 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
                                                                   FILED
                                                                Jul 23 2012, 8:54 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.                           CLERK
                                                                      of the supreme court,
                                                                      court of appeals and
                                                                             tax court




ATTORNEYS FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS                                     GREGORY F. ZOELLER
Public Defender of Indiana                           Attorney General of Indiana

JAMES T. ACKLIN                                      IAN McCLEAN
Chief Deputy Public Defender                         Deputy Attorney General
Indianapolis, Indiana                                Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA


ROSALIO PEDRAZA,                                     )
                                                     )
       Appellant,                                    )
                                                     )
           vs.                                       )      No. 49A02-1111-PC-1076
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee.                                     )



                     APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Kurt Eisgruber, Judge
                         The Honorable Steven J. Rubick, Magistrate
                             Cause No. 49G01-0508-PC-139250



                                           July 23, 2012
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Rosalio Pedraza (“Pedraza”) appeals the denial of his petition for post conviction

relief and argues that the post-conviction court clearly erred in concluding that Pedraza

was not denied the effective assistance of counsel during his direct appeal.

       We affirm.

                            Facts and Procedural History

       In its opinion arising out of Pedraza’s direct appeal, our supreme court set out the

facts underlying Pedraza’s convictions as follows:

              Around midnight on August 13, 2005, appellant Rosalio Pedraza
       drove through a red light at a traffic intersection in front of the White River
       Gardens in Indianapolis. His SUV struck another vehicle containing five
       people who had just left a wedding reception. Two of the passengers died;
       one was seriously injured.
              At the scene of the accident, Pedraza appeared confused and had
       bloodshot, watery eyes. He slurred his speech and smelled strongly of
       alcohol. Both empty beer cans and full ones lay strewn about the interior of
       his vehicle. A blood alcohol test revealed Pedraza’s blood alcohol content
       was 0.26. Additional tests revealed cocaine metabolites in his bloodstream.
       Pedraza later admitted that he had been drinking since the day before and
       had consumed about fifteen beers that day.

Pedraza v. State, 887 N.E.2d 77, 78-79 (Ind. 2008) (record citations omitted).

          At the conclusion of a jury trial, Pedraza was found guilty of the following

counts:

       Count I: Class C Felony Operating a Motor Vehicle While Intoxicated
       (“OWI”) Causing Death
       Count II: Class B Felony Operating a Motor Vehicle with a Blood Alcohol
       Content (“B.A.C.”) Greater than 0.15 Causing Death
       Count III: Class C Felony Reckless Homicide
       Count IV: Class C Felony OWI Causing Death

                                             2
      Count V: Class B Felony Operating a Motor Vehicle with a B.A.C. Greater
      than 0.15 Causing Death
      Count VI: Class C Felony Reckless Homicide
      Count VII: Class D Felony OWI Causing Serious Bodily Injury
      Count VIII: Class D Felony Operating a Motor Vehicle with a BAC
      greater than 0.08 Causing Serious Bodily Injury
      Count XIV: Class B Felony Operating a Motor Vehicle with a Metabolite
      in the Blood Causing Death
      Count XV: Class B Felony Operating a Motor Vehicle with a Metabolite in
      the Blood Causing Death
      Count: XVI: Class D Felony Operating a Motor Vehicle with a Metabolite
      in the Blood Causing Serious Bodily Injury

      After the jury returned verdicts on these counts, the trial court heard evidence

outside the presence of the jury on the following enhancements:

      Count IX: Enhancement of Count I to a Class B Felony due to prior OWI
      conviction
      Count X: Enhancement of Count IV to a Class B Felony due to prior OWI
      conviction
      Count XI: Enhancement of Count VII to a Class C Felony due to prior
      OWI conviction
      Count XII: Enhancement of Count VIII to a Class C Felony Due to prior
      OWI conviction
      Count XIII: Habitual Substance Offender Enhancement

Pedraza admitted to having certain prior OWI convictions supporting the enhancements

and habitual offender allegation.    Thereafter, the trial court entered judgment of

conviction on each of the enhancement counts and adjudged Pedraza a habitual substance




