Mauricio Martinez v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
ON REHEARING
FILED
Pursuant to Ind. Appellate Rule 65(D), Jun 24 2016, 9:41 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cynthia M. Carter Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mauricio Martinez, June 24, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1506-PC-547
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marc T.
Appellee-Plaintiff Rothenberg, Judge
The Honorable Amy J. Barbar,
Magistrate
Trial Court Cause No.
49G02-0810-PC-230416
Bailey, Judge.
Court of Appeals of Indiana |Mem. Decision on Rehearing 49A02-1506-PC-547| June 24, 2016 Page 1 of 3
[1] Mauricio Martinez (“Martinez”) appealed the denial of his petition for post-
conviction relief, alleging that he was denied the effective assistance of trial and
appellate counsel. We affirmed the denial, and Martinez petitions for
rehearing, contending that this Court failed to acknowledge that his trial lawyer
“neither requested a body attachment nor issued a defense subpoena, regarding
the Constitution’s Sixth Amendment right to confrontation.” Pet. for
Rehearing at 3.
[2] The record indicates that the State had subpoenaed Cheryl Sladovnik, who later
failed to appear. A bench warrant was issued for her arrest, and she was
declared an unavailable witness. Her redacted deposition (previously taken by
defense counsel) was read into evidence. According to Martinez, “the
reasonable and preferred strategy would be to have the witness herself appear
and testify.” Pet. for Rehearing at 3-4. Because his trial attorney did not issue a
defense subpoena, Martinez was unable to request that the trial court issue a
body attachment. Martinez wishes to have these facts specifically
acknowledged, purportedly to assist in his petition for transfer.
[3] We do not express disagreement with Martinez’s preference for live testimony.
Had his trial counsel gone above and beyond the State’s efforts to secure
Sladovnik as a witness, it is possible that Sladovnik’s attendance could have
been secured through a body attachment. Indiana Code Section 34-29-2-3
provides: “An attachment for contempt, for failure to obey the command of a
subpoena to testify, is a civil process within the meaning of this article.”
Court of Appeals of Indiana |Mem. Decision on Rehearing 49A02-1506-PC-547| June 24, 2016 Page 2 of 3
[4] However, we do not review counsel’s performance for “preferred strategy.”
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). Moreover, Martinez did not articulate the prejudice he suffered, as
is required under Strickland v. State, 466 U.S. 668 (1984).
[5] Martinez did not demonstrate that he was denied the effective assistance of
counsel. We thus deny the petition for rehearing.
Vaidik, C.J., and Crone, J., concur.
Court of Appeals of Indiana |Mem. Decision on Rehearing 49A02-1506-PC-547| June 24, 2016 Page 3 of 3