MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                Dec 14 2015, 9:07 am
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
Thaddeus L. Rodriguez                                    Gregory F. Zoeller
Carlisle, Indiana                                        Attorney General of Indiana

                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Thaddeus L. Rodriguez,                                   December 14, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         64A03-1503-PC-92
        v.                                               Appeal from the Porter Superior
                                                         Court
State of Indiana,                                        The Honorable Raymond D.
Appellee-Plaintiff                                       Kickbush, Senior Judge
                                                         Trial Court Cause No.
                                                         64D05-0912-PC-12989



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015      Page 1 of 20
                                                Case Summary
[1]   Pro-se Appellant-Petitioner Thaddeus L. Rodriquez (“Rodriquez”) appeals the

      denial of his petition for post-conviction relief, following his convictions for

      Burglary, as a Class B felony,1 and Resisting Law Enforcement, as a Class A

      misdemeanor,2 and his adjudication as a habitual offender.3 We affirm.



                                                       Issues
[2]   Rodriquez presents six issues for review, which we consolidate as the following

      three issues:

                 I.           Whether error in the post-conviction proceedings deprived
                              Rodriquez of procedural due process;


                 II.          Whether Rodriquez was denied the effective assistance of
                              trial counsel; and


                 III.         Whether Rodriquez was denied the effective assistance of
                              appellate counsel.


                                   Facts and Procedural History




      1
          Ind. Code § 35-43-2-1.
      2
          I.C. § 35-44-3-3 [now I.C. § 35-44.1-3-1.]
      3
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015   Page 2 of 20
[3]   The relevant facts were recited by a panel of this Court on direct appeal, as

      follows:


              During the early morning hours of January 28, 2008, Cydney
              Austin decided to spend the night at a friend’s house in the same
              neighborhood where she lived in Portage. When Austin went to
              her house around 2:00 a.m. to pick up some items for the night,
              nothing was out of place. At some point after she left, someone
              broke into Austin’s house and stole her son’s stereo. When
              Austin learned of the burglary later that morning, she called
              police. Austin told police that at approximately 4:00 a.m.,
              Rodriquez, an acquaintance who also lived in the neighborhood,
              called her cell phone and at the same time knocked on the door
              at the house where Austin was staying. Police tracked footprints
              in the snow from Austin’s house to Rodriquez’s house.


              Police knocked on Rodriquez’s door and recognized Rodriquez
              as he looked out a window. When Rodriquez refused to open
              the door, the police sought a search warrant. . . .


              A search warrant was issued, and a SWAT team entered
              Rodriquez’s house. Police could not find Rodriquez in the house
              but noticed a hole in the ceiling leading to the attic. Police
              eventually located Rodriquez hiding under a bed in the adjoining
              unit of the duplex, which he had accessed through the attic.
              Austin’s son’s stereo was recovered from Rodriquez’s house.


      Rodriquez v. State, 951 N.E.2d 313, slip op at 1-2 (Ind. Ct. App. Aug. 3, 2011).


[4]   On January 29, 2008, the State charged Rodriquez with Burglary and Resisting

      Law Enforcement. Subsequently, the State added a habitual offender

      allegation. A jury found Rodriquez guilty as charged, and also found him to be

      a habitual offender. He was sentenced to fifteen years for Burglary, enhanced

      Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015   Page 3 of 20
      by twenty years due to his status as a habitual offender. He received a

      consecutive one-year sentence for Resisting Law Enforcement; thus, his

      aggregate sentence is thirty-six years.


[5]   Rodriquez appealed, raising two issues: whether the factual basis supporting

      the search warrant was sufficient; and whether the trial court properly denied

      his request for a continuance. Id. at 1. Rodriquez’s convictions were affirmed.

      Id. On November 12, 2009, Rodriquez filed a pro-se motion for post-conviction

      relief, alleging that he had been denied the effective assistance of trial and

      appellate counsel. On September 3, 2014, Rodriquez was permitted to amend

      his petition to add new allegations with respect to the performance of his trial

      and appellate counsel.


