MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                   May 15 2019, 9:02 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Donato Luna-Quintero                                     Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Donato Luna-Quintero,                                    May 15, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-657
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt M. Eisgruber,
Appellee-Respondent.                                     Judge
                                                         The Honorable Steven J. Rubick,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G01-1006-PC-50581



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-657 | May 15, 2019                      Page 1 of 18
                                    Case Summary and Issue
[1]   Donato Luna-Quintero appeals the denial of his petition for post-conviction

      relief, raising one restated issue for our review: whether the post-conviction

      court erred in determining Luna-Quintero’s trial counsel was not ineffective for

      his handling of Luna-Quintero’s waiver of his right to trial by jury. Concluding

      Luna-Quintero has failed to prove his trial counsel was ineffective and

      therefore, the post-conviction court did not err, we affirm.



                                Facts and Procedural History
[2]   In 2010, Luna-Quintero was charged with murder and carrying a handgun

      without a license. At a pre-trial conference on June 23, 2011,1 Luna-Quintero

      filed a verified waiver of trial by jury. The waiver indicated that Luna-Quintero

      had completed schooling through high school or had earned his G.E.D.;

      understood he had the “absolute right to a jury trial”; had been “fully advised”

      by his attorney of his constitutional rights, understood, and waived those rights;

      asked “that the case be tried by the Court without a jury”; and made the waiver

      “freely, knowingly, and voluntarily.” Appellant’s [PCR] Appendix, Volume

      One at 15. The waiver was signed by Luna-Quintero and his attorney Robert

      Alden and indicated that it had been translated by Albert Serrano. Serrano is

      also an attorney, although he was not representing Luna-Quintero in that




      1
          Luna-Quintero’s case was set for jury trial on June 27, 2011.


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-657 | May 15, 2019   Page 2 of 18
      capacity. He had been hired by Alden to assist in meetings with Luna-Quintero

      because Alden did not speak Spanish.


[3]   The trial court held a hearing on the waiver that same day. The interpreter was

      sworn in and affirmed that he would “justly and truly and impartially interpret

      to Donato Luna-Quintero the oath [the court was] about to administer to him,

      any questions which may be asked of him and the answers that he shall give to

      such questions[.]” Transcript of Evidence, Volume II at 4.2 The trial court

      asked Luna-Quintero if he understood “that you have a Constitutional right to

      have a trial by jury. That’s a trial in which 12 people make a decision based on

      the evidence that they hear in court. And by signing this waiver of trial by jury,

      you’re waiving that Constitutional right and this case will be tried to a judge.”

      Id. at 5. Luna-Quintero answered, “Yes.” Id. Luna-Quintero also affirmed

      that his signature was on the waiver form, that someone had interpreted the

      form for him, and that he was waiving his jury trial right of his own free will.

      Alden indicated that he would not usually counsel a client to waive a jury in a

      murder trial, but “I asked my client why he was doing this. He provided me an

      answer that made sense. I don’t think it’s necessary for me to state on the

      record the reason why but I want the Court to know that it was not taken

      lightly.” Id. at 5-6. The trial court then found that Luna-Quintero had




      2
          The official court interpreter is not named in the transcript.


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-657 | May 15, 2019   Page 3 of 18
      knowingly and voluntarily waived his right to a trial by jury, vacated the jury

      trial setting, and reset the case for a bench trial.


[4]   Following the two-day bench trial in August 2011, the trial court found Luna-

      Quintero guilty as charged and sentenced him to fifty years. Luna-Quintero

      appealed his conviction, contending the State’s evidence was insufficient to

      overcome his claim of self-defense. This court disagreed and affirmed his

      conviction. Luna-Quintero v. State, 2012 WL 2109079 at *2 (Ind. Ct. App. Jun.

      12, 2012).


