MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jan 15 2020, 9:47 am
court except for the purpose of establishing
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the defense of res judicata, collateral                                Indiana Supreme Court
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APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Pedro Vicente                                            Curtis T. Hill, Jr.
Westville Correctional Facility                          Attorney General
Carlisle, Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Pedro Vicente,                                           January 15, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-2503
        v.                                               Appeal from the Clinton Circuit
                                                         Court
State of Indiana,                                        The Honorable Bradley K. Mohler,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         12C01-1505-PC-436



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020               Page 1 of 13
                                             Case Summary
[1]   Pedro Vicente, pro se, appeals the denial of his petition for post-conviction

      relief (“PCR”). He asserts that the post-conviction court abused its discretion in

      excluding evidence and in not offering him the option of presenting his

      evidence by affidavit; that he was deprived of due process because the State

      failed to prove all elements of his crime beyond a reasonable doubt; that the

      post-conviction court clearly erred in determining that he failed to demonstrate

      that he received the ineffective assistance of trial counsel; and that he received

      ineffective assistance of appellate counsel. Finding either that he failed to show

      the alleged error or that he waived his claim of error, we affirm.


                                 Facts and Procedural History
[2]   In March 2012, nine-year old J.M. lived with her mother (“Mother”), her

      grandmother (“Grandmother”), and Vicente, who was Mother’s boyfriend.

      J.M. is profoundly disabled. She has cerebral palsy and epilepsy and is unable

      to eat, walk, or care for herself. She communicates only nonverbally, such as

      smiling, eye contact, and raising her arms. Mother and Grandmother are her

      primary caregivers. Vicente also helped care for J.M.


[3]   On March 2, 2012, via monitor, Mother observed Vicente change J.M.’s diaper.

      At one point, Mother saw Vicente jerk his hand away from between J.M.’s legs.

      Mother later noticed a small tear to the outside of J.M.’s vagina. However,

      Mother was not alarmed because she believed that Vicente had caused it by




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020   Page 2 of 13
      accidentally scraping J.M. with his fingernail. During the next few days,

      Mother noticed a slow trickle of blood from J.M.’s vaginal area.


[4]   On March 7, 2010, about 5:30 p.m., Vicente came home from work. Mother

      and Grandmother decided to go to the grocery store. Before leaving, Mother

      changed J.M.’s diaper and observed that, other than the small injury noted

      earlier, J.M. was fine. Mother and Grandmother left between 6:00 and 6:30

      p.m. Vicente remained home with J.M. He was sitting on the couch when

      Mother and Grandmother left; this was the only time that day that anyone was

      home alone with J.M. Mother and Grandmother returned home between 7:30

      and 7:45 p.m. Vicente was sitting on the couch.


[5]   Around 10:00 p.m., Mother changed J.M.’s diaper. Mother screamed when

      she discovered that J.M.’s diaper was filled with blood and a blood clot several

      inches long. Grandmother called 911, and J.M. was taken by ambulance to the

      hospital. On the way to the hospital, Vicente kept telling Mother, “I’m

      sorry[,]” and, “I told you I didn’t mean to hurt her.” Trial Tr. Vol. 1 at 211.


[6]   At the hospital, J.M. was examined by doctors and a forensic nurse. J.M. had

      two tears to her vagina, both requiring stitches. Doctors believed that such tears

      were caused by the penetration of J.M.’s vagina by blunt force trauma. Given

      that J.M. had arterial bleeding, J.M.’s injuries could not have occurred days

      earlier but must have occurred shortly before Mother changed J.M.’s diaper

      around 10:00 p.m. Dr. Roberta Hibbard testified at trial that she could not




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020   Page 3 of 13
      “give you a five minutes, ten minutes, yes, but it’s not days. It’s a matter of

      minutes to you know, an hour or so probably.” Trial Tr. Vol. 2 at 352.


[7]   The State charged Vicente with class A felony child molesting. At his trial,

      Vicente was represented by attorney Jeffrey Little. At the close of the State’s

      evidence, Little moved for a directed verdict, arguing that the State had not

      produced sufficient evidence to show that Vicente was responsible for J.M.’s

      injuries or how her injuries were sustained. Id. at 420. The trial court denied

      the motion. The jury found Vicente guilty as charged. The trial court

      sentenced him to forty-five years in the Indiana Department of Correction.


