MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Mar 17 2016, 9:25 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Scott King                                               Gregory F. Zoeller
Russell W. Brown, Jr.                                    Attorney General of Indiana
Scott King Group
Merrillville, Indiana                                    Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Fuentes,                                          March 17, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1506-PC-618
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vazquez,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Kathleen A.
                                                         Sullivan, Magistrate
                                                         Trial Court Cause No.
                                                         45G01-1205-PC-8



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1506-PC-618 | March 17, 2016            Page 1 of 12
                                          Case Summary
[1]   Appellant-Petitioner Robert Fuentes (“Fuentes”) appeals the denial of his

      petition for post-conviction relief, following his convictions for Murder and

      Carrying a Handgun Without a License. We affirm.



                                                   Issues
[2]   Fuentes presents two issues for review:

              I.      Whether he was denied the effective assistance of trial
                      counsel; and


              II.     Whether he was denied the effective assistance of appellate
                      counsel.


                            Facts and Procedural History
[3]   The relevant facts were recited by a panel of this Court on direct appeal, as

      follows:


              Shortly before 8:45 p.m. on November 1, 2008, Latanza
              McFerrin drove her fiancé Ronald Grayson, who stood 5’11” tall
              and weighed 233 pounds, to a Clark gas station in Lake County.
              Once there, Grayson went inside so that he could buy a pack of
              cigarettes. Back outside, Grayson was conversing with his friend
              Thomas Meadows as the duo stood in front of Grayson’s vehicle.
              About this time, Fuentes, who stood 5’4” tall and weighed
              approximately 140 pounds, arrived in a burgundy Impala.


              Inside the gas station, Fuentes collided with Meadows and
              exchanged words and a handshake with him. According to
      Court of Appeals of Indiana | Memorandum Decision 45A03-1506-PC-618 | March 17, 2016   Page 2 of 12
              Fuentes, he approached the counter to pay for gasoline when
              Grayson said something to him that he perceived to be
              unfriendly. Fuentes testified that he felt Meadows and Grayson
              were attempting to “instigate” something, he felt threatened, he
              thought it would be best just to leave, and he left the gas station
              without paying for his gasoline. Tr. p. 273. Fuentes testified
              that, based on what Grayson said to him, he felt that he “was
              gonna get F***** up or I had to get out of there someway [sic],
              somehow.” Tr. p. 278.


              Fuentes walked to the parking lot, followed by Grayson, who
              “came directly at [him] reaching behind his back – behind his
              shirt, rather.” Tr. p. 276. At 8:45:10 p.m., surveillance video
              shows Fuentes attempting to punch Grayson, a blow that did not
              land. Grayson backed up and then moved toward Fuentes, who
              had by this time drawn his illegally-possessed hand-gun. At
              8:45:11 p.m., Fuentes shot Grayson in the left arm. Within two
              seconds, Grayson went to his knees in the parking lot and raised
              his arms and hands in front of him. Despite Grayson’s now
              defense-less position, Fuentes shot him again, this time in the
              chest, killing him.


      Fuentes v. State, 952 N.E.2d 275, 276-77 (Ind. Ct. App. 2011).


[4]   On October 24, 2008, the State charged Fuentes with murder and Class C

      felony carrying a handgun without a license. On October 14, 2010, following a

      bifurcated trial, a jury found Fuentes guilty as charged. He was given

      consecutive sentences of fifty-eight years of incarceration for murder and five

      years for carrying a handgun without a license.


[5]   Fuentes appealed, raising an issue of whether the trial court abused its

      discretion in instructing the jury on self-defense, effectively depriving him of the


      Court of Appeals of Indiana | Memorandum Decision 45A03-1506-PC-618 | March 17, 2016   Page 3 of 12
      opportunity to present his self-defense claim. Id. at 276. A panel of this Court

      concluded that “the jury was not properly instructed on the law of self-defense.”

