FOR PUBLICATION
                                                                    Jul 15 2014, 10:31 am




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:
CYNTHIA M. CARTER                             GREGORY F. ZOELLER
Indianapolis, Indiana                         Attorney General of Indiana

                                              MONIKA PREKOPA TALBOT
                                              Deputy Attorney General
                                              Indianapolis, Indiana



                           IN THE
                 COURT OF APPEALS OF INDIANA

JUAN MANZANO,                                 )
                                              )
     Appellant-Petitioner,                    )
                                              )
        vs.                                   )      No. 48A02-1310-PC-905
                                              )
STATE OF INDIANA,                             )
                                              )
     Appellee-Respondent.                     )


                  APPEAL FROM THE MADISON CIRCUIT COURT
                       The Honorable Dennis Carroll, Judge
                          Cause No. 48D01-9609-CF-208


                                    July 15, 2014

                             OPINION – FOR PUBLICATION

MATHIAS, Judge
      In 1997, in Madison Circuit Court, Juan Manzano (“Manzano”) pleaded guilty to

and was convicted of Class A felony rape and ordered to serve fifty years executed in the

Department of Correction. Manzano has now filed a petition for post-conviction relief

arguing that his trial counsel and appellate counsel were ineffective. The post-conviction

court denied his petition, and Manzano appeals.

      Concluding that Manzano did not receive ineffective assistance of trial or

appellate counsel, we affirm.

                                Facts and Procedural History

      On September 14, 1996, Manzano’s now ex-wife left their two children in his care

while she worked an overnight shift for her employer. While his six-year-old daughter

and four-year-old son were sleeping, Manzano went to several bars with two co-workers

and consumed alcohol. When Manzano returned home sometime in the early morning

hours on September 14, he removed B.M., his six-year-old daughter, from her bed,

removed her clothing and placed the child in his bed. Manzano then raped his daughter.

As a result, six-year-old B.M. suffered a tear from the opening of her vagina to the

opening of her rectum.

      The following morning, after his wife returned home, Manzano went to work at

the Red Gold Factory. Shortly thereafter, B.M. appeared in the kitchen with blood on her

legs. B.M.’s mother called the police and took B.M. to the emergency room. B.M. had

emergency surgery to repair her injury and was hospitalized for several days.

      B.M. identified Manzano as her attacker, and Manzano was arrested later that

morning.    He gave a statement to the police and initially claimed that he did not

                                             2
remember anything that had happened. However, he stated that if B.M. claimed that he

raped her, he must have done so. Manzano later admitted that he attempted to put his

penis “inside her vagina” and remembered B.M. saying “no . . . over and over.”

Appellant’s App. pp. 243-45.

      On September 16, 1996, Manzano was charged with Class A felony child

molesting, Class A felony rape, Class B felony incest, and Class C felony battery. Prior

to pleading guilty, Manzano filed a notice of intent to pursue an intoxication defense and

a motion to suppress his statement to the police. A suppression hearing was scheduled

for April 7, 1997, but on that date, Manzano agreed to plead guilty to Class A felony rape.

At the sentencing hearing held on May 5, 1997, the trial court ordered Manzano to serve

fifty years executed in the Department of Correction. Our court affirmed his fifty-year

sentence on direct appeal. Manzano v. State, No. 48A02-9708-CR-529 (Ind. Ct. App. Jan.

28, 1998).

      On February 28, 2006, Manzano filed a pro se petition for post-conviction relief.

The State denied the allegations in the petition. Manzano’s petition languished until June

8, 2012, when he filed an amended petition. Shortly thereafter, counsel entered an

appearance on Manzano’s behalf. The post-conviction court held evidentiary hearings on

February 25 and April 15, 2013.       The court found that Manzano did not receive

ineffective assistance of trial and appellate counsel and denied his petition for post-

conviction relief. Manzano now appeals. Additional facts will be provided as necessary.

                        I. Post–Conviction Standard of Review



                                            3
       Post-conviction proceedings are not “super appeals” through which convicted

persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State,

761 N.E.2d 389, 391 (Ind. 2002). Rather, post-conviction proceedings afford petitioners

a limited opportunity to raise issues that were unavailable or unknown at trial and on

direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). A post-conviction

petitioner bears the burden of establishing grounds for relief by a preponderance of the

evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). On appeal from the denial

of post-conviction relief, the petitioner stands in the position of one appealing from a

negative judgment. Id. To prevail on appeal from the denial of post-conviction relief, the

petitioner must show that the evidence as a whole leads unerringly and unmistakably to a

conclusion opposite that reached by the post-conviction court. Id. at 643-44.

