MEMORANDUM DECISION
                                                                     Feb 03 2015, 8:49 am
Pursuant to Ind. Appellate Rule 65(D), 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.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Fabian Gomez                                              Gregory F. Zoeller
Carlisle, Indiana                                         Attorney General of Indiana
                                                          Cynthia L. Ploughe
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Fabian Gomez,                                             February 3, 2015

Appellant-Petitioner,                                     Court of Appeals Cause No.
                                                          45A03-1405-PC-145
        v.                                                Appeal from the Lake Superior
                                                          Court.
                                                          The Honorable Samuel L. Cappas,
State of Indiana,                                         Judge.
Appellee-Respondent                                       The Honorable Natalie Bokota,
                                                          Magistrate.
                                                          Cause No. 45G04-1003-PC-5




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015      Page 1 of 8
[1]   Fabian Gomez appeals the denial of his petition for post-conviction relief. He

      argues that the trial court considered an improper aggravating factor during his

      sentencing and contends that his appellate counsel was ineffective for failing to

      argue that the same sentencing factor was improper on direct appeal. Finding

      that Gomez failed to show that appellate counsel was ineffective because there

      was no error in sentencing, we affirm.


                                                     Facts
[2]   The facts underlying this case are as follows:

              On December 28, 2006, Gomez shot his girlfriend, Jennifer
              Montejano, in the face during an argument inside their apartment in
              East Chicago, Indiana. Gomez called the police, and the responding
              officer found Jennifer lying on the floor of the apartment with blood
              on her face. The officer observed that Jennifer was still alive, but was
              having difficulty breathing, and that it sounded like “she was drowning
              in her own blood.” Jury Trial Tr. at 224. The paramedics arrived and
              transported Jennifer to the hospital. She had a gunshot wound to the
              bridge of her nose and was in critical condition. Jennifer was admitted
              into the hospital and died on January 7, 2007. An autopsy was
              performed and revealed that the cause of death was a gunshot wound
              to the face.


      Gomez v. State, 907 N.E.2d 607, 609 (Ind. Ct. App. 2009). On December 29,

      2006, the State charged Gomez with aggravated Class B felony battery, Class C

      felony battery, and Class C felony criminal recklessness. On September 28,

      2007, the trial court allowed the State to amend the charging information; a

      count of murder was added.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015   Page 2 of 8
[3]   On July 31, 2008, a jury convicted Gomez of class A felony voluntary

      manslaughter, class B felony aggravated battery, class C felony aggravated

      battery, and class C felony criminal recklessness. The trial court entered

      judgment on only the voluntary manslaughter conviction. During sentencing,

      the trial court considered the fact that Gomez had committed the crime in front

      of minor children as an aggravator and also considered the facts and

      circumstances surrounding the crime as an aggravator. It sentenced Gomez to

      forty years imprisonment at the Department of Correction.


[4]   In his direct appeal, Gomez argued that the trial court had improperly allowed

      the State to amend the charging information and maintained that the State had

      not presented sufficient evidence to support his voluntary manslaughter

      conviction. This Court affirmed his conviction. Gomez, 907 N.E.2d at 608.

      Gomez filed his petition for post-conviction relief on March 22, 2010, but it was

      withdrawn on July 30, 2010. It was reactivated on August 28, 2013, and the

      post-conviction court held a hearing on the petition on November 25, 2013.

      The post-conviction court denied Gomez’s petition, issuing its findings of fact

      and conclusions of law on April 24, 2014. Gomez now appeals.


                                   Discussion and Decision
[5]   Gomez argues that the post-conviction court erred in denying his petition for

      post-conviction relief because his appellate counsel was ineffective for failing to

      argue that the trial court considered an improper aggravating factor during

      sentencing. Post-conviction proceedings are not “super appeals” through which


      Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015   Page 3 of 8
      convicted persons can raise issues they failed to raise at trial or on direct appeal.

      Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012), trans. denied. 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). 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.


[6]   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). 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. Id.


[7]   Gomez contends that his appellate counsel failed to provide effective assistance

      of counsel. He maintains that his appellate counsel should have argued that the

      trial court considered an improper aggravating factor—that his crime was

      committed in the presence of minor children—on direct appeal. Ineffective

      assistance of appellate counsel claims generally fall into three categories: 1)

      Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015   Page 4 of 8
      denial of access to an appeal; 2) waiver of issues; and 3) failing to present issues

      well. Henley v. State, 881 N.E.2d 639, 644 (Ind. 2008). The standard for

      evaluating claims of ineffective assistance of counsel at the appellate level is the

      same two-prong Strickland standard used for trial counsel. Strickland v.

      Washington, 466 U.S. 668 (1984); Allen v. State, 749 N.E.2d 1158, 1166–67 (Ind.

      2001). Therefore, Robertson must prove that appellate counsel performed

      deficiently and that he was prejudiced as a result. Id.


