Tommy J. Rubalcada v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Feb 14 2017, 10:30 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any 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.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Tommy J. Rubalcada Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tommy J. Rubalcada, February 14, 2017
Appellant-Petitioner, Court of Appeals Case No.
82A01-1605-PC-1180
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Respondent Judge
Trial Court Cause No.
82C01-1205-PC-12
Baker, Judge.
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[1] Tommy Rubalcada appeals the denial of his petition for post-conviction relief,
arguing that he received the ineffective assistance of trial counsel. Finding no
error, we affirm.
[2] Rubalcada and two accomplices, Vincent Moreno and Roy Nunez, formed a
plot to rob Brian Jamison in a fake drug deal. The three accomplices told
Jamison that they would give him fifty pounds of marijuana in exchange for
$25,000. At the transaction, Rubalcada and Moreno entered Jamison’s vehicle,
saying that they needed to count the money. Instead, Rubalcada shot Jamison
in the head, and Rubalcada and Moreno ran away with the cash.
[3] Rubalcada was found guilty of conspiracy to commit robbery, robbery, and
felony murder, and the trial court sentenced him to consecutive terms of fifteen
years and sixty years for the conspiracy count and the murder count,
respectively. Our Supreme Court affirmed his convictions on direct appeal.
Rubalcada v. State, 731 N.E.2d 1015 (Ind. 2000).
[4] On May 7, 2012, Rubalcada filed a petition for post-conviction relief, arguing
that he received the ineffective assistance of counsel. Appellant’s App. Vol. II
p. 17-23. He claimed that his public defender should have used Nunez as a
witness and that counsel would not allow him to testify in his own defense.
After Rubalcada supplemented his petition with an affidavit and the State filed
its response, the post-conviction court denied the petition on February 24, 2016.
Rubalcada now appeals.
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[5] A claim of ineffective assistance of trial counsel requires a showing that: (1)
counsel’s performance was deficient by falling below an objective standard of
reasonableness based on prevailing professional norms; and (2) counsel’s
performance prejudiced the defendant such that “‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444
(Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A
reasonable probability arises when there is a ‘probability sufficient to undermine
confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.
2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two
prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.
Ct. App. 2012). However, “[i]f we can easily dismiss an ineffective assistance
claim based upon the prejudice prong, we may do so without addressing
whether counsel’s performance was deficient.” Baer v. State, 942 N.E.2d 80, 91
(Ind. 2011). “Indeed, most ineffective assistance of counsel claims can be
resolved by a prejudice inquiry alone.” French v. State, 778 N.E.2d 816, 824
(Ind. 2002).
[6] Even if we were to accept Rubalcada’s allegations regarding his attorney as
true, Rubalcada has failed to establish that he suffered any prejudice. Although
he never clearly specifies what testimony either he or Nunez would have
provided, he argued at his sentencing hearing that, while he was involved in the
robbery, it was Moreno who pulled the trigger. He repeats in his appellate brief
that Nunez “would have testified that Rubalcada was not the shooter.”
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Appellant’s Br. p. 4. Even if Nunez and Rubalcada had testified in exactly this
way, and the jury found them both perfectly credible, Rubalcada would have
been found guilty of committing precisely the same offenses for which he was
convicted. See Ind. Code § 35-42-1-1(2) (1999) (person is guilty of murder if he
“kills another human being while committing . . . robbery”); Layman v. State, 42
N.E.3d 972, 977 (Ind. 2015) (explaining that “felony murder statute may also
apply equally when, in committing any of the designated felonies, the felon,
although not the killer, reasonably should have foreseen that his felonious
conduct would result in the ‘mediate or immediate cause’ of the victim’s
death”) (quoting Palmer v. State, 704 N.E.2d 124, 126 (Ind. 1999)). Rubalcada
cannot show that he suffered any prejudice because his sought-after testimony
confirms his guilt.
[7] Rubalcada also argues, for the first time on appeal, that his trial counsel should
have objected to a statement allegedly made by the prosecutor during the
sentencing phase of the trial. It is well established that “[i]ssues not raised in
the petition for post-conviction relief may not be raised for the first time on
post-conviction appeal.” Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001).
Accordingly, this final argument is waived.1
1
We also note that Rubalcada has not presented any evidence regarding what the prosecutor said.
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[8] The judgment of the post-conviction court is affirmed.
Mathias, J., and Pyle, J., concur.
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