                                           3
offender “based upon the defendant’s admissions under oath that the State has met their

burden of proof with respect to [the enhancements].” Trial Tr. p. 247.1

         At Pedraza’s August 25, 2006 sentencing hearing, the trial court vacated all of

Pedraza’s convictions except for those on Counts II, V, and XI, and the habitual

substance offender enhancement. Pedraza was sentenced to eighteen years each on

Counts II and V, and the sentence on Count II was enhanced by eight years based on the

habitual substance offender adjudication. Pedraza was sentenced to another eight years

for Count XI, and all sentences were ordered served consecutively, for an aggregate

sentence of fifty-two years.

         On direct appeal to this court, Pedraza argued (1) that the trial court erroneously

entered judgment of conviction on Count XI because it was merely an enhancement of

VII, which the trial court had vacated due to double jeopardy concerns, (2) that the trial

court erred by using the same prior OWI conviction to elevate Count XI to a Class C

felony and as an aggravating circumstance in imposing sentence on that count, (3) that

his sentence was inappropriate in light of the nature of the offenses and his character, and

(4) that the trial court erred in ordering consecutive, above-advisory sentences. This

court affirmed Pedraza’s convictions and sentence in all respects.

         Pedraza’s appellate counsel then filed a petition for transfer, which was ultimately

granted by our supreme court. On transfer, Pedraza argued that the trial court improperly


1
 We will refer to the transcript of Pedraza’s original trial as “Trial Tr.” and his Appellant’s Appendix in that matter
as “Tr. App.” We will refer to the transcript of the post-conviction proceedings as “P-CR Tr.” and Pedraza’s
Appellant’s Appendix in this matter as “P-CR App.”

                                                          4
used the same prior OWI conviction to elevate Count XI to a Class C felony and as an

aggravating circumstance in imposing sentence on that count.          Our supreme court

rejected this argument, but granted Pedraza relief on other grounds not raised by appellate

counsel. Specifically, the court noted that in Sweatt v. State, 887 N.E.2d 81 (Ind. 2008),

another case handed down the same day as Pedraza, it had held that “where

enhancements of separate counts are based on the same prior conviction, ordering these

sentences to run consecutively does constitute an improper double enhancement, absent

explicit legislative authorization.”   Pedraza, 887 N.E.2d at 81. In Pedraza’s case, the

same 2001 OWI conviction had been used to elevate Count XI to a Class C felony and to

enhance the sentence on Count II based on Pedraza’s habitual substance offender

adjudication, and the trial court had ordered the sentences on these counts to run

consecutively. Id. Based on its decision in Sweatt, the court directed the trial court “to

resentence Pedraza such that the 2001 conviction is not used for both purposes in

consecutive sentences.” Id. The court summarily affirmed this court’s opinion in all

other respects. Id.

       On remand, the trial court vacated the enhancement in Count XI and reinstated

Pedraza’s underlying conviction on Count VII. Pedraza was sentenced to three years on

Count VII, resulting in a five-year reduction of Pedraza’s sentence and an aggregate

sentence of forty-seven years.

       On June 17, 2008, Pedraza filed a pro se petition for post-conviction relief, which

was amended by counsel on October 27, 2010. In his amended petition, Pedraza alleged


                                             5
that he had been denied the effective assistance of counsel on direct appeal because

appellate counsel failed to argue that Pedraza had not knowingly, intelligently, and

voluntarily waived his right to a jury trial with respect to the habitual substance offender

allegation and the enhancement of Count XI to a Class C felony due to a prior OWI

conviction.2       The post-conviction court held an evidentiary hearing on Pedraza’s

amended petition on January 18, 2011.                   Pedraza’s appellate counsel testified at the

hearing and stated that he did not raise the issue of whether Pedraza had waived his right

to a jury trial on the enhancements because he believed that Pedraza’s admissions

concerning his prior OWI convictions were “in the nature of a guilty plea[.]” P-CR Tr. p.

6. The post-conviction court entered an order denying Pedraza’s petition on November 1,

2011, and Pedraza now appeals.