       Where, as here, the post-conviction court makes findings of fact and conclusions

of law in accordance with Indiana Post-Conviction Rule 1(6), we cannot affirm the

judgment on any legal basis, but rather, must determine if the court’s findings are

sufficient to support its judgment. Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App.

2011), aff’d on reh’g, 947 N.E.2d 962. Although we do not defer to the post-conviction

court’s legal conclusions, we review the post-conviction court’s factual findings under a

clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or judge

the credibility of witnesses, and we will consider only the probative evidence and

reasonable inferences flowing therefrom that support the post-conviction court’s decision.

Id.

                       I. Ineffective Assistance of Trial Counsel

                                             4
      Manzano contends that the post-conviction court clearly erred in denying his claim

of ineffective assistance of trial counsel. Our supreme court summarized the law

regarding claims of ineffective assistance of trial counsel in Timberlake v. State as

follows:

              A defendant claiming a violation of the right to effective assistance
      of counsel must establish the two components set forth in Strickland v.
      Washington, 466 U.S. 668 (1984). First, the defendant must show that
      counsel’s performance was deficient. This requires a showing that
      counsel’s representation fell below an objective standard of reasonableness,
      and that the errors were so serious that they resulted in a denial of the right
      to counsel guaranteed the defendant by the Sixth Amendment. Second, the
      defendant must show that the deficient performance prejudiced the defense.
      To establish prejudice, a defendant must show 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.
              Counsel is afforded considerable discretion in choosing strategy and
      tactics, and we will accord those decisions deference. A strong presumption
      arises that counsel rendered adequate assistance and made all significant
      decisions in the exercise of reasonable professional judgment. The
      Strickland Court recognized that even the finest, most experienced criminal
      defense attorneys may not agree on the ideal strategy or the most effective
      way to represent a client. Isolated mistakes, poor strategy, inexperience,
      and instances of bad judgment do not necessarily render representation
      ineffective. The two prongs of the Strickland test are separate and
      independent inquiries. 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.

753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations omitted).

      A. The Ineffective Assistance of Trial Counsel Standard as it Relates to Guilty

Plea Proceedings

      Before we address Manzano’s specific arguments, it is important to observe that

“[t]here are two different types of ineffective assistance of counsel claims that can be


                                            5
made in regards to guilty pleas: (1) failure to advise the defendant on an issue that

impairs or overlooks a defense and (2) an incorrect advisement of penal consequences.”

McCullough v. State, 987 N.E.2d 1173, 1176 (Ind. Ct. App. 2013) (citing Segura v. State,

749 N.E.2d 496, 500 (Ind. 2001)); see also Smith v. State, 770 N.E.2d 290, 295 (Ind.

2002). Our supreme court has observed:

        We conclude that Hill [v. Lockhart, 747 U.S. 52 (1985)] standing alone
        requires a showing of a reasonable probability of success at trial if the
        alleged error is one that would have affected a defense. This result seems
        preferable for several reasons. In [State v.] Van Cleave, [674 N.E.2d 1293
        (Ind. 1996),] we identified sound reasons for requiring that a petitioner who
        pleads guilty show a reasonable probability of acquittal in order to prevail
        in a postconviction attack on the conviction based on a claim of ineffective
        assistance of counsel. As Hill emphasized, the State has an interest in the
        finality of guilty pleas. This is in part grounded in the cost of a new trial,
        and the demands on judicial resources that are imposed by revisiting the
        guilty plea, but also in concerns about the toll a retrial exacts from victims
        and witnesses who are required to revisit the crime years later.

Segura, 749 N.E.2d at 503 (citations omitted).1 Therefore, our supreme court concluded

that “[a] new trial is of course necessary if an unreliable plea has been accepted. But its

costs should not be imposed needlessly, and that would be the result if the petitioner

cannot show a reasonable probability that the ultimate result—conviction—would not

have occurred despite counsel’s error as to a defense.” Id.

