      MEMORANDUM DECISION
                                                                                May 28 2015, 9:09 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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
      Sergio A. Villanueva                                     Gregory F. Zoeller
      Wabash Valley Correctional Facility                      Attorney General of Indiana
      Carlisle, Indiana
                                                               Monika Prekopa Talbot
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Sergio A. Villanueva,                                    May 28, 2015

      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               09A04-1408-PC-376
              v.                                               Appeal from the Cass Superior Court

                                                               The Honorable Richard A.
      State of Indiana,                                        Maughmer, Judge
      Appellee-Respondent
                                                               Case No. 09D02-1103-PC-02




      Crone, Judge.


                                             Case Summary
[1]   Sergio A. Villanueva appeals the postconviction court’s denial of his amended

      petition for postconviction relief, in which he raised a claim of ineffective

      Court of Appeals of Indiana | Memorandum Decision 09A04-1408-PC-376 | May 28, 2015          Page 1 of 10
      assistance of counsel in plea negotiations and at sentencing. In this appeal, he

      also raises a freestanding sentencing claim and asserts that the postconviction

      court erred in denying his request to compel production of his attorney’s case

      file. Finding that he failed to establish ineffective assistance of counsel and that

      he has waived review of his remaining claims, we affirm.


                              Facts and Procedural History
[2]   In August 2008, the State filed an eight-count information charging Villanueva

      with class C felony sexual misconduct with a minor, class D felony sexual

      battery, class D felony criminal confinement, three counts of class A

      misdemeanor contributing to the delinquency of a minor, class A misdemeanor

      resisting law enforcement, and class B misdemeanor battery. During the

      ensuing months, the State offered Villanueva plea agreements with determinate

      sentences of twenty-eight and thirty years. His public defender (“Counsel”)

      later testified that Villanueva refused to take any plea offer with a set amount of

      time. Tr. at 12-13.


[3]   In January 2010, the matter was re-docketed and an additional count was

      added: class A felony child molesting. Villanueva waived his right to a jury

      trial, and the matter was set for bench trial. The day before trial was scheduled

      to begin, Villanueva entered a plea agreement in which he pled guilty to class A

      felony child molesting in exchange for dismissal of the remaining eight counts.

      Sentencing was left to the trial court’s discretion, and the plea agreement

      provided that Villanueva waived his right to appellate review of his sentence.


      Court of Appeals of Indiana | Memorandum Decision 09A04-1408-PC-376 | May 28, 2015   Page 2 of 10
[4]   At the September 2010 guilty plea hearing, the trial court found a factual basis

      supporting Villanueva’s plea and heard arguments concerning sentencing.

      Counsel raised as mitigators Villanueva’s guilty plea, remorse, completion of

      past probation, and absence of prior felonies. The trial court sentenced

      Villanueva to fifty years in the Department of Correction, citing as mitigators

      Villanueva’s guilty plea and remorse and as aggravators his criminal history,

      illegal immigrant status, use of alcohol to ply his victim, and the victim’s age.

      Villanueva filed a direct appeal, which this Court dismissed on the State’s

      motion.


[5]   In March 2011, Villanueva filed a petition for postconviction relief. In April

      2013, the State public defender’s office filed a petition to withdraw its

      appearance, and Villanueva proceeded pro se. He filed an amended petition in

      July 2013, alleging that Counsel rendered ineffective assistance in his handling

      of the plea offers and in his treatment of mitigators and aggravators during

      sentencing. He filed a motion to compel Counsel’s production of his case file,

      which was denied. In May 2014, the postconviction court held a hearing,

      during which Counsel testified concerning his representation of Villanueva. The

      postconviction court issued an order denying Villanueva’s amended petition,

      finding specifically that Counsel performed effectively and that Villanueva was

      not prejudiced. Villanueva now appeals. Additional facts will be provided as

      necessary.




      Court of Appeals of Indiana | Memorandum Decision 09A04-1408-PC-376 | May 28, 2015   Page 3 of 10
                                  Discussion and Decision
[6]   Villanueva contends that the postconviction court erred in denying his amended

      petition for postconviction relief. The petitioner in a postconviction proceeding

      “bears the burden of establishing grounds for relief by a preponderance of the

      evidence.” Ind. Postconviction Rule 1(5); Passwater v. State, 989 N.E.2d 766,

      770 (Ind. 2013). When issuing its decision to grant or deny relief, the

      postconviction court must make findings of fact and conclusions of law. Ind.

      Postconviction Rule 1(6). A petitioner who appeals the denial of his

      postconviction petition faces a rigorous standard of review. Massey v. State, 955

      N.E.2d 247, 253 (Ind. 2011). In conducting our review, we neither reweigh

      evidence nor judge witness credibility; rather, we consider only the evidence

      and reasonable inferences most favorable to the judgment. State v. Hollin, 970

      N.E.2d 147, 150 (Ind. 2012). “[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.”

