Pedro Vicente v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 15, 2020
• Docket: 18A-PC-2503
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 15 2020, 9:47 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Pedro Vicente Curtis T. Hill, Jr. Westville Correctional Facility Attorney General Carlisle, Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Pedro Vicente, January 15, 2020 Appellant-Petitioner, Court of Appeals Case No. 18A-PC-2503 v. Appeal from the Clinton Circuit Court State of Indiana, The Honorable Bradley K. Mohler, Appellee-Respondent Judge Trial Court Cause No. 12C01-1505-PC-436

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020 Page 1 of 13 Case Summary [1] Pedro Vicente, pro se, appeals the denial of his petition for post-conviction

relief (“PCR”). He asserts that the post-conviction court abused its discretion in

excluding evidence and in not offering him the option of presenting his

evidence by affidavit; that he was deprived of due process because the State

failed to prove all elements of his crime beyond a reasonable doubt; that the

post-conviction court clearly erred in determining that he failed to demonstrate

that he received the ineffective assistance of trial counsel; and that he received

ineffective assistance of appellate counsel. Finding either that he failed to show

the alleged error or that he waived his claim of error, we affirm.

Facts and Procedural History [2] In March 2012, nine-year old J.M. lived with her mother (“Mother”), her

grandmother (“Grandmother”), and Vicente, who was Mother’s boyfriend.

J.M. is profoundly disabled. She has cerebral palsy and epilepsy and is unable

to eat, walk, or care for herself. She communicates only nonverbally, such as

smiling, eye contact, and raising her arms. Mother and Grandmother are her

primary caregivers. Vicente also helped care for J.M.

[3] On March 2, 2012, via monitor, Mother observed Vicente change J.M.’s diaper.

At one point, Mother saw Vicente jerk his hand away from between J.M.’s legs.

Mother later noticed a small tear to the outside of J.M.’s vagina. However,

Mother was not alarmed because she believed that Vicente had caused it by

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020 Page 2 of 13 accidentally scraping J.M. with his fingernail. During the next few days,

Mother noticed a slow trickle of blood from J.M.’s vaginal area.

[4] On March 7, 2010, about 5:30 p.m., Vicente came home from work. Mother

and Grandmother decided to go to the grocery store. Before leaving, Mother

changed J.M.’s diaper and observed that, other than the small injury noted

earlier, J.M. was fine. Mother and Grandmother left between 6:00 and 6:30

p.m. Vicente remained home with J.M. He was sitting on the couch when

Mother and Grandmother left; this was the only time that day that anyone was

home alone with J.M. Mother and Grandmother returned home between 7:30

and 7:45 p.m. Vicente was sitting on the couch.

[5] Around 10:00 p.m., Mother changed J.M.’s diaper. Mother screamed when

she discovered that J.M.’s diaper was filled with blood and a blood clot several

inches long. Grandmother called 911, and J.M. was taken by ambulance to the

hospital. On the way to the hospital, Vicente kept telling Mother, “I’m

sorry[,]” and, “I told you I didn’t mean to hurt her.” Trial Tr. Vol. 1 at 211.

[6] At the hospital, J.M. was examined by doctors and a forensic nurse. J.M. had

two tears to her vagina, both requiring stitches. Doctors believed that such tears

were caused by the penetration of J.M.’s vagina by blunt force trauma. Given

that J.M. had arterial bleeding, J.M.’s injuries could not have occurred days

earlier but must have occurred shortly before Mother changed J.M.’s diaper

around 10:00 p.m. Dr. Roberta Hibbard testified at trial that she could not

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020 Page 3 of 13 “give you a five minutes, ten minutes, yes, but it’s not days. It’s a matter of

minutes to you know, an hour or so probably.” Trial Tr. Vol. 2 at 352.

[7] The State charged Vicente with class A felony child molesting. At his trial,

Vicente was represented by attorney Jeffrey Little. At the close of the State’s

evidence, Little moved for a directed verdict, arguing that the State had not

produced sufficient evidence to show that Vicente was responsible for J.M.’s

injuries or how her injuries were sustained. Id. at 420. The trial court denied

the motion. The jury found Vicente guilty as charged. The trial court

sentenced him to forty-five years in the Indiana Department of Correction.