                                Post-Conviction Standard of Review

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

persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State,

761 N.E.2d 389, 391 (Ind. 2002). 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

2
  Pedraza acknowledges that his conviction on Count XI has been vacated due to our supreme court’s conclusion
that use of the same 2001 OWI conviction to enhance both Count II (due to the habitual substance offender
adjudication) and Count XI, and ordering the sentences on those counts to run consecutively, amounted to an
impermissible double enhancement. Pedraza, 887 N.E.2d at 81. However, Pedraza still challenges his conviction
on Count XI because if he is successful in having his habitual substance offender enhancement set aside, the double
enhancement problem would be removed and his conviction and sentence on Count XI could presumably be
reinstated.

                                                        6
evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). On appeal from the denial

of post-conviction relief, the petitioner stands in the position of one appealing from a

negative judgment. Id. 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.

       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 do not defer to the

court’s legal conclusions, but “the 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. at 644.

                                 Discussion and Decision

       On appeal, Pedraza argues that the post-conviction court clearly erred when it

concluded that he had not been subjected to ineffective assistance of appellate counsel.

We review claims of ineffective assistance of appellate counsel using the same standard

applicable to claims of ineffective assistance of trial counsel. Id. Accordingly, to prevail

on his claim, Pedraza was required to show both that counsel’s performance was deficient

and that the deficiency resulted in prejudice. Id.

       Deficient performance is “‘representation that fell below an objective standard of

reasonableness, committing errors so serious that the defendant did not have the ‘counsel’

guaranteed by the Sixth Amendment.’” State v. McManus, 868 N.E.2d 778, 790 (Ind.

2007) (quoting McCary, 761 N.E.2d 761 at 392). Counsel’s performance is presumed


                                             7
effective, and a post-conviction petitioner must offer strong and convincing evidence to

overcome this presumption. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000). In

determining whether counsel’s performance was deficient, “‘[w]e address not what is

prudent or appropriate, but only what is constitutionally compelled.’” Burger v. Kemp,

483 U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665 n.38

(1984) (alteration in original)). “Isolated mistakes, poor strategy, inexperience, and

instances of bad judgment do not necessarily render representation ineffective.”

Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001).

      Our supreme court has recognized three types of ineffective assistance of appellate

counsel: (1) denial of access to appeal; (2) failure to raise issues that should have been

raised; and (3) failure to present issues well. Wrinkles v. State, 749 N.E.2d 1179, 1203

(Ind. 2001). Pedraza’s claim falls into the second category. We use a two part test to

evaluate such claims: (1) whether the unraised issues are significant and obvious from

the face of the record, and (2) whether the unraised issues are “clearly stronger” than the

raised issues. Timberlake, 753 N.E.2d at 605-06.

      [T]he reviewing court should be particularly sensitive to the need for
      separating the wheat from the chaff in appellate advocacy, and should not
      find deficient performance when counsel’s choice of some issues over
      others was reasonable in light of the facts of the case and the precedent
      available to counsel when that choice was made.

Id. at 605 (quoting Bieghler, 690 N.E.2d at 194) (alteration in original). But even if an

omission is inadvertent, relief is not automatic—this is so because “[t]he Sixth




                                            8
Amendment guarantees reasonable competence, not perfect advocacy judged with the

benefit of hindsight.” Yarborough v. Gentry, 540 U.S. 1, 6 (2003).

      On appeal, Pedraza argues that his appellate counsel’s performance was deficient

because counsel failed to challenge Pedraza’s habitual substance offender enhancement,

as well as the enhancement of Count XI to a Class C felony, both on the basis that

Pedraza did not expressly and personally waive his right to a jury trial on these

enhancements. The United States and Indiana Constitutions guarantee the right to a trial

by jury, Poore v. State, 681 N.E.2d 204, 206 (Ind. 1997), and that right extends to

habitual offender proceedings.    Seay v. State, 698 N.E.2d 732, 736037 (Ind. 1998)

(holding that a defendant is alleged to be a habitual offender has a right to have a jury

determine whether he or she is a habitual offender, “irrespective of the uncontroverted

proof of prior felonies”). A defendant is presumed not to waive his right to a jury trial

unless he affirmatively acts to do so. Poore, 681 N.E.2d at 207. “The defendant must

express his personal desire to waive a jury trial and such a personal desire must be

apparent from the court’s record.” Id. at 206. “Submission to a bench trial with counsel

at one’s side cannot be deemed a waiver.” Zakhi v. State, 560 N.E.2d 683, 685 (Ind. Ct.

