prison clothes, for whatever reason, is sufficient to waive the right to be tried in civilian clothes, since the central issue for constitutional purposes is whether the accused was compelled to appear before the jury in the prison clothes.”).

[44] The record reveals that Shoun was not compelled to appear before the jury in prison clothes but rather willingly chose to do so. Accordingly, we cannot say that the post-conviction court erred in finding that any potential error was invited by Shoun and, given that Shoun invited the potential error, his counsel cannot be found to have provided deficient performance by failing to object to the use of restraints.³ As the State points out that “[o]n the last day [of trial], Shoun chose to wear his jail uniform that included restraints” and that “[n]o one is responsible for that choice other than Shoun.” Appellee's Br. p. 64.

3. Trial Counsel did Not Render Ineffective Assistance by Failing to Object to the Trial Court's Jury Instructions & Special Verdict Forms

[45] Shoun also contends that trial counsel provided ineffective assistance by failing to object to the trial court's jury instructions and special verdict forms during the penalty phase.

Instructing the jury is generally within the trial court's discretion and is reviewed only for an abuse of that discretion. Instructions are to be read together as a whole and we will not reverse for an instructional error unless the instructions, as a whole, mislead the jury.․ [E]rrors in the giving or refusing of instructions are harmless where a conviction is clearly sustained by the evidence and the jury could not properly have found otherwise.

Buckner v. State, 857 N.E.2d 1011, 1015 (Ind. Ct. App. 2006) (internal citations omitted).

In reviewing a trial court's decision to give or refuse tendered jury instructions, the Court considers: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given.

Cutter v. State, 725 N.E.2d 401, 408 (Ind. 2000).

[46] In order for a criminal defendant to be sentenced to LWOP, the State must prove beyond a reasonable doubt that at least one of the statutorily-listed aggravating factors exists. Ind. Code § 35-50-2-9. “To recommend life without parole, the jury must (1) find at least one aggravating circumstance proven beyond a reasonable doubt, (2) provide a special verdict form for each aggravating circumstance alleged, and (3) find that the aggravating circumstances outweigh any mitigating circumstances.” Pittman v. State, 885 N.E.2d 1246, 1253 (Ind. 2008). “The statute does not require a special verdict form for the weighing determination.” Oberhansley v. State, 208 N.E.3d 1261, 1268 (Ind. 2023).

The weighing determination is regarded as essentially a discretionary function of the jury, rather than as a factual determination.․ The jury's penalty recommendation is binding on the court except where the traditional allocation of functions between judge and jury authorize or require the judge to set aside the jury's findings.

Id. (internal quotations omitted). Thus, “[i]f the jury makes a sentencing recommendation, the court is to sentence the defendant accordingly.” Pittman, 885 N.E.2d at 1253 (internal quotation marks omitted).

[47] As it relates to Shoun, the State alleged that Shoun had been under the custody of the DOC when he committed the murder and that he had mutilated Alter while she was alive. Ind. Code §§ 35-50-2-9(b)(9)(A) and (b)(11). During the penalty phase, the trial court instructed the jury as follows:

You may recommend the sentence of life imprisonment without parole only if you unanimously find:

1. That the State of Indiana has proven beyond a reasonable doubt that at least one of the charged aggravating circumstances exists.

2. That any mitigating circumstance or circumstances that exist are outweighed by the charged and proven aggravating circumstances.

Your recommendation is an important part of the sentencing process. The judge must follow your sentencing recommendation.

Nothing that I say or do during this phase of the trial is intended as a suggestion of what facts you should find or what your recommendation for sentencing should be. Each of you must determine the facts and make your sentencing recommendation accordingly.

The burden is upon the state to prove beyond a reasonable doubt the existence of an aggravating circumstance. It is a strict and heavy burden. The evidence must overcome any reasonable doubt concerning the existence of the aggravating circumstance, but it does not mean that the existence of the aggravating circumstance must be proved beyond all possible doubt.

