Thaddeus L. Rodriguez v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 14 2015, 9:07 am
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
Thaddeus L. Rodriguez Gregory F. Zoeller
Carlisle, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Thaddeus L. Rodriguez, December 14, 2015
Appellant-Defendant, Court of Appeals Case No.
64A03-1503-PC-92
v. Appeal from the Porter Superior
Court
State of Indiana, The Honorable Raymond D.
Appellee-Plaintiff Kickbush, Senior Judge
Trial Court Cause No.
64D05-0912-PC-12989
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 1 of 20
Case Summary
[1] Pro-se Appellant-Petitioner Thaddeus L. Rodriquez (“Rodriquez”) appeals the
denial of his petition for post-conviction relief, following his convictions for
Burglary, as a Class B felony,1 and Resisting Law Enforcement, as a Class A
misdemeanor,2 and his adjudication as a habitual offender.3 We affirm.
Issues
[2] Rodriquez presents six issues for review, which we consolidate as the following
three issues:
I. Whether error in the post-conviction proceedings deprived
Rodriquez of procedural due process;
II. Whether Rodriquez was denied the effective assistance of
trial counsel; and
III. Whether Rodriquez was denied the effective assistance of
appellate counsel.
Facts and Procedural History
1
Ind. Code § 35-43-2-1.
2
I.C. § 35-44-3-3 [now I.C. § 35-44.1-3-1.]
3
I.C. § 35-50-2-8.
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 2 of 20
[3] The relevant facts were recited by a panel of this Court on direct appeal, as
follows:
During the early morning hours of January 28, 2008, Cydney
Austin decided to spend the night at a friend’s house in the same
neighborhood where she lived in Portage. When Austin went to
her house around 2:00 a.m. to pick up some items for the night,
nothing was out of place. At some point after she left, someone
broke into Austin’s house and stole her son’s stereo. When
Austin learned of the burglary later that morning, she called
police. Austin told police that at approximately 4:00 a.m.,
Rodriquez, an acquaintance who also lived in the neighborhood,
called her cell phone and at the same time knocked on the door
at the house where Austin was staying. Police tracked footprints
in the snow from Austin’s house to Rodriquez’s house.
Police knocked on Rodriquez’s door and recognized Rodriquez
as he looked out a window. When Rodriquez refused to open
the door, the police sought a search warrant. . . .
A search warrant was issued, and a SWAT team entered
Rodriquez’s house. Police could not find Rodriquez in the house
but noticed a hole in the ceiling leading to the attic. Police
eventually located Rodriquez hiding under a bed in the adjoining
unit of the duplex, which he had accessed through the attic.
Austin’s son’s stereo was recovered from Rodriquez’s house.
Rodriquez v. State, 951 N.E.2d 313, slip op at 1-2 (Ind. Ct. App. Aug. 3, 2011).
[4] On January 29, 2008, the State charged Rodriquez with Burglary and Resisting
Law Enforcement. Subsequently, the State added a habitual offender
allegation. A jury found Rodriquez guilty as charged, and also found him to be
a habitual offender. He was sentenced to fifteen years for Burglary, enhanced
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 3 of 20
by twenty years due to his status as a habitual offender. He received a
consecutive one-year sentence for Resisting Law Enforcement; thus, his
aggregate sentence is thirty-six years.
[5] Rodriquez appealed, raising two issues: whether the factual basis supporting
the search warrant was sufficient; and whether the trial court properly denied
his request for a continuance. Id. at 1. Rodriquez’s convictions were affirmed.
Id. On November 12, 2009, Rodriquez filed a pro-se motion for post-conviction
relief, alleging that he had been denied the effective assistance of trial and
appellate counsel. On September 3, 2014, Rodriquez was permitted to amend
his petition to add new allegations with respect to the performance of his trial
and appellate counsel.
[6] During the pendency of the post-conviction claim, Rodriquez filed requests for
the issuance of subpoenas. The post-conviction court conducted a hearing and
issued some, but not all, of the requested subpoenas. The denials were
accompanied by specific findings as to relevance.
[7] The post-conviction court conducted an evidentiary hearing on December 15,
2014. At that hearing, Rodriquez presented as witnesses his trial and appellate
counsel. He then orally requested that the post-conviction court reduce his
sentence. On February 20, 2015, the post-conviction court issued findings of
fact and conclusions of law and an order denying Rodriquez post-conviction
relief. He now appeals.
