MEMORANDUM DECISION Feb 03 2015, 8:49 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Fabian Gomez Gregory F. Zoeller Carlisle, Indiana Attorney General of Indiana Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Fabian Gomez, February 3, 2015
Appellant-Petitioner, Court of Appeals Cause No. 45A03-1405-PC-145 v. Appeal from the Lake Superior Court. The Honorable Samuel L. Cappas, State of Indiana, Judge. Appellee-Respondent The Honorable Natalie Bokota, Magistrate. Cause No. 45G04-1003-PC-5
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015 Page 1 of 8 [1] Fabian Gomez appeals the denial of his petition for post-conviction relief. He
argues that the trial court considered an improper aggravating factor during his
sentencing and contends that his appellate counsel was ineffective for failing to
argue that the same sentencing factor was improper on direct appeal. Finding
that Gomez failed to show that appellate counsel was ineffective because there
was no error in sentencing, we affirm.
Facts [2] The facts underlying this case are as follows:
On December 28, 2006, Gomez shot his girlfriend, Jennifer Montejano, in the face during an argument inside their apartment in East Chicago, Indiana. Gomez called the police, and the responding officer found Jennifer lying on the floor of the apartment with blood on her face. The officer observed that Jennifer was still alive, but was having difficulty breathing, and that it sounded like “she was drowning in her own blood.” Jury Trial Tr. at 224. The paramedics arrived and transported Jennifer to the hospital. She had a gunshot wound to the bridge of her nose and was in critical condition. Jennifer was admitted into the hospital and died on January 7, 2007. An autopsy was performed and revealed that the cause of death was a gunshot wound to the face.
Gomez v. State, 907 N.E.2d 607, 609 (Ind. Ct. App. 2009). On December 29,
2006, the State charged Gomez with aggravated Class B felony battery, Class C
felony battery, and Class C felony criminal recklessness. On September 28,
2007, the trial court allowed the State to amend the charging information; a
count of murder was added.
Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015 Page 2 of 8 [3] On July 31, 2008, a jury convicted Gomez of class A felony voluntary
manslaughter, class B felony aggravated battery, class C felony aggravated
battery, and class C felony criminal recklessness. The trial court entered
judgment on only the voluntary manslaughter conviction. During sentencing,
the trial court considered the fact that Gomez had committed the crime in front
of minor children as an aggravator and also considered the facts and
circumstances surrounding the crime as an aggravator. It sentenced Gomez to
forty years imprisonment at the Department of Correction.
[4] In his direct appeal, Gomez argued that the trial court had improperly allowed
the State to amend the charging information and maintained that the State had
not presented sufficient evidence to support his voluntary manslaughter
conviction. This Court affirmed his conviction. Gomez, 907 N.E.2d at 608.
Gomez filed his petition for post-conviction relief on March 22, 2010, but it was
withdrawn on July 30, 2010. It was reactivated on August 28, 2013, and the
post-conviction court held a hearing on the petition on November 25, 2013.
The post-conviction court denied Gomez’s petition, issuing its findings of fact
and conclusions of law on April 24, 2014. Gomez now appeals.
Discussion and Decision [5] Gomez argues that the post-conviction court erred in denying his petition for
post-conviction relief because his appellate counsel was ineffective for failing to
argue that the trial court considered an improper aggravating factor during
sentencing. Post-conviction proceedings are not “super appeals” through which
Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015 Page 3 of 8 convicted persons can raise issues they failed to raise at trial or on direct appeal.
Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012), trans. denied. Rather,
post-conviction proceedings afford petitioners a limited opportunity to raise
issues that were unavailable or unknown at trial and on direct appeal. Davidson
v. State, 763 N.E.2d 441, 443 (Ind. 2002). A post-conviction petitioner bears the
burden of establishing grounds for relief by a preponderance of the evidence.
Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). To prevail on appeal from the
denial of post-conviction relief, the petitioner must show that the evidence as a
whole leads unerringly and unmistakably to a conclusion opposite that reached
by the post-conviction court. Id. at 643-44.
