      MEMORANDUM DECISION                                                    FILED
      Pursuant to Ind. Appellate Rule 65(D), this                       Aug 31 2016, 7:49 am

      Memorandum Decision shall not be regarded as                           CLERK
      precedent or cited before any court except for the                 Indiana Supreme Court
                                                                            Court of Appeals
      purpose of establishing the defense of res judicata,                    and Tax Court

      collateral estoppel, or the law of the case.



      APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
      Martin Pineda Tovar a/k/a Martin                         Gregory F. Zoeller
      Estrada                                                  Attorney General of Indiana
      Pendleton, Indiana
                                                               Ian McLean
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Martin Pineda Tovar a/k/a                                August 31, 2016
      Martin Estrada,                                          Court of Appeals Case No.
                                                               15A01-1508-PC-1112
      Appellant-Petitioner,                                    Appeal from the Dearborn Superior
                                                               Court.
              v.                                               The Honorable Sally A.
                                                               McLaughlin, Judge.
                                                               Cause No. 15D02-1402-PC-3
      State of Indiana,
      Appellee-Respondent.




      Shepard, Senior Judge

[1]   Martin Pineda Tovar a/k/a Martin Estrada appeals the denial of his petition for

      post-conviction relief, asserting the post-conviction court unfairly curtailed his

      questioning of a witness and erred in denying his claim of ineffective assistance

      of counsel. We affirm.

      Court of Appeals of Indiana | Memorandum Decision 15A01-1508-PC-1112 | August 31, 2016     Page 1 of 11
                                                         Issues
[2]   As best we can determine, Tovar presents the following restated issues:

               I.       Whether the post-conviction court abused its discretion in
                        limiting Tovar’s questioning of a witness; and
               II.      Whether the court erred in rejecting Tovar’s claim of
                                                                             1
                        ineffective assistance of trial counsel.

                                  Facts and Procedural History
[3]   On June 27, 2006, Deborah Chandler asked her neighbor Larry Hatfield if

      Tovar and his companion, Elida Montes, could spend the night at Hatfield’s

      house in Lawrenceburg. Hatfield agreed, and Tovar and Montes slept in the

      bedroom while Hatfield slept on a couch.


[4]   Chandler and Tovar were unaware that Hatfield was providing information to

      the police about Chandler’s suspected participation in drug dealing. Police

      officers, including Detective Shane McHenry, watched Hatfield and Chandler’s

      homes on June 27 and followed Tovar’s movements that day.


[5]   The next day, June 28, Tovar and Montes left Hatfield’s residence when

      Chandler came over to tell them Kim Cremeans had overdosed in Chandler’s

      house. Police officers followed Tovar’s car and watched as he engaged in




      1
        Tovar raised a claim of ineffective assistance of direct appeal counsel in his petition for post-conviction
      relief, but he is not presenting that claim on appeal.

      Court of Appeals of Indiana | Memorandum Decision 15A01-1508-PC-1112 | August 31, 2016               Page 2 of 11
      tactics consistent with attempting to detect and evade police surveillance. They

      arrested Tovar and Montes in Ohio.


[6]   Meanwhile, Hatfield gave Detective McHenry permission to search his home.

      When Detective McHenry opened the bedroom door, he saw scales and bindles

      of heroin. He obtained a search warrant, and, during a search of the bedroom,

      officers found fifteen grams of heroin and related paraphernalia.


[7]   The State charged Tovar with dealing in heroin as a Class A felony, dealing in

      heroin as a Class B felony, and conspiracy to deal in heroin as a Class B felony.

      Prior to trial, Tovar filed a motion to suppress evidence, which the court

      denied. The jury found Tovar guilty of the first two charges, and the court

      sentenced him to fifty years.


[8]   Tovar’s appeal challenged the admission into evidence of the items found in the

      bedroom and the appropriateness of his sentence. This Court affirmed. Estrada

      v. State, Cause No. 15A04-0802-CR-65 (Ind. Ct. App. Aug. 27, 2008).


[9]   Next, Tovar filed the instant petition. The court held an evidentiary hearing, at

      which Tovar questioned the three attorneys who had represented him in his

      criminal case. The attorney from his direct appeal did not appear, having

      moved out of state. The court took judicial notice of the trial record. It later

      issued findings and conclusions denying Tovar’s petition.




