MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Sep 29 2017, 9:41 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Scott King                                               Curtis T. Hill, Jr.
Russell W. Brown, Jr.                                    Attorney General of Indiana
Scott King Group
                                                         Jesse R. Drum
Merrillville, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Joseph Fuentes,                                          September 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1705-PC-1003
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jane Woodward-
Appellee-Plaintiff.                                      Miller, Judge
                                                         Trial Court Cause No.
                                                         71D01-1508-PC-34



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1705-PC-1003 | September 29, 2017       Page 1 of 10
                                Case Summary and Issue
[1]   Joseph Fuentes appeals the denial of his petition for post-conviction relief,

      raising one issue for our review: whether the post-conviction court erred in

      determining Fuentes’s trial counsel was not ineffective. Concluding Fuentes

      did not receive ineffective assistance of trial counsel, we affirm.


                            Facts and Procedural History
[2]   Fuentes was tried by a jury on charges of attempted murder, possession of a

      handgun by a felon, criminal recklessness, and resisting law enforcement. The

      relevant facts as summarized by this court on direct appeal are as follows:

              On October 2, 2012, South Bend Police Officers John Comeau
              (“Officer Comeau”) and Tim Cichowicz (“Officer Cichowicz”)
              were dispatched to a house on Ford Street in South Bend,
              Indiana on a report of a possibly armed male. When the officers
              arrived at the scene, Fuentes was standing by his tan Cadillac.
              Another man, later identified as Jaime Duron (“Duron”) was
              standing in the yard of the house. Officer Comeau told Duron to
              approach him and ordered Fuentes not to move. Duron obeyed
              the officer’s commands, but Fuentes jumped into his car and
              drove away. Officer Cichowicz pursued Fuentes in his patrol car
              with the siren and flashing lights activated. Fuentes ignored
              Officer Cichowicz’s car and continued to flee, running through a
              stop sign. Soon thereafter, Fuentes lost control of his car and
              crashed into a nearby yard. Undaunted, Fuentes exited his car
              and fled on foot.


              Officer Cichowicz got out of his patrol car and gave chase on
              foot. With Officer Cichowicz closing in on him, Fuentes slowed
              down, turned around, and pointed a firearm at Officer Cichowicz
              at head level. Officer Cichowicz dove for cover and heard
      Court of Appeals of Indiana | Memorandum Decision 71A03-1705-PC-1003 | September 29, 2017   Page 2 of 10
        Fuentes fire the weapon. Fuentes then continued to flee down an
        alleyway. Officer Cichowicz continued to pursue Fuentes, took
        cover behind a garage, and peered around the corner. Fuentes,
        who was approximately twenty-five yards away, fired his weapon
        two more times as Officer Cichowicz took cover.


        Fuentes then took refuge in an abandoned home. After the
        police SWAT team surrounded the house and kicked in the door,
        Fuentes surrendered himself. When he was taken into custody,
        Fuentes did not have a firearm on his person. However, during a
        search of Fuentes’s car, the police found an AR-15 rifle in the
        trunk. Fuentes asked the police officer who transported him to
        jail, “if [the police] had found an A.R. rifle in the trunk of the car
        that [Fuentes] was driving.”


        As a result of this incident, the State charged Fuentes on October
        4, 2012, with Class A felony attempted murder, Class C felony
        possession of a firearm by a felon, Class D felony criminal
        recklessness, Class D felony resisting law enforcement, Class D
        felony intimidation, and Class A misdemeanor carrying a
        handgun without a license. The State later dismissed the
        intimidation charge. A bifurcated jury trial commenced on
        September 3, 2013, with regard to all charges except possession
        of a firearm by a felon. The jury found Fuentes guilty the
        following day, and Fuentes then pleaded guilty to being a felon
        in possession of a firearm. At the October 2, 2013 sentencing
        hearing, the trial court “merged” the misdemeanor conviction for
        carrying a handgun without a license into the conviction for
        possession of a firearm by a felon and imposed an aggregate
        executed term of forty years.


Fuentes v. State, 10 N.E.3d 68, 71-72 (Ind. Ct. App. 2014) (internal citations and

footnote omitted), trans. denied. On appeal, Fuentes raised issues concerning



Court of Appeals of Indiana | Memorandum Decision 71A03-1705-PC-1003 | September 29, 2017   Page 3 of 10
      admission of evidence, instruction of the jury, and sufficiency of the evidence.

      We affirmed his convictions. Id. at 76.


[3]   On August 3, 2015, Fuentes filed a verified petition for post-conviction relief

      alleging his trial counsel was ineffective for failing to strike a juror. Fuentes

      subsequently amended his petition to allege that his trial counsel was also

      ineffective for failing to adequately cross-examine a State witness. Specifically,

      Fuentes argued that his trial counsel should have impeached Officer Cichowicz

      with his prior inconsistent statement regarding where Fuentes had pointed his

      gun during the second round of shots. Officer Cichowicz gave a videotaped

      interview to police on the evening of the crime. There, Officer Cichowicz

      stated that Fuentes pointed his gun at him during both the first shot and the

      second round of shots. However, in his deposition and subsequent trial

      testimony, Officer Cichowicz testified Fuentes pointed his gun at him during

      the first shot, but pointed his gun in the air during the second round of shots.

