MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    Feb 22 2016, 6:11 am

this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark A. Bates                                            Gregory F. Zoeller
Schererville, Indiana                                    Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Manuel Ocasio, Jr.,                                      February 22, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1507-CR-893
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Jesse M.
Appellee-Plaintiff                                       Villalpando, Judge
                                                         Trial Court Cause No.
                                                         45D12-1204-CM-419



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-893 | February 22, 2016          Page 1 of 9
                               Case Summary and Issues
[1]   Manuel Ocasio, Jr., appeals the denial of his petition for post-conviction relief,

      raising the following restated issue: whether Ocasio received ineffective

      assistance of trial counsel. Concluding Ocasio did not receive ineffective

      assistance of counsel, we affirm.



                            Facts and Procedural History
[2]   On April 20, 2012, Ocasio was charged with resisting law enforcement, a Class

      A misdemeanor; battery on a law enforcement officer, a Class A misdemeanor;

      failure to yield to an emergency vehicle, an infraction; and operating a truck in

      a restricted lane, an infraction. A jury trial was held on August 9, 2013. The

      jury found Ocasio guilty of resisting law enforcement and not guilty of the

      remaining charges. The trial court declined to enter judgment of conviction,

      however, because it realized the jury was not instructed on the elements of each

      offense.


[3]   During a brief recess, Ocasio agreed to plead guilty to resisting law enforcement

      under the terms of a plea agreement the State offered prior to trial. The plea

      agreement provided Ocasio would plead guilty to resisting law enforcement in

      exchange for the State dismissing the remaining charges, and that Ocasio would

      serve 365 days suspended to probation. Ocasio signed the plea agreement and a

      waiver of rights form, and the parties stipulated that the facts recited in the

      probable cause affidavits provided a sufficient factual basis for the guilty plea.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-893 | February 22, 2016   Page 2 of 9
      The trial court accepted the plea and entered judgment of conviction for

      resisting law enforcement.


[4]   On October 30, 2014, Ocasio filed a petition for post-conviction relief.

      Following an evidentiary hearing, the post-conviction court denied Ocasio’s

      petition. This appeal followed.



                                 Discussion and Decision
                                     I. Standard of Review
[5]   Post-conviction proceedings “provide a narrow remedy to raise issues that were

      not known at the time of the original trial or were unavailable on direct

      appeal.” Garrett v. State, 992 N.E.2d 710, 718 (Ind. 2013). The petitioner bears

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

      evidence. Ind. Post-Conviction Rule 1(5). A petitioner who is denied post-

      conviction relief appeals from a negative judgment, which may be reversed only

      if “the evidence, as a whole, unmistakably and unerringly points to a

      conclusion contrary to the post-conviction court’s decision.” Wilkes v. State, 984

      N.E.2d 1236, 1240 (Ind. 2013) (citation omitted).


[6]   In reviewing a denial of post-conviction relief, we neither reweigh the evidence

      nor assess the credibility of witnesses. State v. Holmes, 728 N.E.2d 164, 169

      (Ind. 2000), cert. denied, 532 U.S. 1067 (2001). We consider only the evidence

      that supports the judgment and the reasonable inferences to be drawn from that

      evidence. Id. We accept the post-conviction court’s factual findings unless

      Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-893 | February 22, 2016   Page 3 of 9
      clearly erroneous, but we do not defer to its legal conclusions. Stevens v. State,

      770 N.E.2d 739, 746 (Ind. 2002) (citing Ind. Trial Rule 52(A)), cert. denied, 540

      U.S. 830 (2003).


                        II. Ineffective Assistance of Counsel
[7]   Ocasio contends the post-conviction court erred in denying his petition for post-

      conviction relief, which alleged he received ineffective assistance of trial

      counsel. The Sixth Amendment “right to counsel is the right to the effective

      assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984)

      (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish a

      claim of ineffective assistance of counsel, a petitioner must demonstrate (1)

      counsel’s performance was deficient, and (2) the deficient performance

      prejudiced the defense. Id. at 687. Counsel’s performance was deficient if it fell

      below an objective standard of reasonableness based on prevailing professional

      norms. Id. at 688.