A reasonable doubt is a fair, actual, and logical doubt based upon reason and common sense.․ Reasonable doubt exists when you are not firmly convinced of the existence of the aggravating circumstance, after you have weighed and considered all the evidence.

You must not find that an aggravating circumstance exists on the basis of suspicion or speculation. It is not enough for the state to show that the aggravating circumstance probably exists. On the other hand, there are very few things in this world that we know with absolute certainty. The state does not have to overcome every possible doubt.

The state must prove an aggravating circumstance by evidence that firmly convinces each of you and leaves no reasonable doubt. The proof must be so convincing that you can rely and act upon it in this matter of the highest importance.

If you find that there is a reasonable doubt that an aggravating circumstance exists, you must give the defendant the benefit of that doubt and find that the aggravating circumstance does not exist.

Trial Tr. Vol. IV pp. 34–36. The trial court further instructed the jury that

[b]efore you may consider recommending life imprisonment without parole, you must unanimously find that the State of Indiana has proven beyond a reasonable doubt that:

Michael T. Shoun did kill one Tiana Alter, while under the custody of the [DOC] as defined by Indiana Code 35-50-2-9(b)(9)(A) or; that the said Michael T. Shoun did mutilate the victim while she was alive as defined by Indiana Code 35-50-2-9(b)(11).

If you do not so unanimously find, you must recommend against life imprisonment without parole.

You are not permitted to consider any circumstances as weighing in favor of the sentence of life imprisonment without parole other than the aggravating circumstances specifically charged by the state in the charging information.

The Court will provide you with a verdict form as to the aggravating circumstances and you must sign said form if there is unanimous agreement.

If you unanimously find that at least one charged aggravating circumstance has been proven beyond a reasonable doubt, you must next consider the mitigating circumstances and then weigh the aggravating circumstance or circumstances against the mitigating circumstance or circumstances. You may only consider recommending the sentence of life imprisonment without parole if you unanimously find that the aggravating circumstances – or circumstance or circumstances outweigh, outweighs the mitigating circumstance or circumstances.

Even if you unanimously find that the state has met its burden of proof as to the existence of the charged aggravating circumstance or circumstances and that the aggravating circumstance or circumstances outweigh the mitigating circumstances or circumstances, the law allows you to recommend that the judge impose a term of years instead of the sentence of life imprisonment without parole.

The Court will provide you with a verdict form as to the finding that you must make in regard to whether the aggravating circumstance or circumstances outweigh the mitigating circumstance or circumstances. Further, the Court will provide you with a verdict form to complete in regard to your sentencing recommendation.

For any of you to find that a mitigating circumstances [(sic)] exists, you must find that it has been proven by a preponderance of the evidence. A preponderance of the evidence means that it is only necessary to prove that a fact is more probably true than not true.

Trial Tr. Vol. IV pp. 216–18.

[48] The trial court reiterated that “[a]ny findings you enter in a verdict form must be unanimous. Do not enter any findings or sign any verdict form to which there has not been a unanimous agreement.” Trial Tr. Vol. II p. 222. The trial court further instructed the jury that “[t]o return a verdict, each of you must agree to it.” Trial Tr. Vol. IV p. 226. The relevant portion of the verdict form read as follows:

We, the Jury, find that the State of Indiana has proven beyond a reasonable doubt the charged aggravating circumstance that MICHAEL T. SHOUN did kill one Tiana Alter, While under the custody of the [DOC] as defined by IC. § 35-50-2-9(b)(9)(A)

-or-

that the said MICHAEL T. SHOUN did mutilate the victim while she was alive as defined by IC. 35-58-2-9(b)(11).

DA App. Vol. I p. 169. The jury additionally found that the “charged aggravating circumstance(s) that exist outweigh any mitigating circumstances herein” and recommended “a sentence of life imprisonment without parole[.]” DA App. Vol. I pp. 170, 171.

[49] Shoun acknowledges that the State could provide the jury with alternative ways to find him guilty as to one element but points to the Indiana Supreme Court's decision in Baker v. State, 948 N.E.2d 1169, 1175 (Ind. 2011), which provides that

a disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two or more underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense.