[6]   During the pendency of the post-conviction claim, Rodriquez filed requests for

      the issuance of subpoenas. The post-conviction court conducted a hearing and

      issued some, but not all, of the requested subpoenas. The denials were

      accompanied by specific findings as to relevance.


[7]   The post-conviction court conducted an evidentiary hearing on December 15,

      2014. At that hearing, Rodriquez presented as witnesses his trial and appellate

      counsel. He then orally requested that the post-conviction court reduce his

      sentence. On February 20, 2015, the post-conviction court issued findings of

      fact and conclusions of law and an order denying Rodriquez post-conviction

      relief. He now appeals.




      Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015   Page 4 of 20
                                 Discussion and Decision
                                         Standard of Review
[8]   The petitioner in a post-conviction proceeding bears the burden of establishing

      the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing

      from the denial of post-conviction relief, the petitioner stands in the position of

      one appealing from a negative judgment. Id. On review, we will not reverse

      the judgment of the post-conviction court unless the evidence as a whole

      unerringly and unmistakably leads to a conclusion opposite that reached by the

      post-conviction court. Id. A post-conviction court’s 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. In this review,

      findings of fact are accepted unless they are clearly erroneous and no deference

      is accorded to conclusions of law. Id. The post-conviction court is the sole

      judge of the weight of the evidence and the credibility of witnesses. Id.


                                      Procedural Due Process
[9]   Rodriquez asserts he was deprived of adequate means to establish his claims of

      ineffective assistance of trial and appellate counsel. He claims that he was

      improperly denied a change of judge, the opportunity to amend his petition a

      second time, and a continuance of the evidentiary hearing. Additionally,

      Rodriquez contends that the post-conviction court improperly declined to issue

      subpoenas for necessary witnesses.

      Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015   Page 5 of 20
[10]   Motion for Change of Judge. Rodriquez claims that he was denied an impartial

       judge. Pursuant to Indiana Post-Conviction Rule 1(4)(b), a petitioner may

       request a change of judge “by filing an affidavit that the judge has a personal

       bias or prejudice against the petitioner” and stating “the facts and the reasons

       for the belief that such bias or prejudice exists.” The post-conviction court is

       obliged to grant the motion only “if the historical facts recited in the affidavit

       support a rational inference of bias or prejudice.” Id. On appeal, we presume

       that the judge is unbiased, and will overturn the denial of a motion for change

       of judge only upon a showing of clear error. Azania v. State, 778 N.E.2d 1253,

       1261 (Ind. 2002).


[11]   Rodriquez’s motion for change of judge, filed contemporaneously with his

       petition for post-conviction relief, was accompanied by an affidavit stating:

               On 4-16-08 I filed a complaint against Judge Harper and on 6-06-
               08 P.D. Dolores Aylesworth filed a Motion for Change of Judge
               and Recusal of Judge. Judge Harper denied the motion stating
               she could remain fair, impartial, and unbiased for the upcoming
               trial on 1-07-09. I did not receive a fair trail [sic] and Judge
               Harper denied every motion P.D. Aylesworth filed with the court
               throughout the proceedings. Judge Harper lied on her order
               revoking bond on 11-03, 2008 stating I had no stable living
               arrangements and limited ties to the community which I raised
               my daughter in Porter County and have 5 families living in
               Porter County. Also on 3-17-09 Judge Mary Harper stated I
               belong in prison. I had filed another complaint against Judge
               Harper on 5-04-09 due to the first complaint I did not receive a
               fair trial. And all the motions was denied that was filed with the
               court.



       Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015   Page 6 of 20
       (App. at 45.) The alleged historical facts largely stem from trial rulings adverse

       to Rodriquez. However, such trial rulings are “not indicia of personal bias” in

       post-conviction proceedings. Pruitt v. State, 903 N.E.2d 899, 939 (Ind. 2009).

