MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Feb 14 2017, 10:30 am
this Memorandum Decision shall not be
                                                                                CLERK
regarded as precedent or cited before any                                   Indiana Supreme Court
                                                                               Court of Appeals
court except for the purpose of establishing                                     and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Tommy J. Rubalcada                                       Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tommy J. Rubalcada,                                      February 14, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         82A01-1605-PC-1180
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable David D. Kiely,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         82C01-1205-PC-12



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1605-PC-1180| February 14, 2017             Page 1 of 5
[1]   Tommy Rubalcada appeals the denial of his petition for post-conviction relief,

      arguing that he received the ineffective assistance of trial counsel. Finding no

      error, we affirm.


[2]   Rubalcada and two accomplices, Vincent Moreno and Roy Nunez, formed a

      plot to rob Brian Jamison in a fake drug deal. The three accomplices told

      Jamison that they would give him fifty pounds of marijuana in exchange for

      $25,000. At the transaction, Rubalcada and Moreno entered Jamison’s vehicle,

      saying that they needed to count the money. Instead, Rubalcada shot Jamison

      in the head, and Rubalcada and Moreno ran away with the cash.


[3]   Rubalcada was found guilty of conspiracy to commit robbery, robbery, and

      felony murder, and the trial court sentenced him to consecutive terms of fifteen

      years and sixty years for the conspiracy count and the murder count,

      respectively. Our Supreme Court affirmed his convictions on direct appeal.

      Rubalcada v. State, 731 N.E.2d 1015 (Ind. 2000).


[4]   On May 7, 2012, Rubalcada filed a petition for post-conviction relief, arguing

      that he received the ineffective assistance of counsel. Appellant’s App. Vol. II

      p. 17-23. He claimed that his public defender should have used Nunez as a

      witness and that counsel would not allow him to testify in his own defense.

      After Rubalcada supplemented his petition with an affidavit and the State filed

      its response, the post-conviction court denied the petition on February 24, 2016.

      Rubalcada now appeals.




      Court of Appeals of Indiana | Memorandum Decision 82A01-1605-PC-1180| February 14, 2017   Page 2 of 5
[5]   A claim of ineffective assistance of trial counsel requires a showing that: (1)

      counsel’s performance was deficient by falling below an objective standard of

      reasonableness based on prevailing professional norms; and (2) counsel’s

      performance prejudiced the defendant such that “‘there is a reasonable

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

      proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

      (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A

      reasonable probability arises when there is a ‘probability sufficient to undermine

      confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

      2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two

      prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.

      Ct. App. 2012). However, “[i]f we can easily dismiss an ineffective assistance

      claim based upon the prejudice prong, we may do so without addressing

      whether counsel’s performance was deficient.” Baer v. State, 942 N.E.2d 80, 91

      (Ind. 2011). “Indeed, most ineffective assistance of counsel claims can be

      resolved by a prejudice inquiry alone.” French v. State, 778 N.E.2d 816, 824

      (Ind. 2002).


[6]   Even if we were to accept Rubalcada’s allegations regarding his attorney as

      true, Rubalcada has failed to establish that he suffered any prejudice. Although

      he never clearly specifies what testimony either he or Nunez would have

      provided, he argued at his sentencing hearing that, while he was involved in the

      robbery, it was Moreno who pulled the trigger. He repeats in his appellate brief

      that Nunez “would have testified that Rubalcada was not the shooter.”


      Court of Appeals of Indiana | Memorandum Decision 82A01-1605-PC-1180| February 14, 2017   Page 3 of 5
      Appellant’s Br. p. 4. Even if Nunez and Rubalcada had testified in exactly this

      way, and the jury found them both perfectly credible, Rubalcada would have

      been found guilty of committing precisely the same offenses for which he was

      convicted. See Ind. Code § 35-42-1-1(2) (1999) (person is guilty of murder if he

      “kills another human being while committing . . . robbery”); Layman v. State, 42

      N.E.3d 972, 977 (Ind. 2015) (explaining that “felony murder statute may also

      apply equally when, in committing any of the designated felonies, the felon,

      although not the killer, reasonably should have foreseen that his felonious

      conduct would result in the ‘mediate or immediate cause’ of the victim’s

      death”) (quoting Palmer v. State, 704 N.E.2d 124, 126 (Ind. 1999)). Rubalcada

      cannot show that he suffered any prejudice because his sought-after testimony

      confirms his guilt.


[7]   Rubalcada also argues, for the first time on appeal, that his trial counsel should

      have objected to a statement allegedly made by the prosecutor during the

      sentencing phase of the trial. It is well established that “[i]ssues not raised in

      the petition for post-conviction relief may not be raised for the first time on

      post-conviction appeal.” Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001).

      Accordingly, this final argument is waived.1




      1
          We also note that Rubalcada has not presented any evidence regarding what the prosecutor said.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1605-PC-1180| February 14, 2017              Page 4 of 5
[8]   The judgment of the post-conviction court is affirmed.


      Mathias, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 82A01-1605-PC-1180| February 14, 2017   Page 5 of 5
