      MEMORANDUM DECISION
                                                                       Mar 06 2015, 10:57 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.



      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                         Gregory F. Zoeller
      Public Defender of Indiana                               Attorney General of Indiana

      Joanna L. Green                                          Ellen H. Meilaender
      Deputy Public Defender                                   Deputy Attorney General
      Indianapolis, Indiana                                    Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Juan Lucio,                                             March 6, 2015

      Appellant-Petitioner,                                   Court of Appeals Cause No.
                                                              29A02-1407-PC-484
              v.                                              Appeal from the Hamilton Superior
                                                              Court
      State of Indiana,                                       The Honorable Steven R. Nation,
      Appellee-Respondent.                                    Judge

                                                              Cause No. 29D01-1006-PC-64




      Najam, Judge.


                                         Statement of the Case
[1]   Juan C. Lucio appeals the post-conviction court’s denial of his amended

      petition for post-conviction relief. Lucio presents two issues for our review,


      Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015       Page 1 of 22
      namely, whether he was denied the effective assistance of trial and appellate

      counsel. We affirm.


                                 Facts and Procedural History
[2]   The facts underlying Lucio’s convictions for two counts of murder and one

      count of conspiracy to commit murder were set out in his direct appeal:

              The trial evidence favorable to the verdict indicated that the
              defendant was recruited by Toby Payne to kill Payne’s estranged
              wife Rebecca Payne, and her boyfriend, George Benner. Toby
              had given the defendant a key to Rebecca’s house and a map,
              and promised him $100,000 from a life insurance policy in return
              for the killing. The defendant, in turn, recruited Kyle Duckworth
              to drive him to Rebecca’s house in exchange for $200 or a
              quarter-pound of marijuana. Originally, the defendant planned
              to be the shooter, but later changed his mind and recruited
              Anthony Delarosa to be the triggerman. On April 2, 2007,
              Duckworth drove the defendant and Delarosa to Rebecca’s
              house. The defendant gave Delarosa a gun, and Delarosa
              entered the house but returned and said that Rebecca was not
              home. The men agreed to try again later. On April 4, the
              defendant called Duckworth to pick him up, called Delarosa to
              ask if he was ready, and called Toby Payne to inform him they
              were trying again. The three men drove to Rebecca’s home, the
              defendant again gave Delarosa a gun, and Delarosa entered the
              house and fired the fatal shots. When police had questioned him
              during their investigation, the defendant first admitted that Toby
              Payne had given him a key to the house and asked him to kill
              Rebecca, but later claimed that they were supposed to scare
              Rebecca and extort money from her, that Delarosa told him
              where to go, that he did not know Delarosa had a gun, that he
              did not know why Delarosa was extorting money from her, and
              that he and Duckworth were supposed to get $200 each for
              driving.

      Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015   Page 2 of 22
                                                     ***


              At the conclusion of all the evidence [presented at the ensuing
              trial], the jury was instructed on vicarious criminal liability.[] It
              found the defendant guilty on all three counts. In the subsequent
              penalty phase proceeding, the jury determined that the State had
              proved two charged aggravating circumstances—murder for hire
              and multiple killings, Ind. Code §§ 35-50-2-9(b)(4), (b)(8)—
              beyond a reasonable doubt, found that the aggravators
              outweighed the mitigators, and recommended that the defendant
              be sentenced to life in prison without parole. The trial court,
              following the jury’s recommendation, sentenced the defendant to
              life without parole for the murder counts and imposed a fifty-year
              term for the conspiracy count, all sentences to run consecutively.


      Lucio v. State, 907 N.E.2d 1008, 1009-10 (Ind. 2009) (“Lucio I”). Lucio raised a

      single issue on direct appeal, namely, whether the trial court erred when it

      denied his motion for mistrial following allegedly improper testimony by a

      witness. Our supreme court affirmed Lucio’s convictions. Id.


[3]   Lucio subsequently filed a petition for post-conviction relief and amended

      petitions. Following a hearing, the post-conviction court denied Lucio’s final

      amended petition. This appeal ensued.