[5]   Luna-Quintero filed a pro se petition for post-conviction relief on March 4,

      2013, alleging that he was denied the effective assistance of trial and appellate

      counsel. Specifically, with respect to his trial counsel, Luna-Quintero alleged

      Alden failed to investigate the facts and circumstances of his case, failed to

      interview him and his co-defendant, failed to support his claim of self-defense

      due to failure to investigate the crime scene, and failed to advocate for his right

      to a jury trial.3 On October 4, 2016, Luna-Quintero filed his “Truth Affidavit,”

      Appellant’s [PCR] App., Vol. One at 39, which the trial court indicated it

      would treat “as your argument in support of your petition[.]” Id. at 54. Luna-

      Quintero’s “Truth Affidavit” does not address matters related to his waiver of

      jury trial, but it does include as an exhibit a copy of an email from the deputy




      3
       As to his appellate counsel, Luna-Quintero alleged counsel failed to adequately argue the self-defense issue
      and failed to raise the waiver of jury trial issue. Luna-Quintero does not make any argument about appellate
      counsel in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-657 | May 15, 2019                      Page 4 of 18
      prosecutor in his case to Alden and Serrano dated June 16, 2011. The email

      indicates knowledge that Alden and Serrano would be meeting with Luna-

      Quintero that day, references a plea offer, and indicates that if Luna-Quintero

      does not accept the plea agreement, a waiver of jury trial might “be a realistic

      possibility” in part because “I would think he would get a 5 to 10 year benefit if

      he were convicted at bench [trial] instead of jury because he didn’t put a bunch

      of people in the community thru [sic] the hassle of a trial.” Id. at 51.


[6]   Alden was the sole witness at the hearing on the petition for post-conviction

      relief. In preparation for the PCR hearing, Alden had tried to find Luna-

      Quintero’s case file but discovered that he had given it to Luna-Quintero’s

      appellate counsel for the direct appeal and it had not been returned. He was,

      therefore, relying largely on his memory of the case and the proceedings. Alden

      testified that in preparation for Luna-Quintero’s murder trial, he had conducted

      discovery, deposed witnesses, and hired a bilingual attorney to assist in

      discussions when he met with Luna-Quintero. His investigation revealed “that

      the State had multiple . . . eye witnesses indicating that [Luna-Quintero] had

      killed the alleged victim,” and he discussed what he had discovered with Luna-

      Quintero. Tr., Vol. II at 25. He encouraged Luna-Quintero to take a plea

      agreement, but Luna-Quintero refused. With respect to the jury trial waiver,

      Alden testified:


              [O]bviously waiving a jury is a very very very important decision
              so I hired a – an attorney to come over to the jail and explain the
              benefits and detriments of the jury trial to you –what a jury trial
              was and I think that you made the decision because I would – I

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-657 | May 15, 2019   Page 5 of 18
              would rarely make a decision to just waive jury and try a – a case
              to the Court but honestly I don’t remember the details of that.
              All I do know is that there’s no question in my mind that I went
              over with you in detail the waiver of that jury trial before it was
              waived. There’s no question in my mind.


      Id. at 29. Alden speculated that the reason for the jury trial waiver might have

      been that “a court would understand the legal defense of self-defense maybe

      sometimes better than a jury” or that the court might be more lenient in

      sentencing if Luna-Quintero waived a jury trial. Id. at 31-32. Regardless of the

      reason, Alden was certain that the decision was Luna-Quintero’s, because in

      trying over thirty murder cases, this was the only one he could recall having

      waived a jury trial. With respect to the hiring of Serrano, who was an attorney

      but not an authorized in-court interpreter, Alden stated:


              I know that he is hired by the Public Defender’s Office to
              represent them in – in the system in interpretation situations . . . .
              [T]he reason [I hired him] is that he is a lawyer and he
              understands the nature of the cases. I allowed him to read a lot
              of the discovery and I wanted to make sure that if you had any
              questions regarding the evidence that he would be able to explain
              it to you as a lawyer and I had confidence that he was gonna be
              able to do that . . . .