[8]   Vicente, represented by an attorney, appealed his conviction. Vicente v. State,

      No. 12A04-1403-CR-133, 2014 WL 6977925 (Ind. Ct. App. Dec. 10, 2014),

      trans. denied (2015). In his direct appeal, Vicente argued that the trial court

      committed reversible error in denying Vicente’s for-cause juror challenges and

      in instructing the jury. Another panel of this Court concluded that Vicente

      failed to show that he was prejudiced by the denial of his juror challenges and

      that the trial court did not abuse its discretion in instructing the jury. Id. at * 7.

      Vicente’s conviction was affirmed, and his petition for transfer was denied.


[9]   In April 2015, Vicente, pro se, filed a PCR petition, alleging that his trial

      counsel and appellate counsel were ineffective and stating that he would

      develop support for his allegations in an amended petition. PCR App. Vol. 2 at

      17. In May 2017, Vicente amended his PCR petition to allege that his trial

      counsel was ineffective in failing to investigate and provide a meaningful


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020   Page 4 of 13
       defense, and that if trial counsel had investigated, counsel would have found

       that forensic evidence established that J.M. was not in his care when the alleged

       molestation occurred. Id. at 23. His amended PCR petition did not address his

       initial allegation regarding ineffective assistance of appellate counsel.


[10]   In August 2018, the post-conviction court held an evidentiary hearing on

       Vicente’s PCR petition. During the hearing, Vicente was assisted by a

       translator. Vicente called trial counsel Little to testify. Before beginning direct

       examination, Vicente proffered fifteen pages of the trial transcript as exhibit 1.

       The State objected that Vicente had not provided the State with any exhibits,

       despite having been ordered to provide any exhibits thirty days prior to the

       hearing. The post-conviction court declined to admit Vicente’s exhibit but

       indicated that it would reconsider if trial counsel was unable to recall the trial.

       PCR Tr. at 5. During his direct examination of attorney Little, Vicente

       repeatedly attempted to ask about the evidence at trial that he said would show

       his innocence. The State repeatedly objected to Vicente’s attempts to have

       attorney Little comment on the evidence. The post-conviction court sustained

       the State’s objections and explained to Vicente the purpose of the hearing more

       than once. For example, the post-conviction court told Vicente,


               What – what you need to – Mr. Viciente [sic]. What you’re
               trying to do with a post-conviction relief is to show either that
               Mr. Little didn’t do what you think he was supposed to or that
               the Court made a mistake at some point. This is not a new trial.
               I’m not evaluating the evidence. I’m not second-guessing what
               the jury did. Your job is to outline or ask questions about
               anything where you think a mistake was made either by the

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020   Page 5 of 13
               Court or by the attorney. But, this [is] not me re-evaluating the
               evidence.


               ….


               If you think a mistake was made during the trial then we can talk
               about that. This is not – you have to focus on what was done
               during the trial.


       PCR Tr. Vol. 2 at 6-7; see also id. at 9 (“Now for what you have to go through

       today is to try to say, again what Mr. Little did or did not do.”). To help

       Vicente ask the appropriate questions, the post-conviction court asked him to

       state in his own words what attorney Little did or did not do that was

       ineffective. Vicente thought that perhaps there were questions that attorney

       Little failed to ask of witnesses, and the post-conviction court suggested that

       Vicente ask attorney Little about questions to witnesses. However, Vicente

       continued to refer to the trial evidence.


[11]   At one point, the post-conviction court said to Vicente, “If you have a question

       about what he did or did not do that you wanna ask him I’ll give you that

       chance. Otherwise I’m gonna let him step down because all you’re doing is

       wanting to re-hash evidence that the jury looked at.” Id. at 10. Vicente

       questioned attorney Little about the evidence the State had used to support the

       child molestation charge against him. After allowing attorney Little to respond,

       the post-conviction court told Vicente that it would give Vicente one last

       opportunity for questions about attorney Little’s representation. Id. at 13.

       Vicente responded that all his questions were similar to questions he had

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020   Page 6 of 13
       already asked and that he would wait for another occasion. The post-

       conviction court allowed attorney Little to step down and explained to Vicente

       that there was not going to be another hearing. The post-conviction court again

       asked Vicente if he would like to state in his own words why he believed

       attorney Little did not do a good job. Id. Vicente told the post-conviction court

       that he believed that attorney Little failed by not bringing to the jury’s attention

       that one of the doctors had testified that J.M’s injury was caused about an hour

       before it was discovered, at the time Mother and Grandmother had control over

       J.M., and his accidental fingernail scraping of J.M. had occurred two days

       earlier. Id. at 13-14. The post-conviction court took the matter under

       advisement and subsequently issued findings of fact and conclusions of law,

       denying Vicente’s petition. Vicente filed an objection and request for rehearing,

       which the post-conviction court also denied. This appeal ensued.