App. 1990) (citing Perkins v. State, 541 N.E.2d 927, 928 (Ind. 1989)).

      Before considering the merits of Pedraza’s post-conviction claims, the post-

conviction court addressed the threshold issue of whether Pedraza’s convictions on the

enhancement charges and his habitual substance offender adjudication were the result of

a bench trial, which would require a personal waiver on the record by Pedraza, or a guilty


                                            9
plea, which would not.3 The post-conviction court found that what took place was a

bench trial, not a guilty plea. Neither Pedraza nor the State appear to dispute this finding,

and based on our supreme court’s precedent, we will defer to the post-conviction court’s

finding in this regard. See Hopkins v. State, 889 N.E.2d 314, 317 (Ind. 2008) (treating

the issue of whether a defendant pleaded guilty to being a habitual offender or merely

stipulated to the underlying prior convictions as a factual matter to be resolved by the

post-conviction court). The post-conviction court went on to find that Pedraza had not

personally waived his right to a jury as described above. However, the post-conviction

court concluded that Pedraza’s appellate counsel was not ineffective for failing to raise

the jury waiver issue, both because the failure to raise the issue was “the product of

strategy and not negligence[,]” and because the jury waiver issue was not “clearly

stronger” than the issues counsel presented on appeal. Appellant’s App. p. 109.

         Based on our review of the record, we are convinced that the post-conviction

court’s finding that appellate counsel made a strategic decision not to raise the jury

waiver issue is clearly erroneous. Specifically, the post-conviction court found that

Pedraza’s appellate counsel “testified at the hearing that when he reviewed the transcript

of the hearing he noticed the procedural irregularity; however, he chose to reject this as

an appellate issue because he found other issues more compelling.” P-CR App. p. 109.

This finding is not supported by the record; appellate counsel did not testify that he

3
  As a general matter, prior to accepting a guilty plea, a trial court must ensure that a defendant was informed of and
waived three specific constitutional rights: the privilege against compulsory self-incrimination, the right to a trial by
jury, and the right to confront one’s accusers. Hall v. State, 849 N.E.2d 466, 469 (Ind. 2006). However, the
question of whether this requirement applies to “habitual admissions” like the one at issue here has apparently not
yet been resolved. See Hopkins v. State, 889 N.E.2d 314, 317 (Ind. 2008).

                                                          10
believed any sort of “procedural irregularity” had occurred or that he considered raising

the jury waiver issue.     To the contrary, appellate counsel testified that he did not

recognize the possibility of raising the jury waiver issue because he believed that

Pedraza’s admissions concerning his prior convictions amounted to a guilty plea. Indeed,

counsel specifically indicated that he had not “winnowed out” the jury waiver issue in

favor of other issues because he had not considered raising the issue in the first instance.

This testimony clearly does not support the post-conviction court’s finding that appellate

counsel made a strategic decision not to raise the jury waiver issue; rather, the only

logical conclusion to be drawn from counsel’s testimony is that he simply failed to spot

the issue.

       But this does not end our analysis. Although counsel’s failure to raise the jury

waiver issue was a result of inadvertence rather than a strategic choice, Pedraza must still

establish that the unraised issue was significant, obvious, and clearly stronger than the

issues counsel advanced on appeal. See Wrinkles, 749 N.E.2d at 1203. In order to

determine whether the jury waiver issue was clearly stronger than the issues raised in

Pedraza’s direct appeal, we must examine the issues Pedraza’s appellate counsel’s chose

to raise and their probability of success.