[8]   As for the prejudice prong, there are two types of ineffective assistance claims

      available to a defendant who pleaded guilty: “(1) failure to advise the

      defendant on an issue that impairs or overlooks a defense and (2) an incorrect

      advisement of penal consequences.” Manzano v. State, 12 N.E.3d 321, 326 (Ind.

      Ct. App. 2014) (citation omitted), trans. denied, cert. denied, 135 S. Ct. 2376

      (2015). Where a petitioner claims counsel provided incorrect advice regarding

      penal consequences, the petitioner must show “a reasonable probability that the




      Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-893 | February 22, 2016   Page 4 of 9
       hypothetical reasonable defendant would have elected to go to trial if properly

       advised.” Segura v. State, 749 N.E.2d 496, 507 (Ind. 2001).


[9]    Ocasio argues counsel rendered ineffective assistance by (1) providing incorrect

       legal advice regarding whether Ocasio could be retried on all the charges if he

       did not plead guilty, and (2) stipulating that the facts recited in the probable

       cause affidavits constituted a sufficient factual basis for the charge of resisting

       law enforcement.1


[10]   At the hearing on Ocasio’s petition for post-conviction relief, several witnesses

       testified counsel advised Ocasio that he would be retried on all the charges if he

       did not plead guilty. Ocasio contends this advice was erroneous because double

       jeopardy precluded retrial on the battery charge and the infractions. He further

       contends he would have elected to go to trial if he had been properly advised.

       Indiana Code section 35-41-4-3(a) provides in relevant part,


                A prosecution is barred if there was a former prosecution of the
                defendant based on the same facts and for commission of the
                same offense and if:
                      (1) the former prosecution resulted in an acquittal or a
                      conviction of the defendant . . . ; or
                      (2) the former prosecution was terminated after the jury



       1
         Ocasio also argues counsel was ineffective by failing to recognize that the trial court did not advise Ocasio
       of the penalty range for each charge. See Ind. Code § 35-35-1-2(a)(3) (“The court shall not accept a plea of
       guilty . . . without first determining that the defendant . . . has been informed of the maximum possible
       sentence and minimum sentence for the crime charged . . . .”). This claim is unavailable, however, because
       Ocasio did not raise the issue in his petition for post-conviction relief. P-C.R. 1(8) (stating all grounds for
       relief must be raised in the original petition for post-conviction relief); Allen v. State, 749 N.E.2d 1158, 1171
       (Ind. 2001) (“Issues not raised in the petition for post-conviction relief may not be raised for the first time on
       post-conviction appeal.”), cert. denied, 535 U.S. 1061 (2002).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-893 | February 22, 2016                Page 5 of 9
                       was impaneled and sworn . . . unless . . . (iii) there was a
                       legal defect in the proceedings that would make any
                       judgment entered upon a verdict reversible as a matter of
                       law . . . .


[11]   Here, the trial court declined to enter judgment of conviction because the trial

       court realized the jury was not instructed on the elements of each offense. As

       we have previously stated,


               [T]he giving of an instruction detailing the elements of [the]
               offense . . . is necessary procedure in a criminal trial. [W]e have
               no doubt a total failure to give an instruction detailing the
               elements of the offense would be available as reversible error on
               appeal absent compliance with the contemporaneous objection
               requirement.


       Taylor v. State, 922 N.E.2d 710, 718 (Ind. Ct. App. 2010) (emphasis omitted)

       (quoting Lacy v. State, 438 N.E.2d 968, 971 (Ind. 1982)), trans. denied. Although

       jeopardy typically attaches once the jury is impaneled and sworn, the grave

       omission in this case constituted “a legal defect in the proceedings that would

       make any judgment entered upon a verdict reversible as a matter of law . . . .”

       Ind. Code § 35-41-4-3(a)(2). As a result, the State could have retried Ocasio on

       all the charges. Because counsel did not provide incorrect legal advice in this

       regard, the post-conviction court properly denied relief on this claim.


