MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Dec 28 2017, 6:14 am
court except for the purpose of establishing
                                                                     CLERK
the defense of res judicata, collateral                          Indiana Supreme Court
                                                                    Court of Appeals
estoppel, or the law of the case.                                     and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Marielena Duerring                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jesus Ortiz,                                             December 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1704-PC-820
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         71D03-1511-PC-43



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1704-PC-820 | December 28, 2017   Page 1 of 18
                                  Case Summary and Issue
[1]   Following a jury trial, Jesus Ortiz1 was found guilty of two counts of child

      molesting, both Class A felonies. The trial court entered judgment of

      conviction and sentenced Ortiz to an aggregate total of sixty years in the

      Indiana Department of Correction. On direct appeal, we affirmed Ortiz’s

      convictions. Ortiz v. State, No. 71A03-0607-CR-314 (Ind. Ct. App. Aug. 20,

      2007). On November 5, 2015, Ortiz filed a petition for post-conviction relief

      alleging ineffective assistance of appellate counsel. The post-conviction court

      denied Ortiz’s petition. Ortiz now appeals the denial of post-conviction relief,

      raising one issue for our review which we restate as whether the post-conviction

      court erred in concluding Ortiz’s appellate counsel was not ineffective.

      Concluding appellate counsel was not ineffective, we affirm.



                             Facts and Procedural History
[2]   We summarized the facts of this case in Ortiz’s direct appeal,


               A.O. was born in February 1990 to Ortiz and Nora Ortiz. After
               Ortiz and Nora divorced, A.O. and her brothers spent every
               other weekend with Ortiz. At one point Ortiz was living with his
               sister, and A.O. and her brothers would all sleep in Ortiz’s
               bedroom and often all slept in the same bed with Ortiz.




      1
       We note the that the Appellant’s name is “Jesus Ortiz” not “Jesse Ortiz” as this court’s docket, many trial
      court documents, and our opinion on direct appeal incorrectly indicate.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1704-PC-820 | December 28, 2017          Page 2 of 18
        When A.O. was eleven or twelve years old, she was downstairs
        playing pool with her brothers when Ortiz told her to go upstairs
        and go to sleep. Ortiz went upstairs to his bedroom with A.O.
        and locked the door. While they were on the bed, Ortiz pulled
        A.O.’s pants down and put his penis in her vagina. She told him
        that she “didn’t want to do that,” and he responded, “it’s okay;
        I’m almost done.” He told her that he was “doing it because he's
        a good dad.” On another occasion, Ortiz also placed his mouth
        on A.O.’s vagina.


        A.O. did not tell anyone because she was afraid that she would
        get in trouble. Ortiz told her that she would get in trouble. A.O.
        eventually told her mother that she did not want to stay with
        Ortiz anymore. In June 2004, A.O. told a psychological assistant
        at a juvenile detention center that she had been molested. Also,
        at some point, A.O. was watching a program about molestation
        with her mother and brother. A.O.’s mother asked if “anything .
        . . like that ever happened to” them, and A.O. told her mother
        about the molestation. Her mother took A.O. to the Madison
        Center and also took her to see a doctor at the St. Joe Medical
        Center for an examination.


        The State charged Ortiz with one count of child molesting as a
        class A felony for placing his penis in the sex organ of A.O. and
        one count of child molesting as a class A felony for placing his
        mouth on the sex organ of A.O. At Ortiz’s jury trial, A.O.
        testified that the molestation incident that she described was not
        the first time Ortiz had molested her. The jury found Ortiz guilty
        as charged. The trial court sentenced Ortiz to forty years in the
        Indiana Department of Correction for the child molesting
        conviction involving the intercourse and suspended twenty years
        of that sentence but ordered Ortiz to serve those twenty years in
        the Indiana Department of Correction as a condition of
        probation. The trial court left open the possibility of a sentence
        modification at the end of the first twenty-year portion of the
        sentence. The trial court ordered Ortiz to serve twenty years on

Court of Appeals of Indiana | Memorandum Decision 71A03-1704-PC-820 | December 28, 2017   Page 3 of 18
               the remaining conviction and then ordered that the sentences be
               served consecutively.