       Pedraza’s appellate counsel made the following arguments on direct appeal: (1)

that the trial court erroneously entered judgment of conviction on Count XI because it

was merely an enhancement of VII, which the trial court had vacated due to double

jeopardy concerns, (2) that the trial court erred by using the same prior OWI conviction


                                             11
to elevate Count XI to a Class C felony and as an aggravating circumstance in imposing

sentence on that count,4 (3) that his sentence was inappropriate in light of the nature of

the offenses and his character, and (4) that the trial court abused its discretion in ordering

that Pedraza’s above-advisory sentences be served consecutively.

         The first of these issues had little chance of success on appeal. As this court noted

on Pedraza’s direct appeal, the charging information for Count XI indicated that Count

XI was “Part II of Count VII,” and stated that Pedraza was currently charged in Count

VII with OWI causing serious bodily injury and that he had a previous OWI conviction

within five years of the current offense. Tr. App. p. 48. The court noted further that, in

interpreting a trial court’s judgment, “‘it is critical to take into account the language of

the entire order.’” Pedraza, 873 N.E.2d 1083, 1087 (Ind. Ct. App. 2007), summarily

aff’d in relevant part, 887 N.E.2d 77, 81 (Ind. 2008) (quoting Gilbert v. Gilbert, 777

N.E.2d 785, 792 (Ind. Ct. App. 2002)). In the end, the court rejected Pedraza’s argument

in this regard because, despite the fact that the trial court stated that it was vacating the

conviction under Count VII, it was clear that the trial court intended to enter judgment of

conviction against Pedraza for OWI causing serious bodily injury as enhanced under


4
  In its opinion arising out of Pedraza’s direct appeal, this court considered an additional, related issue not raised by
Pedraza’s appellate counsel: whether the trial court’s reliance on the same two prior OWI convictions supporting
Pedraza’s habitual substance offender adjudication as aggravating factors in imposing amounted to an improper
double enhancement. The majority ultimately concluded that it did not, and Judge Vaidik concurred in result,
concluding that the trial court had abused its discretion in finding as an aggravating circumstance the same
convictions supporting Pedraza’s habitual substance offender enhancement, but that resentencing was not warranted
because the other aggravating circumstances found by the trial court were sufficient to support Pedraza’s sentence.
Although it was appropriate for the court to consider this issue sua sponte, see Comer v. State, 839 N.E.2d 721, 726
(Ind. Ct. App. 2005) (holding that it is a reviewing court’s duty to correct sentencing errors, sua sponte if necessary),
we will not consider it in determining whether the unraised jury waiver issue was clearly stronger than the issues
raised on direct appeal because Pedraza’s counsel did not actually raise the issue.

                                                          12
Count XI. Pedraza’s argument to the contrary asked this court to resort to a hyper

technical reading of each charging information in isolation and to disregard the trial

court’s clear intent, and was therefore highly unlikely to succeed on appeal.5

        Pedraza’s second argument, that the trial court’s use of the same prior OWI

conviction that was used to enhance Count XI to a Class C felony as an aggravating

circumstance to support the imposition of the maximum sentence Count XI amounted to

an impermissible double enhancement, was slightly stronger but still unlikely to succeed.

In support of this argument, Pedraza’s appellate counsel cited Stone v. State, 727 N.E.2d

33, 37 (Ind. Ct. App. 2000), for the proposition that a trial court may not use a factor

constituting a material element of the charged offense as an aggravating circumstance. In

imposing sentence on Count XI, the trial court found Pedraza’s criminal history,

including his 2001 OWI conviction, as an aggravating circumstance, even though that

2001 OWI conviction constituted an element of the offense in that it was used to elevate

the crime to a Class C felony. This argument is appealing on its face, but on closer

examination, its weaknesses become apparent. First, the general rule that a material