      Court of Appeals of Indiana | Memorandum Decision 15A01-1508-PC-1112 | August 31, 2016   Page 3 of 11
                                    Discussion and Decision
[10]   Because Tovar appeals from the denial of post-conviction relief, he is appealing

       from a negative judgment and bears the burden of proof. Wilkes v. State, 984

       N.E.2d 1236 (Ind. 2013). To prevail on appeal, a petitioner must show that the

       evidence as a whole leads unerringly and unmistakably to a conclusion opposite

       that reached by the post-conviction court. Manzano v. State, 12 N.E.3d 321 (Ind.

       Ct. App. 2014), trans. denied. We review the post-conviction court’s factual

       findings for clear error but do not defer to its conclusions. Wilkes, 984 N.E.2d

       1236. Further, although Tovar is proceeding pro se, we hold pro se litigants to

       the same standards as trained counsel. Pannell v. State, 36 N.E.3d 477 (Ind. Ct.

       App. 2015), trans. denied.


                                      1. Witness Examination
[11]   Tovar claims the post-conviction court unfairly limited his questioning of

       Jeffrey Stratman, one of his trial attorneys, and should have continued the

       hearing to permit further questioning.


[12]   The admission or exclusion of evidence in a post-conviction proceeding is

       within the post-conviction court’s sound discretion, and we will not disturb its

       ruling absent an abuse of discretion. Hyppolite v. State, 774 N.E.2d 584 (Ind. Ct.

       App. 2002), trans. denied. In addition, rulings on non-statutory motions for

       continuance are within the court’s discretion and will be reversed only for an

       abuse. Evans v. State, 809 N.E.2d 338 (Ind. Ct. App. 2004), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1508-PC-1112 | August 31, 2016   Page 4 of 11
[13]   Tovar had two months to prepare for the April 15, 2015 post-conviction

       evidentiary hearing. In addition, on the morning of the hearing the court briefly

       delayed proceedings to allow Tovar to retrieve his materials from the jail. Once

       the hearing began, Stratman informed the court and the parties that he had to

       leave for an out-of-town obligation.


[14]   On direct examination, Tovar asked Stratman general questions about his

       professional history and his understanding of a defense attorney’s duties. He

       also had Stratman read the probable cause affidavit and asked Stratman if he

       remembered people and places from the case. After he addressed these topics,

       the court ended the questioning and permitted Stratman to depart. At the end

       of the hearing, Tovar asked to be allowed to continue questioning Stratman,

       saying he wanted to ask Stratman “a few relevant questions” about discovery.

       Tr. p. 87. The court ultimately declined to schedule another hearing.


[15]   Under these facts, the court reasonably concluded nothing material would be

       gained from further questioning. Despite ample opportunity to prepare, most of

       Tovar’s questions were general and did not address his specific claim of

       ineffective assistance. Tovar has failed to establish the evidence as a whole

       leads unerringly and unmistakably to a conclusion opposite that reached by the

       post-conviction court. See Pannell, 36 N.E.3d at 486 (no abuse in failing to

       reissue subpoenas to counsel because the petitioner “did not effectively question

       his appellate counsel or ask questions relevant to the issues he had raised.”).




       Court of Appeals of Indiana | Memorandum Decision 15A01-1508-PC-1112 | August 31, 2016   Page 5 of 11
[16]   On a related subject, Tovar argues the post-conviction court erred by not

       ensuring that his direct appeal counsel was present at the hearing. At the time,

       counsel had retired and moved to Hawaii. Generally, subpoenas may be served

       “at any place within the State.” Ind. Trial Rule 45(E). An Indiana court may

       authorize service of a subpoena outside the state “upon proper application and

       for cause shown” as permitted by law. Id. Tovar has not identified any state or

       federal law permitting the post-conviction court to subpoena the attorney or any

       means to compel the attorney’s attendance from another state. See Collins v.

       State, 14 N.E.3d 80 (Ind. Ct. App. 2014) (no abuse in rejecting subpoena for

       attorney who had moved to Florida).


                                 2. Assistance of Trial Counsel
[17]   Tovar argues his trial counsel failed to raise the strongest claims. The State says

       the post-conviction court correctly determined his counsel was not ineffective.