                                     Discussion and Decision
[4]   Lucio appeals the post-conviction court’s denial of his final amended petition

      for post-conviction relief. Our standard of review is clear:

              [The petitioner] bore the burden of establishing the grounds for
              post-conviction relief by a preponderance of the evidence. See
              Ind. Post-Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d

      Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015   Page 3 of 22
              591, 597 (Ind. 2001). Post-conviction procedures do not afford a
              petitioner with a super-appeal, and not all issues are available.
              Timberlake, 753 N.E.2d at 597. Rather, subsequent collateral
              challenges to convictions must be based on grounds enumerated
              in the post-conviction rules. Id. If an issue was known and
              available, but not raised on direct appeal, it is waived. Id. If it
              was raised on appeal, but decided adversely, it is res judicata. Id.


              In reviewing the judgment of a post-conviction court, appellate
              courts consider only the evidence and reasonable inferences
              supporting the post-conviction court’s judgment. Hall v. State,
              849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is
              the sole judge of the evidence and the credibility of the witnesses.
              Id. at 468-69. Because he is now appealing from a negative
              judgment, to the extent his appeal turns on factual issues [the
              petitioner] must convince this court that the evidence as a whole
              leads unerringly and unmistakably to a decision opposite that
              reached by the post-conviction court. See Timberlake, 753 N.E.2d
              at 597. We will disturb the decision only if the evidence is
              without conflict and leads only to a conclusion contrary to the
              result of the post-conviction court. Id.


      Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.


[5]   When appealing the denial of post-conviction relief, the petitioner stands in the

      position of one appealing from a negative judgment. Overstreet v. State, 877

      N.E.2d 144, 151 (Ind. 2007) (citation omitted). To prevail from the denial of

      post-conviction relief, a petitioner must show that the evidence as a whole leads

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

      conviction court. Id. (citation omitted). Further, the post-conviction court in

      this case made findings of fact and conclusions of law in accordance with

      Indiana Post-Conviction Rule 1(6). “Although we do not defer to the post-
      Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015   Page 4 of 22
      conviction court’s legal conclusions, ‘[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.

      (citation omitted).


[6]   Lucio contends that he was denied the effective assistance of trial and appellate

      counsel in violation of the Sixth Amendment to the United States Constitution.

      A claim of ineffective assistance of counsel must satisfy two components.

      Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must show

      deficient performance: representation that fell below an objective standard of

      reasonableness, committing errors so serious that the defendant did not have

      the “counsel” guaranteed by the Sixth Amendment. Id. at 687-88. Second, the

      defendant must show prejudice: a reasonable probability (i.e., a probability

      sufficient to undermine confidence in the outcome) that, but for counsel’s

      errors, the result of the proceeding would have been different. Id. at 694.


                         Issue One: Effective Assistance of Trial Counsel

[7]   Lucio first contends that he was denied the effective assistance of trial counsel.

      Specifically, Lucio argues that his trial counsel failed to: (1) object to the

      addition of the conspiracy to commit murder charge after the omnibus date; (2)

      object to the State’s request, two weeks prior to trial, that Lucio be sentenced to

      life imprisonment without parole; (3) object to allegedly prejudicial comments

      made by the prosecutor during voir dire and at trial; (4) tender an instruction

      during the penalty phase; and (5) investigate and argue mitigation at the penalty

      phase. We consider each contention in turn.
      Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015   Page 5 of 22
                                       Addition of Conspiracy Charge


[8]   Lucio first contends that his trial counsel’s performance was deficient when,

      five months after the omnibus date, he did not object to the State’s amendment

      of the charging information to add conspiracy to commit murder. Lucio

      maintains that he was prejudiced by that amendment “because it opened the

      door to evidence otherwise inadmissible.” Appellant’s Br. at 23. In particular,

      Lucio contends that “Duckworth’s testimony repeating Delarosa’s graphic

      description of the crime was hearsay but admissible as comments made in

      furtherance of a conspiracy.” Id. And he contends that “Duckworth’s

      girlfriend was then allowed to repeat Delarosa’s recitation of the crime as told

      to her by Duckworth. This hearsay also would not have been admissible

      without the conspiracy charge.” Id. Finally, Lucio asserts that the testimony of

      Randall Andrews, who testified that Payne had asked for cash when Andrews

      offered him a check to help pay for his divorce, was hearsay that was admissible

      “through the conspiracy charge.” Id.