      Passwater, 989 N.E.2d at 770 (citation and quotation marks omitted). In other

      words, if a postconviction petitioner was denied relief in the proceedings below,

      he must show that the evidence as a whole leads unerringly and unmistakably

      to a conclusion opposite the one reached by the postconviction court. Massey,

      955 N.E.2d at 253. Where, as here, the judge who presided over the guilty plea

      and sentencing is also the judge who presided over the postconviction

      proceedings, we have held that the judge is entitled to “greater than usual




      Court of Appeals of Indiana | Memorandum Decision 09A04-1408-PC-376 | May 28, 2015   Page 4 of 10
      deference.” Hinesley v. State, 999 N.E.2d 975, 982 (Ind. Ct. App. 2013) (citation

      omitted), trans. denied (2014).


[7]   Postconviction relief does not offer the petitioner a super appeal; rather,

      subsequent collateral challenges must be based on grounds enumerated in the

      postconviction rules. McKnight v. State, 1 N.E.3d 193, 199 (Ind. Ct. App. 2013),

      trans. denied (2014). These rules limit the scope of relief to issues unknown or

      unavailable to the petitioner on direct appeal. Id. This means that issues that

      “were or could have been raised” on direct appeal are not available in

      postconviction proceedings. Taylor v. State, 780 N.E.2d 430, 432 (Ind. Ct. App.

      2002), trans. denied (2003).


[8]   In this vein, we note Villanueva’s attempt to raise as freestanding error the trial

      court’s application of aggravators and mitigators during sentencing. This

      alleged error was not unknown to Villanueva at the time of his direct appeal,

      but it was unavailable based on the provision in his plea agreement specifically

      prohibiting the appeal of his sentence.1 See Creech v. State, 887 N.E.2d 73, 74-75

      (Ind. 2008) (holding that a defendant may waive the right to appellate review of

      his sentence as part of a written plea agreement; he may nevertheless, in

      postconviction proceedings, challenge his guilty plea as coerced or

      unintelligent). Villanueva does not challenge the validity of the waiver clause in

      his plea agreement. The waiver clause precluded him from raising the issue on



      1
        We agree with the sentencing court that it is unusual for an open plea agreement to contain a waiver of
      sentence clause. Petitioner’s Ex. 7.

      Court of Appeals of Indiana | Memorandum Decision 09A04-1408-PC-376 | May 28, 2015               Page 5 of 10
      direct appeal, and he cites no authority for the proposition that he can raise

      sentencing errors as freestanding error in postconviction proceedings. Thus, he

      has waived review of this issue. See Ind. Appellate Rule 46(A)(8) (requiring that

      argument section of appellant’s brief contain contentions supported by cogent

      reasoning and citations to authority). Notwithstanding, we will address the

      aspects of Villanueva’s sentence that implicate his ineffective assistance claim.


[9]   Villanueva maintains that he was denied his constitutional right to effective

      assistance of counsel. To prevail on an ineffective assistance claim, he must

      satisfy two components: he must demonstrate both deficient performance and

      prejudice resulting from it. Strickland v. Washington, 466 U.S. 668, 687 (1984).

      Deficient performance is “representation [that] fell below an objective standard

      of reasonableness, [where] counsel made errors so serious that counsel was not

      functioning as ‘counsel’ guaranteed by the Sixth Amendment.” Passwater, 989

      N.E.2d at 770. We assess counsel’s performance based on facts that are known

      at the time and not through hindsight. Shanabarger v. State, 846 N.E.2d 702, 709

      (Ind. Ct. App. 2006), trans. denied. Evidence of isolated poor strategy,

      inexperience, or bad tactics will not support an ineffective assistance claim;

      instead, we evaluate counsel’s performance as a whole. Flanders v. State, 955

      N.E.2d 732, 739 (Ind. Ct. App. 2011), trans. denied (2012). “[C]ounsel’s

      performance is presumed effective, and a defendant must offer strong and

      convincing evidence to overcome this presumption.” Ritchie v. State, 875

      N.E.2d 706, 714 (Ind. 2007). “Strickland does not guarantee perfect




      Court of Appeals of Indiana | Memorandum Decision 09A04-1408-PC-376 | May 28, 2015   Page 6 of 10
       representation, only a reasonably competent attorney.” Hinesley, 999 N.E.2d at

       983 (citation omitted).


[10]   Villanueva contends that Counsel provided ineffective assistance in advising

       him to reject two plea offers containing fixed sentences of twenty-eight and

       thirty years and in subsequently allowing the trial court to impose a fifty-year

       term in the eventual open plea agreement. This argument fails in two respects.

       First, Counsel testified that he did not convince Villanueva not to take the plea

       offers and that Villanueva refused to accept any plea agreement with a fixed

       term. Tr. at 12-13. Moreover, after Villanueva rejected the first two plea

       agreements, the State filed an additional count – class A felony child molesting,

       which carried a sentencing range of twenty to fifty years. Ind. Code § 35-50-2-

       4. As such, the eight-count information, with the most serious offense being a

       class C felony, was re-docketed to include a total of nine counts, with the most

       serious offense being a class A felony. The fifty-year sentence is therefore

       attributable to the addition of the more serious charge, to which Villanueva pled

       guilty.