       Instead, a party “must show that the trial judge’s action or demeanor crossed

       the barrier of impartiality and prejudiced” his case. Flowers v. State, 738 N.E.2d

       1051, 1061 (Ind. 2000).


[12]   The record discloses that, at the sentencing hearing in the underlying crimes,

       Judge Mary Harper discussed the aggravating and mitigating circumstances

       with respect to the crimes of which Rodriquez was convicted and his conduct

       while incarcerated awaiting trial and sentencing. She remarked, after observing

       that Rodriquez had convinced his daughter to contact a juror at home, “perhaps

       prison is exactly where he belongs.” (Sent. Tr. at 38.) The trial judge was, at

       that time, engaged in the evaluative process before pronouncing sentence upon

       Rodriquez. Her statement, derived from an evaluation of the evidence and

       circumstances before her, does not indicate personal bias.


[13]   Nonetheless, Rodriquez actually received a change of judge. Either in response

       to Rodriquez’s motion or other circumstances, at some point Senior Judge

       Raymond Kickbush was appointed to preside in the instant matter. Thus, the

       trial judge whose impartiality was challenged by Rodriquez did not conduct the

       post-conviction evidentiary hearing or issue the post-conviction order denying

       Rodriquez relief. He has not demonstrated that he was denied an impartial

       post-conviction judge.



       Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015   Page 7 of 20
[14]   Motion for a Continuance. When Rodriquez and the State appeared for the post-

       conviction hearing, Rodriquez advised the court that he had subpoenaed two

       witnesses to appear, his trial counsel (Dolores Aylesworth) and his appellate

       counsel (Bryan Truitt). Appellate counsel was present at that time; trial counsel

       was not. Rodriquez requested a continuance to procure his trial counsel’s

       attendance. Instead, the post-conviction court called for a brief recess and

       instructed court staff to contact Aylesworth. Aylesworth appeared within the

       hour and testified. Accordingly, Rodriquez was able to elicit testimony from

       both his witnesses and cannot claim that he was denied due process in this

       regard.


[15]   Denial of Subpoenas for other Witnesses. Rodriquez claims that he was denied

       subpoenas for necessary witnesses. When determining whether to issue

       subpoenas, the post-conviction court has broad discretion, and we will reverse

       its decision only for an abuse of that discretion. Johnson v. State, 832 N.E.2d

       985, 994 (Ind. Ct. App. 2005), trans. denied. “An abuse of discretion has

       occurred if the court’s decision is against the logic and effect of the facts and

       circumstances before the court.” Id.


               If the pro se petitioner requests issuance of subpoenas for
               witnesses at an evidentiary hearing, the petitioner shall
               specifically state by affidavit the reason the witness’ testimony is
               required and the substance of the witness’ expected testimony. If
               the court finds the witness’ testimony would be relevant and
               probative, the court shall order that the subpoena be issued. If
               the court finds the proposed witness’ testimony is not relevant
               and probative, it shall enter a finding on the record and refuse to
               issue the subpoena.
       Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015   Page 8 of 20
       Ind. Post-Conviction Rule 1(9)(b).


[16]   The post-conviction court authorized the issuance of four subpoenas at

       Rodriquez’s request. During the months of July and August of 2014,

       Rodriquez filed motions to subpoena eleven additional witnesses: Cydney

       Austin, Emerito Beltran, Flora Akers, Dennis Wilkins, Kathy Gralik, Joseph

       Berlanga, Deidre Eltzroth, Gregory Coleman, Donald Early, Aaron Chinn, and

       Trista Hudson. On August 5, 2014, these requests were denied “unless and

       until Petitioner demonstrates to the Court the reason sought and its

       applicability to his Petition for Post-Conviction Relief.” (App. at 111.)


[17]   On September 3, 2014, a hearing was conducted on Rodriquez’s motion to

       amend his post-conviction petition. At that hearing, Rodriquez filed with the

       court several affidavits in support of his requests for the issuance of subpoenas.