[12]   As to the factual basis for the resisting law enforcement charge, the record

       includes two probable cause affidavits. A document titled “Information”

       includes the following account,


       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-893 | February 22, 2016   Page 6 of 9
        [W]hile on regular patrol I observed a white 2001 freightliner
        south bound I-65 in the left lane . . . with no vehicles in the right
        lane. I pulled out of the crossover and caught up to the vehicle
        . . . and activated my emergency lights. The driver continued
        south on 65 at normal highway speed and turned on his right
        signal. Still not yielding, at the beginning of the south bound
        scale ramp I activated my siren and pulled next to the cab. The
        driver then pulled to the outer berm and finally came to a stop. I
        approached the driver’s door and climb[ed] up. Initially the
        driver wanted to argue, then somewhat cooperated by presenting
        his Indiana CDL, then refused to cooperate anymore and called
        911. I stepped down from the truck instructing the driver to step
        out and he attempted to close the door. I stopped the door from
        closing and I climbed back up onto the driver’s side and the
        driver turned in towards the sleeper and began reaching towards
        the back. I ordered him to turn around and show me his hands;
        he refused. I again ordered him to turn around and show me his
        hands[. A]s I attempted to turn . . . to see his hands . . . he threw
        his shoulder back and went further into the sleeper. I
        immediately followed. The driver began throwing left elbows
        striking me in the head and I disengaged while he went deeper
        into his sleeper berth as I ordered him out again. I pulled my
        chemical agent, aimed for his face, and sprayed. He immediately
        began thrashing around the truck, came back to the drivers area
        and attempted to close the door with me in between the door and
        door jam. I again ordered him out of the truck and sprayed again
        as he swung and kicked towards me. [Another officer] arrived on
        scene and the driver finally exited the truck and became
        combative again as we attempted to handcuff him.


Appendix at 11. A document titled “Probable Cause Affidavit” alleges Ocasio

“resisted, obstructed, or interfered by refusing to comply with orders to exit the

truck, attempt[ing] to lock himself in his cab, and attempt[ing] to retreat into his

sleeper berth . . . .” Id. at 12.


Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-893 | February 22, 2016   Page 7 of 9
[13]   We conclude the facts recited in the probable cause affidavits provided a

       sufficient factual basis for the guilty plea. Indiana Code section 35-44-3-3(a)(1)

       (2011) provides, “A person who knowingly or intentionally . . . forcibly resists,

       obstructs, or interferes with a law enforcement officer . . . while the officer is

       lawfully engaged in the execution of the officer’s duties . . . commits resisting

       law enforcement . . . .” In this case, the probable cause affidavits state Ocasio

       argued with the officer, refused to comply with the officer’s orders to exit the

       lawfully stopped vehicle, attempted to lock himself in the truck cab, elbowed

       the officer, continued to flail after the officer sprayed a chemical agent, and then

       fought being handcuffed. These facts comprise a sufficient factual basis for the

       charge of resisting law enforcement. See, e.g., Johnson v. State, 833 N.E.2d 516,

       516-17 (Ind. Ct. App. 2005) (holding a defendant who complied with an

       officer’s order to exit his vehicle and then allowed the officer to handcuff him

       forcibly resisted by “push[ing] away with his shoulders while cursing and

       yelling” when the officer attempted to search him and by “stiffen[ing] up” when

       the officer attempted to place him into a police vehicle). 2 Accordingly, counsel

       was not ineffective by stipulating to the factual basis, and the post-conviction

       court properly denied relief on this claim.




       2
         Ocasio contends any of the facts that may have supported a conviction for battery on a law enforcement
       officer cannot be considered because the jury found Ocasio not guilty on that charge. Given our conclusion
       that jeopardy did not attach during the trial, we disagree.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-893 | February 22, 2016          Page 8 of 9
                                               Conclusion
[14]   Ocasio did not receive ineffective assistance of trial counsel. We therefore

       affirm the post-conviction court’s denial of post-conviction relief.


[15]   Affirmed.


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-893 | February 22, 2016   Page 9 of 9
