MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
                                                                        Jul 08 2019, 11:08 am
regarded as precedent or cited before any
court except for the purpose of establishing                                   CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Luis Fuerte                                               Curtis T. Hill, Jr.
New Castle, Indiana                                       Attorney General of Indiana

                                                          J.T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Luis Fuerte,                                              July 8, 2019
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          18A-PC-2839
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Salvador Vasquez,
Appellee-Respondent.                                      Judge
                                                          The Honorable Kathleen Sullivan,
                                                          Magistrate

                                                          Trial Court Cause No.
                                                          45G01-1704-PC-2



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-PC-2839 | July 8, 2019                     Page 1 of 10
                                           Case Summary
[1]   In November of 2014, Fuerte was convicted of Class B felony attempted incest,

      Class C felony child molesting, and Class D felony sexual battery. We affirmed

      Fuerte’s convictions on appeal. Fuerte subsequently filed a petition for post-

      conviction relief (“PCR”). Following a hearing, the post-conviction court

      denied Fuerte’s petition. Fuerte raises a number of arguments on appeal, which

      we restate as whether the post-conviction court (1) erred in determining that

      Fuerte suffered ineffective assistance of trial counsel and (2) erred in denying

      Fuerte’s freestanding claims of trial court error. We affirm.



                            Facts and Procedural History
[2]   Our opinion in Fuerte’s direct appeal, which was handed down on November

      17, 2015, instructs us to the underlying facts and procedural history leading to

      this post-conviction appeal:


              Fuerte’s biological granddaughter, E.F., was born in March
              1996. Her father is Fuerte’s son. E.F. and her parents and
              brothers moved into Fuerte’s house in Hammond in 1999. E.F.’s
              parents lived in the basement, and E.F. began sleeping in a
              bedroom down the hall from Fuerte’s second-floor bedroom after
              he divorced his wife in 2005. At least one evening a week, Fuerte
              would babysit E.F. and her brothers while their parents went on
              a date. E.F. was “really close” to Fuerte, who was “like another
              dad” to her. Tr. at 84.

              In July 2007, when E.F.’s parents were on a date, Fuerte came
              into her bedroom, took her into his bedroom, and locked the
              door. He undressed her, undressed himself, and told her to get

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2839 | July 8, 2019   Page 2 of 10
        on the bed. He fondled her breasts and touched her vaginal area
        with his fingers and erect penis. E.F. kicked him so that he could
        not penetrate her vagina. He told her, “[Y]ou can’t tell anybody
        I’m doing this to you or else I’ll get in a lot of trouble[.]” Id. at
        87. E.F. did not tell anyone because she “was scared that
        [Fuerte] would hurt [her] family.” Id. at 90. Fuerte subjected
        E.F. to similar molestations “52 to 60” times a year when her
        parents were out for the evening; she never allowed him to
        penetrate her vagina. Id. at 128. On other occasions, E.F. would
        wake up and feel that her nightclothes and bedclothes were
        “sticky and wet from [Fuerte] ejaculating, so [she] would know
        he was there.” Id. at 89.

        One night, E.F.’s mother went upstairs to check on her sleeping
        daughter and saw Fuerte lying on E.F.’s bedroom floor in the
        dark in his underwear. In “shock,” E.F.’s mother told her
        husband what she had seen and asked him to bring E.F. down to
        the basement. Id. at 174. The next day, Fuerte told E.F.’s
        mother, “I’m sorry for what you saw last night” and “it’s never
        going to happen again.” Id. at 176. E.F.’s parents asked E.F. if
        Fuerte or “anybody” had “ever done anything to her,” and “she
        said no.” Id. According to E.F.’s mother, they “just kept on
        being a normal family [...] just like [they] always had.” Id. at
        177. E.F. did move into a basement bedroom, however.

        As the molestations continued, E.F. “began avoiding” Fuerte
        and “wouldn’t talk to him.” Id. at 91. She also began blocking
        her bedroom door with a dresser “to prevent him from getting
        towards [her].” Id. at 102. When her mother asked about this,
        E.F. replied that Fuerte “just got [her] really mad” and that she
        “put that in the way so he wouldn’t come talk to [her].” Id. at
        103. Fuerte continued molesting E.F. until approximately late
        2008. See id. at 95–97 (E.F.’s testimony regarding when abuse
        stopped).