5
  In its opinion arising out Pedraza’s direct appeal, this court also addressed the issue of whether the trial court
abused its discretion in failing to identify as mitigating circumstances that long-term imprisonment would cause
undue hardship to Pedraza’s teenage son and the fact that Pedraza did not contemplate the fact that his crime would
cause such serious harm. Pedraza v. State, 873 N.E.2d 1083, 1090 (Ind. Ct. App. 2007), summarily aff’d in relevant
part, 887 N.E.2d 77, 81 (Ind. 2008). However, it should be noted that Pedraza’s appellate counsel did not raise the
issue of purportedly overlooked mitigators as a freestanding claim of abuse of discretion. Rather, appellate counsel
advanced these additional mitigating circumstances for consideration in the context of whether his sentence was
inappropriate under Appellate Rule 7(B). To the extent that Pedraza’s appellate counsel argued that the trial court
abused its discretion by overlooking these purportedly mitigating circumstances, the argument had virtually no
chance of success on the merits because Pedraza’s trial counsel had not advanced these considerations as possible
mitigating circumstances during Pedraza’s sentencing hearing. See id. at 1090 (citing Anglemyer v. State, 868
N.E.2d 482, 492 (Ind. 2007) (holding that “the trial court does not abuse its discretion in failing to consider a
mitigating factor that was not raised at sentencing”), clarified on reh’g, 875 N.E.2d 218).


                                                        13
element of a crime may not also serve as an aggravating circumstance justifying a

deviation from the presumptive sentence was a product of the previous, presumptive

sentencing scheme under which the trial court was required to find aggravating

circumstances in order to enhance a sentence. See Anglemyer v. State, 868 N.E.2d 482,

486 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. But Pedraza was sentenced under

the current, advisory sentencing regime, under which trial courts may impose any

sentence within the statutory range regardless of the presence or absence of aggravating

circumstances. Id. at 488. Indeed, in its opinion arising out of Pedraza’s direct appeal,

our supreme court held that under the advisory sentencing scheme, it is no longer

improper to consider a material element of a crime as an aggravating factor. Pedraza v.

State, 887 N.E.2d 77, 80 (Ind. 2008).6

        And even applying the law applicable to the presumptive sentencing scheme,

Pedraza’s argument was unlikely to succeed.                       Although the trial court referenced

Pedraza’s criminal history, including the 2001 OWI, as an aggravating circumstance in

imposing sentence on Count XI, this was not the full extent of Pedraza’s criminal history.

Pedraza also had a 2003 conviction for OWI as a Class D felony. And the trial court

found additional aggravating circumstances aside from Pedraza’s criminal history,

including the fact that prior attempts at rehabilitation had failed and the nature and

circumstances of the crime. Under the presumptive sentencing scheme, it was often said


6
  However, the court noted that “a trial court that imposed a maximum sentence, explaining only that an element was
the reason, would have provided an unconvincing reason that might warrant revision of sentence on appeal.”
Pedraza, 887 N.E.2d at 80.

                                                       14
that a single aggravating factor was sufficient to justify an enhanced sentence. See

Hawkins v. State, 748 N.E.2d 362, 363-63 (Ind. 2001). Accordingly, even if the trial

court erred in considering Pedraza’s 2001 OWI conviction as an aggravating factor,

Pedraza was unlikely to prevail on this issue because the trial court found three

significant, additional aggravating factors, the propriety of which Pedraza did not contest.

See id. at 364 (holding that a sentence enhancement may still be upheld when a

sentencing court applies proper aggravators along with improper aggravators).

       However, the two remaining issues presented on direct appeal were considerably

stronger. First, with respect to Pedraza’s argument that his sentence was inappropriate

under Appellate Rule 7(B), we strongly disagree with Pedraza’s assertion the issue “was

a non-starter.” Appellant’s Br. at 10. Pedraza received eighteen-year sentences for each

of his two Class B felony convictions; thus, his sentences on those charges were just two

years shy of the statutory maximum for Class B felonies. See Ind. Code § 35-50-2-5.

Pedraza received an eight-year sentence on Count XI, the statutory maximum sentence

available for a Class C felony.     See Ind. Code § 35-50-2-6.        Additionally, due to

Pedraza’s habitual substance offender adjudication, his sentence on one of the Class B

felony convictions was enhanced by eight years, the maximum allowed under the

applicable statute. See Ind. Code § 35-50-2-10. Finally, all of Pedraza’s sentences were

ordered to be served consecutively. Thus, Pedraza received an aggregate sentence of

fifty-two years, just four years less than the maximum sentence the trial court could have

legally imposed.


