Luis Fuerte v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jul 08 2019, 11:08 am
regarded as precedent or cited before any
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
Luis Fuerte Curtis T. Hill, Jr.
New Castle, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Luis Fuerte, July 8, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-2839
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Respondent. Judge
The Honorable Kathleen Sullivan,
Magistrate
Trial Court Cause No.
45G01-1704-PC-2
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2839 | July 8, 2019 Page 1 of 10
Case Summary
[1] In November of 2014, Fuerte was convicted of Class B felony attempted incest,
Class C felony child molesting, and Class D felony sexual battery. We affirmed
Fuerte’s convictions on appeal. Fuerte subsequently filed a petition for post-
conviction relief (“PCR”). Following a hearing, the post-conviction court
denied Fuerte’s petition. Fuerte raises a number of arguments on appeal, which
we restate as whether the post-conviction court (1) erred in determining that
Fuerte suffered ineffective assistance of trial counsel and (2) erred in denying
Fuerte’s freestanding claims of trial court error. We affirm.
Facts and Procedural History
[2] Our opinion in Fuerte’s direct appeal, which was handed down on November
17, 2015, instructs us to the underlying facts and procedural history leading to
this post-conviction appeal:
Fuerte’s biological granddaughter, E.F., was born in March
1996. Her father is Fuerte’s son. E.F. and her parents and
brothers moved into Fuerte’s house in Hammond in 1999. E.F.’s
parents lived in the basement, and E.F. began sleeping in a
bedroom down the hall from Fuerte’s second-floor bedroom after
he divorced his wife in 2005. At least one evening a week, Fuerte
would babysit E.F. and her brothers while their parents went on
a date. E.F. was “really close” to Fuerte, who was “like another
dad” to her. Tr. at 84.
In July 2007, when E.F.’s parents were on a date, Fuerte came
into her bedroom, took her into his bedroom, and locked the
door. He undressed her, undressed himself, and told her to get
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on the bed. He fondled her breasts and touched her vaginal area
with his fingers and erect penis. E.F. kicked him so that he could
not penetrate her vagina. He told her, “[Y]ou can’t tell anybody
I’m doing this to you or else I’ll get in a lot of trouble[.]” Id. at
87. E.F. did not tell anyone because she “was scared that
[Fuerte] would hurt [her] family.” Id. at 90. Fuerte subjected
E.F. to similar molestations “52 to 60” times a year when her
parents were out for the evening; she never allowed him to
penetrate her vagina. Id. at 128. On other occasions, E.F. would
wake up and feel that her nightclothes and bedclothes were
“sticky and wet from [Fuerte] ejaculating, so [she] would know
he was there.” Id. at 89.
One night, E.F.’s mother went upstairs to check on her sleeping
daughter and saw Fuerte lying on E.F.’s bedroom floor in the
dark in his underwear. In “shock,” E.F.’s mother told her
husband what she had seen and asked him to bring E.F. down to
the basement. Id. at 174. The next day, Fuerte told E.F.’s
mother, “I’m sorry for what you saw last night” and “it’s never
going to happen again.” Id. at 176. E.F.’s parents asked E.F. if
Fuerte or “anybody” had “ever done anything to her,” and “she
said no.” Id. According to E.F.’s mother, they “just kept on
being a normal family [...] just like [they] always had.” Id. at
177. E.F. did move into a basement bedroom, however.
As the molestations continued, E.F. “began avoiding” Fuerte
and “wouldn’t talk to him.” Id. at 91. She also began blocking
her bedroom door with a dresser “to prevent him from getting
towards [her].” Id. at 102. When her mother asked about this,
E.F. replied that Fuerte “just got [her] really mad” and that she
“put that in the way so he wouldn’t come talk to [her].” Id. at
103. Fuerte continued molesting E.F. until approximately late
2008. See id. at 95–97 (E.F.’s testimony regarding when abuse
stopped).