        In May 2009, a school coach told E.F. and her classmates that
        “we shouldn’t let our problems ruin our lives and that we should
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2839 | July 8, 2019   Page 3 of 10
        do whatever we can to overcome them and that we will never be
        happy until we finally settle what it is that’s bothering us.” Id. at
        97. Afterward, a “trembling” and “crying” E.F. told her seventh-
        grade teacher about Fuerte’s sexual abuse. Id. at 272. The
        teacher informed the principal, who summoned E.F.’s parents to
        the school and told them what E.F. had said. E.F.’s parents went
        home and talked with E.F., who told them about the abuse. The
        senior pastor of the family’s church told E.F.’s parents to avoid
        contact with Fuerte, so they locked the doors to the basement “to
        make sure there was no contact between [them].” Id. at 189.

        Soon thereafter, Fuerte was summoned to a meeting with the
        church’s senior pastor and its Spanish-speaking pastor, Alfredo
        Deande. With Deande as interpreter, the senior pastor told
        Fuerte about E.F.’s accusations. According to Deande, “[w]hen
        the senior pastor got done, [Fuerte] threw himself at the senior
        pastor’s shoes, grabbed onto his ankles and started begging for
        forgiveness.” Id. at 280. The senior pastor told Fuerte, “[Y]ou
        don’t need to ask us [...] for forgiveness. You’ve sinned against
        God and [...] you’ve wronged your granddaughter.” Id. at 281.

        After the meeting, Fuerte asked E.F.’s parents if he could talk
        with them and E.F. E.F.’s father said that Fuerte could talk with
        him and his wife but not with E.F. According to E.F.’s father, he
        and his wife and Fuerte “sat at the dining room table and
        [Fuerte] started sobbing and he said, [...] I’m sorry for what I’ve
        done, please forgive me for what I’ve done.” Id. at 246.

        E.F. gave a statement to law enforcement in July 2009, but the
        case fell through the cracks and the State did not file charges
        against Fuerte until October 2013. In November 2014, a jury
        found him guilty as charged of class B felony attempted incest,
        class C felony child molesting, class C felony criminal
        confinement, class D felony criminal confinement, and class D
        felony sexual battery. Based on double jeopardy concerns, the
        trial court entered judgment of conviction only on the attempted
        incest, child molesting, and sexual battery counts. The court
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2839 | July 8, 2019   Page 4 of 10
              sentenced Fuerte to consecutive terms of twelve years for
              attempted incest and seven years for child molesting and a
              concurrent term of eighteen months for sexual battery, for an
              aggregate sentence of nineteen years executed.


      Fuerte v. State, 45A03-1501-CR-15 *1–2 (Ind. Ct. App. November 17, 2015)

      (brackets in original). Fuerte challenged his convictions and sentence on

      appeal, arguing that the trial court abused its discretion in admitting certain

      evidence, his convictions for attempted incest and child molesting violated

      Indiana’s double jeopardy clause, and that his sentence was inappropriate. On

      November 17, 2015, we affirmed Fuerte’s convictions and sentence.


[3]   On April 17, 2017, Fuerte filed a PCR petition. He amended his petition on

      December 26, 2017. In this amended petition, Fuerte claimed that he received

      ineffective assistance from his trial counsel. Following an evidentiary hearing,

      the post-conviction court issued an order denying Fuerte’s PCR petition.



                                 Discussion and Decision
[4]   Post-conviction procedures do not afford the petitioner with a super-appeal.

      Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a

      narrow remedy for subsequent collateral challenges to convictions, challenges

      which must be based on grounds enumerated in the post-conviction rules. Id.

      A petitioner who has been denied post-conviction relief appeals from a negative

      judgment and as a result, faces a rigorous standard of review on appeal. Dewitt




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2839 | July 8, 2019   Page 5 of 10
      v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942

      (Ind. Ct. App. 1999), trans. denied.


[5]   Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,

      745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his

      claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

      Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,

      a petitioner must convince this court that the evidence, taken as a whole, “leads

      unmistakably to a conclusion opposite that reached by the post-conviction

      court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without

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

      reached the opposite conclusion, that its decision will be disturbed as contrary

      to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.

      The post-conviction court is the sole judge of the weight of the evidence and the

      credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).


                         I. Ineffective Assistance of Counsel
[6]   The right to effective counsel is rooted in the Sixth Amendment to the United

      States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The

      Sixth Amendment recognizes the right to the assistance of counsel because it

      envisions counsel’s playing a role that is critical to the ability of the adversarial

      system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S.