       Argument was heard on the motion to amend and the requests for subpoenas;

       the post-conviction court then requested memoranda from the parties.4


[18]   Rodriquez subsequently filed his memorandum in support of his requests for

       the issuance of subpoenas. In relevant part, Rodriquez claimed that victim

       Cydney Austin would confirm the fact that police falsified the probable cause

       affidavit; Officer Flora Akers would confirm that she falsified the probable

       cause affidavit and perjured herself during trial; Officer Dennis Wilkins would




       4
        For unknown reasons, we do not have a transcript of this hearing. However, the post-conviction court’s
       order of October 1, 2014 stated that these events took place.

       Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015        Page 9 of 20
       confirm his lack of personal knowledge of Rodriquez’s criminal history; Joseph

       Berlanga would testify that he never made statements attributed to him by

       investigating officers; Juror Kathy Gralik would testify that she failed to

       disclose a personal relationship with a prosecutorial staffer; Officer Aaron

       Chinn would confirm the falsification of the probable cause affidavit; Officer

       Emerito Beltran would confirm acts of perjury and falsification of facts in the

       probable cause affidavit; Prosecutor Trista Hudson would confirm falsification

       of the probable cause affidavit and admit that she suborned perjury; Donald

       Early would testify that Cydney Austin gave Rodriquez the stereo; and Public

       Defender Deidre Eltzroth would confirm that Donald Early had stated that

       Cydney Austin gave Rodriquez the stereo.


[19]   On October 1, 2014, the post-conviction court issued an order of denial. The

       court observed that Rodriquez was attempting to re-litigate issues decided

       adverse to him at trial and to challenge the credibility of the witnesses.

       Ultimately, the court concluded: “Petitioner’s conclusory assertions fail to

       meet the legal standard set forth in PC Rule 1 Section 8.” (App. at 179.)


[20]   We agree with the post-conviction court’s assessment: Rodriquez’s bald

       assertions did not comply with the specificity requirement of our post-

       conviction rules. Post-conviction proceedings are not designed to permit

       attacks upon trial witness credibility, but rather to address issues demonstrably

       unavailable at trial and on direct appeal. Sanders v. State, 765 N.E.2d 591, 592

       (Ind. 2002). Rodriquez’s summaries of anticipated testimony did not reflect

       relevant and probative testimony regarding issues demonstrably unavailable at

       Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015   Page 10 of 20
       trial and on direct appeal. Nor was the court required to assist Rodriquez in

       pursuing potential and speculative challenges to the credibility of trial

       witnesses. Succinctly, Rodriquez may not use the post-conviction process to get

       a second bite at the apple. We find no abuse of the post-conviction court’s

       discretion.


[21]   Second Motion to Amend Post-Conviction Petition. Post-Conviction Rule 1(4)(c)

       provides in relevant part:


               The petitioner shall be given leave to amend the petition as a
               matter of right no later than sixty [60] days prior to the date the
               petition has been set for trial. Any later amendment of the
               petition shall be by leave of the court.


       On September 3, 2014, Rodriquez was granted leave to amend his first petition

       for post-conviction relief. A hearing date was set for December 12, 2014. On

       October 27, 2014, Rodriquez sought leave to file a second amended petition to

       add allegations with respect to the habitual offender allegation and

       prosecutorial misconduct. More specifically, Rodriquez alleged that the trial

       court had “abused its discretion when it permitted the state to file a late habitual

       offender request,” and had done so “despite trial counsel’s objections that it was

       not timely filed.” (App. at 98, 101.) Rodriquez further alleged that the

       prosecutor had committed misconduct by using perjured affidavits and

       suborning perjury.


[22]   Because the motion for leave to file a second amendment was filed within sixty

       days of the hearing date of December 12, 2014, it was within the discretion of

       Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015   Page 11 of 20
       the post-conviction court to grant or deny the motion. See Tapia v. State, 753

       N.E.2d 581, 586 n.7 (Ind. 2001) (observing that the post-conviction court has

       discretion when ruling on amendments within the 60-day period). Rodriquez

       argues that the post-conviction court should have permitted his second

       amendment because “the proposed amendments were not drastically different

       than the issues presented in Rodriquez’s previous petitions” and his penal

       facility had been on lock-down. (Appellant’s Br. at 27.) However, we observe

       that Rodriquez attempted to add free-standing allegations of trial error.