[8]   Gomez’s ineffective assistance of counsel argument is based on his contention

      that the trial court improperly considered the fact that he committed a crime in

      front of minor children as an aggravating factor.1 He argues that, since the trial

      court determined that his mental condition precluded awareness that he was on

      probation and did not use the fact that he was on probation at the time of the

      offense as an aggravating factor, the trial court could not then use the fact that

      children were present as an aggravating factor. Gomez maintains that if his

      mental condition precluded his awareness that he was on probation, then he

      could not have been aware that there were minor children present.2




      1
        Gomez also argues that the post-conviction court incorrectly determined that he had waived his argument
      regarding improper sentencing when he did not argue it upon direct appeal. We note that the post-conviction
      court correctly determined that Gomez’s sentencing argument was waived. Where an argument was
      available to the defendant on direct appeal, but was not pursued, it is waived for post-conviction review.
      Schiro v. State, 533 N.E.2d 1201, 1204 (Ind. 1989). However, we reach the merits of Gomez’s sentencing
      argument during our discussion of his argument regarding ineffective assistance of appellate counsel.


      2
        Gomez also makes a confusing argument involving Duncan v. State, 857 N.E.2d 955 (Ind. 2006). He seems
      to argue that Blakely v. Washington, 542 U.S. 296 (2004) applies to his sentence as it applied to Duncan’s. To

      Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015              Page 5 of 8
[9]    We first note that a trial court may properly consider the fact that a crime of

       violence was committed in front of minor children as an aggravating factor.

       Indiana Code section 35-38-1-7.1 explicitly states that a trial court may consider

       as an aggravating circumstance that the person 1) committed a crime of

       violence as defined by Indiana Code section 35-50-1-2 and 2) knowingly

       committed that crime in the presence or within the hearing of an individual

       who was less than eighteen at the time the person committed the offense.

       Moreover, our Supreme Court has held that the commission of a crime in the

       presence of minor children may be considered an aggravating circumstance.

       Crawley v. State, 677 N.E.2d 520, 522 (Ind. 1997).


[10]   Furthermore, we agree with the post-conviction court’s determination that the

       trial court’s finding that Gomez’s mental condition precluded awareness that he

       was on probation does not imply that he could not have been aware that he was

       committing a crime in front of minor children. As the post-conviction court

       stated:

                 [T]he fact that one is on probation is profoundly different from the fact
                 that two toddlers are present when one obtains a gun and shoots their
                 mother in the face. A person might reasonably argue that the former




       the extent that Gomez argues that Blakely applies to his sentence, he is mistaken. Gomez was sentenced after
       April 25, 2005 according to an advisory sentencing scheme, and, therefore, his sentence does not violate the
       rule in Blakely prohibiting a trial court from deviating from a presumptive sentence based upon facts not
       proven to a jury beyond a reasonable doubt. See Rogers v. State, 897 N.E.2d 955 (Ind. Ct. App. 2008) (murder
       defendant was sentenced under an advisory sentence scheme, not a scheme in which there was a presumptive
       sentence, and, therefore, his sentence could not have violated the rule in Blakely).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015           Page 6 of 8
                would slip one’s consciousness but it strains credulity to suggest the
                latter would.


       Appellant’s Amended App. p. 8. We do not find Gomez’s argument that the

       trial court should have determined his mental condition precluded him from

       realizing he was committing a crime in front of minor children to be

       convincing.


[11]   Furthermore, the trial court was only required to find one aggravating factor to

       enhance Gomez’s sentence. Duvall v. State, 540 N.E.2d 34, 36 (Ind. 1989). At

       sentencing the trial court found two aggravating factors: 1) the fact that Gomez

       committed his crime in front of minor children, and 2) the facts and

       circumstances surrounding the offense, in particular Gomez’s attempt to lie to

       the police by creating a version of events that took responsibility for the crime

       away from himself.3 Therefore, even if the trial court had not considered the

       fact that Gomez committed his crime in front of minor children to be an

       aggravating factor, it could have enhanced his sentence based on the second

       aggravating factor, the facts and circumstances surrounding the crime.

       Therefore, Gomez’s argument that the trial court erred in determining his

       sentence is without merit.




       3
         Gomez argues that the trial court could not consider the facts and circumstances surrounding the offense as
       an aggravating factor because the trial court stated that it was not a statutory factor. Gomez is mistaken.
       The trial court may consider aggravating factors outside those listed in Indiana Code section 35-38-1-7.1. See
       I.C. § 35.38-1.7.1 (“The criteria listed in subsections (a) and (b) do not limit the matters that the court may
       consider in determining the sentence.”).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015              Page 7 of 8
[12]   As we find that Gomez’s argument is without merit, we cannot say that

       Gomez’s appellate counsel was ineffective for failing to raise such an argument

       on direct appeal. Had appellate counsel challenged the aggravating factor on

       appeal, the argument would not have succeeded. Therefore, Gomez has failed

       to show either that appellate counsel performed deficiently or that he was

       prejudiced as a result.


[13]   The judgment of the post-conviction court is affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1405-PC-145 | February 3, 2015   Page 8 of 8