      668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness

      must be whether counsel’s conduct so undermined the proper function of the


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2839 | July 8, 2019   Page 6 of 10
      adversarial process that the trial court cannot be relied on as having produced a

      just result.” Strickland, 466 U.S. at 686.


[7]   A successful claim for ineffective assistance of counsel must satisfy two

      components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first

      prong, the petitioner must establish that counsel’s performance was deficient by

      demonstrating that counsel’s representation “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. We recognize that

      even the finest, most experienced criminal defense attorneys may not agree on

      the ideal strategy or most effective way to represent a client, and therefore,

      under this prong, we will assume that counsel performed adequately and defer

      to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585

      (Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of

      bad judgment do not necessarily render representation ineffective. Id.


[8]   Under the second prong, the petitioner must show that the deficient

      performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner

      may show prejudice by demonstrating that there is “a reasonable probability

      (i.e. a probability sufficient to undermine confidence in the outcome) that, but

      for counsel’s errors, the result of the proceeding would have been different.” Id.

      A petitioner’s failure to satisfy either prong will cause the ineffective assistance

      of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently,

      “[a]lthough the two parts of the Strickland test are separate inquires, a claim



      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2839 | July 8, 2019   Page 7 of 10
       may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031

       (Ind. 2006) (citing Williams, 706 N.E.2d at 154).


[9]    Fuerte appears to argue that his counsel was ineffective for failing to fully

       investigate potential witness testimony and to object to certain witness

       testimony. Specifically, Fuerte seems to assert that trial counsel provided

       ineffective assistance by failing to fully investigate his pastor’s potential

       testimony and to object to his pastor’s testimony. The State argues that we

       should conclude that Fuerte waived his argument because he failed to support it

       with cogent reasoning. While we agree that Fuerte has failed to provide cogent

       reasoning in support of his argument that trial counsel provided ineffective

       assistance, we affirm the post-conviction court not on waiver, but because

       Fuerte failed to establish prejudice.


[10]   Fuerte does not provide any evidence indicating that his trial counsel did not

       fully investigate the pastor’s potential testimony or that any objection to or

       attempt to limit the pastor’s testimony would have been successful. Further,

       while the pastor’s testimony was undoubtedly damning, the record contains

       significant independent evidence of Fuerte’s guilt, including E.F.’s testimony

       and statements to law enforcement, E.F.’s mother’s testimony that she found

       Fuerte lying on the floor of E.F.’s bedroom in the dark wearing only his

       underwear, E.F.’s attempts to stay away from Fuerte, observations of E.F.’s

       demeanor upon revealing Fuerte’s actions to school officials, and Fuerte’s

       apology to E.F.’s father. Given this unrelated evidence of his guilt, Fuerte has

       failed to prove that there is a reasonable probability that, but for counsel’s

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2839 | July 8, 2019    Page 8 of 10
       alleged errors, the result of his trial would have been different. We therefore

       conclude that Fuerte has failed to prove that he suffered ineffective assistance of

       counsel. See Williams, 706 N.E.2d at 154 (providing that a failure to prove

       prejudice will cause a claim of ineffective assistance to fail).


                   II. Fuerte’s Additional Freestanding Claims
[11]   Fuerte also presents argument relating to a number of freestanding claims of

       trial court error. Fuerte argues that the trial court abused its discretion in

       allowing his pastor to testify that he asked for forgiveness and in permitting the

       State to introduce vouching testimony during trial. Both of these arguments,

       however, were raised and decided against Fuerte on direct appeal. As such,

       they may not be relitigated in the instant PCR proceedings. Reed v. State, 856

       N.E.2d 1189, 1194 (Ind. 2006) (“If an issue was raised on direct appeal, but

       decided adversely to the petitioner, it is res judicata.”). Further, to the extent

       that Fuerte presents arguments relating to other freestanding claims of trial

       court error and to the sufficiency of the evidence to sustain his convictions, we

       note that Fuerte has failed to establish that these claims were not available on

       direct appeal. As such, we conclude that the post-conviction court properly

       determined that the issues could not be raised on PCR because issues available

       but not raised on direct appeal may not be raised in a subsequent PCR petition.

       See Garrett v. State, 992 N.E.2d 710, 718 (Ind. 2013) (providing that issues

       available but not raised on direct appeal are waived).


[12]   The judgment of the post-conviction court is affirmed.


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2839 | July 8, 2019   Page 9 of 10
Crone, J., and Tavitas, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-2839 | July 8, 2019   Page 10 of 10
