Pedro Vicente v. State of Indiana (mem. dec.) ( 2020 )

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.
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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
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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
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“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
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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
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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
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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.
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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).
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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
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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
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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
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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.
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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.
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