[9]   Indiana Code Section 35-34-1-5(b) provides in relevant part that the prosecuting

      attorney may amend an information in matters of substance, upon giving

      written notice to the defendant at any time before the commencement of trial, if

      the amendment does not prejudice the substantial rights of the defendant.


              A defendant’s substantial rights include a right to sufficient notice
              and an opportunity to be heard regarding the charge; and, if the
              amendment does not affect any particular defense or change the
              positions of either of the parties, it does not violate these rights.
              Ultimately, the question is whether the defendant had a

      Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015   Page 6 of 22
               reasonable opportunity to prepare for and defend against the
               charges.


       Gomez v. State, 907 N.E.2d 607, 611 (Ind. Ct. App. 2009) (citations and internal

       quotations omitted), trans. denied.


[10]   Again, Lucio contends that the late amendment affected his substantial rights

       because otherwise inadmissible hearsay was admitted to prove the conspiracy

       charge. But, as the State points out, the amendment was made following a

       hearing on the motion to amend and a motion to continue trial. At that

       hearing, Lucio was present and represented by Henke, who indicated that, after

       discussing the issue, “he did not believe he had a legal objection” to the

       amendment. Appellant’s App. at 248. And the trial court asked Lucio whether

       he waived a reading of the amended information, and Lucio responded, “Yes.”

       Id. The State also moved to continue the trial. The trial court granted that

       motion and rescheduled the trial for January 7, 2008, which gave Lucio more

       than one month to prepare a defense for the new charge. On appeal, Lucio

       does not explain how he would have prepared his defense differently had he

       had more time. We cannot say that Lucio’s substantial rights were affected by

       the amendment.


[11]   Finally, and moreover, Lucio’s contention that the testimony relevant to the

       conspiracy charge would have been inadmissible hearsay absent the addition of

       that charge is without merit. Our supreme court has observed that, “consistent

       with Federal Rule of Evidence 801(d)(2)(E), [Indiana Rule of Evidence

       801(d)(2)(E), which provides that a statement is not hearsay if it was made by a
       Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015   Page 7 of 22
       party’s coconspirator during and in furtherance of the conspiracy,] ‘applies not

       only to conspiracies but also to joint ventures, and that a charge of criminal

       conspiracy is not required to invoke the evidentiary rule.’” Francis v. State, 758

       N.E.2d 528, 533 n.5 (Ind. 2001) (quoting United States v. Kelley, 864 F.2d 569,

       573 (7th Cir.1989)). Here, Delarosa and Payne were coconspirators with

       Lucio, and the testimony regarding their statements relevant to the conspiracy,

       as set out above, would have been admissible whether the State had amended

       the information or not. See id. (holding evidence sufficient to show existence of

       conspiracy to permit testimony under Evidence Rule 801(d)(2)(E); defendant

       was not charged with conspiracy). Lucio has not demonstrated that he suffered

       any prejudice as a result of Henke’s failure to object to the amended

       information.

                                              Life Without Parole


[12]   Lucio next contends that Henke was ineffective when he did not object to the

       State’s request that Lucio be sentenced to life without parole (“LWOP”). In

       particular, Lucio maintains that “[t]he belated filing of the request for life

       without parole[, made approximately two weeks prior to trial,] forced Lucio to

       waive his right to a speedy trial.” Appellant’s Br. at 23. But, in the context of a

       similar argument, our supreme court has held that the filing of a death penalty

       request was timely when it was filed three days after the omnibus date and one

       week before trial. See Lowrimore v. State, 728 N.E.2d 860, 866 (Ind. 2000).