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 4 of 20
Discussion and Decision
Standard of Review
[8] The petitioner in a post-conviction proceeding bears the burden of establishing
the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing
from the denial of post-conviction relief, the petitioner stands in the position of
one appealing from a negative judgment. Id. On review, we will not reverse
the judgment of the post-conviction court unless the evidence as a whole
unerringly and unmistakably leads to a conclusion opposite that reached by the
post-conviction court. Id. A post-conviction court’s findings and judgment will
be reversed only upon a showing of clear error, that which leaves us with a
definite and firm conviction that a mistake has been made. Id. In this review,
findings of fact are accepted unless they are clearly erroneous and no deference
is accorded to conclusions of law. Id. The post-conviction court is the sole
judge of the weight of the evidence and the credibility of witnesses. Id.Procedural Due Process
[9] Rodriquez asserts he was deprived of adequate means to establish his claims of
ineffective assistance of trial and appellate counsel. He claims that he was
improperly denied a change of judge, the opportunity to amend his petition a
second time, and a continuance of the evidentiary hearing. Additionally,
Rodriquez contends that the post-conviction court improperly declined to issue
subpoenas for necessary witnesses.
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 5 of 20
[10] Motion for Change of Judge. Rodriquez claims that he was denied an impartial
judge. Pursuant to Indiana Post-Conviction Rule 1(4)(b), a petitioner may
request a change of judge “by filing an affidavit that the judge has a personal
bias or prejudice against the petitioner” and stating “the facts and the reasons
for the belief that such bias or prejudice exists.” The post-conviction court is
obliged to grant the motion only “if the historical facts recited in the affidavit
support a rational inference of bias or prejudice.” Id. On appeal, we presume
that the judge is unbiased, and will overturn the denial of a motion for change
of judge only upon a showing of clear error. Azania v. State, 778 N.E.2d 1253,
1261 (Ind. 2002).
[11] Rodriquez’s motion for change of judge, filed contemporaneously with his
petition for post-conviction relief, was accompanied by an affidavit stating:
On 4-16-08 I filed a complaint against Judge Harper and on 6-06-
08 P.D. Dolores Aylesworth filed a Motion for Change of Judge
and Recusal of Judge. Judge Harper denied the motion stating
she could remain fair, impartial, and unbiased for the upcoming
trial on 1-07-09. I did not receive a fair trail [sic] and Judge
Harper denied every motion P.D. Aylesworth filed with the court
throughout the proceedings. Judge Harper lied on her order
revoking bond on 11-03, 2008 stating I had no stable living
arrangements and limited ties to the community which I raised
my daughter in Porter County and have 5 families living in
Porter County. Also on 3-17-09 Judge Mary Harper stated I
belong in prison. I had filed another complaint against Judge
Harper on 5-04-09 due to the first complaint I did not receive a
fair trial. And all the motions was denied that was filed with the
court.
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 6 of 20
(App. at 45.) The alleged historical facts largely stem from trial rulings adverse
to Rodriquez. However, such trial rulings are “not indicia of personal bias” in
post-conviction proceedings. Pruitt v. State, 903 N.E.2d 899, 939 (Ind. 2009).
Instead, a party “must show that the trial judge’s action or demeanor crossed
the barrier of impartiality and prejudiced” his case. Flowers v. State, 738 N.E.2d
1051, 1061 (Ind. 2000).
[12] The record discloses that, at the sentencing hearing in the underlying crimes,
Judge Mary Harper discussed the aggravating and mitigating circumstances
with respect to the crimes of which Rodriquez was convicted and his conduct
while incarcerated awaiting trial and sentencing. She remarked, after observing
that Rodriquez had convinced his daughter to contact a juror at home, “perhaps
prison is exactly where he belongs.” (Sent. Tr. at 38.) The trial judge was, at
that time, engaged in the evaluative process before pronouncing sentence upon
Rodriquez. Her statement, derived from an evaluation of the evidence and
circumstances before her, does not indicate personal bias.
[13] Nonetheless, Rodriquez actually received a change of judge. Either in response
to Rodriquez’s motion or other circumstances, at some point Senior Judge
Raymond Kickbush was appointed to preside in the instant matter. Thus, the
trial judge whose impartiality was challenged by Rodriquez did not conduct the
post-conviction evidentiary hearing or issue the post-conviction order denying
Rodriquez relief. He has not demonstrated that he was denied an impartial
post-conviction judge.