      Id. at *1 (citations omitted).


[3]   On direct appeal, Ortiz was initially represented by attorney Neil Weisman who

      filed the notice of appeal. Sometime thereafter, Ortiz’s family hired Tony

      Zirkle (“appellate counsel”), and Zirkle handled the remainder of Ortiz’s

      appeal. Ortiz, through appellate counsel, raised the following issues for our

      review: 1) whether Ortiz was entitled to a new trial due the State’s failure to

      disclose the victim’s medical records; 2) whether the evidence was sufficient to

      sustain Ortiz’s convictions; 3) whether the trial court sentenced Ortiz in

      violation of Blakely v. Washington, 542 U.S. 296 (2004); and 4) whether Ortiz

      was denied the effective assistance of trial and appellate counsel when they

      failed to file a motion to correct error regarding newly-discovered evidence of

      the victim’s medical records.2 Id. We affirmed Ortiz’s convictions.


[4]   On November 5, 2015, Ortiz filed a petition for post-conviction relief raising the

      following claims:


               a) Insufficient evidence to convict;


               b) Ineffective assistance of trial and appellate counsel;




      2
       In his direct appeal, Ortiz alleged his initial appellate counsel, Weisman, was ineffective for failing to file a
      motion to correct error regarding the medical records. Any subsequent mention of “ineffective assistance of
      appellate counsel” pertains to Zirkle’s representation on direct appeal.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1704-PC-820 | December 28, 2017               Page 4 of 18
              c) Brady violation; and


              d) The conviction or sentence was otherwise subject to collateral
                 attack upon any ground of alleged error heretofore available
                 under common law, statutory or other writ, motion or
                 petition, proceeding or remedy.


      Appealed Order at 2.


[5]   The post-conviction court held an evidentiary hearing on December 2, 2016.

      Ortiz testified regarding his interactions with appellate counsel and submitted

      documentary evidence of the appellate brief filed on his behalf as well as

      evidence of appellate counsel’s suspension from the practice of law. 3 On March

      17, 2017, the post-conviction court issued findings of fact and conclusions of

      law denying Ortiz post-conviction relief. Ortiz now appeals. Additional facts

      will be supplied as necessary.



                                  Discussion and Decision
                                       I. Standard of Review
[6]   Post-conviction proceedings are civil in nature and the petitioner must therefore

      establish his claims by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5). “Post-conviction proceedings do not afford the petitioner an




      3
       Tony Zirkle was suspended from the practice of law in the State of Indiana on October 1, 2009. Zirkle was
      denied reinstatement in an order issued July 14, 2016.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1704-PC-820 | December 28, 2017        Page 5 of 18
      opportunity for 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. We may not reweigh the evidence or reassess the credibility of the

      witnesses and we consider only the evidence and reasonable inferences

      supporting the judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind. 2006). The

      petitioner must show that the evidence is without conflict and leads unerringly

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

      court. Strowmatt v. State, 779 N.E.2d 971, 975 (Ind. Ct. App. 2002).


[7]   Where, as here, the post-conviction court makes findings of fact and

      conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

      cannot affirm the judgment on any legal basis, but rather, must determine if the

      court’s findings are sufficient to support its judgment. Graham v. State, 941

      N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947 N.E.2d 962. We

      review the post-conviction court’s factual findings under a clearly erroneous

      standard. Id.


                II. Ineffective Assistance of Appellate Counsel
[8]   Ortiz claims he was denied the effective assistance of appellate counsel. A

      claim of ineffective assistance of counsel is proper grounds for post-conviction

      proceedings. Hampton v. State, 961 N.E.2d 480, 491 (Ind. 2012). The standard

      by which we review such claims is well established. In order to prevail on a

      claim of this nature, a petitioner must satisfy a two-pronged test, showing that


      Court of Appeals of Indiana | Memorandum Decision 71A03-1704-PC-820 | December 28, 2017   Page 6 of 18
       (1) 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. Jervis v. State, 28 N.E.3d 361, 365 (Ind. Ct. App. 2015) (citing

       Strickland v. Washington, 466 U.S. 668, 690, 694 (1984)), trans. denied. “A

       reasonable probability is a probability sufficient to undermine confidence in the

       outcome.” Strickland, 466 U.S. at 694. Although the two prongs of the

       Strickland test—performance and prejudice—are separate and distinct inquiries,

       failure to satisfy either prong will cause the claim to fail. Henley v. State, 881

       N.E.2d 639, 645 (Ind. 2008). Therefore, if 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. Id.