In claiming that trial counsel provided ineffective assistance by failing to object to the trial court's instructions and special verdict forms, Shoun argues

The instruction's use of disjunctive language did not tell jurors they had to unanimously agree on the existence of the same aggravating factor beyond a reasonable doubt. The special verdict form served to compound the problem because it had only one place for the jury to mark regardless of which aggravating factor the jury found. It is possible some jurors believed Shoun committed one aggravating factor while other jurors believed it was the other. Given the disjunctive language, it cannot be determined whether the jury unanimously agreed upon the same aggravating factor beyond a reasonable doubt. Counsel should have insisted each aggravating factor have a special verdict form as the statute requires.

Appellant's Br. p. 71. Shoun asserts that he was prejudiced because “[d]ue to the disjunctive language, we do not know that [the jury] agreed the same aggravating factor existed by the required burden.” Appellant's Br. p. 72.

[50] For its part, the State contends that the jury instructions properly stated the law and, even if we were to assume that the jury had been improperly instructed, Shoun was not prejudiced because the State had repeatedly argued that they needed to (and did) prove both alleged aggravators and “there was no dispute about whether the alleged aggravators existed because the evidence proving that Shoun was in DOC custody and mutilated Alter's body was overwhelming.” Appellee's Br. p. 71. Specifically, the State argues that

[t]he evidence supporting the alleged aggravators was overwhelming. The jury was able to consider all of the evidence presented during the guilt phase of trial. Additionally, the judge who ordered Shoun to be placed in DOC custody testified that he did so and that Shoun was still in custody when the murder occurred. As for mutilation, the forensic pathologist explained that some of Alter's abdominal organs were not in the proper place: part of her intestines were outside of her body and intertwined with her kidney and spleen, which had both been detached from her body, as well as a portion of her liver. There was no doubt that the “vast majority” of Alter's injuries occurred while she was alive. And she had so many stab wounds that there were too many to count. So even if trial counsel had objected to the jury instructions and verdict forms, the result would be the same—the jury would have found the existence of the aggravators and recommended LWOP.

Appellee's Br. pp. 72–73 (internal record citations omitted). We agree with the State that the evidence proving the aggravators was overwhelming and reiterate that “errors in the giving or refusing of instructions are harmless where a conviction is clearly sustained by the evidence and the jury could not properly have found otherwise.” Buckner, 857 N.E.2d at 1015.

[51] Moreover, the State pointed out that “[d]efense counsel's strategy during the penalty phase was to highlight the mitigating facts and argue that those mitigating facts made a term-of-years sentence more appropriate; they did not dispute the aggravators at all.” Appellee's Br. pp. 71–72. During their opening statement during the penalty phase, defense counsel told the jury that the

ultimate question for your consideration must be: Is it necessary to place Mr. Shoun in the [DOC] until he dies? That's the ultimate question. I will not ask you for sympathy. I will ask you to consider the state's case and consider the mitigating factors that I intend to present for your consideration and your review[.]

Trial Tr. Vol. IV p. 43. Defense counsel focused on the mitigating evidence and rhetorically asked the jury “[b]ecause you can recommend life without parole the question to you is: Should you? Simple. Simple as that.” Trial Tr. Vol. IV pp. 205–06. Trial counsel further stated

Michael Shoun will be punished. The potential punishment will be included in the instructions. It is a long range of penalty. During that period of time, it is possible that Michael Shoun could achieve redemption. Redemption doesn't mean bringing someone back, but redemption is available to him with a period of years. Is life without parole necessary? Is it necessary to punish him to the degree that is appropriate in this case given all of the circumstances?

Trial Tr. Vol. IV p. 209. It is clear from the trial record that trial counsel had made the tactical decision to focus on the mitigating circumstances and argue that LWOP was inappropriate. We will not second-guess but rather will defer to counsel's strategic and tactical decisions. Smith, 765 N.E.2d at 585.