[8] Vicente, represented by an attorney, appealed his conviction. Vicente v. State,

No. 12A04-1403-CR-133, 2014 WL 6977925 (Ind. Ct. App. Dec. 10, 2014),

trans. denied (2015). In his direct appeal, Vicente argued that the trial court

committed reversible error in denying Vicente’s for-cause juror challenges and

in instructing the jury. Another panel of this Court concluded that Vicente

failed to show that he was prejudiced by the denial of his juror challenges and

that the trial court did not abuse its discretion in instructing the jury. Id. at * 7.

Vicente’s conviction was affirmed, and his petition for transfer was denied.

[9] In April 2015, Vicente, pro se, filed a PCR petition, alleging that his trial

counsel and appellate counsel were ineffective and stating that he would

develop support for his allegations in an amended petition. PCR App. Vol. 2 at

17. In May 2017, Vicente amended his PCR petition to allege that his trial

counsel was ineffective in failing to investigate and provide a meaningful

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020 Page 4 of 13 defense, and that if trial counsel had investigated, counsel would have found

that forensic evidence established that J.M. was not in his care when the alleged

molestation occurred. Id. at 23. His amended PCR petition did not address his

initial allegation regarding ineffective assistance of appellate counsel.

[10] In August 2018, the post-conviction court held an evidentiary hearing on

Vicente’s PCR petition. During the hearing, Vicente was assisted by a

translator. Vicente called trial counsel Little to testify. Before beginning direct

examination, Vicente proffered fifteen pages of the trial transcript as exhibit 1.

The State objected that Vicente had not provided the State with any exhibits,

despite having been ordered to provide any exhibits thirty days prior to the

hearing. The post-conviction court declined to admit Vicente’s exhibit but

indicated that it would reconsider if trial counsel was unable to recall the trial.

PCR Tr. at 5. During his direct examination of attorney Little, Vicente

repeatedly attempted to ask about the evidence at trial that he said would show

his innocence. The State repeatedly objected to Vicente’s attempts to have

attorney Little comment on the evidence. The post-conviction court sustained

the State’s objections and explained to Vicente the purpose of the hearing more

than once. For example, the post-conviction court told Vicente,

What – what you need to – Mr. Viciente [sic]. What you’re trying to do with a post-conviction relief is to show either that Mr. Little didn’t do what you think he was supposed to or that the Court made a mistake at some point. This is not a new trial. I’m not evaluating the evidence. I’m not second-guessing what the jury did. Your job is to outline or ask questions about anything where you think a mistake was made either by the

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020 Page 5 of 13 Court or by the attorney. But, this [is] not me re-evaluating the evidence.

….

If you think a mistake was made during the trial then we can talk about that. This is not – you have to focus on what was done during the trial.

PCR Tr. Vol. 2 at 6-7; see also id. at 9 (“Now for what you have to go through

today is to try to say, again what Mr. Little did or did not do.”). To help

Vicente ask the appropriate questions, the post-conviction court asked him to

state in his own words what attorney Little did or did not do that was

ineffective. Vicente thought that perhaps there were questions that attorney

Little failed to ask of witnesses, and the post-conviction court suggested that

Vicente ask attorney Little about questions to witnesses. However, Vicente

continued to refer to the trial evidence.

[11] At one point, the post-conviction court said to Vicente, “If you have a question

about what he did or did not do that you wanna ask him I’ll give you that

chance. Otherwise I’m gonna let him step down because all you’re doing is

wanting to re-hash evidence that the jury looked at.” Id. at 10. Vicente

questioned attorney Little about the evidence the State had used to support the

child molestation charge against him. After allowing attorney Little to respond,

the post-conviction court told Vicente that it would give Vicente one last

opportunity for questions about attorney Little’s representation. Id. at 13.