[9]    Moreover, we afford counsel “considerable discretion in choosing strategy and

       tactics, and we will accord those decisions deference.” Timberlake v. State, 753

       N.E.2d 591, 603 (Ind. 2001), cert. denied, 537 U.S. 839 (2002). We also

       recognize a strong presumption that counsel’s representation was not

       ineffective, and to overcome such a presumption a petitioner must offer “strong

       and convincing evidence.” Smith v. State, 822 N.E.2d 193, 202 (Ind. Ct. App.

       2005), trans. denied.


[10]   In seeking post-conviction relief, Ortiz argues his appellate counsel was

       ineffective for presenting a claim of ineffective assistance of trial counsel on

       direct appeal. Generally, a criminal defendant claiming ineffective assistance of

       trial counsel is at liberty to elect whether to present such a claim on direct

       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-PC-820 | December 28, 2017   Page 7 of 18
       appeal or in post-conviction proceedings. See Jewell v. State, 887 N.E.2d 939,

       941 (Ind. 2008). “But if raised on direct appeal, the appellate resolution of the

       issue acts as res judicata and precludes its relitigation in subsequent post-

       conviction relief proceedings.” Thomas v. State, 797 N.E.2d 752, 754 (Ind.

       2003). As a general rule, if an issue was known and available but not presented

       on direct appeal, the issue is waived. Craig v. State, 804 N.E.2d 170, 172 (Ind.

       Ct. App. 2004). If the issue was presented upon direct appeal, but decided

       adversely, it is res judicata. Id.


                                          A. Bifurcated Hearing
[11]   On appeal, Ortiz alleges the post-conviction court erred in finding there was no

       evidence to support the prejudice prong of the Strickland test because the parties

       agreed to a bifurcated proceeding and the only issue to be decided was appellate

       counsel’s performance.


[12]   Specifically, Ortiz contends,


               the parties agreed that the hearing would deal with only the
               “competency prong” and reserve the “prejudice prong” for
               further proceedings dependent of the outcome of the trial court’s
               decision on the “competency prong”.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-PC-820 | December 28, 2017   Page 8 of 18
[13]   Appellant’s Brief at 8.4 We begin by observing there is no written agreement

       and thus Ortiz relies entirely on comments made by post-conviction counsel at

       the evidentiary hearing. There, counsel explained that she understood the

       State’s position was the issues raised on post-conviction relief were barred by

       res judicata because they were raised—and decided adversely—on direct

       appeal. Counsel went on to explain:


       [Counsel:]        In discussing with the State, what I suggested that we do
                         today is I think that this is really almost a question – I
                         mean there’s some factual issues but primarily it’s a
                         question of the law. Because the relief that we are asking
                         for today is for the Court to essentially review Mr. Zirkle’s
                         work on the direct appeal. I’m going to take some
                         testimony from my client with respect to that as well. But
                         essentially the exhibits that I have for the Court I believe
                         demonstrate that Mr. Zirkle was ineffective in raising the
                         claims that he did at the time of the direct appeal. So
                         essentially I think this is almost a two-tier or a bifurcated
                         type of PCR proceeding because I believe the Court would
                         first have to resolve the issue with respect to whether or
                         not Mr. Zirkle was in fact ineffective to raise those issues.
                         And if he was, then we are asking the Court to be able to
                         proceed on a PCR on the merits of these issues.