[6] Where, as here, the post-conviction court makes findings of fact and
conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we
cannot affirm the judgment on any legal basis, but rather, must determine if the
court’s findings are sufficient to support its judgment. Graham v. State, 941
N.E.2d 1091, 1096 (Ind. Ct. App. 2011). We will not reweigh the evidence or
judge the credibility of witnesses, and will consider only the probative evidence
and reasonable inferences flowing therefrom that support the post-conviction
court’s decision. Id.
[7] Gomez contends that his appellate counsel failed to provide effective assistance
of counsel. He maintains that his appellate counsel should have argued that the
trial court considered an improper aggravating factor—that his crime was
committed in the presence of minor children—on direct appeal. Ineffective
assistance of appellate counsel claims generally fall into three categories: 1)
Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015 Page 4 of 8 denial of access to an appeal; 2) waiver of issues; and 3) failing to present issues
well. Henley v. State, 881 N.E.2d 639, 644 (Ind. 2008). The standard for
evaluating claims of ineffective assistance of counsel at the appellate level is the
same two-prong Strickland standard used for trial counsel. Strickland v.
Washington, 466 U.S. 668 (1984); Allen v. State, 749 N.E.2d 1158, 1166–67 (Ind.
2001). Therefore, Robertson must prove that appellate counsel performed
deficiently and that he was prejudiced as a result. Id.
[8] Gomez’s ineffective assistance of counsel argument is based on his contention
that the trial court improperly considered the fact that he committed a crime in
front of minor children as an aggravating factor.1 He argues that, since the trial
court determined that his mental condition precluded awareness that he was on
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MEMORANDUM DECISION Feb 03 2015, 8:49 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Fabian Gomez Gregory F. Zoeller Carlisle, Indiana Attorney General of Indiana Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Fabian Gomez, February 3, 2015
Appellant-Petitioner, Court of Appeals Cause No. 45A03-1405-PC-145 v. Appeal from the Lake Superior Court. The Honorable Samuel L. Cappas, State of Indiana, Judge. Appellee-Respondent The Honorable Natalie Bokota, Magistrate. Cause No. 45G04-1003-PC-5
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015 Page 1 of 8 [1] Fabian Gomez appeals the denial of his petition for post-conviction relief. He
argues that the trial court considered an improper aggravating factor during his
sentencing and contends that his appellate counsel was ineffective for failing to
argue that the same sentencing factor was improper on direct appeal. Finding
that Gomez failed to show that appellate counsel was ineffective because there
was no error in sentencing, we affirm.
Facts [2] The facts underlying this case are as follows:
On December 28, 2006, Gomez shot his girlfriend, Jennifer Montejano, in the face during an argument inside their apartment in East Chicago, Indiana. Gomez called the police, and the responding officer found Jennifer lying on the floor of the apartment with blood on her face. The officer observed that Jennifer was still alive, but was having difficulty breathing, and that it sounded like “she was drowning in her own blood.” Jury Trial Tr. at 224. The paramedics arrived and transported Jennifer to the hospital. She had a gunshot wound to the bridge of her nose and was in critical condition. Jennifer was admitted into the hospital and died on January 7, 2007. An autopsy was performed and revealed that the cause of death was a gunshot wound to the face.
Gomez v. State, 907 N.E.2d 607, 609 (Ind. Ct. App. 2009). On December 29,
2006, the State charged Gomez with aggravated Class B felony battery, Class C
felony battery, and Class C felony criminal recklessness. On September 28,
2007, the trial court allowed the State to amend the charging information; a
count of murder was added.
Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015 Page 2 of 8 [3] On July 31, 2008, a jury convicted Gomez of class A felony voluntary
manslaughter, class B felony aggravated battery, class C felony aggravated
battery, and class C felony criminal recklessness. The trial court entered
judgment on only the voluntary manslaughter conviction. During sentencing,
the trial court considered the fact that Gomez had committed the crime in front
of minor children as an aggravator and also considered the facts and
circumstances surrounding the crime as an aggravator. It sentenced Gomez to
forty years imprisonment at the Department of Correction.
