Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be                          Dec 17 2014, 6:27 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.

ATTORNEYS FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                 GREGORY F. ZOELLER
Public Defender of Indiana                       Attorney General of Indiana

C. BRENT MARTIN                                  KARL M. SCHARNBERG
Deputy Public Defender                           Deputy Attorney General
Indianapolis, Indiana                            Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

STEVEN R. SANTANA,                               )
                                                 )
       Appellant-Petitioner,                     )
                                                 )
              vs.                                )      No. 45A03-1406-PC-186
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Respondent.                      )


                     APPEAL FROM THE LAKE SUPERIOR COURT
                        The Honorable Clarence D. Murray, Judge
                      The Honorable Kathleen A. Sullivan, Magistrate
                             Cause No. 45G02-1209-PC-12


                                   December 17, 2014

              MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Petitioner, Steve Santana (Santana), appeals the post-conviction court’s

denial of his petition for post-conviction relief.

       We affirm.

                                          ISSUES

       Santana raises two issue on appeal which we restate as:

       (1) Whether the State’s failure to disclose an alleged plea agreement with the

           State’s key witness constituted prosecutorial misconduct; and

       (2) Whether Santana was denied effective assistance of trial counsel.

                        FACTS AND PROCEDURAL HISTORY

       We adopt the recitation of facts as set forth in Santana’s direct appeal, Santana v.

State, No. 45A05-0710-CR-564,*1 (Ind. Ct. App. Jun. 13, 2008), trans. denied:

     At approximately 3:00 p.m. on Saturday, July 1, 2006, Luis Ortiz met his
     friend, Rudolph Swisher, while both were riding bicycles in their East Chicago
     neighborhood. Ortiz was a member of the Latin Kings gang. Both Ortiz and
     Swisher were wearing red shirts and had similar hair. While riding, they saw
     Santana. Ortiz knew Santana was a member of a rival gang, the Imperial
     Gangsters. As Santana reached under his shirt, he motioned for Ortiz and
     Swisher to approach him. They rode away from Santana in different
     directions.

     Later that evening, Victor Madero came to Ortiz’s home. Madero was a
     member of the Latin Kings. Ortiz told Madero of the earlier encounter with
     Santana. They went to Madero’s house. While they were sitting on Madero’s
     porch, Swisher and his girlfriend rode by on a bicycle. They talked and agreed
     to meet at Ortiz’s house after Swisher dropped off his girlfriend. Ortiz and
     Madero returned to Ortiz’s house.
     At approximately 8:00 p.m. Juan Guardiola stopped by Ortiz’s house but did
     not stay. Guardiola was associated with the Latin Kings but was not a member.
     Shortly thereafter, Madero pointed out a person dressed in black pants, a black
     hoodie, and black shoes lurking in the shadows of a nearby alley. Ortiz

                                              2
      recognized the person as Santana.1 At that same time, Ortiz and Madero
      noticed Swisher riding his bicycle toward Ortiz’s house. Santana came out of
      the alley and approached Swisher from behind. Santana shot Swisher several
      times from close range. Swisher fell from his bicycle, and Santana fled. Ortiz
      ran out to Swisher in the street even as Santana fired additional shots at the
      house. Swisher had been shot four times in the back and died from his wounds.

      Ortiz and Madero were questioned by the police but denied seeing anything.
      Three days later, they were arrested for pointing a gun at Santana’s mother and
      stepfather. Ortiz told the police Santana killed Swisher. The police arrested
      Santana and seized black clothing and other items from his home. A pair of
      Santana’s black pants tested positive for blood, but the amount was insufficient
      to permit a DNA test.

      On July 7, 2006, the State charged Santana with murder. A jury trial
      commenced on July 23, 2007. The State tendered a final jury instruction on
      transferred intent, and the court gave a pattern instruction on transferred intent
      over Santana’s objection. The jury returned a guilty verdict.

