                                                                               Nov 26 2013, 5:29 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


APPELLANT PRO-SE:                               ATTORNEYS FOR APPELLEE:

ARTURO TORRES                                   GREGORY F. ZOELLER
New Castle, Indiana                             Attorney General of Indiana

                                                ANDREW R. FALK
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ARTURO TORRES,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 20A03-1301-PC-17
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE ELKHART SUPERIOR COURT
                          The Honorable Evan S. Roberts, Judge
                             Cause No. 20D01-1202-PC-16



                                    November 26, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          In this appeal from the denial of appellant-petitioner, Arturo Torres’s petition for

post-conviction relief, we are called upon to decide whether it was correctly determined

that Torres’s trial counsel and post-conviction counsel were not ineffective.

          Following a jury trial, Torres was found guilty of Rape,1 a class B felony. Torres

did not directly appeal that conviction. Thereafter, Torres sought permission to file a

belated appeal that the trial court subsequently denied. Torres then filed a petition for

post-conviction relief, claiming that his trial counsel was ineffective for failing to

adequately investigate the case and call a particular witness to testify on his behalf.

Torres also alleged that his post-conviction counsel did not adequately attack trial

counsel’s performance and his lack of trial experience. Concluding that Torres’s claims

of ineffective assistance of counsel fail, we affirm the judgment of the post-conviction

court in denying his request for relief.

                                            FACTS

          In December 2005, F.C.’s sister, Maria, called F.C. and told her that she and

Gamez, her boyfriend, had been fighting.             Although Torres and F.C. had been

romantically involved at one time and had a child together, they eventually ended their

relationship around September 2005.

          F.C. drove to the residence and Torres, who was also living there, answered the

door and told F.C. that he wanted to “get back together” with her. Tr. p. 509, 584.

However, F.C. told Torres that she did not want to reconcile with him. Torres became

1
    Ind. Code § 35-42-4-1.
                                               2
angry, pushed F.C. into one of the bedrooms, onto a bed, and closed the door. Torres

then told F.C. that he wanted to have sex with her. Notwithstanding F.C.’s protests,

Torres forced her to have sexual intercourse with him. Thereafter, Torres admitted to

Gamez and Maria that he and F.C. had sex.

         F.C. drove back to her house and told another one of her sisters what had occurred.

The police were called and when the officers arrived, they observed that F.C. was crying

and upset. F.C. told the officers that Torres had raped her.

         Approximately one week later, the police interviewed Torres. After being advised

of his Miranda2 warnings and waiving those rights, Torres provided a statement to the

officers.     The State charged Torres with rape and was subsequently found guilty

following a jury trial.

         Torres did not directly appeal his conviction. After filing a motion for a belated

appeal that the trial court denied, Torres filed a petition for post-conviction relief,

claiming that his trial counsel was ineffective for failing to call Gamez to testify. Gamez

was present at the residence before Torres and F.C. went into the bedroom and was going

to testify that “[he did not] think that Torres raped [F.C.].” Appellant’s App. p. 8.

         Torres called his trial counsel, Joseph Lehman, to testify at the post-conviction

hearing. Lehman testified that he recalled seeing Gamez’s name on the witness list and

stated that he would have placed Gamez on his own witness list if he believed that Gamez

“was possibly a good witness.” Tr. p. 49. Torres believed that Gamez would have

2
    Miranda v. Arizona, 384 U.S. 436, 444 (1966).
                                                    3
“possibly” provided information to assist the jury in his case in light of Gamez’s

statement that he did not believe that Torres had raped F.C. Id. at 58. The deputy

prosecutor testified that Gamez had returned to Mexico and there was no chance of

“getting service of process on him.” Id. at 63, 64, 67-68.

       Throughout the hearing, Torres’s post-conviction counsel presented evidence

including the testimony of various witnesses, the trial transcript, and the witness list.

Torres’s post-conviction counsel also examined Lehman about his limited felony trial

court experience.

       On December 13, 2012, the post-conviction court denied Torres’s request for

relief, observing that “the case turned on the testimony of the victim and Petitioner who

were in the bedroom, and could testify as to the force Petitioner had used from their

personal knowledge.”      Appellant’s App. p. 51.         The post-conviction court also

determined that the testimony from other witnesses corroborated Torres’s own statements

and testimony. Torres now appeals.

                             DISCUSSION AND DECISION

                                  I. Standard of Review

       A petitioner for post-conviction relief must establish the grounds for relief by a

preponderance of the evidence. Ind. Post-Conviction Rule 1(5). The post-conviction

court’s denial of relief will not be disturbed unless the evidence is without conflict and

leads to but one conclusion, and the post-conviction court has reached the opposite

conclusion. McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002).

                                             4
       When reviewing ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered adequate legal assistance.           Stevens v. State, 770

N.E.2d 739, 746 (Ind. 2002). To rebut this presumption, the petitioner must demonstrate

both that counsel’s performance fell below an objective standard of reasonableness based

on prevailing professional norms, and that there is a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 687-88 (1984). Many claims of ineffective assistance of

counsel can be resolved by a prejudice inquiry alone. Carr v. State, 728 N.E.2d 125, 131

(Ind. 2000).