                         But before we know what the Court’s position is with
                         respect to that issue, I do believe that we could proceed to
                         the actual merits. Because I have reviewed the law, and I
                         am aware that the appellate court, you know, has ruled



       4
        Ortiz refers to the first prong of the Strickland test as the “competency prong.” Id. However, it is more aptly
       described as the deficient performance prong, or simply the performance prong. See, e.g., Henley, 881 N.E.2d
       at 645.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-PC-820 | December 28, 2017            Page 9 of 18
                that if you raise these issues . . . in a direct appeal, then
                they are going to be waived for PCR purposes.


The Court: Okay


[Counsel]:      Again, I had a conversation with the State about that, and
                I think that we’re in agreement that that’s what we’re
                asking the Court to do at least for purposes of the hearing
                today.


                ***


The Court: So you would agree that the argument you’re making is
           really ineffective assistance but a different theory of
           ineffective assistance?


[Counsel]:      I’m essentially saying that by Tony Zirkle doing what he
                did in this direct appeal, I mean on its face, you know, is
                ineffective. Because they dealt with the issues but they
                dealt with the issues by saying because Mr. Zirkle did not
                properly produce this information, we’re not even going to
                be able to consider whether there’s sufficient information.
                Again, I would love to be able to point to a case to say that
                the appropriate relief in this situation is to allow us to
                proceed to a PCR on the merits. But I believe this is a
                pretty unique set of facts. I guess the analogy that I would
                make is that if appellate counsel was ineffective is raising
                an issue that could have resulted in a case being re-
                submitted to the Court for retrial, you know, that
                essentially that is relief that would be available under that
                theory. Here we are simply asking for the ability to
                address the PCR on the merits. So that’s the relief that I’m
                asking the Court to grant after receiving this information.



Court of Appeals of Indiana | Memorandum Decision 71A03-1704-PC-820 | December 28, 2017   Page 10 of 18
       The Court: Okay, State?


       [State]:        The State is fine with that.


       Transcript, Volume 2 at 5, 9-10.


[14]   Ortiz relies on the foregoing exchange to support his position that the parties

       agreed “that the hearing would deal with only the ‘competency prong’ and

       reserve the ‘prejudice prong’ for further proceedings dependent on the outcome

       of the [post-conviction] court’s decision on the ‘competency prong.’”

       Appellant’s Br. at 8. The State argues post-conviction counsel’s statements are

       ambiguous and insufficient to establish Ortiz’s claim. We agree with the State

       for several reasons.


[15]   First, Ortiz invited the post-conviction court to consider prejudice. Ortiz

       submitted the following findings in his Defendant’s Proposed Findings of Fact

       and Conclusions of Law:


               6. When applying the Strickland test, this record demonstrates
               that the defendant did not receive reasonably competent
               assistance. It further demonstrates that but for Attorney Zirkle’s
               deficient performance there is a reasonable probability that the
               result of the proceeding would have been different. . . .


               ***


               10. Thus the second prong of Strickland is satisfied, in that has
               [sic] Attorney Zirkle effectively handled the appellate process,
               Defendant would still have the opportunity to litigate his claim
               via the PCR process.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-PC-820 | December 28, 2017   Page 11 of 18
       Appellant’s Appendix, Volume 2 at 24-25.


[16]   On appeal, Ortiz does not claim the post-conviction court’s findings are clearly

       erroneous for their substance; rather, Ortiz claims the post-conviction court

       should not have made findings regarding prejudice at all because of an alleged

       agreement to bifurcate the litigation of the two prongs of the Strickland test. To

       the extent Ortiz now claims the post-conviction court erred by entering such

       findings, “A party may not invite error, then later argue that the error supports

       reversal, because error invited by the complaining party is not reversible error.”

       Booher v. State, 773 N.E.2d 814, 822 (Ind. 2002). In other words, Ortiz has

       waived this issue on appeal. See Wyatt v. Wheeler, 936 N.E.2d 232, 238 (Ind. Ct.

       App. 2010) (holding that a party invited error and could not later complain that

       the court lacked the authority to issue findings of fact after submitting proposed

       findings of fact and conclusions of law).