In May 2009, a school coach told E.F. and her classmates that
“we shouldn’t let our problems ruin our lives and that we should
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do whatever we can to overcome them and that we will never be
happy until we finally settle what it is that’s bothering us.” Id. at
97. Afterward, a “trembling” and “crying” E.F. told her seventh-
grade teacher about Fuerte’s sexual abuse. Id. at 272. The
teacher informed the principal, who summoned E.F.’s parents to
the school and told them what E.F. had said. E.F.’s parents went
home and talked with E.F., who told them about the abuse. The
senior pastor of the family’s church told E.F.’s parents to avoid
contact with Fuerte, so they locked the doors to the basement “to
make sure there was no contact between [them].” Id. at 189.
Soon thereafter, Fuerte was summoned to a meeting with the
church’s senior pastor and its Spanish-speaking pastor, Alfredo
Deande. With Deande as interpreter, the senior pastor told
Fuerte about E.F.’s accusations. According to Deande, “[w]hen
the senior pastor got done, [Fuerte] threw himself at the senior
pastor’s shoes, grabbed onto his ankles and started begging for
forgiveness.” Id. at 280. The senior pastor told Fuerte, “[Y]ou
don’t need to ask us [...] for forgiveness. You’ve sinned against
God and [...] you’ve wronged your granddaughter.” Id. at 281.
After the meeting, Fuerte asked E.F.’s parents if he could talk
with them and E.F. E.F.’s father said that Fuerte could talk with
him and his wife but not with E.F. According to E.F.’s father, he
and his wife and Fuerte “sat at the dining room table and
[Fuerte] started sobbing and he said, [...] I’m sorry for what I’ve
done, please forgive me for what I’ve done.” Id. at 246.
E.F. gave a statement to law enforcement in July 2009, but the
case fell through the cracks and the State did not file charges
against Fuerte until October 2013. In November 2014, a jury
found him guilty as charged of class B felony attempted incest,
class C felony child molesting, class C felony criminal
confinement, class D felony criminal confinement, and class D
felony sexual battery. Based on double jeopardy concerns, the
trial court entered judgment of conviction only on the attempted
incest, child molesting, and sexual battery counts. The court
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sentenced Fuerte to consecutive terms of twelve years for
attempted incest and seven years for child molesting and a
concurrent term of eighteen months for sexual battery, for an
aggregate sentence of nineteen years executed.
Fuerte v. State, 45A03-1501-CR-15 *1–2 (Ind. Ct. App. November 17, 2015)
(brackets in original). Fuerte challenged his convictions and sentence on
appeal, arguing that the trial court abused its discretion in admitting certain
evidence, his convictions for attempted incest and child molesting violated
Indiana’s double jeopardy clause, and that his sentence was inappropriate. On
November 17, 2015, we affirmed Fuerte’s convictions and sentence.
[3] On April 17, 2017, Fuerte filed a PCR petition. He amended his petition on
December 26, 2017. In this amended petition, Fuerte claimed that he received
ineffective assistance from his trial counsel. Following an evidentiary hearing,
the post-conviction court issued an order denying Fuerte’s PCR petition.
Discussion and Decision
[4] Post-conviction procedures do not afford the petitioner with a super-appeal.
Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a
narrow remedy for subsequent collateral challenges to convictions, challenges
which must be based on grounds enumerated in the post-conviction rules. Id.
A petitioner who has been denied post-conviction relief appeals from a negative
judgment and as a result, faces a rigorous standard of review on appeal. Dewitt
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v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942
(Ind. Ct. App. 1999), trans. denied.
[5] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,
745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his
claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);
Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,
a petitioner must convince this court that the evidence, taken as a whole, “leads
unmistakably to a conclusion opposite that reached by the post-conviction
court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without
conflict and leads to but one conclusion, and the post-conviction court has
reached the opposite conclusion, that its decision will be disturbed as contrary
to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.
The post-conviction court is the sole judge of the weight of the evidence and the
credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
I. Ineffective Assistance of Counsel
[6] The right to effective counsel is rooted in the Sixth Amendment to the United
States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The
Sixth Amendment recognizes the right to the assistance of counsel because it
envisions counsel’s playing a role that is critical to the ability of the adversarial
system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S.