[23]   The post-conviction rules contemplate a narrow remedy for subsequent

       collateral challenges to convictions. Reed v. State, 856 N.E.2d 1189, 1194 (Ind.

       2006). As we have previously stated, the purpose of a petition for post-

       conviction relief is to provide petitioners the opportunity to raise issues not

       known or available at the time of the original trial or direct appeal. Stephenson

       v. State, 864 N.E.2d 1022, 1028 (Ind. 2007). Moreover, collateral challenges to

       convictions must be based upon grounds enumerated in the post-conviction

       rules. Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App. 2006), trans.

       denied; see also P-C. R. 1(1). To the extent that Rodriquez attempted to raise

       free-standing issues of trial court error and prosecutorial misconduct in a second

       amended petition, they were not proper issues to be addressed through post-

       conviction relief. Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002). The post-

       conviction court did not abuse its discretion by denying Rodriquez leave to file

       his proffered second amended petition.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015   Page 12 of 20
                                   Effectiveness of Trial Counsel
[24]   Rodriquez contends he was denied the effective assistance of trial counsel in

       two respects: trial counsel (1) did not challenge the veracity of the statements in

       the probable cause affidavit and (2) did not obtain a continuance to facilitate the

       testimony of two defense witnesses, Donald Early and Justine Rodriquez.

       Effectiveness of counsel is a mixed question of law and fact. Strickland v.

       Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims

       of ineffective assistance under the two-part test announced in Strickland. Id. To

       prevail on an ineffective assistance of counsel claim, a defendant must

       demonstrate both deficient performance and resulting prejudice. Dobbins v.

       State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687).

       Deficient performance is that which falls below an objective standard of

       reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d

       1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that

       “there is a reasonable probability that, but for counsel’s unprofessional errors,

       the result of the proceeding would have been different. A reasonable

       probability is a probability sufficient to undermine confidence in the outcome.”

       Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind.

       1996). The two prongs of the Strickland test are separate and independent

       inquiries. Strickland, 466 U.S. at 697. Thus, “[i]f it is easier to dispose of an

       ineffectiveness claim on the ground of lack of sufficient prejudice … that course

       should be followed.” Id.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015   Page 13 of 20
[25]   We “strongly presume” that counsel provided adequate assistance and

       exercised reasonable professional judgment in all significant decisions. McCary

       v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded

       considerable discretion in the choice of strategy and tactics. Timberlake v. State,

       753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based upon the

       facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d

       1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring

       reasonable professional judgment even if the strategy in hindsight did not serve

       the defendant’s interests. Id. In sum, trial strategy is not subject to attack

       through an ineffective assistance of counsel claim, unless the strategy is so

       deficient or unreasonable as to fall outside the objective standard of

       reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).


[26]   In his amended petition for post-conviction relief, Rodriquez claimed that trial

       counsel was ineffective for: (1) her failure to seek a continuance so that Donald

       Early and Justine Rodriquez (Rodriquez’s daughter) could testify; and (2) her

       failure to suppress evidence obtained in the execution of a search warrant by

       showing (a) the facts in the probable cause affidavit were not supported by oath

       or affirmation, and (b) the probable cause affidavit contained knowingly false

       information.