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 7 of 20
[14] Motion for a Continuance. When Rodriquez and the State appeared for the post-
conviction hearing, Rodriquez advised the court that he had subpoenaed two
witnesses to appear, his trial counsel (Dolores Aylesworth) and his appellate
counsel (Bryan Truitt). Appellate counsel was present at that time; trial counsel
was not. Rodriquez requested a continuance to procure his trial counsel’s
attendance. Instead, the post-conviction court called for a brief recess and
instructed court staff to contact Aylesworth. Aylesworth appeared within the
hour and testified. Accordingly, Rodriquez was able to elicit testimony from
both his witnesses and cannot claim that he was denied due process in this
regard.
[15] Denial of Subpoenas for other Witnesses. Rodriquez claims that he was denied
subpoenas for necessary witnesses. When determining whether to issue
subpoenas, the post-conviction court has broad discretion, and we will reverse
its decision only for an abuse of that discretion. Johnson v. State, 832 N.E.2d
985, 994 (Ind. Ct. App. 2005), trans. denied. “An abuse of discretion has
occurred if the court’s decision is against the logic and effect of the facts and
circumstances before the court.” Id.If the pro se petitioner requests issuance of subpoenas for
witnesses at an evidentiary hearing, the petitioner shall
specifically state by affidavit the reason the witness’ testimony is
required and the substance of the witness’ expected testimony. If
the court finds the witness’ testimony would be relevant and
probative, the court shall order that the subpoena be issued. If
the court finds the proposed witness’ testimony is not relevant
and probative, it shall enter a finding on the record and refuse to
issue the subpoena.
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 8 of 20
Ind. Post-Conviction Rule 1(9)(b).
[16] The post-conviction court authorized the issuance of four subpoenas at
Rodriquez’s request. During the months of July and August of 2014,
Rodriquez filed motions to subpoena eleven additional witnesses: Cydney
Austin, Emerito Beltran, Flora Akers, Dennis Wilkins, Kathy Gralik, Joseph
Berlanga, Deidre Eltzroth, Gregory Coleman, Donald Early, Aaron Chinn, and
Trista Hudson. On August 5, 2014, these requests were denied “unless and
until Petitioner demonstrates to the Court the reason sought and its
applicability to his Petition for Post-Conviction Relief.” (App. at 111.)
[17] On September 3, 2014, a hearing was conducted on Rodriquez’s motion to
amend his post-conviction petition. At that hearing, Rodriquez filed with the
court several affidavits in support of his requests for the issuance of subpoenas.
Argument was heard on the motion to amend and the requests for subpoenas;
the post-conviction court then requested memoranda from the parties.4
[18] Rodriquez subsequently filed his memorandum in support of his requests for
the issuance of subpoenas. In relevant part, Rodriquez claimed that victim
Cydney Austin would confirm the fact that police falsified the probable cause
affidavit; Officer Flora Akers would confirm that she falsified the probable
cause affidavit and perjured herself during trial; Officer Dennis Wilkins would
4
For unknown reasons, we do not have a transcript of this hearing. However, the post-conviction court’s
order of October 1, 2014 stated that these events took place.
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 9 of 20
confirm his lack of personal knowledge of Rodriquez’s criminal history; Joseph
Berlanga would testify that he never made statements attributed to him by
investigating officers; Juror Kathy Gralik would testify that she failed to
disclose a personal relationship with a prosecutorial staffer; Officer Aaron
Chinn would confirm the falsification of the probable cause affidavit; Officer
Emerito Beltran would confirm acts of perjury and falsification of facts in the
probable cause affidavit; Prosecutor Trista Hudson would confirm falsification
of the probable cause affidavit and admit that she suborned perjury; Donald
Early would testify that Cydney Austin gave Rodriquez the stereo; and Public
Defender Deidre Eltzroth would confirm that Donald Early had stated that
Cydney Austin gave Rodriquez the stereo.
[19] On October 1, 2014, the post-conviction court issued an order of denial. The
court observed that Rodriquez was attempting to re-litigate issues decided
adverse to him at trial and to challenge the credibility of the witnesses.