[11]   Additionally, we find Villanueva’s attempts to characterize Counsel as

       “provoking the State to add” the class A felony count to be self-serving

       deflections devoid of evidentiary support. Appellant’s Br. at 10. The State

       added the count based on its determination that probable cause existed to

       charge Villanueva with class A felony child molesting. Villanueva admitted to

       the underlying facts supporting this count, namely, that he had sexual

       intercourse with his eleven-year-old victim while she was unconscious due to

       Court of Appeals of Indiana | Memorandum Decision 09A04-1408-PC-376 | May 28, 2015   Page 7 of 10
       the alcohol that he had furnished her.2 He was aware that his conduct was

       more serious than described in the initial eight-count information, yet he

       declined the State’s two plea offers for less serious offenses. In hindsight, he

       now would like a do-over but has failed to demonstrate that Counsel induced

       him to reject a plea offer that he otherwise would have accepted or induced him

       to accept an offer that he otherwise would have rejected.


[12]   Moreover, with respect to the discretionary sentencing aspect of his plea

       agreement, Villanueva maintains that Counsel performed deficiently by failing

       to properly present mitigators and confront the State’s proffered aggravators.

       The sentencing transcript shows that Counsel raised as mitigators Villanueva’s

       guilty plea, his completion of past probation, the fact that his criminal history

       included only misdemeanors, and his written letter of remorse. Counsel spoke

       extensively concerning Villanueva’s regret and concern for the harm that he had

       caused to the adolescent victim and her family. Counsel did not perform

       deficiently in presenting mitigators.


[13]   Likewise, we are unpersuaded by Villanueva’s argument that Counsel

       performed deficiently in failing to argue that the use of the victim’s age as an

       aggravator amounted to an impermissible double enhancement. In 2005, when




       2
         The record does not indicate whether the two previous plea offers involved dismissal of one or more of the
       eight counts. However, the record does indicate that the offenses alleged in the multi-count information
       involved more than one victim, possibly up to four. Petitioner’s Ex. 8. As such, Villanueva’s acceptance of
       one of those plea offers would not necessarily have precluded the State from filing the class A felony count
       due to double jeopardy concerns. If the State were not so precluded, Villanueva’s overall sentence exposure
       would have increased.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1408-PC-376 | May 28, 2015               Page 8 of 10
       the General Assembly eliminated fixed presumptive terms in favor of advisory

       sentences, it gave the trial courts discretion to impose any sentence within the

       statutory range, regardless of the presence or absence of aggravators or

       mitigators, so long as the trial court stated its reasons for finding any

       aggravators or mitigators. Pedraza v. State, 887 N.E.2d 77, 79-80 (Ind. 2008).

       As such, a sentence toward the high end of the range is no longer considered

       “enhanced.” Id. at 80. Thus, under the new sentencing scheme, there is “no

       impermissible double enhancement where the trial court relies on the material

       element of a crime as an aggravating circumstance.” Gomillia v. State, 13

       N.E.3d 846, 852 (Ind. 2014). However, “[w]here a trial court’s reason for

       imposing a sentence greater than the advisory sentence includes material

       elements of the offense, absent something unique about the circumstances that

       would justify deviating from the advisory sentence, that reason is ‘improper as a

       matter of law.’” Id. at 852-53.


[14]   Here, the victim’s age was one of several aggravators cited by the trial court at

       sentencing.3 The victim was eleven, well below the threshold age for the

       offense, fourteen. Ind. Code § 35-42-4-3(a)(4) (2007). Not only was she very

       young, but she was also unconscious from the alcohol that Villanueva had

       provided her. Simply put, Villanueva pumped a young child full of alcohol and

       then raped her behind locked doors as she lay blacked out and helpless. Under




       3
         The trial court also cited Villanueva’s criminal history, illegal immigrant status, and use of alcohol to ply
       his victim.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1408-PC-376 | May 28, 2015                   Page 9 of 10
       these circumstances, Counsel cannot be said to have performed deficiently for

       not challenging the victim’s age as a proffered aggravator, especially in light of

       a deal that promised dismissal of eight remaining counts against his client.


[15]   In sum, Villanueva has failed to overcome the presumption that Counsel

       provided effective assistance with respect to his plea agreement and sentencing

       and has waived his remaining claims.4 As such, we find no clear error in the

       postconviction court’s denial of his petition for postconviction relief.

       Accordingly, we affirm.


[16]   Affirmed.


       Brown, J., and Pyle, J., concur.




       4
          As for Villanueva’s claim that the trial court abused its discretion in denying his request to compel Counsel
       to produce his case file for use during the postconviction hearing, we conclude that he waived review of this
       issue by failing to present a cogent argument with any citation to authority. See Ind. Appellate Rule 46(A)(8)
       (requiring that argument section of appellant’s brief contain contentions supported by cogent reasoning and
       citations to authorities, statutes, and the appendix/record). See also Smith v. State, 822 N.E.2d 193, 203 (Ind.
       Ct. App. 2005) (“pro se litigants are held to the same standard regarding rule compliance as are attorneys
       duly admitted to the practice of law and must comply with the appellate rules to have their appeal
       determined on the merits.”), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1408-PC-376 | May 28, 2015                Page 10 of 10