      Id. at 29-30. Luna-Quintero did not offer any other evidence or testimony in

      support of his petition.


[7]   The parties were given time to file proposed findings of fact and conclusions.

      Luna-Quintero did not file a proposed order even after a considerable extension

      of time to do so. On February 21, 2018, the post-conviction court issued its

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-657 | May 15, 2019   Page 6 of 18
findings of fact and conclusions of law denying post-conviction relief. As

relevant to this appeal, the post-conviction court concluded:


        [Luna-Quintero] claims that trial counsel [w]as ineffective
        because trial counsel failed to advocate his constitutional right to
        a jury trial. While it is not entirely clear exactly what [Luna-
        Quintero] is claiming, in any event the Court finds that the
        evidence is clear that trial counsel discussed the decision to waive
        jury extensively with [Luna-Quintero]. From the testimony at
        the evidentiary hearing, it is apparent that this was a strategic
        choice, made after careful consideration. While [Luna-Quintero]
        certainly had a right to a jury trial, such a right can be waived.
        The available record provides no basis to find that the decision to
        waive jury was not proper, nor any basis to find that the trial
        counsel’s advice was outside professional norms. Accordingly
        the Court finds that [Luna-Quintero] has . . . failed to meet the
        burden of proof on this issue.


Appealed Order at 8 (citations omitted). The post-conviction court also

addressed Luna-Quintero’s other claims of trial counsel ineffectiveness and

claims that appellate counsel was ineffective, concluding in each instance that

Luna-Quintero failed to meet his burden of proof.4 The post-conviction court

therefore denied Luna-Quintero’s petition for post-conviction relief. Luna-

Quintero now appeals.



                            Discussion and Decision


4
 Luna-Quintero does not challenge the post-conviction court’s conclusion with respect to these claims on
appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-657 | May 15, 2019                    Page 7 of 18
                      I. Post-Conviction Standard of Review
[8]   “Post-conviction proceedings do not afford the petitioner an opportunity for a

      super appeal, but rather, provide the opportunity to raise issues that were

      unknown or unavailable at the time of the original trial or the direct appeal.”

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

      post-conviction proceedings are civil in nature, the petitioner must establish his

      claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).

      “The post-conviction court is the sole judge of the weight of the evidence and

      the credibility of witnesses.” Woods v. State, 701 N.E.2d 1208, 1210 (Ind. 1998),

      cert. denied, 528 U.S. 861 (1999). Thus, we may not reweigh the evidence or

      reassess the credibility of the witnesses and we consider only the evidence and

      reasonable inferences supporting the judgment. Hall v. State, 849 N.E.2d 466,

      468-69 (Ind. 2006). A petitioner who has been denied post-conviction relief

      faces a “rigorous standard of review” on appeal. Dewitt v. State, 755 N.E.2d

      167, 169 (Ind. 2001). The petitioner must show that the evidence is without

      conflict and leads unerringly and unmistakably to a conclusion opposite that

      reached by the post-conviction court. Strowmatt v. State, 779 N.E.2d 971, 975

      (Ind. Ct. App. 2002).


[9]   The post-conviction court made findings of fact and conclusions of law in

      accordance with Indiana Post-Conviction Rule 1(6), and therefore, we cannot

      affirm the judgment on any legal basis, but rather, we 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. We

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-657 | May 15, 2019   Page 8 of 18
       accept the post-conviction court’s findings of fact unless they are clearly

       erroneous, but we do not defer to the post-conviction court’s conclusions of

       law. Wilson v. State, 799 N.E.2d 51, 53 (Ind. Ct. App. 2003).