        Importantly, the decision to enter a guilty plea is largely the defendant’s decision,

and is therefore different from the tactical or investigatory steps that are the bases of most

1
  In Payne v. Brown, 662 F.3d 825, 828 (7th Cir. 2011), the Seventh Circuit rejected the Segura holding
and concluded that our supreme court misinterpreted the United States Supreme Court’s holding in Hill v.
Lockhart, 474 U.S. 52 (1985). The Seventh Circuit concluded that Hill “holds that a person who contends
that ineffective assistance of counsel induced him to plead guilty establishes ‘prejudice’ by demonstrating
that, but for counsel’s errors, he would have insisted on a trial.” Id. Because the Seventh Circuit’s
“decisions on questions of federal law are not binding on state courts,” see Jackson v. State, 830 N.E.2d
920, 921 (Ind. Ct. App. 2005), we apply the standard established by our supreme court in Segura.
                                                    6
claims of ineffective assistance of counsel. Id. at 503-04. In State v. Van Cleave, our

supreme court reasoned:

       Demonstrating prejudice seems particularly appropriate in the context of a
       claim of ineffective assistance by a defendant who has pleaded guilty. The
       guilty plea, virtually uniquely among all procedural steps, involves the
       judgment of the defendant as well as his attorney. . . . [T]he decision to
       plead is often strongly if not overwhelmingly influenced by the attorney’s
       advice. But it is equally true that the defendant appreciates the significance
       of the plea and is uniquely able to evaluate its factual accuracy. The
       requirement that the court satisfy itself as to the factual basis for the plea is
       designed to ensure that only guilty defendants plead guilty, and also that the
       defendant’s decision to waive a jury trial is an informed and reflective one.
       Many decisions at trial—calling a given witness, asserting a defense, or the
       extent of cross-examination—are difficult if not impossible for the
       defendant to make, and reliance on counsel is unavoidable. In contrast, the
       decision whether to plead guilty is ultimately the prerogative of the
       defendant, and the defendant alone. More than conjecture or hope for a
       lucky break at trial should be required to upset that action years later.

674 N.E.2d at 1301. Likewise, “if the error or omission has the result of overlooking

evidence or circumstances that affect the sentence imposed, prejudice is evaluated by the

reasonable probability that it had that effect.” Segura, 749 N.E.2d at 504. Accordingly,

we focus our inquiry on whether there is a reasonable probability that Manzano would

have succeeded at trial.

       There is little to no probability that Manzano would have prevailed at trial. He did

not deny raping his daughter, and B.M. identified him as the perpetrator of the offense.

Moreover, given the extensive injury to six-year-old B.M.’s vagina and rectum, Manzano

does not dispute the evidence that he penetrated his daughter’s vagina with his penis.

       B. Intoxication Defense




                                              7
       Manzano and his counsel discussed and planned to raise the defense of

intoxication at trial. On the date Manzano committed the offense, evidence of voluntary

intoxication could be used to negate the requisite mens rea of rape.2 See Sanchez v. State,

749 N.E.2d 509, 512 (Ind. 2001).

       Evidence of Manzano’s level of intoxication on the night he raped his daughter is

conflicting. Daniel Garza was with Manzano before he raped his daughter and told the

police that Manzano consumed numerous alcoholic beverages and that he was drunk.

But Garza also stated that Manzano was able to walk without assistance. Trial Record of

Proceedings p. 46.      When the police officers arrested Manzano on the morning of

September 14, 1996, he did not appear to be under the influence of alcohol. The officers

administered a breathalyzer test to Manzano, and the results registered a blood alcohol

content of zero.

       Trial counsel did not believe that Manzano was likely to prevail on an voluntary

intoxication defense. We agree. Had Manzano proceeded to trial and argued that the

requisite mens rea for the crime of rape was negated by his voluntary intoxication, it is

not reasonably probable that he would have succeeded in this defense.

       But Manzano also argues that his defense counsel should have also pursued a

defense of involuntary intoxication in light of his self-serving claim that he cannot

remember committing the offense. Aside from Manzano’s claimed lack of recall, there is

no evidence in the record that would support a defense of involuntary intoxication. And


2
 In 1997, the General Assembly eliminated voluntary intoxication as a defense in prosecution for a
criminal offense. See Sanchez, 749 N.E.2d at 513; see also Ind. Code § 35-41-3-5.
                                                8
Manzano admitted to the investigating detective that he attempted to put his penis “inside

her vagina” and remembered B.M. saying “no . . . over and over.” Appellant’s App. pp.

243-45.