[52] In denying Shoun the requested relief, the post-conviction court found that

[i]n the instant case, the jury was properly instructed. A review of the Trial Transcript concerning Phase II Jury Instructions and Verdict Forms as set out above absolutely shows that the Jury Instructions and the Verdict Forms did inform the jury that unanimous agreement regarding an aggravating factor or factors was required. The wording of the Instructions and the Verdict Forms accurately state the law, and the Court properly advised the jury that they had to unanimously agree upon at least one of the aggravating circumstances. The instructions provided by the Court, read as a whole, including the instructions on how to fill out the Verdict Forms, clearly show that the Court properly instructed the jury that they had to unanimously find that at least one charged aggravating circumstance was proven beyond a reasonable doubt, and that aggravating circumstance or circumstances outweighs the mitigating circumstance or circumstances. The Court also told the jury that a signature on the Verdict Form as to the aggravating circumstances meant that the jury was in unanimous agreement. It is irrelevant whether or not the Forms indicated which one or both.

Moreover, this Court notes that trial judge Terry C. Shewmaker used the Pattern Jury Instructions and Verdict Forms approved by the Indiana Supreme Court in advising the jury. The Instructions were clear; therefore, the Court finds that it is unlikely that an objection to the Instructions or the Verdict Forms by trial counsel would have been sustained by the Court.

Appellant's PCR App. Vol. II pp. 222–23.

[53] The jury instructions, when read as a whole, clearly informed the jury that their decision as to the aggravators had to be unanimous. The State's argument indicated that it would prove both and the overwhelming evidence did prove both aggravators. Moreover, trial counsel made a tactical decision to highlight the mitigating factors and to argue that, given Shoun's intellectual deficiencies coupled with the mitigating factors, LWOP was inappropriate. As such, we cannot say that the evidence, taken as a whole, “leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745.

4. The Alleged Cumulative Error Did Not Render Trial Counsel's Assistance Ineffective

[54] As it relates to trial counsel, Shoun last contends that a new penalty phase is necessary because “[t]he cumulative effect of counsel's errors deprived Shoun of his right to the effective assistance of counsel depriving him of his rights protected by the Sixth and Fourteenth Amendments to the United States Constitution.” Appellant's Br. p. 74. While we agree with Shoun that “[e]rrors by counsel that are not individually sufficient to prove ineffective representation may add up to ineffective assistance when viewed cumulatively[,]” Pennycuff v. State, 745 N.E.2d 804, 816–17 (Ind. 2001), in this case, Shoun has failed to establish any deficient performance by trial counsel, much less deficiencies that would compound to render counsel's performance ineffective. See Thompson v. State, 728 N.E.2d 155, 163 (Ind. 2000) (providing that when no prejudice resulted from any of the allegedly erroneous rulings, their cumulative effect remained at zero).

B. Appellate Counsel

[55] Again, “[t]he standard of review for appellate counsel is the same as for trial counsel in that the defendant must show appellate counsel was deficient in his or her performance and that the deficiency resulted in prejudice.” Garrett, 992 N.E.2d at 719. “[I]neffective assistance of appellate counsel claims generally fall into three categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well.” Hollowell, 19 N.E.3d at 270.

To show that counsel was ineffective for failing to raise an issue on appeal thus resulting in waiver for collateral review, the defendant must overcome the strongest presumption of adequate assistance, and judicial scrutiny is highly deferential. To evaluate the performance prong when counsel waived issues upon appeal, we apply the following test: (1) whether the unraised issues are significant and obvious from the face of the record and (2) whether the unraised issues are clearly stronger than the raised issues. If the analysis under this test demonstrates deficient performance, then we examine whether, the issues which ․ appellate counsel failed to raise, would have been clearly more likely to result in reversal or an order for a new trial.

Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006) (internal citations omitted, ellipsis in original). Further, we must

consider the totality of an attorney's performance to determine whether the client received constitutionally adequate assistance. Under this analysis, the reviewing court should be particularly sensitive to the need for separating the wheat from the chaff in appellate advocacy, and should not find deficient performance when counsel's choice of some issues over others was reasonable in light of the facts of the case and the precedent available to counsel when that choice was made.

Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997) (internal citations omitted). “Ineffective assistance is very rarely found in cases where a defendant asserts that appellate counsel failed to raise an issue on direct appeal.” Reed, 856 N.E.2d at 1196. “One reason for this is that the decision of what issues to raise is one of the most important strategic decisions to be made by appellate counsel.” Id.

1. Appellate Counsel did Not Render Ineffective Assistance by Failing to Raise the Issue of the Use of Restraints During the Penalty Phase of Trial on Direct Appeal

[56] Shoun contends that his appellate counsel rendered ineffective assistance “because counsel failed to raise the significant and obvious issue that he was impermissibly shackled before his penalty phase jury.” Appellant's Br. p. 76. Shoun asserts that this “issue was obvious and significant” and was “clearly stronger” than the issues that appellate counsel presented. Appellant's Br. pp. 76, 77. Having already concluded that Shoun had invited any potential error in the use of restraints during the penalty phase of his trial, we further conclude that Shoun has not “overcome the strongest presumption of adequate assistance” by appellate counsel in deciding which issues to raise on direct appeal. Reed, 856 N.E.2d at 1195. We cannot say that the post-conviction court erred in reaching the same conclusion.

2. Appellate Counsel did Not Render Ineffective Assistance by Failing to Challenge the Jury Instructions and Verdict Forms on Direct Appeal

[57] Shoun again contends that his appellate counsel rendered ineffective assistance because the jury-instruction issue “was significant and obvious on the record” and “was clearly stronger than the issues counsel presented on direct appeal.” Appellant's Br. pp. 83, 84. We disagree. As is established above, even if we were to conclude that the trial court had erred in instructing the jury, any error in instructing the jury was, at most, harmless because the aggravators were “clearly sustained by the evidence and the jury could not properly have found otherwise.” Buckner, 857 N.E.2d at 1015.

[58] The post-conviction court rejected Shoun's claim that appellate counsel had rendered ineffective assistance by not raising this issue on direct appeal, finding that counsel “strategically did not focus” on this issue. Appellant's PCR App. Vol. II p. 212. The record reveals that appellate counsel had “immerse[d]” himself in the record, to evaluate what issues he thought were “worth being raised, what ha[d] a chance to potentially get some relief or some exploration in law.” PCR Tr. Vol. II p. 37. Appellate counsel indicated that he would have reviewed the jury instructions and verdict forms and, “[i]f [he] had found an issue with either of those,” would have raised it on direct appeal. PCR Tr. Vol. II p. 45. Ultimately, appellate counsel made the strategic decision to raise other issues on appeal. Again, “the decision of what issues to raise is one of the most important strategic decisions to be made by appellate counsel[,]” and we defer to counsel's strategic decision. Reed, 856 N.E.2d at 1196.

[59] We conclude that Shoun has not “overcome the strongest presumption of adequate assistance” by appellate counsel in deciding which issues to raise on direct appeal. Id. at 1195. We cannot say that the post-conviction court erred in reaching the same conclusion.

II. Shoun's LWOP Sentence Is Not Illegal

[60] Shoun argues that his LWOP sentence is illegal because he “is and always has been intellectually disabled.” Appellant's Br. p. 86. Again, the State may not seek an LWOP sentence against a defendant who “is an individual with an intellectual disability.” Ind. Code § 35-50-2-9(a). The term “ ‘individual with an intellectual disability’ means an individual who, before becoming twenty-two (22) years of age, manifests: (1) significantly subaverage intellectual functioning; and (2) substantial impairment of adaptive behavior; that is documented in a court ordered evaluative report.” Ind. Code § 35-36-9-2. “The defendant must prove both these elements by a preponderance of the evidence.” Russell, 234 N.E.3d at 844. “And we review a trial court's finding of whether the defendant is intellectually disabled for clear error.” Id.