[17]   Waiver notwithstanding, we find post-conviction counsel’s statements

       ambiguous and insufficient to establish a bifurcation agreement. Post-

       conviction counsel requested a “bifurcated type of PCR proceeding” wherein

       the court would first determine whether appellate counsel “was in fact

       ineffective” and then, if he was, the court would “proceed on a PCR on the

       merits of these issues.” Tr., Vol. 2 at 5. Post-conviction counsel never

       mentions either of the two prongs of the Strickland test, referring only to a

       general determination of whether appellate counsel was “ineffective.” Id. at 5-

       9. We must conclude then that Ortiz views “ineffective” to be synonymous

       with the “competency prong” of the Strickland test. This is not the case. Only

       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-PC-820 | December 28, 2017   Page 12 of 18
       when both prongs of the Strickland test have been established is counsel

       “ineffective.” See Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013). Thus, we

       find the record does not support an agreement to bifurcate the prongs of the

       Strickland test.


[18]   With that said, viewed in the context of relevant case law, post-conviction

       counsel’s statements could be interpreted as a request that the post-conviction

       court bifurcate Ortiz’s ineffective assistance of appellate counsel claim from his

       claim of ineffective assistance of trial counsel. In Ben-Yisrayl v. State, our

       supreme court explained:


               When the claim of ineffective assistance is directed at appellate
               counsel for failing fully and properly to raise and support a claim
               of ineffective assistance of trial counsel, a defendant faces a
               compound burden on post-conviction. If the claim relates to
               issue selection, defense counsel on post-conviction must
               demonstrate that appellate counsel’s performance was deficient
               and that, but for the deficiency of appellate counsel, trial counsel’s
               performance would have been found deficient and prejudicial.
               Thus, the defendant’s burden before the post-conviction court
               was to establish the two elements of ineffective assistance of
               counsel separately as to both trial and appellate counsel.


       738 N.E.2d 253, 261-62 (Ind. 2000).


[19]   Applied here, counsel would present evidence regarding appellate counsel and

       then, if the post-conviction court found appellate counsel rendered ineffective

       assistance, the court would allow counsel to present evidence supporting Ortiz’s

       claim of ineffective assistance of trial counsel—a claim otherwise barred by res


       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-PC-820 | December 28, 2017   Page 13 of 18
       judicata. This interpretation is more consistent with post-conviction counsel’s

       statements:


               . . . the relief that we are asking for today is for the Court to
               essentially review Mr. Zirkle’s work on the direct appeal . . . the
               exhibits . . . demonstrate that Mr. Zirkle was ineffective is raising
               the claims that he did at the time of the direct appeal. So
               essentially . . . this is almost a two-tier or a bifurcated type of
               PCR proceeding because I believe the Court would first have to
               resolve whether or not Mr. Zirkle was in fact ineffective to raise
               those issues. And if he was, then we are asking the Court to be
               able to proceed on a PCR on the merits of these issues.


       Tr., Vol. 2 at 5.


[20]   But, if that was indeed post-conviction counsel’s request, Ortiz’s argument on

       appeal misunderstands the relevant law. Ortiz contends, “the hearing would

       deal with only the ‘competency prong’ and reserve the ‘prejudice prong’ for

       further proceedings[.]” Appellant’s Br. at 8. Pursuant to Ben-Yisrayl, however,

       a petitioner is required to establish both prongs of the Strickland test “separately

       as to both trial and appellate counsel.” 738 N.E.2d at 262. Therefore, even

       assuming the record supported an agreement for bifurcated proceeding pursuant

       to Ben-Yisrayl, Ortiz would still have failed to satisfy his burden regarding

       appellate counsel.


                                                  B. Prejudice
[21]   Setting aside Ortiz’s argument regarding bifurcation, we cannot say the post-

       conviction court’s findings are clearly erroneous.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-PC-820 | December 28, 2017   Page 14 of 18
[22]   In addition to Ortiz’s argument that appellate counsel’s performance was

       facially deficient in presenting the claim of ineffective assistance of trial counsel

       on direct appeal, Ortiz also argued appellate counsel was ineffective for

       inadequately presenting evidence of two of his claims on direct appeal. Both of

       these claims—ineffective assistance of trial counsel and an allegation of a Brady

       violation—stem from the State’s failure to provide trial counsel with the

       victim’s medical records. 5 Appellate counsel included the victim’s medical

       records in the Appellant’s Brief and the Appellant’s Appendix. However, these

       medical records were never properly admitted to the record and we granted the

       State’s motion to strike the medical records. Ortiz, No. 71A03-0607-CR-314 at

       *2. Therefore, we had no basis for evaluating Ortiz’s claims. Id. at *2, 5.