                         II. Ineffective Assistance of Counsel
                                       A. Standard of Review
[10]   Luna-Quintero claims the post-conviction court erred in concluding his trial

       counsel did not render ineffective assistance with regard to his waiver of a jury

       trial. We review claims of ineffective assistance of counsel under the two-prong

       test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on

       such a claim, the petitioner must show 1) his counsel’s performance was

       deficient and 2) the lack of reasonable representation prejudiced him. Id. at

       687. These two prongs are separate and independent inquiries. Manzano v.

       State, 12 N.E.3d 321, 326 (Ind. Ct. App. 2014), trans. denied, cert. denied, 135

       S.Ct. 2376 (2015). Therefore, “if it is easier to dispose of an ineffectiveness

       claim on one of the grounds instead of the other, that course should be

       followed.” Talley v. State, 736 N.E.2d 766, 769 (Ind. Ct. App. 2000).


[11]   The first prong requires that the petitioner show counsel’s representation fell

       below an objective standard of reasonableness and that counsel committed

       errors so serious that petitioner did not have “counsel” as guaranteed by the

       Sixth Amendment of the United States Constitution. Garrett v. State, 992

       N.E.2d 710, 718-19 (Ind. 2013). To satisfy the second prong, the petitioner

       must show a reasonable probability that, but for counsel’s errors, the result of

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-657 | May 15, 2019   Page 9 of 18
       the proceeding would have been different. Id. at 719. “A reasonable

       probability is a probability sufficient to undermine confidence in the outcome.”

       Strickland, 466 U.S. at 694.


[12]   We afford counsel “considerable discretion in choosing strategy and tactics, and

       we will accord those decisions deference.” Timberlake v. State, 753 N.E.2d 591,

       603 (Ind. 2001), cert. denied, 537 U.S. 839 (2002). We also recognize a strong

       presumption that counsel rendered adequate legal assistance. Id. The

       defendant must offer “strong and convincing evidence to overcome this

       presumption.” Smith v. State, 822 N.E.2d 193, 202 (Ind. Ct. App. 2005), trans.

       denied.


                                      B. Waiver of Jury Trial
[13]   The Sixth Amendment to the United States Constitution provides a person

       charged with a criminal offense has the “right to a speedy and public trial, by an

       impartial jury[.]” Article 1, section 13 of the Indiana Constitution provides

       likewise. The jury trial right is fundamental and personal and therefore any

       waiver of the right to a jury trial must be the knowing and voluntary choice of

       the defendant himself. Perkins v. State, 541 N.E.2d 927, 928 (Ind. 1989); see also

       Ind. Code § 35-37-1-2 (stating that “the defendant and the prosecuting attorney,

       with the assent of the court, may submit the trial to the court”) (emphasis

       added). A knowing, voluntary, and intelligent waiver of the right to a jury trial

       cannot be inferred from a record which does not evidence such personal choice.

       Boykin v. Alabama, 395 U.S. 238, 243 (1969); Poore v. State, 681 N.E.2d 204, 206


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-657 | May 15, 2019   Page 10 of 18
       (Ind. 1997). Rather, the defendant must personally indicate either in writing or

       verbally in open court that he or she wishes to waive a jury trial and the waiver

       must be made part of the record. Kellems v. State, 849 N.E.2d 1110, 1112 (Ind.

       2006). There is no requirement that a trial court orally advise a defendant of his

       right to a jury trial and the consequences of waiving that right. Coleman v. State,

       694 N.E.2d 269, 278 (Ind. 1998).


[14]   Luna-Quintero contends his trial counsel was ineffective when he “failed to

       advocate for Luna-Quintero’s constitutional right to a trial by jury and allowed

       Luna-Quintero to make a waiver of that right that was not ‘knowing, voluntary,

       and intelligent.’” Amended Appellant’s Br. at 18. Luna-Quintero does not

       dispute that he indicated to the trial court that he wished to waive his right to

       trial by jury or that his desire to do so is apparent from the record. Indeed, at

       the final pretrial conference in this case, Luna-Quintero filed a written, signed

       waiver of jury trial that stated:


               4. I understand that I have an absolute right to a jury trial in this
               case.


               5. I have been fully advised, by my attorney, of my
               constitutional rights to trial by jury and I understand my
               constitutional rights to trial by jury.