      Id. at 279. However, the Court conducted a harmless error analysis and

      ultimately affirmed Fuentes’s conviction:

              Any instructional error that occurred here was harmless, as we
              conclude that the jury could not have properly found that
              Fuentes acted in self-defense when he shot Grayson a second
              time. After the first shot, Grayson went to his knees and put his
              arms and hands up in a defenseless position. Any threat Grayson
              had posed to Fuentes had been neutralized, and Fuentes’s right
              to self-defense therefore ceased. Instead of seeking to disengage
              at that point, Fuentes stood his ground, kept his weapon trained
              on Grayson, hesitated a moment, and shot him again. Under the
              facts of this case, Fuentes’s second shot at Grayson fatally
              undercuts his claim of self-defense. Any error the trial court
              committed in instructing the jury was therefore harmless.


      Id. at 280. On October 19, 2011, the Indiana Supreme Court denied Fuentes’s

      petition for transfer. Fuentes v. State, 962 N.E.2d 650 (Ind. 2011).


[6]   On May 16, 2012, Fuentes filed a pro-se motion for post-conviction relief,

      alleging that he had received ineffective assistance from his trial and appellate

      counsel. On March 21, 2014, with the assistance of counsel, Fuentes filed an

      amended petition. Evidentiary hearings were conducted on May 6, 2014 and

      on July 8, 2014.


[7]   Fuentes contended that factual error had permeated the trial and appellate

      proceedings; specifically, concerning whether the first shot had been the fatal

      shot. According to Fuentes, his trial attorney had failed to convey to the jury

      Court of Appeals of Indiana | Memorandum Decision 45A03-1506-PC-618 | March 17, 2016   Page 4 of 12
      this salient fact and his appellate attorney had failed to prevent the appellate

      court’s acceptance of factual error when conducting a harmless error analysis.

      Also, Fuentes claimed that his trial attorney should have tendered an

      instruction on a lesser-included offense.


[8]   On May 13, 2015, the post-conviction court issued findings of fact and

      conclusions of law and an order denying Fuentes post-conviction relief. He

      now appeals.



                                 Discussion and Decision
                                         Standard of Review
[9]   The petitioner in a post-conviction proceeding bears the burden of establishing

      the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing

      from the denial of post-conviction relief, the petitioner stands in the position of

      one appealing from a negative judgment. Id. On review, we will not reverse

      the judgment of the post-conviction court unless the evidence as a whole

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

      post-conviction court. Id. A post-conviction court’s findings and judgment will

      be reversed only upon a showing of clear error, that which leaves us with a

      definite and firm conviction that a mistake has been made. Id. In this review,

      findings of fact are accepted unless they are clearly erroneous and no deference

      is accorded to conclusions of law. Id. The post-conviction court is the sole

      judge of the weight of the evidence and the credibility of witnesses. Id.
      Court of Appeals of Indiana | Memorandum Decision 45A03-1506-PC-618 | March 17, 2016   Page 5 of 12
                                                 Self-Defense
[10]   Defense of self or others as an affirmative defense is established by Indiana

       Code Section 35-41-3-2(c): “A person is justified in using reasonable force

       against any other person to protect the person or a third person from what the

       person reasonably believes to be the imminent use of unlawful force.”

               To support a claim of self-defense, a defendant must have acted
               without fault, been in a place where he had a right to be, and
               been in reasonable fear or apprehension of bodily harm. Brewer v.
               State, 646 N.E.2d 1382, 1386 (Ind. 1995). The defendant’s belief
               … must be reasonable and in good faith, and his “reaction to that
               belief must be reasonable based upon the surrounding
               circumstances under which the events have occurred.” Geralds v.
               State, 647 N.E.2d 369, 373 (Ind. Ct. App. 1995).


       White v. State, 699 N.E.2d 630, 635 (Ind. 1998).


                                   Effectiveness of Trial Counsel
[11]   Fuentes contends he was denied the effective assistance of trial counsel in two

       respects: trial counsel (1) failed to adequately review the surveillance video in

       order to perceive and argue that the first shot was the fatal one that struck

       Grayson in the chest and (2) did not tender an instruction on a lesser-included

       offense.


[12]   Effectiveness of counsel is a mixed question of law and fact. Strickland v.

       Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims

       of ineffective assistance under the two-part test announced in Strickland. Id. To

       prevail on an ineffective assistance of counsel claim, a defendant must
       Court of Appeals of Indiana | Memorandum Decision 45A03-1506-PC-618 | March 17, 2016   Page 6 of 12
       demonstrate both deficient performance and resulting prejudice. Dobbins v.