          C. Motions to Suppress

          Trial counsel filed a motion to suppress Manzano’s statement because the video

and transcribed statement did not include a waiver of rights. But after the prosecutor

provided trial counsel with a signed copy of Manzano’s advisement of rights waiver, trial

counsel opined that the motion to suppress would be denied. Trial Record of Proceedings

at 113.

          Manzano also expresses concern that trial counsel failed to file a motion to

suppress evidence obtained during the search of his home and from DNA samples taken

from Manzano. And trial counsel allowed Manzano to plead guilty on the date they

received the DNA test results from the State. But this evidence is merely cumulative of

other evidence that Manzano was the assailant who raped B.M., including B.M.’s

identification of her father as the man who raped her. And Manzano has not established

lack of consent to search his home or to collect DNA samples, but simply speculates that

there may not have been consent.3 Moreover, Manzano does not argue the likelihood of

success of said motions, just that trial counsel was ineffective for failing to file them.




3
 Manzano was arrested at his home and does not remember whether he gave police consent to search it.
Tr. p. 84.
                                                 9
       Manzano also raises other claims concerning alleged “discovery problems” but

does not argue how these discovery violations prejudiced him.4 Manzano argues “[t]rial

by surprise is not fair and undermines the way in which the criminal justice system

should work.” Appellant’s Br. at 12. Manzano’s claims of surprise concerning DNA

results are disingenuous in light of his daughter’s accusation and his own admission to

the police that he raped his daughter. Again, we observe that Manzano’s appellate and

reply briefs focus on what trial counsel could have done as a result of the State’s alleged

discovery violations, but he fails to argue how he was prejudiced as a result. Manzano

has not argued that he would have succeeded at trial absent these alleged errors had he

not pleaded guilty, and given the circumstances of this case, and as acknowledged by trial

counsel, Manzano’s likelihood of acquittal was slim to none.

       D. The Sentencing Proceedings

       Finally, Manzano claims that his trial counsel was ineffective for failing “to object

to improper aggravating circumstances and his omission in not arguing valid mitigating

circumstances.” Id. at 12. Manzano argues that “[p]rejudice occurred because Manzano

received the maximum sentence; despite the fact he pled open he received the harshest

sentence possible.” Id.



4
  Manzano emphasizes the State’s inability to produce an audible and/or transcribed copy of Casimiro
Loera’s statement, the other co-worker who was drinking with Manzano on the night he raped his
daughter. Loera is now deceased. The State also failed to discover and/or disclose to Manzano that Loera
had a lengthy criminal history. However, Manzano fails to establish prejudice or that access to Loera’s
statement would have resulted in acquittal if he had taken the case to trial. Manzano merely speculates
that Loera’s statement could have supported an involuntary intoxication defense. We again observe that
Manzano’s claim that he could have possibly raised an involuntary intoxication defense is supported only
by his self-serving statement that he cannot remember raping his daughter.
                                                  10
       However, Manzano does not argue which aggravating circumstances the trial court

relied on were allegedly improper.      During the sentencing hearing, Manzano’s trial

counsel argued that the serious bodily injury to B.M. was an element of the offense, so it

should not be considered in imposing sentence. Counsel also argued that Manzano’s

prior criminal record was “mild.” Trial Record of Proceedings p. 185. Counsel claimed

that Manzano’s remorse and cooperation with the police should be considered as

mitigating, and counsel appropriately focused much of his argument on the weight to be

given to Manzano’s guilty plea. Finally, counsel noted Manzano’s good behavior while

incarcerated during the trial proceedings.

       The only mitigating circumstance Manzano specifically argues that counsel failed

to raise was that his prolonged incarceration would result in hardship on his family. It is

not likely the trial court would have valued this mitigator even if it had been raised

because Manzano’s family, and most particularly his daughter, were the victims of the

offense. And the Class A felony conviction subjected Manzano to, at a minimum, a

lengthy twenty-year term of incarceration. See Ind. Code § 35-50-2-4.

       Finally, after the guilty plea hearing concluded, the trial court allowed Manzano’s

ex-wife to give victim impact testimony for the purposes of sentencing because she

desired to return to Texas and did not want to make a return trip to Indiana. This was

unorthodox and Manzano’s counsel failed to object, but again, Manzano has failed to

establish prejudice as a result.

