Donald A. Pierce, Appellant-Petitioner,
State of Indiana, Appellee-Respondent.
from the Crawford Circuit Court The Honorable Sabrina R.
Bell, Judge Trial Court Cause No. 13C01-1204-PC-1
ATTORNEY FOR APPELLANT A. David Hutson Hutson Legal
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Caroline G. Templeton Deputy Attorney General
of the Case
Donald A. Pierce appeals the post-conviction court's
denial of his petition for post-conviction relief. Pierce
raises five issues for our review, which we restate as the
following two issues:
1. Whether the post-conviction court's findings and
conclusions are adequate.
2. Whether the post-conviction court clearly erred when it
found and concluded that Pierce had not received ineffective
assistance from his trial counsel.
and Procedural History
The facts underlying Pierce's multiple child molesting
convictions were detailed by this Court in his direct appeal:
The facts most favorable to the jury's verdict indicate
that J.W. was born on October 10, 1995. Her parents
eventually divorced, and J.W. lived with her mother,
Michelle. Michelle began dating Donald A. Pierce, and around
the time J.W. was turning ten years old, Pierce moved into
the home J.W. shared with her mother. Due to Michelle's
work schedule, Pierce regularly spent time alone with J.W.
One day, in April of 2006, Pierce was home alone with J.W.
when he began touching her on her vagina through her clothes.
Pierce then asked J.W. if she wanted to play a game. Pierce
instructed J.W. to take off her clothes and lie on the couch.
Pierce removed his clothes, laid on top of J.[W]., and put
his "private" on her "private." Pierce
then began to move up and down on top of J.W. After Pierce
was finished, J.W. discovered that her "private"
was all wet. J.W. felt disgusted.
Pierce and J.W. played that "game" again the
following weekend. They played the game approximately every
other weekend, when J.W. was not visiting her father, for
over one year. On some occasions, Pierce put his mouth on
J.W.'s "private." On some occasions, Pierce put
his penis inside J.W.'s "private." And, on some
occasions, Pierce touched J.W.'s "private" with
Pierce v. State, No. 13A04-0908-CR-480, 2010 WL
4253698, at *1 (Ind.Ct.App. Jan. 6, 2011) (citations
omitted), summarily aff'd in relevant part and
vacated on other grounds, 949 N.E.2d 349, 351 (Ind.
2011). On direct appeal, we affirmed Pierce's convictions
and remanded with instructions for the trial court to correct
a sentencing error. Id. However, on transfer, our
Supreme Court exercised its discretion to revise Pierce's
sentence pursuant to Indiana Appellate Rule 7(B). 949 N.E.2d
at 352-53. In all other respects, our Supreme Court declined
to review our Court's resolution of Pierce's appeal.
Id. at 351.
Thereafter, Pierce filed an amended petition for
post-conviction relief in which he alleged that he had
received ineffective assistance from his trial counsel. In
particular, Pierce first alleged he had received ineffective
assistance because his
trial counsel failed to investigate potential exculpatory
evidence. She failed to obtain medical and/or psychological
notes and/or police reports that would have included
information that could have been used to impeach J.W.
Pierce's trial counsel failed to conduct a full fact
investigation and to call witnesses who could have supported
Appellant's App. Vol. 2 at 54. He further alleged that
his trial counsel had rendered ineffective assistance when
she had "failed to object to child abuse syndrome
evidence and other prejudicial evidence." Id.
And he alleged that his counsel had ineffectively failed to
"withdraw from Pierce's representation when a
personal conflict of interest arose during the trial."
Following an evidentiary hearing, the post-conviction court
rejected each of Pierce's three alleged bases of
ineffective assistance of trial counsel. Regarding
Pierce's claim that his trial counsel had failed to
investigate, the post-conviction court found and concluded as
28. Trial [c]ounsel testified that she believed she had
obtained the child's mental health records and would have
passed them on if she had them in her possession.
29. The counseling records were admitted as an exhibit at the
post-conviction hearing. No evidence was admitted that showed
that[, ] had the records been admitted, the outcome of the
trial would have been different.
30. Trial counsel testified that she did not subpoena the
Kosair [Hospital] records because, based on her experience,
she did not expect anything useful to be found in those
records. The records did not reveal anything that would
indicate a change in the outcome of the trial.
31. Kosair Hospital records were admitted as an exhibit at
the post-conviction hearing and contained the following
a. The records state that "Pt. disclosed to paternal
grandparents that her mother's boyfriend had been in bed
with her '3 or 4 times.' She states she woke up from
sleep with him on top of her. Las[t] time was about 2 months
ago. Had her first period about 1 month ago?["]
b. The records also state "11 y/o Caucasian . . . being
allegedly sexually assaulted by mom's boyfriend. Has
happened several times over last few months [indecipherable.]
He puts his private in her private . . . puts [sic] like to
have a baby . . . ."
32. Trial [c]ounsel testified she attempted to have an expert
witness, a psychiatrist from Indianapolis, to try to find
something to say that what [Pierce] was saying was the truth.
33. Trial [c]ounsel testified she made the decision not to
call the witness because his testimony would have been very
34. Further, she kept the information as attorney work
35. Trial [c]ounsel testified that Amy Razor admitted she
would perjure herself and give [Pierce] an alibi.
36. Trial [c]ounsel testified her own witnesses had nothing
Failure to Subpoena Kosair Records
34. Trial counsel did not subpoena the child's medical
records from Kosair Hospital because[, ] in her experience,
there was nothing of consequence that would come from the
35. The records from Kosair Hospital were admitted at the
post-conviction hearing. There was no evidence admitted that
the admission of the records would have changed the outcome
of the trial.
Failure to Subpoena Counseling Records
37. Trial counsel believed she had obtained all of the
child's mental health records, and [she] would have
passed them on if she had them in her possession.
39. Trial [c]ounsel testified that she did obtain the mental
health records. There was no evidence presented that the
mental health records would have been admitted into evidence
or that the admission of the counseling records would change
the outcome of trial.
[Failure to Call Witnesses]
40. Trial counsel's failure to call witnesses is a matter
of strategy on counsel's part . . . .
41. Trial [c]ounsel chose not to call the previously
mentioned witnesses because they had nothing to add and she
had a duty to prevent putting what she knew to be false
information before the Court.
Id. at 151-52, 159-60.
Regarding Pierce's claim that his trial counsel had
rendered ineffective assistance by failing to object to the
admission of certain evidence at trial, the post-conviction
court found and concluded as follows:
21. Trial [c]ounsel testified the whole defense was that the
victim was a liar.
22. Trial [c]ounsel testified that victim's therapist,
Teresa Faulkner, believed the victim.
23. At trial, the State, without objection from trial
counsel, elicited testimony from Teresa Faulkner . . . as to
the types of behaviors exhibited in children who have been
abused, the profile of a typical child molesting victim, and
the way that abuse by a child molester begins.
24. Trial counsel did not object to this testimony because,
based on her experience, including observations of that
particular trial court judge, she did not think such an
objection would be sustained.
25. Trial [c]ounsel testified she did not cross-examine the
therapist and wanted her ...