                                      Discussion and Decision
[12]   Initially, we note that Vicente has chosen to proceed pro se. It is well settled

       that pro se litigants are held to the same legal standards as licensed attorneys.

       Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct. App. 2016), trans. denied (2017).

       This means that they must follow our established rules of procedure and accept

       the consequences when they fail to do so. Id.


[13]   The appellate standard of review regarding post-conviction proceedings is well

       settled.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020   Page 7 of 13
        Post-conviction proceedings are civil proceedings in which the
        defendant must establish his claims by a preponderance of the
        evidence. Post-conviction proceedings do not offer a super
        appeal, rather, subsequent collateral challenges to convictions
        must be based on grounds enumerated in the post-conviction
        rules. Those grounds are limited to issues that were not known
        at the time of the original trial or that were not available on direct
        appeal. Issues available but not raised on direct appeal are
        waived, while issues litigated adversely to the defendant are res
        judicata. Claims of ineffective assistance of counsel and juror
        misconduct may be proper grounds for post-conviction
        proceedings.


        Because the defendant is appealing from the denial of post-
        conviction relief, he is appealing from a negative judgment and
        bears the burden of proof. Thus, the defendant must establish
        that the evidence, as a whole, unmistakably and unerringly
        points to a conclusion contrary to the post-conviction court’s
        decision. In other words, the defendant must convince this Court
        that there is no way within the law that the court below could
        have reached the decision it did. We review the post-conviction
        court’s factual findings for clear error, but do not defer to its
        conclusions of law.


Wilkes v. State, 984 N.E.2d 1236, 1240 (Ind. 2013) (citations and quotation

marks omitted). We will not reweigh the evidence or judge the credibility of

witnesses and will consider only the probative evidence and reasonable

inferences flowing therefrom that support the post-conviction court’s decision.

Hinesley v. State, 999 N.E.2d 975, 981 (Ind. Ct. App. 2013), trans. denied (2014).




Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020   Page 8 of 13
              Section 1 – The post-conviction court did not abuse its
                         discretion in excluding evidence.
[14]   Vicente argues that the post-conviction court erred by not permitting him to

       refer to trial evidence. As with a trial court, a post-conviction court has broad

       discretion in ruling on the admissibility of evidence, and we will reverse a post-

       conviction court’s ruling only for an abuse of that discretion. Truax v. State, 856

       N.E.2d 116, 124 (Ind. Ct. App. 2006). An abuse of discretion occurs when the

       court’s ruling is clearly against the logic and effect of the facts and

       circumstances before it. Id.


[15]   Vicente contends that trial evidence was admissible because the “purpose for

       having an evidentiary hearing in this case, was to make a record of

       facts/evidence from the trial, that [Vicente] needed to show, that attorney Little

       was ineffective as trial counsel.” Appellant’s Br. at 12 (emphases omitted).

       Vicente appears to claim that it was necessary to set forth the trial evidence to

       show that trial counsel was ineffective. While trial evidence might be relevant to

       establishing prejudice resulting from some types of ineffective assistance,

       Vicente ignores that the first step in establishing ineffective assistance focuses

       on trial counsel’s performance. See Humphrey v. State, 73 N.E.3d 677, 682 (Ind.

       2017) (explaining that to show ineffective assistance of counsel, defendant must

       first show deficient performance and then prejudice resulting from counsel’s

       unprofessional errors). Performance includes conduct such as failure to

       investigate, file motions, cross-examine witnesses, object to evidence, etc.

       Here, the post-conviction court explained several times to Vicente that he

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020   Page 9 of 13
       needed to ask trial counsel what he did or did not do to show that counsel made

       a mistake. However, Vicente appeared not to have any questions as to what

       trial counsel did or did not do at trial. Therefore, we cannot say that the trial

       court abused its discretion in excluding evidence.


        Section 2 – The post-conviction court did not err by failing to
         offer Vicente the option of submitting his PCR evidence by
                                  affidavit.
[16]   Vicente contends that the post-conviction court erred by not allowing Vicente to

       submit his PCR evidence by affidavit when the court knew there was a serious

       language barrier. We observe that at the PCR hearing, Vicente had a translator

       to assist him and never indicated to the court that he was unable to understand

       the court or the witness. In addition, Vicente never requested to submit his

       evidence by affidavit. We find no error here.