       Lucio has not demonstrated that, had Henke objected to the LWOP request,

       the trial court would have sustained that objection. See Wrinkles v. State, 749

       Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015   Page 8 of 22
       N.E.2d 1179, 1197 (Ind. 2001) (holding no showing counsel ineffective where

       appellant did not prove that objection would have been sustained). Henke was

       not ineffective when he did not object to the State’s LWOP request.

                                            Prosecutor’s Comments


[13]   Lucio contends that Henke was ineffective when he did not object to comments

       the prosecutor made during voir dire and closing argument. In particular,

       during voir dire, the prosecutor answered a juror’s question as follows:

               You mean the potential sentence, life without parole? It does
               mean what it says, yes. And basically, should we get a
               conviction in the first phase of the trial, then we have a second
               phase of the trial where we present information to you and we
               ask that you consider recommending life without parole. Now,
               understand one thing, it’s still the Judge’s responsibility to sentence the
               defendant. It would be purely a recommendation one way or the
               other, and you would have to be presented with sufficient
               evidence to convince you of the type of recommendation that
               you would want to make. Okay?


       Trial Tr. at 77 (emphasis added). Citing Caldwell v. Mississippi, 472 U.S. 320

       (1985), Lucio maintains that these comments “impermissibly minimized the

       jury’s role in sentencing leaving it with the impression they could vote for life

       without parole and the judge could decide otherwise.” Appellant’s Br. at 25.

       And he asserts that the “misimpression that sentencing responsibility rests

       elsewhere may bias a jury to impose the harshest sentence in order to obtain

       that review or to ‘send a message.’” Id. (quoting Caldwell, 472 U.S. at 331). In



       Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015   Page 9 of 22
       sum, Lucio contends that the prosecutor misstated the law and that Henke was

       ineffective when he made no corresponding objection.


[14]   The State concedes that the prosecutor’s comments during voir dire were

       “confusing” and “did not provide a fully accurate expression of Indiana law on

       this matter.” Appellee’s Br. at 29. The State points out that, once a jury

       reaches a sentencing recommendation in a LWOP case, Indiana Code Section

       35-50-2-9(e) requires the trial court to “sentence the defendant accordingly.”

       But, despite the prosecutor’s misrepresentation to the prospective jurors during

       voir dire, Lucio cannot show that he was prejudiced by Henke’s failure to object

       to those comments. During the penalty phase, which was conducted several

       days after voir dire, the prosecutor told the jurors that they would be

       deliberating “to decide whether or not the actions of this defendant . . . deserve

       the sentence of life without parole.” Trial Tr. at 796. And the prosecutor told

       the jurors that “the Judge must follow your recommendations.” Id. Moreover,

       the trial court instructed the jurors that “[t]he law requires that your sentencing

       recommendation must be followed by the Judge.” Direct Appeal App. at 424.

       Lucio has not shown that he was prejudiced by the prosecutor’s comments

       during voir dire. See, e.g., Hudgins v. State, 451 N.E.2d 1087, 1091 (Ind. 1983)

       (holding that any misstatements of law during closing argument are presumed

       cured by final instruction).


[15]   Lucio also contends that Henke should have objected to the following

       statement by the prosecutor, made during closing argument: “[Lucio] reveled

       in hearing the details of the murders on the way home, the details not as

       Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015   Page 10 of 22
       described by him [at trial], the details as described in graphic detail by Kyle

       Duckworth when he took the stand.” Trial Tr. at 751. Lucio maintains that

       “[t]here was no evidence to support this accusation.” Appellant’s Br. at 26.

       And Lucio asserts that, had Henke objected, “the objection would have been

       sustained because it is improper for a prosecutor to argue facts not in evidence.”

       Appellant’s Br. at 27 (citing Neville v. State, 976 N.E.2d 1252, 1261 (Ind. Ct.

       App. 2012), trans. denied). Lucio argues that he was “harmed by this

       unsubstantiated characterization, particularly because it was argued to the jury

       who would be deciding his sentence.” Id.


[16]   But the post-conviction court found as follows:


               Given all of the evidence in this case, it is a reasonable comment
               on the evidence. Generally, attorneys on both sides are
               permitted to argue both facts and reasonable inferences from the
               evidence or lack of evidence on a particular point. The Petitioner
               has not met his burden showing that this comment is
               fundamental error and, even if it w[ere], that [it] subjected the
               Petitioner to grave peril and had a probable persuasive effect on
               the jury’s decision.