               6. I hereby give up my constitutional rights to a trial by jury and
               ask that the case be tried by the Court without a jury.


               7. I declare that no person has made any promise or suggestions
               of any kind to me or, within my knowledge to anyone else, that I

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-657 | May 15, 2019   Page 11 of 18
         would receive any favors, special treatment or any other form of
         leniency if I decided not to have a jury trial.


         I declare that no person has made any threat of any kind to me,
         or within my knowledge to anyone else, to coerce me not to have
         a jury trial.


         I declare that this waiver is made and executed by me freely,
         knowingly, and voluntarily.


Appellant’s [PCR] App., Vol. One at 15.5 Before accepting the waiver, the trial

court engaged in the following colloquy with Luna-Quintero:


         The Court: Is this your signature, sir?
         [Luna-Quintero]: Yes.
         The Court: And did you have the chance to have someone
         interpret this sheet to you?
         [Luna-Quintero]: Yes.
         The Court: So you understand that you have a Constitutional
         right to have a trial by jury. That’s a trial in which 12 people
         make a decision based on the evidence that they hear in court.
         And by signing this waiver of trial by jury, you’re waiving that
         Constitutional right and this case will be tried to a judge.
         [Luna-Quintero]: Yes.
         The Court: Okay. And you agree to that?
         [Luna-Quintero]: Yes.
         The Court: No one’s forced you to waiver your trial right?
         [Luna-Quintero]: No.




5
  The form also states, “I can read, write, and understand the English language,” id., which is apparently not
the case with Luna-Quintero. However, the form indicates that it was translated, and the trial court inquired
into the translation when it questioned Luna-Quintero about his waiver. Obviously, it would have been
better practice to strike that line of the form in this case, but we see no reason to question the validity of the
form given the surrounding circumstances.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-657 | May 15, 2019                         Page 12 of 18
               The Court: You’re doing this of your own free will?
               [Luna-Quintero]: Yes.


       Tr., Vol. II at 4-5. Alden informed the court that “Serrano, who’s a lawyer, is

       the person who interpreted the jury waiver to him and I know interpreted it

       verbatim to him and informed me he interpreted it verbatim to him and

       explained the terms as well that were in the waiver.” Id. at 6. Serrano affirmed

       the accuracy of Alden’s statement, specifically that he did explain the form to

       Luna-Quintero. Luna-Quintero admits in his brief that Alden “did, in fact,

       discuss the decision to waive jury trial with [him], through Serrano[.]”

       Amended Appellant’s Br. at 16. Alden also informed the trial court that he

       would not usually advise waiving a jury trial in a murder case, but that Luna-

       Quintero himself explained to Alden why he wanted to waive a jury, the reason

       “made sense,” and the decision to sign off on Luna-Quintero’s waiver was “not

       taken lightly.” Id. at 5-6. The State consented to the waiver and the trial court,

       by signing the written waiver, found Luna-Quintero “has knowingly and

       voluntarily waived [his] right to a trial by jury.” Appellant’s [PCR] App. at 16.


[15]   Instead, Luna-Quintero contends neither his trial counsel nor the trial court

       gave him the specific advisements that render a waiver voluntary, knowing, and

       intelligent. In claiming his trial counsel was ineffective for failing to adequately

       advise him and allowing him to waive a jury trial, Luna-Quintero relies on the

       following language from Nunez v. State, 43 N.E.3d 680 (Ind. Ct. App. 2015),

       trans. denied:



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-657 | May 15, 2019   Page 13 of 18
                Trial by jury may be waived as long as four conditions are met:
                (1) the waiver is in writing, (2) the government consents, (3) the
                court accepts the waiver, and (4) the waiver is made voluntarily,
                knowingly, and intelligently. United States v. Duarte-Higareda, 113
                F.3d 1000, 1002 (9th Cir. 1997). As for the fourth requirement,
                defendants should be informed that (1) twelve members of the
                community compose a jury, (2) the defendant may take part in
                jury selection, (3) a jury verdict must be unanimous, and (4) the
                court alone decides guilt or innocence if the defendant waives a
                jury trial. Id. In addition, the court should question the
                defendant to ascertain that the defendant understands the benefits
                and burdens of a jury trial and its waiver, especially where the
                record indicates a special disadvantage or disability bearing upon
                the defendant’s understanding of the waiver. Id.