[4] In his direct appeal, Gomez argued that the trial court had improperly allowed
the State to amend the charging information and maintained that the State had
not presented sufficient evidence to support his voluntary manslaughter
conviction. This Court affirmed his conviction. Gomez, 907 N.E.2d at 608.
Gomez filed his petition for post-conviction relief on March 22, 2010, but it was
withdrawn on July 30, 2010. It was reactivated on August 28, 2013, and the
post-conviction court held a hearing on the petition on November 25, 2013.
The post-conviction court denied Gomez’s petition, issuing its findings of fact
and conclusions of law on April 24, 2014. Gomez now appeals.
Discussion and Decision [5] Gomez argues that the post-conviction court erred in denying his petition for
post-conviction relief because his appellate counsel was ineffective for failing to
argue that the trial court considered an improper aggravating factor during
sentencing. Post-conviction proceedings are not “super appeals” through which
Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015 Page 3 of 8 convicted persons can raise issues they failed to raise at trial or on direct appeal.
Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012), trans. denied. Rather,
post-conviction proceedings afford petitioners a limited opportunity to raise
issues that were unavailable or unknown at trial and on direct appeal. Davidson
v. State, 763 N.E.2d 441, 443 (Ind. 2002). A post-conviction petitioner bears the
burden of establishing grounds for relief by a preponderance of the evidence.
Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). To prevail on appeal from the
denial of post-conviction relief, the petitioner must show that the evidence as a
whole leads unerringly and unmistakably to a conclusion opposite that reached
by the post-conviction court. Id. at 643-44.
[6] Where, as here, the post-conviction court makes findings of fact and
conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we
cannot affirm the judgment on any legal basis, but rather, must determine if the
court’s findings are sufficient to support its judgment. Graham v. State, 941
N.E.2d 1091, 1096 (Ind. Ct. App. 2011). We will not reweigh the evidence or
judge the credibility of witnesses, and will consider only the probative evidence
and reasonable inferences flowing therefrom that support the post-conviction
court’s decision. Id.
[7] Gomez contends that his appellate counsel failed to provide effective assistance
of counsel. He maintains that his appellate counsel should have argued that the
trial court considered an improper aggravating factor—that his crime was
committed in the presence of minor children—on direct appeal. Ineffective
assistance of appellate counsel claims generally fall into three categories: 1)
Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015 Page 4 of 8 denial of access to an appeal; 2) waiver of issues; and 3) failing to present issues
well. Henley v. State, 881 N.E.2d 639, 644 (Ind. 2008). The standard for
evaluating claims of ineffective assistance of counsel at the appellate level is the
same two-prong Strickland standard used for trial counsel. Strickland v.
Washington, 466 U.S. 668 (1984); Allen v. State, 749 N.E.2d 1158, 1166–67 (Ind.
2001). Therefore, Robertson must prove that appellate counsel performed
deficiently and that he was prejudiced as a result. Id.
[8] Gomez’s ineffective assistance of counsel argument is based on his contention
that the trial court improperly considered the fact that he committed a crime in
front of minor children as an aggravating factor.1 He argues that, since the trial
court determined that his mental condition precluded awareness that he was on
probation and did not use the fact that he was on probation at the time of the
offense as an aggravating factor, the trial court could not then use the fact that
children were present as an aggravating factor. Gomez maintains that if his
mental condition precluded his awareness that he was on probation, then he
could not have been aware that there were minor children present.2
1 Gomez also argues that the post-conviction court incorrectly determined that he had waived his argument regarding improper sentencing when he did not argue it upon direct appeal. We note that the post-conviction court correctly determined that Gomez’s sentencing argument was waived. Where an argument was available to the defendant on direct appeal, but was not pursued, it is waived for post-conviction review. Schiro v. State, 533 N.E.2d 1201, 1204 (Ind. 1989). However, we reach the merits of Gomez’s sentencing argument during our discussion of his argument regarding ineffective assistance of appellate counsel.