[61] With regard to Shoun's claim that his LWOP sentence is illegal, the post-conviction court found as follows:

In his grounds for relief, [Shoun] raised a free standing claim that his LWOP sentence is an illegal sentence. This free standing claim was raised on direct appeal on three bases and was decided adversely to [Shoun]. Therefore, as a freestanding claim, the sentencing issue is res judicata. However, [Shoun] raised this same claim on post conviction in the context of an ineffective assistance of counsel claim which requires analysis under that standard. Specifically, [Shoun] contends that trial counsel was ineffective for failing to object or assert a claim that [his] LWOP sentence was imposed in violation of the state and federal constitution. Contrary to [Shoun's] argument, appellate counsel raised this exact argument on direct appeal, and the Indiana Supreme Court specifically determined that the sentence was not unconstitutionally disproportionate pursuant to Article 1, Section 16 of the Indiana Constitution considering the severe nature of the crime. Shoun, supra, 67 N.E.3d at 640. Accordingly, [Shoun's] claim of unconstitutionality of the LWOP sentence is res judicata and fails.

Appellant's App. Vol. II p. 217 (emphases in original).

[62] Shoun asserts that his freestanding claim is not barred by the doctrine of res judicata because his arguments on direct appeal were different, i.e., that the trial court committed fundamental error by not, sua sponte, finding his LWOP sentence to be illegal, unconstitutionally disproportionate, and inappropriate. For its part, the State asserts that “[t]o the extent that the issues raised in Shoun's direct appeal do not perfectly align with his argument on post-conviction, that difference is immaterial. Even if the precise claim were not raised on direct appeal, then the issue is still waived for purposes of post-conviction” because it was known and available at the time of Shoun's direct appeal. Appellee's Br. pp. 76–77. However, we need not decide whether Shoun's claim is barred by res judicata or is waived because we conclude that it fails on the merits.

[63] While Shoun points to the testimony of Drs. Chambers, Wade, and Wingard in support of his claim that he had proved that he suffered from significantly subaverage intellectual function and a substantial impairment of adaptive behavior, there was conflicting evidence before both the trial and post-conviction courts regarding the severity of Shoun's claimed intellectual disability. While the post-conviction court decided the issue on res judicata grounds, the post-conviction court also found “that the additional evidence presented at the post[-]conviction hearing does not establish that [Shoun] was an individual with an intellectual disability which manifested before he turned twenty-two (22) years of age as defined in Ind. Code § 35-36-9-2[.]” Appellant's App. Vol. II p. 209. Given the conflicting evidence regarding Shoun's claimed intellectual disability, we cannot say that the post-conviction court's determination in this regard amounted to clear error as the post-conviction court was in the best position to weigh conflicting evidence and to determine which witnesses and evidence to credit. See Tharp, 942 N.E.2d at 816 (“[T]he fact finder is best positioned to judge the credibility of these witnesses, is free to credit or discredit testimony, and weigh conflicting evidence.”).

[64] The judgment of the post-conviction court is affirmed.

FOOTNOTES

1.   Shoun disputes the evidence indicating that he had received a high school diploma in 2009, pointing to the testimony of a witness who claimed otherwise. The post-conviction court was in the best position to weigh conflicting evidence and to determine which witnesses and evidence to credit. See Tharp v. State, 942 N.E.2d 814, 816 (Ind. 2011) (“[T]he fact finder is best positioned to judge the credibility of these witnesses, is free to credit or discredit testimony, and weigh conflicting evidence.”).

2.   The United States Court of Appeals for the Seventh Circuit has recognized that a criminal defendant with a low IQ or intellectual deficiencies may waive constitutional rights. See Collins v. Gaetz, 612 F.3d 574, 588 (7th Cir. 2010).

3.   Shoun asserts that both the trial and post-conviction court “incorrectly believed a jail uniform includes shackles.” Appellant's Br. p. 68. Shoun, however, points to no evidence to support his assertion that his jail uniform, while worn outside of the jail, did not include restraints.

Bradford, Judge.

Tavitas, C.J., and Felix, J., concur.