                                            15
       In support of his argument that Pedraza’s near-maximum sentence was

inappropriate under Appellate Rule 7(B), Pedraza’s appellate counsel noted that

Pedraza’s criminal history was limited; indeed, Pedraza’s prior criminal history consisted

solely of the two prior OWI convictions used to support his habitual substance offender

adjudication. Appellate counsel noted that Pedraza had never committed a crime of

violence, and argued that Pedraza has committed his past and current drunk driving

offenses because he was “a hopeless drunk.” P-CR Ex. Vol., Petitioner’s Ex. 1, p. 13.

Appellate counsel also asked this court to consider the fact that Pedraza had a fourteen-

year-old son and that Pedraza had not intentionally harmed his victims.          Pedraza’s

appellate counsel acknowledged that the results of Pedraza’s choice to drive while under

the influence in this case were horrific and that his impact on the victims and survivors

was profound, but asked this court to review his sentence objectively, “with a cold eye

toward proportionality and fundamental fairness.” Id. at 14.

       Although Pedraza’s Appellate Rule 7(B) argument was ultimately unsuccessful, it

is clear from this court’s opinion arising out of Pedraza’s direct appeal that the argument

gave this court pause. See Pedraza, 873 N.E.2d at 1090-92, summarily aff’d in relevant

part, 887 N.E.2d 77, 81 (Ind. 2008). With respect to the nature of the offense, the court

took particular care to note that the impact on the victims and their families alone might

not be enough to justify Pedraza’s near-maximum sentence, but that other circumstances

exacerbated the seriousness of the crime, including the fact that Pedraza’s B.A.C. was




                                            16
over three times the legal limit, that he had cocaine in his system, and that he was driving

erratically at the time of the accident. Id. at 1091-92.

       With respect to Pedraza’s character, the court noted that his criminal history was

not extensive, but that he had an arrest record for additional traffic and alcohol-related

charges that were ultimately dismissed and that the State had previously filed (and

subsequently withdrawn) a petition to revoke Pedraza’s probation on one of his previous

OWI conviction. Id. at 1092. The court concluded that these facts indicated that Pedraza

“had been given breaks in the past” and that he was “neither rehabilitated nor deterred

from illegal activity[.]”   Id.   Although appellate counsel’s argument that Pedraza’s

sentence was inappropriate under Appellate Rule 7(B) did not ultimately prevail, this

court’s careful and detailed analysis of the issue reveals that the court found the argument

colorable.

       Appellate counsel’s final argument, that the trial court erred by imposing

consecutive, above-advisory sentences, was very strong at the time it was made.

Specifically, Pedraza’s appellate counsel argued that under Indiana Code section 35-50-

2-1.3, the trial court was prohibited from imposing an above-advisory sentence for any

sentence running consecutively. In support of this argument, Pedraza cited Robertson v.

State, 860 N.E.2d 621, 624 (Ind. Ct. App. 2007), vacated in relevant part, 871 N.E.2d 280

(Ind. 2007), in which this court reached precisely that conclusion. Pedraza makes much

of the fact that that another panel of this court had previously reached the opposite

conclusion, see White v. State, 849 N.E.2d 735, 741-43 (Ind. Ct. App. 2006), but the


                                              17
existence of conflicting authority on an issue does not undermine the legal basis for the

argument. Indeed, counsel should be ever more aware of a possible issue where the law

is unsettled and in a state of flux. See Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)

(holding that an issue was both significant and obvious, as well as stronger than the other

issues raised by appellate counsel on direct appeal, “precisely because the law in this area

was unsettled and in a state of flux”).