       Appellant’s App. at 282. The State agrees with the post-conviction court and

       points out that, because there is no evidence that Lucio objected to

       Duckworth’s explicit description of the murders, it is reasonable to infer that

       Lucio reveled in that description.


[17]   We need not decide whether the challenged comment was improper because

       Lucio has not shown that the prosecutor’s comment subjected Lucio to grave


       Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015   Page 11 of 22
       peril. Given the substantial evidence of Lucio’s guilt, the prosecutor’s

       commentary is unlikely to have affected the jury’s deliberations. See, e.g.,

       Williams v. State, 724 N.E.2d 1070, 1081-82 (Ind. 2000).


[18]   Lucio also contends that Henke should have objected to the State’s argument

       “that the key found in [Tara] Cassada’s car[1] was the master key from which

       the key found at Delarosa’s was made.” Appellant’s Br. at 27. Lucio maintains

       that that “allegation is unsupported by the evidence at trial” and prejudiced him

       “because the State used this suggestion to support its argument Lucio was the

       ringleader and Delarosa would not have had a key to the house without Lucio’s

       participation.” Id. But the evidence shows that police found “recently cut

       keys” to the victim’s house in the possession of Delarosa and Lucio. Trial Tr.

       at 535. And police found a key in the visor pocket of a car belonging to Tara

       Cassada and Lucio. That key had the same cut as the two recently-cut keys, but

       it “appear[ed] to have some age to it. It[ appeared to be] worn, dirty like it’s

       possibly an original type key.” Id. at 534. Thus, the evidence supports a

       reasonable inference that Lucio had a key to the victim’s house that was used to

       make the copies. Lucio cannot show that he was prejudiced by Henke’s failure

       to object to that argument.




       1
           Cassada was Lucio’s girlfriend at the time of the murders.


       Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015   Page 12 of 22
                                                Jury Instruction


[19]   Lucio contends that Henke was ineffective when, during the penalty phase, he

       did not “tender an instruction limiting consideration of guilt phase evidence to

       evidence relevant to statutory aggravators and mitigators.” Appellant’s Br. at

       21. Lucio maintains that two of the instructions given during the penalty phase,

       namely, instructions numbered 4 and 6, “taken together, are contradictory and

       confusing.” Id. at 20. “Phase II Preliminary Instruction No. 4” reads as

       follows:


               In the second phase of the trial the attorneys will again have an
               opportunity to make opening and final statements.


               You may consider all the evidence introduced during the first phase of the
               trial in determining your recommendation. Do not consider any
               offered evidence that the Court did not allow into evidence or
               that the Court ordered stricken from the record. In fact, such
               matters are to be treated as if you had never heard of them.


               You have previously been instructed by me as to the rules of law
               regarding the burden of proof, credibility of witnesses, and the
               manner of weighing the evidence which you will hear in this
               case. You have also been instructed as to definitions. Those
               rules and definitions also apply in this second phase of the trial.


       Direct Appeal App. at 374 (emphasis added). “Phase II Preliminary Instruction

       No. 6” reads as follows: “You are not permitted to consider any circumstances

       as weighing in favor of the sentence of life imprisonment without parole other




       Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015   Page 13 of 22
       than those specifically charged by the State of Indiana in the Charging

       Information.” Id. at 376.


[20]   Lucio acknowledges that Instruction 4 is a pattern jury instruction, but he

       asserts that the instruction was “wrong because jurors are prohibited from

       considering non-statutory, uncharged aggravators in determining whether a

       defendant should be sentenced to life without parole.” Appellant’s Br. at 20

       (citing Bivins v. State, 642 N.E.2d 928, 955 (Ind. 1994)). But our supreme court

       has explicitly “approved the incorporation of all the trial evidence for penalty

       phase consideration,” and it has held that trial counsel is not ineffective “for

       failing to challenge the trial court’s instruction of the jury to consider all guilt

       phase evidence at the penalty phase.” Matheny v. State, 688 N.E.2d 883, 902

       (Ind. 1997) (citing Smith v. State, 475 N.E.2d 1139 (Ind. 1985)). Lucio has not

       shown that Henke was ineffective when he did not tender an instruction

       limiting consideration of guilt phase evidence to evidence relevant to statutory

       aggravators and mitigators.