Vicente responded that all his questions were similar to questions he had

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020 Page 6 of 13 already asked and that he would wait for another occasion. The post-

conviction court allowed attorney Little to step down and explained to Vicente

that there was not going to be another hearing. The post-conviction court again

asked Vicente if he would like to state in his own words why he believed

attorney Little did not do a good job. Id. Vicente told the post-conviction court

that he believed that attorney Little failed by not bringing to the jury’s attention

that one of the doctors had testified that J.M’s injury was caused about an hour

before it was discovered, at the time Mother and Grandmother had control over

J.M., and his accidental fingernail scraping of J.M. had occurred two days

earlier. Id. at 13-14. The post-conviction court took the matter under

advisement and subsequently issued findings of fact and conclusions of law,

denying Vicente’s petition. Vicente filed an objection and request for rehearing,

which the post-conviction court also denied. This appeal ensued.

Discussion and Decision [12] Initially, we note that Vicente has chosen to proceed pro se. It is well settled

that pro se litigants are held to the same legal standards as licensed attorneys.

Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct. App. 2016), trans. denied (2017).

This means that they must follow our established rules of procedure and accept

the consequences when they fail to do so. Id.

[13] The appellate standard of review regarding post-conviction proceedings is well

settled.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020 Page 7 of 13 Post-conviction proceedings are civil proceedings in which the defendant must establish his claims by a preponderance of the evidence. Post-conviction proceedings do not offer a super appeal, rather, subsequent collateral challenges to convictions must be based on grounds enumerated in the post-conviction rules. Those grounds are limited to issues that were not known at the time of the original trial or that were not available on direct appeal. Issues available but not raised on direct appeal are waived, while issues litigated adversely to the defendant are res judicata. Claims of ineffective assistance of counsel and juror misconduct may be proper grounds for post-conviction proceedings.

Because the defendant is appealing from the denial of post- conviction relief, he is appealing from a negative judgment and bears the burden of proof. Thus, the defendant must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court’s decision. 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. We review the post-conviction court’s factual findings for clear error, but do not defer to its conclusions of law.

Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013) (citations and quotation

marks omitted). 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.

Hinesley v. State, 999 N.E.2d 975, 981 (Ind. Ct. App. 2013), trans. denied (2014).

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020 Page 8 of 13 Section 1 – The post-conviction court did not abuse its discretion in excluding evidence. [14] Vicente argues that the post-conviction court erred by not permitting him to

refer to trial evidence. As with a trial court, a post-conviction court has broad

discretion in ruling on the admissibility of evidence, and we will reverse a post-

conviction court’s ruling only for an abuse of that discretion. Truax v. State, 856

N.E.2d 116, 124 (Ind. Ct. App. 2006). An abuse of discretion occurs when the

court’s ruling is clearly against the logic and effect of the facts and

circumstances before it. Id.

[15] Vicente contends that trial evidence was admissible because the “purpose for

having an evidentiary hearing in this case, was to make a record of

facts/evidence from the trial, that [Vicente] needed to show, that attorney Little

was ineffective as trial counsel.” Appellant’s Br. at 12 (emphases omitted).

Vicente appears to claim that it was necessary to set forth the trial evidence to

show that trial counsel was ineffective. While trial evidence might be relevant to

establishing prejudice resulting from some types of ineffective assistance,

Vicente ignores that the first step in establishing ineffective assistance focuses

on trial counsel’s performance. See Humphrey v. State, 73 N.E.3d 677, 682 (Ind.

2017) (explaining that to show ineffective assistance of counsel, defendant must

first show deficient performance and then prejudice resulting from counsel’s

unprofessional errors). Performance includes conduct such as failure to

investigate, file motions, cross-examine witnesses, object to evidence, etc.

Here, the post-conviction court explained several times to Vicente that he

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020 Page 9 of 13 needed to ask trial counsel what he did or did not do to show that counsel made

a mistake. However, Vicente appeared not to have any questions as to what

trial counsel did or did not do at trial. Therefore, we cannot say that the trial

court abused its discretion in excluding evidence.

Section 2 – The post-conviction court did not err by failing to offer Vicente the option of submitting his PCR evidence by affidavit. [16] Vicente contends that the post-conviction court erred by not allowing Vicente to

submit his PCR evidence by affidavit when the court knew there was a serious

language barrier. We observe that at the PCR hearing, Vicente had a translator

to assist him and never indicated to the court that he was unable to understand

the court or the witness. In addition, Vicente never requested to submit his

evidence by affidavit. We find no error here.