      Ten days after Santana’s trial, the State entered into a plea agreement with
      Ortiz for the charges related to pointing a gun at Santana’s mother and
      stepfather. Two days before his sentencing hearing, Santana moved to correct
      error claiming Ortiz and the prosecution misrepresented whether Ortiz was
      testifying in return for leniency. The motion to correct error was denied. At
      sentencing, the court found three aggravating circumstances: 1) Santana had
      recently violated probation in two other cases; 2) Santana had a criminal
      history; and 3) because of prior probation failures, Santana was in need of
      correctional and rehabilitative treatment in a penal facility. The court found
      no mitigating circumstances. Santana was sentenced to sixty-two years
      imprisonment.

        On direct appeal, Santana argued that (1) the State failed to disclose that Ortiz

might have received a plea deal by testifying against him; (2) the trial court erred in

instructing the jury on transferred intent; and (3) his sentence was inappropriate in light

of his character and offense. On June 13, 2008, we affirmed Santana’s conviction. See



1
  While walking home from Ortiz’s house, Guardiola ran into Santana and an unidentified man. Guardiola
testified Santana was dressed in all black and wearing a hoodie. Guardiola became alarmed and ran home. Five
or ten minutes later, he called Ortiz and learned Swisher was dead.

                                                      3
id. On September 20, 2012, Santana filed his pro se petition for post-conviction relief.

Subsequently, on March 12, 2013, Santana filed for leave to amend his petition for post-

conviction relief. In his amended petition, Santana raised two issues: First, Santana

claimed that he was denied effective assistance because his trial counsel failed to attach

Ortiz’s pre-trial transcript of June 28, 2007, to his motion to correct error, and in essence,

it would have revealed that Ortiz’s “case was set down for a change of plea hearing prior

to his testimony” and that it was reasonable to assume that Ortiz hoped to receive

favorable treatment from the State on his impending charges. (Appellant’s Br. p. 7).

Secondly, Santana argued that the State violated the standard of fairness mandated by

Giglio v. United States, 405 U.S. 150,154 (1972) (holding that a defendant is entitled to

a new trial if he can establish that the prosecutor intentionally or inadvertently failed to

correct materially false testimony relevant to the credibility of a key State witness). A

two-day evidentiary hearing was held on July 2, and July 30, 2013. On May 9, 2014, the

post-conviction court issued its Order denying Santana’s petition for post-conviction

relief.

          Santana now appeals. Additional facts will be provided as necessary.

                               DISCUSSION AND DECISION

                                    I. Standard of Review

          It is well established that post-conviction proceedings do not afford the petitioner

with a super appeal but, rather, provide the opportunity to raise issues that were unknown

or unavailable at the time of the original trial or the direct appeal. Turner v. State, 974

N.E.2d 575, 581 (Ind. Ct. App. 2012), trans. denied. The proceedings do not substitute

                                               4
for a direct appeal and provide only a narrow remedy for subsequent collateral challenges

to convictions. Id. If an issue was available on direct appeal but not litigated, it is waived.

Id. A petitioner must establish his claims to post-conviction relief by a preponderance of

the evidence. Ind. Post-Conviction Rule 1, § 5.

       Appeal from a denial of post-conviction relief is equivalent to an appeal from a

negative judgment. Turner, 974 N.E.2d at 581. We will therefore not reverse unless the

evidence as a whole leads unerringly and unmistakably to a decision opposite that

reached by the post-conviction court. Id. Where the post-conviction court has entered

findings of fact and conclusions of law, we accept the findings of fact unless clearly

erroneous, but accord no deference for conclusions of law. Id. We will disturb a post-

conviction court’s decision as being contrary to law only where the evidence is without

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

opposite conclusion. Id. at 581-82. The post-conviction court is the sole judge of the

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

                            A. Failure to Disclose Information

       Santana maintains that credibility of Ortiz as the key witness was essential to the