         Section 3 –Vicente’s due process argument is a sufficiency of
         the evidence argument that is unavailable in post-conviction
                                proceedings.
[17]   Vicente asserts that he was denied due process because the State failed to prove

       every element of the crime beyond a reasonable doubt. His argument amounts

       to a claim of insufficient evidence. As previously noted, post-conviction

       proceedings are not a substitute for a direct appeal from a conviction. Ind.

       Post-Conviction Rule 1(b). “Issues that were available, but not presented, on

       direct appeal are forfeited on post-conviction review.” Ben-Yisrayl v. State, 738

       N.E.2d 253, 258 (Ind. 2000), cert. denied (2002). Whether the evidence was

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020   Page 10 of 13
       sufficient to support his conviction was an issue available for direct appeal, but

       it was not raised. It is not now available for consideration in post-conviction

       proceedings. Accordingly, we will not address the issue.


          Section 4 – The post-conviction court did not clearly err in
          finding that Vicente failed to show that his trial counsel’s
                          assistance was ineffective.
[18]   When evaluating an ineffective assistance of counsel claim, we apply the two-

       part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Humphrey,

       73 N.E.3d at 682. “To satisfy the first prong, ‘the defendant must show

       deficient performance: 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.’” Id. (quoting McCary v.

       State, 761 N.E.2d 389, 392 (Ind. 2002)). To satisfy the second prong, the

       defendant must show prejudice. Id. To demonstrate prejudice from counsel’s

       deficient performance, a petitioner need only show “a reasonable probability

       that, but for counsel’s unprofessional errors, the result of the proceeding would

       have been different.” Middleton v. State, 72 N.E.3d 891, 891-92 (Ind. 2017)

       (emphasis and citation omitted). “A reasonable probability is a probability

       sufficient to undermine confidence in the outcome.” Id.


[19]   Isolated poor strategy, inexperience, or bad tactics does not necessarily

       constitute ineffective assistance. Hinesley, 999 N.E.2d at 982. When

       considering a claim of ineffective assistance of counsel, we strongly presume

       “that counsel rendered adequate assistance and made all significant decisions in

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020   Page 11 of 13
       the exercise of reasonable professional judgment.” Id. (citation omitted). We

       presume that counsel performed effectively, and a defendant must offer strong

       and convincing evidence to overcome this presumption. Id.


[20]   Vicente contends that his trial counsel provided ineffective assistance in failing

       to move for a directed verdict based on the State’s failure to prove the elements

       of child molesting beyond a reasonable doubt. However, he did not present this

       contention to the post-conviction court. Post-conviction claims that were not

       presented to the post-conviction court are not available for appellate review.

       Walker v. State, 843 N.E.2d 50, 57 (Ind. Ct. App. 2006), trans. denied; see also

       Richardson v. State, 800 N.E.2d 639, 647 n.4 (Ind. Ct. App. 2003) (holding that

       petitioner waived claim because it was not presented to post-conviction court),

       trans. denied (2004). At any rate, Vicente’s trial attorney moved for a directed

       verdict, and therefore cannot be deemed ineffective for failing to do so.


[21]   To the extent that Vicente may be arguing that trial counsel was ineffective

       because counsel failed to pursue evidence at trial that proved Vicente’s

       innocence, we note that at the PCR hearing Vicente presented no evidence

       regarding what trial counsel did or did not do. As such, Vicente has not met his

       burden to show that the post-conviction court clearly erred in determining that

       he failed to demonstrate that he received ineffective assistance of trial counsel.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020   Page 12 of 13
       Section 5 – Vicente waived his claim that his appellate counsel
                       provided ineffective assistance.
[22]   Vicente also claims that his appellate counsel provided ineffective assistance by

       failing to consult with him before filing a brief on his behalf in his direct appeal.

       Vicente claimed ineffective assistance of appellate counsel in his original PCR

       petition, but he never alleged facts in support thereof or even indicated in what

       respect appellate counsel was ineffective. At the PCR hearing, Vicente

       presented no evidence, witnesses, or argument pertaining to appellate counsel.

       Therefore, Vicente has waived this claim. See Walker, 843 N.E.2d at 57.


[23]   Based on the foregoing, we affirm the denial of Vicente’s petition for post-

       conviction relief.


[24]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2503 | January 15, 2020   Page 13 of 13