Ultimately, the court concluded: “Petitioner’s conclusory assertions fail to
meet the legal standard set forth in PC Rule 1 Section 8.” (App. at 179.)
[20] We agree with the post-conviction court’s assessment: Rodriquez’s bald
assertions did not comply with the specificity requirement of our post-
conviction rules. Post-conviction proceedings are not designed to permit
attacks upon trial witness credibility, but rather to address issues demonstrably
unavailable at trial and on direct appeal. Sanders v. State, 765 N.E.2d 591, 592
(Ind. 2002). Rodriquez’s summaries of anticipated testimony did not reflect
relevant and probative testimony regarding issues demonstrably unavailable at
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 10 of 20
trial and on direct appeal. Nor was the court required to assist Rodriquez in
pursuing potential and speculative challenges to the credibility of trial
witnesses. Succinctly, Rodriquez may not use the post-conviction process to get
a second bite at the apple. We find no abuse of the post-conviction court’s
discretion.
[21] Second Motion to Amend Post-Conviction Petition. Post-Conviction Rule 1(4)(c)
provides in relevant part:
The petitioner shall be given leave to amend the petition as a
matter of right no later than sixty [60] days prior to the date the
petition has been set for trial. Any later amendment of the
petition shall be by leave of the court.
On September 3, 2014, Rodriquez was granted leave to amend his first petition
for post-conviction relief. A hearing date was set for December 12, 2014. On
October 27, 2014, Rodriquez sought leave to file a second amended petition to
add allegations with respect to the habitual offender allegation and
prosecutorial misconduct. More specifically, Rodriquez alleged that the trial
court had “abused its discretion when it permitted the state to file a late habitual
offender request,” and had done so “despite trial counsel’s objections that it was
not timely filed.” (App. at 98, 101.) Rodriquez further alleged that the
prosecutor had committed misconduct by using perjured affidavits and
suborning perjury.
[22] Because the motion for leave to file a second amendment was filed within sixty
days of the hearing date of December 12, 2014, it was within the discretion of
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 11 of 20
the post-conviction court to grant or deny the motion. See Tapia v. State, 753
N.E.2d 581, 586 n.7 (Ind. 2001) (observing that the post-conviction court has
discretion when ruling on amendments within the 60-day period). Rodriquez
argues that the post-conviction court should have permitted his second
amendment because “the proposed amendments were not drastically different
than the issues presented in Rodriquez’s previous petitions” and his penal
facility had been on lock-down. (Appellant’s Br. at 27.) However, we observe
that Rodriquez attempted to add free-standing allegations of trial error.
[23] The post-conviction rules contemplate a narrow remedy for subsequent
collateral challenges to convictions. Reed v. State, 856 N.E.2d 1189, 1194 (Ind.
2006). As we have previously stated, the purpose of a petition for post-
conviction relief is to provide petitioners the opportunity to raise issues not
known or available at the time of the original trial or direct appeal. Stephenson
v. State, 864 N.E.2d 1022, 1028 (Ind. 2007). Moreover, collateral challenges to
convictions must be based upon grounds enumerated in the post-conviction
rules. Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App. 2006), trans.
denied; see also P-C. R. 1(1). To the extent that Rodriquez attempted to raise
free-standing issues of trial court error and prosecutorial misconduct in a second
amended petition, they were not proper issues to be addressed through post-
conviction relief. Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002). The post-
conviction court did not abuse its discretion by denying Rodriquez leave to file
his proffered second amended petition.
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 12 of 20
Effectiveness of Trial Counsel
[24] Rodriquez contends he was denied the effective assistance of trial counsel in
two respects: trial counsel (1) did not challenge the veracity of the statements in
the probable cause affidavit and (2) did not obtain a continuance to facilitate the
testimony of two defense witnesses, Donald Early and Justine Rodriquez.
Effectiveness of counsel is a mixed question of law and fact. Strickland v.
Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims
of ineffective assistance under the two-part test announced in Strickland. Id. To
prevail on an ineffective assistance of counsel claim, a defendant must
demonstrate both deficient performance and resulting prejudice. Dobbins v.
State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).
Deficient performance is that which falls below an objective standard of
reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d
1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that
“there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.