[18]   To establish a claim of ineffective assistance, a defendant must demonstrate that

       counsel performed deficiently and the deficiency resulted in prejudice. Helton v.

       State, 907 N.E.2d 1020 (Ind. 2009). A petitioner must show that counsel’s

       performance fell below an objective standard of reasonableness based on

       prevailing professional norms. Morgan v. State, 755 N.E.2d 1070 (Ind. 2001). A

       petitioner proves prejudice by demonstrating a reasonable probability that, if

       not for counsel’s unprofessional errors, the outcome of the proceeding would

       have been different. Id. A strong presumption arises that counsel rendered

       adequate assistance. Id.


       Court of Appeals of Indiana | Memorandum Decision 15A01-1508-PC-1112 | August 31, 2016   Page 6 of 11
[19]   Tovar’s claim focuses on the motion to suppress. Tovar’s counsel had

       unsuccessfully claimed the search of the bedroom at Hatfield’s house violated

       Tovar’s Fourth Amendment protection against illegal searches because he had a

       protected privacy interest in the room. Tovar now argues that his trial counsel

       should have raised a different argument: the probable cause affidavit did not

       establish probable cause for a search warrant because it was based on

       uncorroborated hearsay.


[20]   The Fourth Amendment requires that a search warrant be supported by

       probable cause. State v. Fridy, 842 N.E.2d 835 (Ind. Ct. App. 2006). A

       reviewing court must determine whether the trial court had a substantial basis

       for concluding that probable cause to support the search warrant existed. Id.

       When a probable cause affidavit contains hearsay, the affidavit must either:

               (1)      contain reliable information establishing the credibility of
                        the source and of each of the declarants of the hearsay and
                        establishing that there is a factual basis for the information
                        furnished; or
               (2)      contain information that establishes that the totality of the
                        circumstances corroborates the hearsay.
       Ind. Code § 35-33-5-2 (2005).


[21]   The State correctly notes that a search warrant was arguably unnecessary

       because the house’s owner, Hatfield, consented to a search. See Trowbridge v.

       State, 717 N.E.2d 138 (Ind. 1999) (valid consent to search is an exception to the

       prohibition on warrantless searches). In any event, the officer who signed the

       affidavit, Detective McHenry, corroborated the portions of the affidavit that


       Court of Appeals of Indiana | Memorandum Decision 15A01-1508-PC-1112 | August 31, 2016   Page 7 of 11
       contained hearsay. He stated that he saw Chandler walking between her house

       and Hatfield’s house on several occasions in the days before Tovar’s arrest.

       Detective McHenry also saw Tovar and Montes leave Hatfield’s house on June

       28, 2006. Most importantly, Detective McHenry stated in the affidavit he saw

       heroin and associated paraphernalia in the bedroom Tovar and Montes had

       used. His personal observations are sufficient corroboration. See Fridy, 842

       N.E.2d 835 (officer’s observations, in probable cause affidavit, corroborated the

       hearsay statements).


[22]   Moreover, Detective McHenry stated in the affidavit that other officers told him

       about Cremeans’ overdose and Tovar’s arrest. Detective McHenry was entitled

       to rely on information from his fellow officers. State v. Foy, 862 N.E.2d 1219

       (Ind. Ct. App. 2007) (police may rely on information from their own and other

       departments), trans. denied. As a result, the probable cause affidavit contained

       ample information that corroborated the hearsay statements.


[23]   Counsel’s performance is not deficient for declining to present a claim that

       would not have prevailed. Peak v. State, 26 N.E.3d 1010 (Ind. Ct. App. 2015).

       Tovar has failed to demonstrate the post-conviction court erred in rejecting this

       claim about trial counsel’s choice of grounds to pursue suppression.


[24]   Tovar further argues his trial lawyer should have asked the State to produce

       Hatfield’s cell phone records to verify Hatfield’s description of when different

       events occurred. Tovar did not offer the cell phone records into evidence

       during post-conviction. As a result, we do not know if the phone records would


       Court of Appeals of Indiana | Memorandum Decision 15A01-1508-PC-1112 | August 31, 2016   Page 8 of 11
       have made a difference in the case, and Tovar failed to carry his burden of

       proof. See Mitchell v. State, 946 N.E.2d 640 (Ind. Ct. App. 2011) (post-

       conviction court properly rejected claim of ineffective assistance because

       petitioner failed to submit evidence to support the claim), trans. denied.