State’s case. As such, he argues that when Ortiz testified that he had not received any

set promises for his testimony, Ortiz “gave the jury a false impression that there were no

negotiations and he was merely testifying out of his sense of civic duty . . .” (Appellant’s

Br. p. 11). He argues that the State had an affirmative duty to correct Ortiz’s misleading

testimony; instead, it “repeatedly [] boost[ed] Ortiz’s credibility” throughout his entire

trial. (Appellant’s Br. p. 12). Based on the foregoing arguments, Santana maintains that

                                              5
the prosecutor’s failure to disclose the existence of Ortiz’s plea agreement established a

due process violation according to the holding in Giglio.          Contrary to Santana’s

assertion, the State argues that Santana’s issue of prosecutorial misconduct, which

Santana reframes as a Giglio violation—which stands for the proposition that the

prosecution may not stand mute while testimony known to be false is received into

evidence—was litigated on appeal and is barred by the doctrine of res judicata.

       We first note that Santana’s issue of prosecutorial misconduct, now redesigned

and bundled up as a due process claim, was readily available at the time of his direct

appeal. Post-conviction relief is a process for raising issues unknown at trial or not

available at trial. Tope v. State, 477 N.E.2d 873, 874 (Ind. Ct. App. 1985), reh‘g denied.

It is well established that a petition for post-conviction relief cannot include an issue

which was or could have been raised in the original trial. Id. Accordingly, to the extent

Santana now raises an issue that was available on direct appeal, he has waived his claim

for appellate review. See id.

       Moreover, even if this exact issue was raised on Santana’s direct appeal, Santana

is foreclosed by the doctrine of res judicata from advancing his prosecutorial misconduct

claim. It is well established that a petitioner for post-conviction relief cannot escape the

effect of claim preclusion merely by using different language to phrase an issue and

define an alleged error. Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). On direct

appeal, we concluded that

       Ortiz entered into a plea agreement with the State ten days after Santana’s
       trial concluded, but Santana has not shown there was a confirmed promise
       at the time of trial. Even if Ortiz’s plea agreement was the result of his

                                             6
       testimony at Santana’s trial, Santana has not demonstrated the State made
       promises to Ortiz before he testified. As such, Santana is unable to
       demonstrate prosecutorial misconduct or fundamental error.

Santana, No. 45A05-0710-CR-564, slip op. at 2. Because this court determined that there

was no confirmed promise between Ortiz and the State, there was no prosecutorial

misconduct with respect to the State’s failure to disclose any understanding it had with

Ortiz. Santana should not get another bite at the apple by reframing the issue of

prosecutorial misconduct. In conclusion, we find that the post-conviction court did not

err when it denied his claim.

                                    II. Ineffective Assistance

       Lastly, Santana urges us to find that his trial counsel was ineffective for failing to

investigate. The standard by which we review claims of ineffective assistance of counsel

is well established. In order to prevail on a claim of this nature, a defendant must satisfy

a two-pronged test, showing that: (1) his counsel’s performance fell below an objective

standard of reasonableness based on prevailing professional norms; and (2) there is a

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

have been different. Johnson v. State, 832 N.E.2d 985, 996 (Ind. Ct. App. 2005) (citing

Strickland v. Washington, 466 U.S. 668, 690, 694 (1984), reh’g denied), trans. denied.

The two prongs of the Strickland test are separate and independent inquiries. Id. 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.” Timberlake, v. State, 753 N.E.2d 591, 603

(Ind. 2001) (quoting Strickland, 466 U.S. at 697), reh’g denied, cert. denied, 537 U.S.

839 (2002).

                                             7
      Counsel is afforded considerable discretion in choosing strategy and tactics and we

will accord those decisions deference. Id. A strong presumption arises that counsel

rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment. Id. The Strickland Court recognized that even the

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

or the most effective way to represent a client. Id. Isolated mistakes, poor strategy,

inexperience, and instances of bad judgment do not necessarily render representation

ineffective. Id. Furthermore, we will not speculate as to what may or may not have been

advantageous trial strategy as counsel should be given deference in choosing a trial

strategy which, at the time and under the circumstances, seems best. Johnson, 832 N.E.2d

at 997.