[27]   Probable Cause Affidavit. The affidavit supporting the search warrant provided in

       part:

               On January 28, 2008, the Portage Police Department
               investigated a complaint of burglary involving Thaddeus
       Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015   Page 14 of 20
        Rodriquez. On January 28, 2008, this officer received a report,
        reference a complaint of burglary at 3290 Ashland Avenue,
        Portage, Indiana, wherein the suspect Thaddeus Rodriquez, left
        shoeprints with the heel portion having a broken chevron pattern
        where the point of the chevron points toward the toe. The toe
        portion has a pattern from the tip of the toe that angles down at a
        45 degree angle, and the lower portion has a tread bar that
        crosses horizontally across the sole. Officer followed the shoe
        prints [to] 5334 Boulder. Portage PD records indicate that this is
        the residence of Thaddeus Rodriquez and that Officer Greg
        Coleman of the Portage Police Department made visual contact
        with a Hispanic male subject. The victim Cydney L. Austin …
        stats [sic] that at approximately 0400 hrs on today’s date she
        received a telephone call from Thaddeus Rodriquez. Ms. Austin
        stated she was at 3276 Brown St. when she received the call from
        Mr. Rodriquez. Ms. Austin advised that she looked out the
        window at the time of the call and observed Mr. Rodriquez
        standing outside the Brown St. residence talking to her on a cell
        phone. Mr. Rodriquez would have knowledge that Ms. Austin
        was not at her residence at 3290 Ashland Ave. Upon
        investigation it was determined that Thaddeus Rodriquez had
        damaged real property owned by Cydney Austin, entered the
        property at 3290 Ashland, and committed a burglary, to wit:
        entered the property at 3290 Ashland, and took a SONY MHC-
        GX99 stereo.


(Ex. 14). At Rodriquez’s trial, Austin provided testimony that contradicted the

affidavit in one respect. Austin testified that she had not looked outside to see

Rodriquez talking on a cell phone. Rather, Austin clarified that her friend Alan

Tressler answered the door and Austin, who was on the sofa, was able to hear

and recognize Rodriquez’s voice from that vantage point. In Rodriquez’s view,

this renders the probable cause affidavit demonstrably false and his trial



Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015   Page 15 of 20
       attorney, Delores Aylesworth, should have sought suppression of evidence

       gained through the search warrant on these grounds.


[28]   Prior to Rodriquez’s trial, Aylesworth had filed a motion to suppress evidence

       of the stereo, arguing that the search warrant was not supported by probable

       cause. The motion to suppress was unsuccessful. She renewed her suppression

       objection at trial, thereby preserving the issue for review. Appellate counsel

       then raised an issue claiming that the factual basis supporting the search

       warrant was insufficient. This Court, “focusing on reasonable inferences drawn

       from the affidavit,” concluded that “the magistrate had a substantial basis for

       concluding that evidence of a crime would be found at Rodriquez’s house.”

       Rodriquez, slip op. at 3.


[29]   Aylesworth testified at the post-conviction hearing. She explained that she did

       not challenge the probable cause affidavit as deficient on technical grounds,

       because it was in fact submitted upon oath or affirmation. She testified that she

       had “no ability to judge” whether facts in the probable cause affidavit were true

       or false. (P.C. Tr. at 40). She acknowledged that she had attacked the probable

       cause affidavit on other grounds, albeit without success.


[30]   The post-conviction court concluded that Aylesworth’s performance was not

       deficient. We agree. Aylesworth made a strategic decision to challenge the

       evidence obtained in the execution of the search warrant by claiming that the

       probable cause affidavit was factually insufficient. As previously observed,

       counsel is afforded considerable discretion in the choice of strategy and tactics.


       Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015   Page 16 of 20
       Timberlake, 753 N.E.2d at 603. Aylesworth’s lack of opposition to the search

       warrant on grounds that it was procured by perjury is clearly within the range of

       professional norms – particularly so in light of the single discrepancy explained

       at trial and the lack of evidence of nefarious motivation of the affiant.


[31]   Continuance to Procure Attendance of Omitted Witnesses. Trial counsel had included

       Donald Early and Justine Rodriquez on her witness list, and Early had been

       subpoenaed. However, neither Early nor Justine testified in Rodriquez’s

       defense, and trial counsel did not request a continuance. The substance of

       Justine’s anticipated testimony is unknown. However, it appears that

       Rodriquez expected Early to testify in support of a claim that Austin had given

       the stereo to Rodriquez as collateral for a loan.