668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the proper function of the
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adversarial process that the trial court cannot be relied on as having produced a
just result.” Strickland, 466 U.S. at 686.
[7] A successful claim for ineffective assistance of counsel must satisfy two
components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first
prong, the petitioner must establish that counsel’s performance was deficient by
demonstrating that counsel’s representation “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. We recognize that
even the finest, most experienced criminal defense attorneys may not agree on
the ideal strategy or most effective way to represent a client, and therefore,
under this prong, we will assume that counsel performed adequately and defer
to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585
(Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of
bad judgment do not necessarily render representation ineffective. Id.
[8] Under the second prong, the petitioner must show that the deficient
performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner
may show prejudice by demonstrating that there is “a reasonable probability
(i.e. a probability sufficient to undermine confidence in the outcome) that, but
for counsel’s errors, the result of the proceeding would have been different.” Id.
A petitioner’s failure to satisfy either prong will cause the ineffective assistance
of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently,
“[a]lthough the two parts of the Strickland test are separate inquires, a claim
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may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031
(Ind. 2006) (citing Williams, 706 N.E.2d at 154).
[9] Fuerte appears to argue that his counsel was ineffective for failing to fully
investigate potential witness testimony and to object to certain witness
testimony. Specifically, Fuerte seems to assert that trial counsel provided
ineffective assistance by failing to fully investigate his pastor’s potential
testimony and to object to his pastor’s testimony. The State argues that we
should conclude that Fuerte waived his argument because he failed to support it
with cogent reasoning. While we agree that Fuerte has failed to provide cogent
reasoning in support of his argument that trial counsel provided ineffective
assistance, we affirm the post-conviction court not on waiver, but because
Fuerte failed to establish prejudice.
[10] Fuerte does not provide any evidence indicating that his trial counsel did not
fully investigate the pastor’s potential testimony or that any objection to or
attempt to limit the pastor’s testimony would have been successful. Further,
while the pastor’s testimony was undoubtedly damning, the record contains
significant independent evidence of Fuerte’s guilt, including E.F.’s testimony
and statements to law enforcement, E.F.’s mother’s testimony that she found
Fuerte lying on the floor of E.F.’s bedroom in the dark wearing only his
underwear, E.F.’s attempts to stay away from Fuerte, observations of E.F.’s
demeanor upon revealing Fuerte’s actions to school officials, and Fuerte’s
apology to E.F.’s father. Given this unrelated evidence of his guilt, Fuerte has
failed to prove that there is a reasonable probability that, but for counsel’s
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alleged errors, the result of his trial would have been different. We therefore
conclude that Fuerte has failed to prove that he suffered ineffective assistance of
counsel. See Williams, 706 N.E.2d at 154 (providing that a failure to prove
prejudice will cause a claim of ineffective assistance to fail).
II. Fuerte’s Additional Freestanding Claims
[11] Fuerte also presents argument relating to a number of freestanding claims of
trial court error. Fuerte argues that the trial court abused its discretion in
allowing his pastor to testify that he asked for forgiveness and in permitting the
State to introduce vouching testimony during trial. Both of these arguments,
however, were raised and decided against Fuerte on direct appeal. As such,
they may not be relitigated in the instant PCR proceedings. Reed v. State, 856
N.E.2d 1189, 1194 (Ind. 2006) (“If an issue was raised on direct appeal, but
decided adversely to the petitioner, it is res judicata.”). Further, to the extent
that Fuerte presents arguments relating to other freestanding claims of trial
court error and to the sufficiency of the evidence to sustain his convictions, we
note that Fuerte has failed to establish that these claims were not available on
direct appeal. As such, we conclude that the post-conviction court properly
determined that the issues could not be raised on PCR because issues available
but not raised on direct appeal may not be raised in a subsequent PCR petition.
See Garrett v. State, 992 N.E.2d 710, 718 (Ind. 2013) (providing that issues
available but not raised on direct appeal are waived).
[12] The judgment of the post-conviction court is affirmed.
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Crone, J., and Tavitas, J., concur.
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