          Further, a claim of ineffective assistance of counsel based on a failure to

investigate requires a showing of what additional information may have been garnered

from further consultation or investigation, and how that additional information would

have aided in the preparation of the case. Turner, 974 N.E.2d at 585. Here, Santana

argues that had his trial counsel conducted “minimal investigation” in obtaining a copy

of Ortiz’s pretrial transcript, his motion to correct error would have prevailed.

(Appellant’s Br. p. 13).     He further states that while “no specific agreement was

memorialized, the evidence leads to the logical and reasonable conclusion that the State

was promising to offer [] Ortiz leniency in his pending cases upon completing his

cooperation in Santana’s case.” (Appellant’s Br. p. 16). Again, we disagree.



                                           8
       Our review of the record reveals that trial counsel’s performance did not fall below

the objective standard of reasonableness. During Santana’s evidentiary hearing, his trial

counsel testified that he was unaware of the looming plea deal between Ortiz and the

State. He further stated that when he learned of it, he immediately filed a motion to

correct error, to which he attached two affidavits sworn by Santana’s parents stating that

the prosecutor had informed them that Ortiz’s plea agreement was issued in exchange for

Ortiz’s testimony against their son, as well as a copy of Ortiz’s plea agreement.

       We fail to see how a copy of Ortiz’s pre-trial transcript indicating a rescheduling

of Ortiz’s pre-trial to a later date after Santana’s trial, would have yielded a positive result

to Santana’s motion to correct error. As stated before, this court determined there was

no confirmed plea deal between the State and Ortiz; therefore, any inaction from trial

counsel in obtaining a copy of the pre-trial transcript was not vital to Santana’s murder

trial. In this regard, we find that Santana’s trial attorney representation was well within

the bounds of professional norms and was therefore effective. More importantly, even

with the presentation of Ortiz’s pre-trial transcript at his evidentiary hearing, Santana was

unable to prove that an agreement had been reached.

       Additionally, Ortiz’s counsel testified that the fictitious plea deal that Santana

believes that State struck with Ortiz had zero effect on his murder trial. During Santana’s

evidentiary hearing, Ortiz’s counsel testified that at the time of Santana’s trial, he was

representing Ortiz in two separate cases. In the first case, Ortiz had been charged with

attempted battery, two counts of criminal recklessness, carrying a handgun without a

license, and two counts of criminal mischief. The second case related to Ortiz pointing

                                               9
a gun at Santana’s parents, carrying a handgun without a license, and possession of

marijuana. Ortiz’s counsel testified that there had been no discussion with the State as to

whether consideration would be given in exchange for Ortiz’s testimony against Santana.

Rather, he credited the plea negotiations on the fact that State’s cases against Ortiz were

shaky. In the battery case, Ortiz’s counsel believed that the victim was not necessarily

dead set on cooperating with the prosecution. As for Ortiz’s second case where Ortiz had

pointed a firearm at Santana’s parents, Ortiz’s counsel had been in communication with

the prosecution, and had the impression that the State was unwilling to prosecute the case.

He further testified that since it was not Ortiz’s wish to go to trial, he vacated Ortiz’s pre-

trial date for a later one all in the hopes of biding time and allowing the State to sweeten

Ortiz’s plea deal.

       In sum, Santana fails to overcome the presumption that his trial counsel’s

performance was effective. Thus, he failed to satisfy his burden of showing that his trial

counsel’s performance fell below an objective standard of reasonableness and that there

is a reasonable possibility that the result of the proceeding would have been different if

his counsel had not made the alleged error.

                                      CONCLUSION

       Based on the foregoing, we conclude that the post-conviction court properly

denied Santana’s petition for post-conviction relief.

       Affirmed.

VAIDIK, C. J. and BAKER, J. concur



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