       Id. at 683. Luna-Quintero specifically notes that because he has a “special

       disadvantage” in not speaking English, the lack of proper advisements caused

       him to be “ignorant of what his right to trial by jury entailed[.]” Amended

       Appellant’s Br. at 14.6


[16]   The above-quoted language from Nunez was introduced with the sentence, “The

       federal courts follow analogous practices[,]” making it clear that what followed




       6
         To an extent, Luna-Quintero’s ineffective assistance of counsel argument is interwoven with an
       independent challenge to his waiver of jury trial as not knowing, intelligent, or voluntary due to the trial
       court’s failure to properly advise him. Such a claim would have been available on direct appeal but was not
       raised and is therefore waived for purpose of post-conviction unless it constitutes fundamental error. See
       Evolga v. State, 722 N.E.2d 370, 372 (Ind. Ct. App. 2000). Luna-Quintero has not alleged fundamental error,
       however. Luna-Quintero did raise his appellate counsel’s failure to address this issue on appeal in his post-
       conviction petition but does not pursue his claim of ineffective assistance of appellate counsel on appeal. We
       will, therefore, address the jury trial waiver only in the context of his ineffective assistance of trial counsel
       claim. See Bahm v. State, 794 N.E.2d 444, 445 (Ind. Ct. App. 2003) (noting issues waived as free-standing
       arguments may be raised in post-conviction proceedings as arguments supporting a claim of ineffective
       assistance of trial counsel), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-657 | May 15, 2019                        Page 14 of 18
described the practice in federal court, which is based in part on Federal Rule of

Criminal Procedure 23(a) which requires a waiver to be in writing and in part

on a rule adopted in United States v. Scott, 583 F.2d 362 (7th Cir. 1978) and

elaborated upon in United States v. Delgado, 635 F.2d 889, 890 (7th Cir. 1981).

The Scott case purported to impose a supervisory rule on district courts in the

Seventh Circuit requiring a court to interrogate the defendant to ensure that he

understands his right to a jury trial and the consequences of waiver before

accepting a waiver of jury trial. 583 F.2d at 364. Delgado advised courts of the

specific questions that should be asked in the formal jury waiver inquiry. 635

F.2d at 890. As later explained in United States v. Rodriguez, however, these

additional warnings were not mandatory, but rather “are called for as a matter

of prudence. Lesser (even no) warnings do not call into question the sufficiency

of the waiver so far as the Constitution is concerned.” 888 F.2d 519, 527 (7th

Cir. 1989); see also United States v. Cochran, 770 F.2d 850, 852-53 (9th Cir. 1985)

(noting that the Ninth Circuit, “along with a number of other circuits,” believes

that a district court should engage in detailed questioning of the defendant

before accepting a waiver of the right to a jury trial but also noting that it is not

mandatory). Additionally, this federal practice is not binding on state courts.

See McSchooler v. State, 15 N.E.3d 678, 683 (Ind. Ct. App. 2014). In fact, the

Indiana Supreme Court has declined to hold that more comprehensive

advisements must be given in order for a waiver of the right to a jury trial to be

accepted. Hutchins v. State, 493 N.E.2d 444, 445 (Ind. 1986). Therefore, it was

not below an objective standard of reasonableness for Alden to not specifically

advise Luna-Quintero of the Delgado factors, nor was it below an objective
Court of Appeals of Indiana | Memorandum Decision 18A-PC-657 | May 15, 2019   Page 15 of 18
       standard of reasonableness for Alden to not object to the trial court’s inquiry for

       lacking those advisements.


