Jose B. Rodriguez v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 28, 2019
• Docket: 18A-PC-947
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Mar 28 2019, 8:53 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Jose B. Rodriguez Curtis T. Hill, Jr. Michigan City, Indiana Attorney General Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jose B. Rodriguez, March 28, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-PC-947 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Appellee-Plaintiff Judge Trial Court Cause No. 20D03-1504-PC-16

Vaidik, Chief Judge.

[1] Jose B. Rodriguez was convicted of four counts of Class A felony child

molesting of his step-daughter, and the trial court sentenced him to an aggregate

Court of Appeals of Indiana | Memorandum Decision 18A-PC-947 | March 28, 2019 Page 1 of 3 term of forty years. Rodriguez v. State, No. 20A05-1309-CR-491 (Ind. Ct. App.

Aug. 26, 2014), trans. denied. He filed a petition for post-conviction relief

arguing that his trial counsel was ineffective, and the post-conviction court

denied him relief. Rodriguez, pro se, now appeals.

[2] Rodriguez first argues that his trial counsel was ineffective in a variety of ways.

However, he fails to develop any of these arguments with cogent reasoning.

Rodriguez argues that his trial counsel failed to conduct any pretrial discovery,

but he does not tell us what discovery counsel should have conducted. He

argues that his trial counsel failed to conduct an investigation of the facts of the

case, but he does not tell us what investigation counsel should have conducted.

He argues that his trial counsel should have sought a limiting instruction “re:

evidence of prior bad acts of uncharged sexual conduct,” Appellant’s Br. p. 8,

but he does not tell us what those prior bad acts are or what the limiting

instruction should have said. He argues that his trial counsel should have

“investigated certain medical evidence,” id., but he does not identify that

medical evidence. He argues that his trial counsel was ineffective for failing to

investigate “a potential witness which [he] deemed to be exculpatory,” id., but

he does not identify this witness or what this witness would have testified to.

Finally, he argues that his trial counsel should have subpoenaed his work

records because they “would have proven conclusively that he was working at

the times of the alleged events,” id., but he fails to explain how his work records

would have done so. Moreover, Rodriguez does not provide any citations to

the record to support any of his allegations. In fact, there is not a single citation

Court of Appeals of Indiana | Memorandum Decision 18A-PC-947 | March 28, 2019 Page 2 of 3 to the record in his entire brief. For these reasons, we find that Rodriguez has

waived all of these arguments. See Ind. Appellate Rule 46(A)(8)(a) (providing

that arguments must be supported by cogent reasoning and citations to the

record).1

[3] Rodriguez next argues that his trial counsel was ineffective for failing to present

him with a plea offer from the State. However, he does not allege that the State

actually made him a plea offer. See Appellant’s Br. p. 9 (“It could be concluded

that had [Rodriguez] been presented an offer . . ., he may have accepted and

spared the state the cost of a trial.” (emphasis added)).

[4] Finally, Rodriguez argues that the Indiana Supreme Court wrongly decided

Baum v. State, 533 N.E.2d 1200 (Ind. 1989), which holds that claims of

ineffective assistance of post-conviction counsel are not judged by the Strickland

v. Washington standard. This, however, is an argument that Rodriguez should

make to our Supreme Court.

[5] We therefore affirm the post-conviction court.

[6] Affirmed.

Kirsch, J., and Altice, J., concur.

1 Rodriguez makes similar claims about his post-conviction counsel, but these arguments are waived for the same reasons.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-947 | March 28, 2019 Page 3 of 3