                                              Mitigation Evidence


[21]   Lucio contends that Henke was ineffective when he did not conduct an

       adequate investigation into evidence relevant to sentence mitigation. Lucio

       also contends that Henke was ineffective when he did not present any

       mitigation evidence at the penalty phase. Lucio maintains that

               [t]rial counsel should have presented evidence of Lucio’s loving
               yet dysfunctional family, including their lives as migrant workers,
               the lack of discipline in the home and the tragic death of Lucio’s
       Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015   Page 14 of 22
          young cousin [when Lucio was ten years old]. Had trial counsel
          presented Lucio’s family’s testimony and the testimony of experts
          like Drs. Thompkins and Smith[2] to explain the effect of these life
          events on Lucio, there is a reasonable probability of a different
          outcome.


Appellant’s Br. at 18. But the evidence shows that Henke conducted a

thorough investigation of Lucio’s background in the hopes of coming up with

mitigating evidence. And at the hearing on Lucio’s petition for post-conviction

relief, Henke explained his reasons for not presenting more of a defense at the

penalty phase3:


          There was, and this was something that I had requested that my
          investigator Mr. Oberst do, [sic] would be to go check into Juan’s
          background, mostly amongst family and people that he knew in
          Frankfort, which was where he was from. There was little
          positive information that he brought back to me that I felt was
          concrete and usable. There was a large quantity of negative
          information which would have been available to the State
          involving his prior criminal record, lack of employment, lack of
          education, in a lot of ways there was much that was unfavorable
          towards Juan that was available to the State that would have
          been triggered had an attempt been made to present favorable
          testimony on his behalf. I saw no way of presenting any
          evidence that I had to the jury that wouldn’t have triggered that
          information that would have been far in excess outweighing it. I
          felt that instead that it was better to proceed with the evidence


2
  Dr. Martin Smith is a psychologist who assessed Lucio’s mental health and diagnosed him as having anti-
social personality disorder, unspecified trauma and stressor related disorder, and alcohol and cannabis
dependence. Dr. Doug Thompkins is a criminologist “with specialties in gangs and prison re-entry.”
Appellant’s Br. at 13. Dr. Thompkins concluded that, given his upbringing, Lucio lacked connections to
“traditional institutions,” which made him more likely to commit crimes. Post-Conviction Tr. at 304.
3
    Henke argued in mitigation that Lucio was a young man and was not the shooter.


Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015           Page 15 of 22
               that had been presented. His testimony as to his role in the
               proceedings and the fact that he was an accomplice rather than
               the actual trigger man for the murder.


       Post-Conviction Tr. at 59-60. In sum, Henke made the strategic decision not to

       present mitigation evidence lest he open the door to evidence such as Lucio’s

       membership with the “Latin Kings” gang from the age of eleven or twelve.

       Further, Lucio, who was twenty-four years old at the time of sentencing, has an

       extensive criminal history, including five juvenile adjudications and thirteen

       convictions, including four felony convictions, as an adult. As a juvenile, Lucio

       violated probation and Community Commitment placements, and, as an adult,

       Lucio has violated probation.