1996). The two prongs of the Strickland test are separate and independent
inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice … that course
should be followed.” Id.Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 13 of 20
[25] We “strongly presume” that counsel provided adequate assistance and
exercised reasonable professional judgment in all significant decisions. McCary
v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded
considerable discretion in the choice of strategy and tactics. Timberlake v. State,
753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based upon the
facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d
1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring
reasonable professional judgment even if the strategy in hindsight did not serve
the defendant’s interests. Id. In sum, trial strategy is not subject to attack
through an ineffective assistance of counsel claim, unless the strategy is so
deficient or unreasonable as to fall outside the objective standard of
reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).
[26] In his amended petition for post-conviction relief, Rodriquez claimed that trial
counsel was ineffective for: (1) her failure to seek a continuance so that Donald
Early and Justine Rodriquez (Rodriquez’s daughter) could testify; and (2) her
failure to suppress evidence obtained in the execution of a search warrant by
showing (a) the facts in the probable cause affidavit were not supported by oath
or affirmation, and (b) the probable cause affidavit contained knowingly false
information.
[27] Probable Cause Affidavit. The affidavit supporting the search warrant provided in
part:
On January 28, 2008, the Portage Police Department
investigated a complaint of burglary involving Thaddeus
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 14 of 20
Rodriquez. On January 28, 2008, this officer received a report,
reference a complaint of burglary at 3290 Ashland Avenue,
Portage, Indiana, wherein the suspect Thaddeus Rodriquez, left
shoeprints with the heel portion having a broken chevron pattern
where the point of the chevron points toward the toe. The toe
portion has a pattern from the tip of the toe that angles down at a
45 degree angle, and the lower portion has a tread bar that
crosses horizontally across the sole. Officer followed the shoe
prints [to] 5334 Boulder. Portage PD records indicate that this is
the residence of Thaddeus Rodriquez and that Officer Greg
Coleman of the Portage Police Department made visual contact
with a Hispanic male subject. The victim Cydney L. Austin …
stats [sic] that at approximately 0400 hrs on today’s date she
received a telephone call from Thaddeus Rodriquez. Ms. Austin
stated she was at 3276 Brown St. when she received the call from
Mr. Rodriquez. Ms. Austin advised that she looked out the
window at the time of the call and observed Mr. Rodriquez
standing outside the Brown St. residence talking to her on a cell
phone. Mr. Rodriquez would have knowledge that Ms. Austin
was not at her residence at 3290 Ashland Ave. Upon
investigation it was determined that Thaddeus Rodriquez had
damaged real property owned by Cydney Austin, entered the
property at 3290 Ashland, and committed a burglary, to wit:
entered the property at 3290 Ashland, and took a SONY MHC-
GX99 stereo.
(Ex. 14). At Rodriquez’s trial, Austin provided testimony that contradicted the
affidavit in one respect. Austin testified that she had not looked outside to see
Rodriquez talking on a cell phone. Rather, Austin clarified that her friend Alan
Tressler answered the door and Austin, who was on the sofa, was able to hear
and recognize Rodriquez’s voice from that vantage point. In Rodriquez’s view,
this renders the probable cause affidavit demonstrably false and his trial
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 15 of 20
attorney, Delores Aylesworth, should have sought suppression of evidence
gained through the search warrant on these grounds.
[28] Prior to Rodriquez’s trial, Aylesworth had filed a motion to suppress evidence
of the stereo, arguing that the search warrant was not supported by probable
cause. The motion to suppress was unsuccessful. She renewed her suppression
objection at trial, thereby preserving the issue for review. Appellate counsel
then raised an issue claiming that the factual basis supporting the search
warrant was insufficient. This Court, “focusing on reasonable inferences drawn
from the affidavit,” concluded that “the magistrate had a substantial basis for
concluding that evidence of a crime would be found at Rodriquez’s house.”
Rodriquez, slip op. at 3.
[29] Aylesworth testified at the post-conviction hearing. She explained that she did
not challenge the probable cause affidavit as deficient on technical grounds,
because it was in fact submitted upon oath or affirmation. She testified that she
had “no ability to judge” whether facts in the probable cause affidavit were true
or false. (P.C. Tr. at 40). She acknowledged that she had attacked the probable
cause affidavit on other grounds, albeit without success.
[30] The post-conviction court concluded that Aylesworth’s performance was not
deficient. We agree. Aylesworth made a strategic decision to challenge the
evidence obtained in the execution of the search warrant by claiming that the
probable cause affidavit was factually insufficient. As previously observed,
counsel is afforded considerable discretion in the choice of strategy and tactics.