       Our supreme court granted transfer in Robertson on April 17, 2007, more than two

months after Pedraza’s appellate counsel filed his Appellant’s Brief, and the court handed

down its opinion in that case on August 8, 2007, several months before this court handed

down its opinion arising out of Pedraza’s direct appeal. In Robertson, our supreme court

ultimately held that Indiana Code section 35-50-2-1.3 did not set forth a general

requirement that a consecutive sentence be for the advisory term. Robertson v. State, 871

N.E.2d 280, 285 (Ind. 2007). Rather, the court held that the statute only required the trial

court to use the advisory sentence in imposing a consecutive or additional term when: (1)

imposing consecutive sentences for nonviolent felony convictions arising out of a single

episode of criminal conduct under Indiana Code section 35-50-1-2, (2) when imposing an

additional fixed term to a habitual offender under Indiana Code section 35-50-2-8, and

(3) when imposing an additional fixed term to a repeat sexual offender under Indiana

Code section 35-50-2-13. Id.

       Accordingly, because Pedraza’s crimes did not fall into any of these three

categories, this court held that the trial court was not required to impose the advisory


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sentence when sentencing Pedraza to consecutive terms. Pedraza, 873 N.E.2d at 1093;

see also Ind. Code § 35-50-1-2 (defining OWI causing death and OWI causing serious

bodily injury as crimes of violence). But the fact that our supreme court granted transfer

and ultimately settled the consecutive sentencing issue against Pedraza during the

pendency of Pedraza’s direct appeal does not make the issue any weaker at the time it

was raised. See State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997) (“Counsel’s conduct

is assessed based on facts known at the time and not through hindsight.”).

       Thus, at least two of the issues raised by Pedraza’s appellate counsel had

considerable merit. The post-conviction court found that the jury waiver issue was not

clearly stronger than the issues raised on direct appeal because “there would have been

little benefit to be gained from success on the issue.” Appellant’s App. p. 109-10.

Specifically, the post-conviction found that even if the jury waiver issue had been raised

and decided in Pedraza’s favor, Pedraza’s remedy would have been a retrial on the

enhancement counts and habitual substance offender allegation. The post-conviction

court noted further that Pedraza had stipulated to the existence and timing of each of his

relevant prior convictions and that, had he been retried, “there would have been no

legitimately controverted issues and [Pedraza’s] conviction on the enhancements would

have been a certainty.” Id. at 110.

       Although Pedraza correctly notes that if he were granted a retrial, he would not be

required to again stipulate to the existence of his underlying convictions, he does not

dispute that he has the requisite convictions to support the enhancement counts and the


                                           19
habitual substance offender adjudication. We acknowledge that, even where there is

uncontroverted proof that a defendant has the requisite prior convictions, “the jury still

has the unquestioned right to refuse to find the defendant to be a habitual offender at

law.” Seay, 698 N.E.2d at 734. But the possibility that a jury might decline to find

Pedraza to be a habitual substance offender notwithstanding his qualifying prior

convictions does not establish that the jury waiver issue was clearly stronger than the

other issues raised on appeal when, in all likelihood, a retrial would have resulted in

another habitual substance offender adjudication.

      In sum, we conclude that Pedraza’s appellate counsel raised at least two issues that

were quite strong, although ultimately unsuccessful. The jury waiver issue also had

merit, and it would have been prudent for counsel to raise it. But as we explained above,

in assessing counsel’s performance, “‘[w]e address not what is prudent or appropriate,

but only what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987)

(quoting United States v. Cronic, 466 U.S. 648, 665 n.38 (1984) (alteration in original)).

And Pedraza’s burden on appeal is substantial—we must affirm the post-conviction

court’s denial of relief unless “the evidence is without conflict and leads to but one

conclusion, and the post-conviction court has reached the opposite conclusion.” McCary,

761 N.E.2d at 392. Pedraza has simply not met this burden with respect to establishing

that the unraised jury waiver issue was clearly stronger than the other issues raised on

appeal. This is particularly true in light of the fact that is was unlikely that Pedraza

would have ultimately gained any benefit from success on the issue, and success on either


                                           20
of the strongest issues raised on direct appeal would have resulted in a net decrease in

Pedraza’s sentence. We therefore cannot conclude that appellate counsel’s performance

was constitutionally deficient and, accordingly, we affirm the post-conviction court’s

conclusion that Pedraza was not denied the effective assistance of counsel during his

direct appeal.

       Affirmed.

CRONE, J., and BRADFORD, J., concur.




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