Section 3 –Vicente’s due process argument is a sufficiency of the evidence argument that is unavailable in post-conviction proceedings. [17] Vicente asserts that he was denied due process because the State failed to prove

every element of the crime beyond a reasonable doubt. His argument amounts

to a claim of insufficient evidence. As previously noted, post-conviction

proceedings are not a substitute for a direct appeal from a conviction. Ind.

Post-Conviction Rule 1(b). “Issues that were available, but not presented, on

direct appeal are forfeited on post-conviction review.” Ben-Yisrayl v. State, 738

N.E.2d 253, 258 (Ind. 2000), cert. denied (2002). Whether the evidence was

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020 Page 10 of 13 sufficient to support his conviction was an issue available for direct appeal, but

it was not raised. It is not now available for consideration in post-conviction

proceedings. Accordingly, we will not address the issue.

Section 4 – The post-conviction court did not clearly err in finding that Vicente failed to show that his trial counsel’s assistance was ineffective. [18] When evaluating an ineffective assistance of counsel claim, we apply the two-

part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Humphrey,

73 N.E.3d at 682. “To satisfy the first prong, ‘the defendant must show

deficient performance: representation that 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. (quoting McCary v.

State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the second prong, the

defendant must show prejudice. Id. To demonstrate prejudice from counsel’s

deficient performance, a petitioner need only show “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Middleton v. State, 72 N.E.3d 891, 891-92 (Ind. 2017)

(emphasis and citation omitted). “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id.

[19] Isolated poor strategy, inexperience, or bad tactics does not necessarily

constitute ineffective assistance. Hinesley, 999 N.E.2d at 982. When

considering a claim of ineffective assistance of counsel, we strongly presume

“that counsel rendered adequate assistance and made all significant decisions in

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020 Page 11 of 13 the exercise of reasonable professional judgment.” Id. (citation omitted). We

presume that counsel performed effectively, and a defendant must offer strong

and convincing evidence to overcome this presumption. Id.

[20] Vicente contends that his trial counsel provided ineffective assistance in failing

to move for a directed verdict based on the State’s failure to prove the elements

of child molesting beyond a reasonable doubt. However, he did not present this

contention to the post-conviction court. Post-conviction claims that were not

presented to the post-conviction court are not available for appellate review.

Walker v. State, 843 N.E.2d 50, 57 (Ind. Ct. App. 2006), trans. denied; see also

Richardson v. State, 800 N.E.2d 639, 647 n.4 (Ind. Ct. App. 2003) (holding that

petitioner waived claim because it was not presented to post-conviction court),

trans. denied (2004). At any rate, Vicente’s trial attorney moved for a directed

verdict, and therefore cannot be deemed ineffective for failing to do so.

[21] To the extent that Vicente may be arguing that trial counsel was ineffective

because counsel failed to pursue evidence at trial that proved Vicente’s

innocence, we note that at the PCR hearing Vicente presented no evidence

regarding what trial counsel did or did not do. As such, Vicente has not met his

burden to show that the post-conviction court clearly erred in determining that

he failed to demonstrate that he received ineffective assistance of trial counsel.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020 Page 12 of 13 Section 5 – Vicente waived his claim that his appellate counsel provided ineffective assistance. [22] Vicente also claims that his appellate counsel provided ineffective assistance by

failing to consult with him before filing a brief on his behalf in his direct appeal.

Vicente claimed ineffective assistance of appellate counsel in his original PCR

petition, but he never alleged facts in support thereof or even indicated in what

respect appellate counsel was ineffective. At the PCR hearing, Vicente

presented no evidence, witnesses, or argument pertaining to appellate counsel.

Therefore, Vicente has waived this claim. See Walker, 843 N.E.2d at 57.

[23] Based on the foregoing, we affirm the denial of Vicente’s petition for post-

conviction relief.

[24] Affirmed.

May, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020 Page 13 of 13