[22]   The post-conviction court concluded that the testimony Lucio presented at the

       post-conviction hearing in support of his contention on the mitigation issue was

       “unpersuasive.”4 Appellant’s App. at 264. And the post-conviction court

       concluded that Henke’s decision not to present mitigating evidence was a

       reasonable strategy under the circumstances. We cannot say that those

       conclusions are clearly erroneous. See Stephenson v. State, 864 N.E.2d 1022,

       1044-46 (Ind. 2007) (affirming post-conviction court’s conclusion that trial



       4
         Lucio makes much of the fact that, when he was ten years old, his young cousin hanged himself. Lucio
       maintains that the circumstances of the hanging were suspicious, and he suggests that police did not conduct
       an adequate investigation because of prejudice against people of his ethnic background. Lucio asserts that
       the impact of his cousin’s death was significant and contributed to his life of crime. But Lucio had not
       mentioned this incident to Henke as a possible factor in mitigation, and Dr. Smith’s conclusions regarding
       the impact of that event were equivocal, at best. Indeed, the evidence shows that Lucio’s criminal activity
       began prior to that event. As the post-conviction court found, the evidence Lucio presented at the post-
       conviction hearing is inconsistent on these issues of possible mitigating evidence.

       Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015             Page 16 of 22
       counsel’s strategic decision to not present mitigating evidence “was not

       unreasonable in view of the considerable negative evidence that Stephenson’s

       character evidence would have produced.”) Henke conducted an adequate

       investigation into mitigating evidence and was not ineffective when he did not

       present mitigating evidence at the penalty phase.


                       Issue Two: Effective Assistance of Appellate Counsel

[23]   We next consider Lucio’s argument that he was denied the effective assistance

       of appellate counsel. In particular, he contends that his counsel on direct

       appeal was ineffective when he omitted allegedly meritorious issues from his

       brief on appeal. When we review claims of ineffective assistance of appellate

       counsel, we use the same standard applied to claims of ineffective assistance of

       trial counsel: the post-conviction petitioner must show that appellate counsel’s

       performance fell below an objective standard of reasonableness and that there is

       a reasonable probability that, but for the deficient performance of counsel, the

       result of the proceeding would have been different. Manzano v. State, 12 N.E.3d

       321, 329 (Ind. Ct. App. 2014) (citing Harris v. State, 861 N.E.2d 1182, 1186

       (Ind. 2007)), trans. denied.


[24]   To show that counsel was ineffective for failing to raise an issue on appeal, the

       defendant must overcome the strongest presumption of adequate assistance,

       and judicial scrutiny is highly deferential. Id. To evaluate the performance

       prong when counsel failed to raise issues upon appeal, we apply 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 the
       Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015   Page 17 of 22
       raised issues. Id. If the analysis under this test demonstrates deficient

       performance, then we examine whether the issues which appellate counsel

       failed to raise would have been clearly more likely to result in reversal or an

       order for a new trial. Id. at 329-30. Ineffective assistance is very rarely found in

       cases where a defendant asserts that appellate counsel failed to raise an issue on

       direct appeal because the decision of what issues to raise is one of the most

       important strategic decisions to be made by appellate counsel. Id. at 330.


                                           Victim Impact Testimony


[25]   Lucio first contends that his appellate counsel was ineffective when he did not

       raise as an issue on direct appeal the trial court’s alleged error in admitting

       testimony that he alleges constituted impermissible victim impact testimony. In

       particular, Jim Benner, brother of George, one of the murder victims, testified

       that George was the oldest of six children and became a father-figure to his

       siblings at age ten after their father died. Jim testified that George taught him to

       shave and drive a car, and George stood up for Jim when he was bullied by

       other kids. Jim testified that George did “all the things that you would expect

       an older brother or a father to do.” Trial Tr. at 422. Lucio’s trial counsel

       objected, and the trial court sustained that objection. But the trial court then

       permitted a few questions regarding George’s relationship with Rebecca, such

       as how they had met. The prosecutor also asked Jim about George’s life,

       generally, including where he lived, went to school, his field of study, and his

       employment history.



       Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015   Page 18 of 22
[26]   Victim impact testimony is not admissible in the sentencing phase of a capital

       trial if that testimony is irrelevant to the alleged aggravating factor. Laux v.

       State, 985 N.E.2d 739, 749 (Ind. Ct. App. 2013), trans. denied. Generally, victim

       impact evidence is evidence that demonstrates the consequences suffered by a

       victim or a victim’s family as a result of a crime. Id. Error in the receipt of

       victim impact evidence is subject to harmless error analysis. Id.