[32]   The decision not to seek a continuance is the type of strategic choice that is

       within the province of counsel. Miller v. State, 702 N.E.2d 1053, 1060 (Ind.

       1998). Trial counsel’s efforts and strategy, although they did not ultimately

       achieve the result desired by Rodriquez, were not so unreasonable as to

       constitute ineffective assistance of counsel. See Badelle v. State, 754 N.E.2d 510,

       539 (Ind. Ct. App. 2001) (deciding in relevant part that, when trial counsel’s

       efforts were “more than adequate” to support a chosen defense, counsel’s

       decision not to seek out additional witnesses was a judgment call within the

       wide range of reasonable assistance), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015   Page 17 of 20
                               Effectiveness of Appellate Counsel
[33]   A defendant is entitled to the effective assistance of appellate counsel. Stevens v.

       State, 770 N.E.2d 739, 760 (Ind. 2002). The two-pronged standard for

       evaluating the assistance of trial counsel first enunciated in Strickland is

       applicable to appellate counsel ineffective assistance claims. Bieghler v. State,

       690 N.E.2d 188, 192 (Ind. 1997). There are three basic categories of alleged

       appellate ineffectiveness: (1) denying access to an appeal, (2) waiver of issues,

       and (3) failure to present issues well. Id. at 193-95. Here, the second category is

       implicated, as Rodriquez claims that his appellate counsel should have

       challenged his aggregate thirty-six year sentence as inappropriate.


[34]   “To show that counsel was ineffective for failing to raise an issue on appeal thus

       resulting in waiver for collateral review, the defendant must overcome the

       strongest presumption of adequate assistance, and judicial scrutiny is highly

       deferential.” Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008). Upon review,

       the performance prong is evaluated by applying the following test: (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 those raised. Id.


[35]   Upon conviction of a Class B felony, Rodriquez faced a sentencing range of

       between six and twenty years, with ten years as the advisory term. I.C. § 35-50-

       2-5. Due to Rodriquez’s status as a habitual offender, that sentence could be

       enhanced by up to thirty years. I.C. § 35-50-2-8. Upon conviction of a Class A

       misdemeanor, Rodriquez faced a potential sentence of one year. I.C. § 35-50-2-


       Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015   Page 18 of 20
       7. Accordingly, Rodriquez could have received a maximum aggregate sentence

       of fifty-one years. He received an aggregate sentence of twenty-six years.


[36]   An appellant may challenge the appropriateness of his sentence. The authority

       granted to this Court by Article 7, § 6 of the Indiana Constitution permitting

       appellate review and revision of criminal sentences is implemented through

       Appellate Rule 7(B), which provides: “The Court may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, the

       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” In performing our review, we assess “the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is

       to attempt to leaven the outliers. Id. at 1225. A defendant ‘“must persuade the

       appellate court that his or her sentence has met th[e] inappropriateness standard

       of review.”’ Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007) (quoting

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).


[37]   At the post-conviction hearing, appellate counsel testified that he did not

       consider a sentencing challenge to be a “legitimate sentencing issue” given

       Rodriquez’s significant criminal record and the fact that he received an

       aggregate sentence of much less than his potential exposure. (P.C. Tr. at 18.)

       The criminal history to which appellate counsel referred includes over 70 prior

       adult misdemeanor convictions and two prior felony convictions. Rodriquez

       had a history of juvenile adjudications beginning at age eleven. At the time of

       Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015   Page 19 of 20
       sentencing in this case, he had eight pending charges in the State of Indiana and

       seven active warrants in the State of New Mexico. He had been released on

       bond only ten days before committing the instant burglary. We conclude that

       appellate counsel did not overlook a significant and obvious issue stronger than

       those raised.



                                               Conclusion
[38]   Rodriquez was not denied due process in the post-conviction proceedings. He

       was not denied the effective assistance of trial or appellate counsel.


[39]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1503-PC-92 | December 14, 2015   Page 20 of 20