       Nevertheless, we concluded even if we assume the medical records were

       favorable to Ortiz’s position, he still failed to establish prejudice because:


                The examination took place two years after the molestation
                ended. The investigating detective testified that, where a child
                delays in disclosing a molestation, a “very low” percentage of
                those cases result in physical findings in the medical
                examination. Ortiz has failed to demonstrate that there is a
                reasonable probability that, but for [trial counsel’s] failure to file
                a motion to correct error regarding the medical records, the result
                of the proceeding would have been different.




       5
         Ortiz’s ineffective assistance of trial counsel claim on direct appeal alleged trial counsel was ineffective for
       failing to file a motion to correct error based on newly discovered evidence—namely the victim’s medical
       records. Ortiz, No. 71A03-0607-CR-314 at *5.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-PC-820 | December 28, 2017               Page 15 of 18
       Id. at *5 (citation omitted). Similarly, the post-conviction court found,

       “Assuming Zirkle’s performance fell below an objective standard of

       reasonableness, Ortiz has failed to demonstrate that this failure prejudiced the

       outcome of his appeal.” Appealed Order at 4. Presented with essentially the

       same argument as on direct appeal, we find no reason for the result to be

       different. Ortiz has failed to present evidence sufficient to undermine

       confidence in the outcome his appeal and we therefore conclude the post-

       conviction court’s finding is not clearly erroneous.


[23]   Ortiz also provided evidence regarding appellate counsel’s performance at the

       evidentiary hearing. Ortiz presented the published order suspending appellate

       counsel from the practice of law and the brief appellate counsel filed on his

       behalf—a brief Ortiz alleges he never received. Ortiz also testified that he never

       communicated with appellate counsel and that had he known issues presented

       on direct appeal would be waived on post-conviction relief, he would not have

       consented to appellate counsel raising the issues. See Appealed Order at 5, n.4.


[24]   Presented with the foregoing evidence, the post-conviction court again relied on

       the absence of prejudice as the basis of its decision, concluding:


               Even if the numerous other failings of Zirkle listed by the
               Petitioner are true and point to conduct that falls below an
               objective standard of reasonableness, they fail to demonstrate
               that the outcome of his appeal would be different.


       Appealed Order at 5.



       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-PC-820 | December 28, 2017   Page 16 of 18
[25]   Although we cannot say the post-conviction court’s finding is clearly erroneous,

       we must take this opportunity to emphasize the appropriate standard. Our

       supreme court recently explained in Middleton v. State, that in order to establish

       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 be different.” 72 N.E.3d 891, 891 (Ind. 2017) (quoting

       Strickland, 466 U.S. at 694). Ortiz was therefore only required to undermine

       confidence in his direct appeal’s outcome, not demonstrate the outcome of his

       appeal would be different. See, e.g., Campbell v. State, 19 N.E.3d 271, 274 (Ind.

       2014).


[26]   Regardless, we still find Ortiz failed to demonstrate a reasonable probability

       that the result of his appeal would be different and, as concluded above, the

       record does not support an agreement for a bifurcated proceeding.

       Accordingly, Ortiz’s claim of ineffective assistance of appellate counsel must

       fail. Henley, 881 N.E.2d 639 at 645 (“failure to satisfy either prong will cause

       the claim to fail”).



                                               Conclusion
[27]   For the foregoing reasons, Ortiz has failed to establish the evidence leads

       unerringly and unmistakably to a conclusion opposite that reached by the post-

       conviction court. We therefore affirm.


[28]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-PC-820 | December 28, 2017   Page 17 of 18
Riley, J., and Pyle, J., concur.




Court of Appeals of Indiana | Memorandum Decision 71A03-1704-PC-820 | December 28, 2017   Page 18 of 18