       State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).

       Deficient performance is that which falls below an objective standard of

       reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d

       1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates 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.”

       Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.

       1996). The two prongs of the Strickland test are separate and independent

       inquiries. Strickland, 466 U.S. at 697. 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.” Id.


[13]   We “strongly presume” that counsel provided adequate assistance and

       exercised reasonable professional judgment in all significant decisions. McCary

       v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded

       considerable discretion in the choice of strategy and tactics. Timberlake v. State,

       753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based upon the

       facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d

       1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring

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

       the defendant’s interests. Id. In sum, trial strategy is not subject to attack

       through an ineffective assistance of counsel claim, unless the strategy is so

       Court of Appeals of Indiana | Memorandum Decision 45A03-1506-PC-618 | March 17, 2016   Page 7 of 12
       deficient or unreasonable as to fall outside the objective standard of

       reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).


[14]   At the post-conviction hearing, Fuentes focused upon the sequence of shots

       depicted in State’s Exhibit 10, the surveillance video, evidently persuaded that

       his defense of self-defense would have been viable had the jury understood the

       first shot to be the fatal shot. The surveillance video was played for trial

       counsel and appellate counsel. Trial counsel, Darnail Lyles (“Lyles”), was

       initially unable to opine as to the sequence of shots, but ultimately testified that

       he heard only two shots and the shot to the chest “looked like” it was “the first

       one.” (P.C.R. Tr. at 66.) The appellate attorney, Marce Gonzalez

       (“Gonzalez”), “could not tell which” was the chest shot. (P.C.R. Tr. at 87.)


[15]   The crux of Fuentes’ position in the post-conviction court was that, had trial

       counsel prepared more thoroughly, he would have been earlier convinced of the

       proper sequence of shots and prepared to argue before the jury that Fuentes did

       not fire a fatal shot into a defenseless victim already on his knees. According to

       Fuentes, had appellate counsel in turn reviewed State’s Exhibit 10, he could

       have argued for the continued viability of self-defense and prevented the

       appellate court’s reliance upon the harmless error doctrine.


[16]   The post-conviction court concluded in relevant part: “the fact that Mr.

       Fuentes’ counsel did not specifically argue whether the killing shot was the first

       shot to hit the victim, it would not have made a difference in the outcome.

       Trial and appellate counsel made sound strategic decisions.” (App. at 114.)


       Court of Appeals of Indiana | Memorandum Decision 45A03-1506-PC-618 | March 17, 2016   Page 8 of 12
[17]   Our review of the trial record reveals no dispute that Fuentes fired two shots

       into Grayson, one to his chest and one in his arm. Also, the pathologist

       testified that Grayson had sustained a fresh knee abrasion. By all indications,

       Grayson was on his knees when the final shot was fired. The prosecutor argued

       to the jury that State’s Exhibit 10 depicted Fuentes raising his gun, shooting

       into Grayson’s arm, Grayson sinking to his knees, and Fuentes inflicting a

       second shot “directly into [Grayson’s] chest.” (Tr. at 315.) Trial counsel then

       challenged that description:

               How on earth can Ms. Massa tell you that the first shot to – to
               Ron was in his arm? Who gave us evidence of that? You looked
               at the video. Did you see the first shot to the arm or the first or
               second shot to the chest? There’s no evidence of what shot hit
               where. None. And this is all about evidence, not what the State
               wants to bully you into believing.


       (Tr. at 321.) Lyles subsequently urged the jury, “You got to watch the movie

       and the time.” (Tr. at 324.) As such, trial counsel invited the jury to rely upon

       their own perceptions of the evidence and not those of the prosecutor. Clearly,

       this was within the range of reasonable professional norms.