                                     II. Torres’s Claims

       As noted above, the basis of Torres’s petition for post-conviction relief regarding

trial counsel’s ineffectiveness was that Gamez was not called to testify as a witness in

light of his statement to the police that “[he did not] think that Torres raped [the victim].”

Appellant’s App. p. 8. Notwithstanding Torres’s contention, witnesses may not testify to

opinions concerning intent, guilt, or innocence in a criminal case [or as to] the truth or

falsity of allegations.” Ind. Evid. R. 704(b); Walker v. State, 988 N.E.2d 341, 347 (Ind.

Ct. App. 2013), trans. denied. In short, Gamez’s testimony regarding his opinion as to

whether Torres had raped F.C. would not have been admitted at trial. Thus, Torres has

failed to show that his trial counsel was ineffective on this basis.

       We also note that F.C.’s sister and Gamez’s other roommate presented testimony

at trial that corroborated Gamez’s statement that he had provided to the police about what

                                              5
had occurred before Torres and F.C. entered the bedroom. Torres has also failed to prove

that his trial counsel was ineffective for this reason. See Moredock v. State, 540 N.E.2d

1230, 1232 (Ind. 1989) (observing that the decision not to call a witness to testify whose

testimony is cumulative does not constitute ineffective assistance of counsel).

       As set forth above, the post-conviction court determined that the only contested

issue in the case was whether force was used. Hence, the post-conviction court properly

concluded that “the case turned on the testimony of the victim and Petitioner who were in

the bedroom, and could testify as to the force Petitioner had used from their personal

knowledge.” Appellant’s App. p. 51.

       In sum, Torres failed to present any evidence that his trial counsel did not

adequately investigate and try the case.      As a result, Torres’s claim of ineffective

assistance of trial counsel fails.

       As for Torres’s claim that his post-conviction counsel was ineffective for failing to

adequately challenge the trial court’s performance, we apply a less rigorous standard than

that set forth in Strickland v. Washington. Baum v. State, 533 N.E.2d 1200, 1201 (Ind.

1989). All that due process requires in the post-conviction context, is that counsel appear

and represent the petitioner in a procedurally fair setting that results in a judgment of the

court. See Baum, 533 N.E.2d at 1201 (upholding the denial of the petition for post-

conviction relief because counsel presented testimony from several witnesses at the

hearing without engaging in any discussion about the nature or quality of the evidence

presented).

                                             6
         In other words, it is only when post-conviction counsel wholly fails to present any

evidence in support of the petition—a circumstance amounting to effective abandonment

of the client—that relief is appropriate under Baum.        However, so long as counsel

appears and presents evidence and advocates on his client’s behalf, we will not inquire as

to his or her effectiveness in doing so. Graves v. State, 823 N.E.2d 1193, 1196 (Ind.

2005).

         In this case, Torres directs us to four instances alleging that his post-conviction

counsel was ineffective: 1) there was an improper request for the trial court to take

judicial notice of the trial transcript because the State was unaware that a transcript

existed; 2) counsel should have sought a transcript of the trial sooner and amended the

petition for post-conviction relief; 3) post-conviction counsel should have asked Lehman

why he did not initially appeal the case; and 4) post-conviction counsel was ineffective

for failing to return the attorney-client file.

         Notwithstanding these claims, Torres has failed to demonstrate that post-

conviction counsel “abandoned” him. See Baum, 533 N.E.2d at 1201. To the contrary,

counsel appeared and represented Torres in a procedurally fair hearing, including the

presentation of evidence in support of Torres’s allegations.       Indeed, post-conviction

counsel moved to amend Torres’s petition for post-conviction relief and requested a new

trial. He also called Lehman as a witness, zealously examined him, and searched for

weaknesses in his credentials and strategy for not calling Gamez to testify. Tr. p. 14-18,

28, 31-32, 41.

                                                  7
       Post-conviction counsel also submitted detailed proposed findings of fact and

conclusions of law on Torres’s behalf, and filed other motions at Torres’s request. And

given these circumstances, post-conviction counsel did nothing inappropriate when he

relied on the deputy prosecutor’s comment that he was not familiar with the transcript.

Put another way, the State’s purported ignorance about the existence of the transcript did

not demonstrate that Torres’s post-conviction counsel did anything wrong.

       Next, we note that it is pure conjecture as to Torres’s claim that he was prejudiced

because of post-conviction counsel’s alleged delay in requesting the transcript. Torres

does not indicate when the transcript was requested, how long it took to create it, or the

type of relief that he expected to receive. We also reject Torres’s bare assertion that the

mere fact that the motion to amend the petition was denied means that ineffective

assistance of counsel resulted.

       Additionally, Torres fails to show how he would have been harmed if post-

conviction counsel would have asked Lehman why a direct appeal was not taken.

Similarly, Torres does not demonstrate how he was harmed by trial counsel’s alleged

failure or refusal to return the attorney-client file. In our view, these circumstances have

no bearing on the effectiveness of post-conviction counsel’s representation of Torres.

       In conclusion, the record demonstrates that post-conviction counsel represented

Torres at a procedurally fair hearing. Torres has failed to demonstrate that there was any

other evidence that his post-conviction counsel could have presented that would have



                                             8
assisted him in his claim for relief. Thus, we decline to set aside the denial of Torres’s

petition for post-conviction relief.

       The judgment of the post-conviction court is affirmed.

BARNES, J., and CRONE, J., concur.




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