2 Gomez also makes a confusing argument involving Duncan v. State, 857 N.E.2d 955 (Ind. 2006). He seems to argue that Blakely v. Washington, 542 U.S. 296 (2004) applies to his sentence as it applied to Duncan’s. To
Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015 Page 5 of 8 [9] We first note that a trial court may properly consider the fact that a crime of
violence was committed in front of minor children as an aggravating factor.
Indiana Code section 35-38-1-7.1 explicitly states that a trial court may consider
as an aggravating circumstance that the person 1) committed a crime of
violence as defined by Indiana Code section 35-50-1-2 and 2) knowingly
committed that crime in the presence or within the hearing of an individual
who was less than eighteen at the time the person committed the offense.
Moreover, our Supreme Court has held that the commission of a crime in the
presence of minor children may be considered an aggravating circumstance.
Crawley v. State, 677 N.E.2d 520, 522 (Ind. 1997).
[10] Furthermore, we agree with the post-conviction court’s determination that the
trial court’s finding that Gomez’s mental condition precluded awareness that he
was on probation does not imply that he could not have been aware that he was
committing a crime in front of minor children. As the post-conviction court
stated:
[T]he fact that one is on probation is profoundly different from the fact that two toddlers are present when one obtains a gun and shoots their mother in the face. A person might reasonably argue that the former
the extent that Gomez argues that Blakely applies to his sentence, he is mistaken. Gomez was sentenced after April 25, 2005 according to an advisory sentencing scheme, and, therefore, his sentence does not violate the rule in Blakely prohibiting a trial court from deviating from a presumptive sentence based upon facts not proven to a jury beyond a reasonable doubt. See Rogers v. State, 897 N.E.2d 955 (Ind. Ct. App. 2008) (murder defendant was sentenced under an advisory sentence scheme, not a scheme in which there was a presumptive sentence, and, therefore, his sentence could not have violated the rule in Blakely).
Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015 Page 6 of 8 would slip one’s consciousness but it strains credulity to suggest the latter would.
Appellant’s Amended App. p. 8. We do not find Gomez’s argument that the
trial court should have determined his mental condition precluded him from
realizing he was committing a crime in front of minor children to be
convincing.
[11] Furthermore, the trial court was only required to find one aggravating factor to
enhance Gomez’s sentence. Duvall v. State, 540 N.E.2d 34, 36 (Ind. 1989). At
sentencing the trial court found two aggravating factors: 1) the fact that Gomez
committed his crime in front of minor children, and 2) the facts and
circumstances surrounding the offense, in particular Gomez’s attempt to lie to
the police by creating a version of events that took responsibility for the crime
away from himself.3 Therefore, even if the trial court had not considered the
fact that Gomez committed his crime in front of minor children to be an
aggravating factor, it could have enhanced his sentence based on the second
aggravating factor, the facts and circumstances surrounding the crime.
Therefore, Gomez’s argument that the trial court erred in determining his
sentence is without merit.
3 Gomez argues that the trial court could not consider the facts and circumstances surrounding the offense as an aggravating factor because the trial court stated that it was not a statutory factor. Gomez is mistaken. The trial court may consider aggravating factors outside those listed in Indiana Code section 35-38-1-7.1. See I.C. § 35.38-1.7.1 (“The criteria listed in subsections (a) and (b) do not limit the matters that the court may consider in determining the sentence.”).
Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015 Page 7 of 8 [12] As we find that Gomez’s argument is without merit, we cannot say that
Gomez’s appellate counsel was ineffective for failing to raise such an argument
on direct appeal. Had appellate counsel challenged the aggravating factor on
appeal, the argument would not have succeeded. Therefore, Gomez has failed
to show either that appellate counsel performed deficiently or that he was
prejudiced as a result.
[13] The judgment of the post-conviction court is affirmed.
Vaidik, C.J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015 Page 8 of 8