[18]   During the elicitation of post-conviction testimony, Fuentes at best

       demonstrated that different conclusions could be drawn from State’s Exhibit 10,

       as to the sequence of the gunshots. However, it was not the function of the

       post-conviction court – or this Court – to reweigh the evidence and determine

       that one conclusion as opposed to another should have been drawn. Trial

       counsel vigorously argued that Fuentes acted out of fear and that his actions

       Court of Appeals of Indiana | Memorandum Decision 45A03-1506-PC-618 | March 17, 2016   Page 9 of 12
       were reasonable. After repeatedly viewing State’s Exhibit 10, the jury rejected

       the theory of self-defense.1 The rejection of that theory was not due to an

       inadequacy on the part of counsel. Trial counsel’s efforts and strategy,

       although they did not ultimately achieve the result desired by Fuentes, were not

       so unreasonable as to constitute ineffective assistance of counsel. See Badelle v.

       State, 754 N.E.2d 510, 539 (Ind. Ct. App. 2001) (deciding in relevant part that,

       when trial counsel’s efforts were “more than adequate” to support a chosen

       defense, counsel’s decision not to seek out additional witnesses was a judgment

       call within the wide range of reasonable assistance), trans. denied.


[19]   As for an instructional omission, Fuentes generically claims that Lyles “was

       ineffective for failing to tender an instruction on a lesser included offense.”

       (Appellant’s Br. at 11.) He does not develop an argument as to what lesser-

       included offense might have had a probability of success. Rather, he

       acknowledges Lyles’ testimony at the post-conviction hearing that Fuentes had

       expressed his desire for an “all or nothing” strategy of self-defense, and then

       suggests that counsel should have continued to confer with him on this

       decision. (P.C.R. Tr. at 61.) Fuentes’ bald assertion has not established

       deficient performance of trial counsel in this regard.




       1
           During deliberations, the jury twice requested, and were given, another viewing of State’s Exhibit 10.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1506-PC-618 | March 17, 2016               Page 10 of 12
                               Effectiveness of Appellate Counsel
[20]   A defendant is entitled to the effective assistance of appellate counsel. Stevens v.

       State, 770 N.E.2d 739, 760 (Ind. 2002). The two-pronged standard for

       evaluating the assistance of trial counsel first enunciated in Strickland is

       applicable to appellate counsel ineffective assistance claims. Bieghler v. State,

       690 N.E.2d 188, 192 (Ind. 1997). There are three basic categories of alleged

       appellate ineffectiveness: (1) denying access to an appeal, (2) waiver of issues,

       and (3) failure to present issues well. Id. at 193-95. Here, the third category is

       implicated, as Fuentes argues that Gonzalez properly raised instructional error

       but, had he been adequately prepared, would have been able to convince the

       appellate court that the instructional error was not harmless.


[21]   Fuentes asserts that Gonzalez did not personally view State’s Exhibit 10. At

       the post-conviction hearing, he offered testimony from a court reporter having

       custody of that exhibit to the effect that appellate counsel had not made a

       request to examine State’s Exhibit 10. Again, Fuentes’ argument distills to his

       insistence that his appellate counsel should have drawn a particular conclusion

       as to the sequence of shots and “rebut[ted] the State’s claim that Mr. Fuentes

       shot and killed Grayson after he was down on his knees and in a defenseless

       position.” (Appellant’s Br. at 13.) However, even after viewing State’s Exhibit

       10 in post-conviction proceedings, Gonzalez was unable to testify to the

       conclusion desired by Fuentes.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1506-PC-618 | March 17, 2016   Page 11 of 12
[22]   Fuentes fired a second shot into an unarmed man sinking to his knees.2

       Regardless of whether the second shot was the fatal shot, or a follow-up shot,

       Fuentes fired multiple times. It is well-settled that firing multiple shots

       undercuts a claim of self-defense. Randolph v. State, 755 N.E.2d 572, 575 (Ind.

       2001). A more nuanced argument by appellate counsel would not have

       prevented a panel of this Court from employing a harmless error analysis.



                                                  Conclusion
[23]   Fuentes was not denied the effective assistance of trial or appellate counsel.

       The post-conviction court properly denied the petition for post-conviction relief.


[24]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       2
        State’s Exhibit 39, a still photograph derived from State’s Exhibit 10, depicts the victim with his hands over
       his head as Fuentes holds his gun trained on the victim.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1506-PC-618 | March 17, 2016              Page 12 of 12