[17]   This brings us back to the Indiana practice, which “stipulates that waiver may

       only occur when the defendant personally waives and only when the record

       reflects that action in writing or in open court.” Nunez, 43 N.E.3d at 683. The

       trial court record indicates that Luna-Quintero personally waived his right to a

       jury trial in writing and was questioned in open court before the trial court

       found his waiver to be knowing and voluntary. Luna-Quintero affirmed in

       response to the trial court’s questioning that he understood he had a right to a

       trial by a jury of twelve people and that by waiving that right his case would be

       decided by a judge. Alden, a seasoned attorney who had participated in at least

       thirty murder trials, indicated he had hired a bilingual attorney to assist him in

       communicating with Luna-Quintero7 and assured the trial court that Luna-

       Quintero was making an informed decision when he waived a jury trial.

       Although Alden offered at the post-conviction hearing some possible

       explanations for the waiver in retrospect, the contemporaneous trial court

       record indicates it was Luna-Quintero who had to convince Alden to agree to a




       7
         We do not take lightly Luna-Quintero’s suggestion that as a non-English speaking defendant, he was
       disadvantaged in this process, as “[a]ssuring justice under circumstances where some language barrier exists
       that might affect the interests of a participant [in the criminal justice process] with limited English proficiency
       is a matter of commitment and substantial effort for Indiana’s judiciary . . . ‘lest we run the risk of
       diminishing our system of justice by infringing upon the defendant’s right of due process.’” Nunez, 43 N.E.3d
       at 682 (quoting Ponce v. State, 9 N.E.3d 1265, 1269 (Ind. 2014)). In these circumstances, however, it appears
       both trial counsel and the trial court appropriately accommodated Luna-Quintero’s lack of English
       proficiency.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-657 | May 15, 2019                          Page 16 of 18
       waiver of a jury trial, rather than the other way around. Luna-Quintero posits

       in his brief, based on the e-mail attached to his “Truth Affidavit,” that it was

       actually the State’s suggestion that he waive his right to a jury trial and that it

       was “an improper inducement bearing a coercive effect.” Amended Appellant’s

       Br. at 16. Even if it was the possibility—not promise—of a reduced sentence

       that caused Luna-Quintero to decide to waive a jury trial, that is a strategic

       decision in a case in which the evidence showed Luna-Quintero had twice

       threatened to shoot the victim in the week prior to the victim’s death, fired

       multiple shots at the victim in the presence of multiple witnesses, left, and then

       returned to shoot the victim one more time. See Luna-Quintero, 2012 WL

       2109079 at *2. “We do not ‘second-guess’ strategic decisions requiring

       reasonable professional judgment even if the strategy in hindsight did not serve

       the defendant’s interests.” Rondeau v. State, 48 N.E.3d 907, 916 (Ind. Ct. App.

       2016), trans. denied. Luna-Quintero offered no testimony or evidence to refute

       what the trial court record reflects or Alden’s recollection of events during the

       post-conviction proceedings and he has therefore failed to show that the

       evidence leads “unerringly and unmistakably” to the conclusion that he should

       be granted post-conviction relief on this claim of ineffective assistance of

       counsel. See Strowmatt, 779 N.E.2d at 975.



                                               Conclusion
[18]   Luna-Quintero has failed to meet the rigorous standard of showing that his trial

       counsel was ineffective for allowing him to waive his right to a jury trial, as the


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-657 | May 15, 2019   Page 17 of 18
       evidence shows he knowingly, voluntarily, intelligently, and personally waived

       the right. He is, therefore, not entitled to post-conviction relief, and the

       judgment of the post-conviction court is affirmed.


[19]   Affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-657 | May 15, 2019   Page 18 of 18