[27]   In Laux, we observed that the alleged victim impact testimony merely “revealed

       background information as to how the witnesses and the victim became

       acquainted and how they interacted[.]” 985 N.E.2d at 749. Thus, we held that,

       “[i]n short, this is not evidence that demonstrates the consequences suffered by

       a victim or a victim’s family as a result of a crime.” Id. (citation omitted).

       Likewise, here, Jim described how George and Rebecca met and gave

       background information about George’s life, but Jim did not make any

       statements about the consequences suffered by George’s family or friends as a

       result of the murders. Cf. Bivins v. State, 642 N.E.2d 928, 957 (Ind. 1994)

       (holding testimony constituted victim impact evidence where physically-

       disabled wife testified that she had “lost [her murdered husband’s]

       companionship and his love, his protection and his care, as well as his

       friendship and his income[.]”) We cannot say that this issue was clearly

       stronger than the issue appellate counsel raised on direct appeal. Manzano, 12

       N.E.3d at 329. Again, ineffective assistance is very rarely found in cases where

       a defendant asserts that appellate counsel failed to raise an issue on direct




       Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015   Page 19 of 22
       appeal because the decision of what issues to raise is one of the most important

       strategic decisions to be made by appellate counsel. Id. at 330.


[28]   Moreover, in light of the substantial evidence of Lucio’s guilt, any error in the

       admission of the alleged victim impact testimony would have been deemed

       harmless on appeal. See Bivins, 642 N.E.2d at 957. Lucio has not shown that,

       had his appellate counsel raised this issue on direct appeal, a different outcome

       would have resulted.

                                     Belated Amendment of Information


[29]   Lucio contends that, had his appellate counsel raised the issue of the State’s

       addition of the conspiracy charge to the information five months after the

       omnibus date, the outcome of his direct appeal would have been different. But,

       as we address above, we hold that Lucio has not shown that the amendment

       prejudiced his substantial rights. Thus, Lucio cannot show ineffective

       assistance of appellate counsel on this issue.

                                          Penalty Phase Instructions


[30]   Lucio also contends that, had his appellate counsel raised the issue of Henke’s

       decision not proffer an instruction to clarify what evidence the jury could

       consider in deliberating his sentence, the outcome of his appeal would have

       been different. But, again, our supreme court has explicitly “approved the

       incorporation of all the trial evidence for penalty phase consideration,” and the

       trial court properly instructed the jury using pattern jury instructions. See


       Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015   Page 20 of 22
       Matheny, 688 N.E.2d at 902. Lucio has not demonstrated that his appellate

       counsel was ineffective when he did not raise this issue on direct appeal.

                                              Insufficient Evidence


[31]   Finally, Lucio contends that his appellate counsel was ineffective when he did

       not argue that the State presented insufficient evidence to prove that the

       charged murders stemmed from a “murder for hire” scheme. Indiana Code

       Section 35-50-2-9(b)(4) provides that the State may seek an LWOP sentence if it

       proves as an aggravating circumstance that the defendant who committed the

       murder was hired to kill. Our standard of review for examining the sufficiency

       of the evidence to support a statutory aggravating circumstance is the same

       standard for determining the sufficiency of evidence to convict. Krempetz v.

       State, 872 N.E.2d 605, 609 (Ind. 2007).


[32]   Had Lucio’s appellate counsel raised this issue on direct appeal, it would not

       have been successful. Any argument would have constituted a request that we

       reweigh the evidence, which we will not do on appeal. At trial, Lucio’s

       girlfriend testified that Payne asked Lucio to kill Rebecca and had offered to

       pay Lucio $100,000 from the proceeds of a life insurance policy for the murder.

       Lucio cannot show that his appellate counsel’s performance was deficient.




       Court of Appeals of Indiana | Memorandum Opinion 29A02-1407-PC-484 | March 6, 2015   Page 21 of 22
                                                   Conclusion


[33]   Lucio has not demonstrated that he was denied the effective assistance of trial

       or appellate counsel. The post-conviction court did not err when it denied his

       petition.


[34]   Affirmed.


[35]   Mathias, J., and Bradford, J., concur.




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