       E. Conclusion



                                             11
       We cannot conclude that Manzano established that he was subjected to ineffective

assistance of trial counsel. Under the facts and circumstances of this case, Manzano

cannot prove that, absent counsel’s alleged errors, there is a reasonable probability that he

would have been acquitted if he had proceeded to trial. Finally, although it is generally

true that a trial court should not impose a maximum sentence when a defendant pleads

guilty, it is evident from the trial record that Manzano’s decision to plead guilty was a

pragmatic one. Accordingly, Manzano was not subjected to ineffective assistance of trial

counsel during the sentencing proceedings because his heinous offense and the horrific

injury to his six-year-old daughter supports the maximum sentence imposed.

                    III. Ineffective Assistance of Appellate Counsel

       Manzano also claims that his appellate counsel was constitutionally ineffective for

failing to raise certain issues concerning his sentence. When we review claims of

ineffective assistance of appellate counsel, we use the same standard applied to claims of

ineffective assistance of trial counsel: the post-conviction petitioner must show that

appellate counsel’s performance fell below an objective standard of reasonableness and

that there is a reasonable probability that, but for the deficient performance of counsel,

the result of the proceeding would have been different. Harris v. State, 861 N.E.2d 1182,

1186 (Ind. 2007).

       To show that counsel was ineffective for failing to raise an issue on appeal, the

defendant must overcome the strongest presumption of adequate assistance, and judicial

scrutiny is highly deferential. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). To

evaluate the performance prong when counsel failed to raise issues upon appeal, we apply

                                             12
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 the

raised issues. Id. If the analysis under this test demonstrates deficient performance, then

we examine whether “the issues which . . . appellate counsel failed to raise, would have

been clearly more likely to result in reversal or an order for a new trial.” Id. Ineffective

assistance is very rarely found in cases where a defendant asserts that appellate counsel

failed to raise an issue on direct appeal because the decision of what issues to raise is one

of the most important strategic decisions to be made by appellate counsel. Id.

        Manzano claims appellate counsel was ineffective for failing to argue that the trial

court should have, but failed to consider the following alleged mitigating circumstances:

1) that his incarceration would place undue hardship on his dependents, 2) that he

cooperated with the authorities, and 3) that he was remorseful for his crime. We cannot

conclude that our court would have concluded that Manzano’s sentence was manifestly

unreasonable5 if appellate counsel had argued these mitigating circumstances on appeal.

        First, we observe that the trial court did acknowledge and consider Manzano’s

remorse when it imposed his sentence. Trial Record of Proceedings at 190. Also, the

finding of mitigating circumstances is within the trial court’s considerable discretion.

See Sims v. State, 585 N.E.2d 271, 272 (Ind. 1992). Therefore, had appellate counsel

argued the trial court’s refusal to find that Manzano’s incarceration would place undue

5
 Before January 1, 2003, Indiana Appellate Rule 7(B) provided: “The Court shall not revise a sentence
authorized by statute unless the sentence is manifestly unreasonable in light of the nature of the offense
and the character of the offender.” Ind. Appellate Rule 7(B). The same rule now 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.” (Emphasis added).
                                                    13
hardship on his dependents, it is unlikely that our court would have concluded that the

trial court erred under the circumstances of this case where the victim of the rape was his

dependent daughter and the Class A felony conviction subjected him to a lengthy twenty

to fifty year term of incarceration. See I.C. § 35-50-2-4. Likewise, we cannot conclude

that appellate counsel’s failure to argue cooperation with the authorities would have been

successful on appeal given the heinous nature of Manzano’s crime.

          Appellate counsel raised the strongest issue available to Manzano on appeal of his

sentence: whether Manzano’s maximum fifty-year sentence was manifestly unreasonable

because he pleaded guilty. Appellate counsel cited to and thoroughly discussed cases

wherein our courts have held that a defendant’s guilty plea is entitled to substantial

mitigating weight. See Ex. Vol., Petitioner’s Ex. B, pp. 10-11. Our court considered

Manzano’s argument and rejected it. Manzano v. State, No. 48A02-9708-CR-529 (Ind.

Ct. App. Jan. 28, 1998). After reviewing the trial proceedings and the appellate brief, we

conclude that our court would not have reduced Manzano’s sentence had appellate

counsel raised the arguments discussed above, and therefore, Manzano’s appellate

counsel was not ineffective.

                                          Conclusion

          Manzano has not established that he was subjected to ineffective assistance of trial

and appellate counsel. We therefore affirm the denial of his petition for post-conviction

relief.

          Affirmed.

FRIEDLANDER, J., and KIRSCH, J., concur.

                                               14