[25]   Tovar also claims his lawyer should have called Montes and Cremeans to

       testify at trial. He characterizes the issue as counsel’s failure to protect his Sixth

       Amendment right to confront witnesses. This claim is of no merit because no

       testimony in or out of court from Montes and Cremeans was admitted into

       evidence at Tovar’s trial. We will instead consider whether Stratman rendered

       ineffective assistance by failing to call Montes or Cremeans as witnesses. A

       decision regarding what witnesses to call is a matter of trial strategy. Brown v.

       State, 691 N.E.2d 438 (Ind. 1998).


[26]   Tovar argues Montes “provided extensive information for the State,” and if she

       had been called to testify she could have been questioned as to whether she

       “used heroin” or received benefits from the State in exchange for implicating

       Tovar. Appellant’s Br. p. 15. He further says his counsel should have

       questioned Cremeans, using medical records, about the circumstances of

       Cremeans’ overdose. It thus appears Tovar wanted his counsel to call Montes

       and Cremeans to impeach them, but whether such impeachment would have

       helped Tovar’s defense is mere speculation. Counsel could have reasonably

       concluded that because Montes was deeply knowledgeable about Tovar’s

       activities and had apparently implicated him in illegal conduct, Montes’s

       testimony could have hurt Tovar as much as helped him. Further, counsel

       Court of Appeals of Indiana | Memorandum Decision 15A01-1508-PC-1112 | August 31, 2016   Page 9 of 11
       could have reasonably concluded Cremeans was only tangentially involved in

       the case and would not have materially assisted Tovar’s defense. He has failed

       to show that the choice not to call these witnesses was anything other than a

       strategic decision. See Hall v. State, 274 Ind. 607, 413 N.E.2d 262 (1980)

       (counsel was not ineffective for choosing not to call witnesses; petitioner merely

       speculated that those witnesses would undermine other witnesses’ credibility).


[27]   Finally, Tovar argues his trial counsel failed to object to the aggravating factors

       identified by the trial court at his sentencing hearing. Specifically, he says his

       attorney should have challenged the sentencing court’s use of his prior criminal

       history and his status as an undocumented alien. The State responds that

       counsel acted appropriately because the aggravating factors were valid.


[28]   Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218

       (2007). A trial court may abuse its discretion by entering a sentencing

       statement that finds aggravating or mitigating factors that are unsupported by

       the record or improper as a matter of law. Id.


[29]   Tovar claims the use of his criminal record as an aggravating factor was invalid

       because the State must file a “separate sheet allegation” to use prior crimes to

       enhance a sentence. Appellant’s Br. p. 10. To the contrary, a sentencing court

       may consider a defendant’s “history of criminal or delinquent behavior” as an

       aggravating factor. Ind. Code § 35-38-1-7.1(a) (2005). Tovar appears to be

       referring to a habitual offender sentencing enhancement, which the State may


       Court of Appeals of Indiana | Memorandum Decision 15A01-1508-PC-1112 | August 31, 2016   Page 10 of 11
       seek by filing a separate sheet of paper identifying qualifying prior convictions.

       Ind. Code § 35-50-2-8 (2005). The State did not allege that Tovar is a habitual

       offender, so the separate sheet requirement does not apply. Counsel was not

       ineffective for failing to contend that it did.


[30]   As for Tovar’s status as an undocumented alien, a defendant’s presence in the

       country without appropriate credentials is a proper aggravating factor because

       “daily disregard for the laws of this country” is relevant to the assessment of a

       defendant’s character. Sanchez v. State, 891 N.E.2d 174, 176-77 (Ind. Ct. App.

       2008). Trial counsel did not render ineffective assistance by failing to challenge

       those sentencing factors because such a challenge would have failed.


                                                Conclusion
[31]   For the foregoing reasons, we affirm the judgment of the trial court.


[32]   Affirmed.


       Vaidik, C.J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1508-PC-1112 | August 31, 2016   Page 11 of 11