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 16 of 20
Timberlake, 753 N.E.2d at 603. Aylesworth’s lack of opposition to the search
warrant on grounds that it was procured by perjury is clearly within the range of
professional norms – particularly so in light of the single discrepancy explained
at trial and the lack of evidence of nefarious motivation of the affiant.
[31] Continuance to Procure Attendance of Omitted Witnesses. Trial counsel had included
Donald Early and Justine Rodriquez on her witness list, and Early had been
subpoenaed. However, neither Early nor Justine testified in Rodriquez’s
defense, and trial counsel did not request a continuance. The substance of
Justine’s anticipated testimony is unknown. However, it appears that
Rodriquez expected Early to testify in support of a claim that Austin had given
the stereo to Rodriquez as collateral for a loan.
[32] The decision not to seek a continuance is the type of strategic choice that is
within the province of counsel. Miller v. State, 702 N.E.2d 1053, 1060 (Ind.
1998). Trial counsel’s efforts and strategy, although they did not ultimately
achieve the result desired by Rodriquez, were not so unreasonable as to
constitute ineffective assistance of counsel. See Badelle v. State, 754 N.E.2d 510,
539 (Ind. Ct. App. 2001) (deciding in relevant part that, when trial counsel’s
efforts were “more than adequate” to support a chosen defense, counsel’s
decision not to seek out additional witnesses was a judgment call within the
wide range of reasonable assistance), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 17 of 20
Effectiveness of Appellate Counsel
[33] A defendant is entitled to the effective assistance of appellate counsel. Stevens v.
State, 770 N.E.2d 739, 760 (Ind. 2002). The two-pronged standard for
evaluating the assistance of trial counsel first enunciated in Strickland is
applicable to appellate counsel ineffective assistance claims. Bieghler v. State,
690 N.E.2d 188, 192 (Ind. 1997). There are three basic categories of alleged
appellate ineffectiveness: (1) denying access to an appeal, (2) waiver of issues,
and (3) failure to present issues well. Id. at 193-95. Here, the second category is
implicated, as Rodriquez claims that his appellate counsel should have
challenged his aggregate thirty-six year sentence as inappropriate.
[34] “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.” Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008). Upon review,
the performance prong is evaluated by applying 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 those raised. Id.[35] Upon conviction of a Class B felony, Rodriquez faced a sentencing range of
between six and twenty years, with ten years as the advisory term. I.C. § 35-50-
2-5. Due to Rodriquez’s status as a habitual offender, that sentence could be
enhanced by up to thirty years. I.C. § 35-50-2-8. Upon conviction of a Class A
misdemeanor, Rodriquez faced a potential sentence of one year. I.C. § 35-50-2-
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 18 of 20
7. Accordingly, Rodriquez could have received a maximum aggregate sentence
of fifty-one years. He received an aggregate sentence of twenty-six years.
[36] An appellant may challenge the appropriateness of his sentence. The authority
granted to this Court by Article 7, § 6 of the Indiana Constitution permitting
appellate review and revision of criminal sentences is implemented through
Appellate Rule 7(B), which provides: “The Court may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” In performing our review, we assess “the
culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is
to attempt to leaven the outliers. Id. at 1225. A defendant ‘“must persuade the
appellate court that his or her sentence has met th[e] inappropriateness standard
of review.”’ Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007) (quoting
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).
[37] At the post-conviction hearing, appellate counsel testified that he did not
consider a sentencing challenge to be a “legitimate sentencing issue” given
Rodriquez’s significant criminal record and the fact that he received an
aggregate sentence of much less than his potential exposure. (P.C. Tr. at 18.)
The criminal history to which appellate counsel referred includes over 70 prior
adult misdemeanor convictions and two prior felony convictions. Rodriquez
had a history of juvenile adjudications beginning at age eleven. At the time of
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 19 of 20
sentencing in this case, he had eight pending charges in the State of Indiana and
seven active warrants in the State of New Mexico. He had been released on
bond only ten days before committing the instant burglary. We conclude that
appellate counsel did not overlook a significant and obvious issue stronger than
those raised.
Conclusion
[38] Rodriquez was not denied due process in the post-conviction proceedings. He
was not denied the effective assistance of trial or appellate counsel.
[39] Affirmed.
Vaidik, C.J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015 Page 20 of 20