      This latter version of events was more consistent with another State witness,

      Thomas Soule, a neighborhood resident who witnessed part of the chase. Soule

      testified that he heard a gunshot, looked out and saw Fuentes “running with a

      gun in his hand.” Appellant’s Appendix, Volume 2 at 70. As Soule watched,

      he stated Fuentes was “firing up in the air.” Id. Fuentes argues his trial counsel

      should have highlighted Officer Cichowicz’s inconsistency on cross-

      examination.


[4]   Fuentes’s trial counsel testified at a post-conviction evidentiary hearing on

      February 10, 2017. Counsel explained that his theory of defense was that

      Court of Appeals of Indiana | Memorandum Decision 71A03-1705-PC-1003 | September 29, 2017   Page 4 of 10
Fuentes did not intend to kill Officer Cichowicz, but that he had fired the shots

“to scare police away, so he could get away.” Transcript at 10. When counsel

was pressed for an explanation as to why he did not impeach Officer Cichowicz

with his prior inconsistent statement, counsel explained:


        [Trial counsel:]    I can’t get into his head, obviously, to say he
                     changed his testimony to make it more consistent
                     [with Soule’s testimony]. It was something I
                     considered, but frankly it was more consistent with
                     our trial theory and so rather than–I mean, here’s
                     the thing. I’ve got a jury of 12 people, and I know
                     they’re going to hear [Fuentes] say some things on
                     tape that aren’t going to make [Fuentes] look real
                     good.


        [PCR counsel:]           Right.


        [Trial counsel:]     I could have crossed Officer Cichowicz a
                     little harder perhaps on that issue. I don’t know
                     what it would have gotten me, however, because
                     typically when confronted with something like that,
                     you know, there’s always a plausible explanation for
                     changing testimony rather than, oh, I just lied. Or I
                     changed it to fit the right story. So I didn’t.


                         If Officer Cichowicz had given testimony at trial
                         that was inconsistent with his deposition, I would
                         have hammered him with it as much as humanly
                         possible, but when his deposition testimony and
                         trial testimony were consistent and they were
                         frankly more consistent with our theory of the case
                         that it wasn’t an intentional shooting to kill, I went
                         with it.


Court of Appeals of Indiana | Memorandum Decision 71A03-1705-PC-1003 | September 29, 2017   Page 5 of 10
      Id. at 16.


[5]   After taking the matter under advisement, the post-conviction court entered

      findings of fact and conclusions of law denying Fuentes’s petition for post-

      conviction relief. Fuentes now appeals.


                                 Discussion and Decision
                                       I. Standard of Review
[6]   Our standard of review in these matters is firmly established. Post-conviction

      proceedings are civil in nature and the petitioner must prove his grounds for

      relief by a preponderance of the evidence. Shepherd v. State, 924 N.E.2d 1274,

      1280 (Ind. Ct. App. 2010), trans. denied; see also Ind. Post-Conviction Rule 1(5).

      A petitioner who has been denied post-conviction relief faces a “rigorous

      standard of review.” Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001). Post-

      conviction proceedings are not a super appeal and we will neither reweigh the

      evidence nor judge witness credibility. McKnight v. State, 1 N.E.3d 193, 199

      (Ind. Ct. App. 2013), trans. denied. We consider only the evidence and

      reasonable inferences supporting the judgment. Hall v. State, 849 N.E.2d 466,

      468 (Ind. 2006). Therefore, if a post-conviction petitioner was denied relief in

      the proceedings below, “he or she must show that the evidence as a whole leads

      unerringly and unmistakably to an opposite conclusion than that reached by the

      post-conviction court.” Shepherd, 924 N.E.2d at 1280.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1705-PC-1003 | September 29, 2017   Page 6 of 10
[7]   We do not defer to the post-conviction court’s legal conclusions, but do accept

      its factual findings unless they are clearly erroneous. Stevens v. State, 770

      N.E.2d 739, 746 (Ind. 2002), cert. denied, 540 U.S. 830 (2003). However, we

      note that where, as here, the judge who presided over the original trial is also

      the judge who presided over the post-conviction proceedings, the post-

      conviction court’s findings and judgment are entitled to “greater than usual

      deference . . . .” Hinesley v. State, 999 N.E.2d 975, 982 (Ind. Ct. App. 2013),

      trans. denied. This court has found judges in that circumstance to be uniquely

      situated to assess whether trial counsel’s performance was ineffective. Id.


                        II. Ineffective Assistance of Counsel
[8]   On appeal, Fuentes has abandoned his claim that trial counsel was ineffective

      for failing to strike a juror and focuses solely upon whether his counsel was

      ineffective for failing to adequately cross-examine the State’s witness. A claim

      of ineffective assistance of counsel, if not raised on direct appeal, is properly

      presented in a post-conviction proceeding. Timberlake v. State, 753 N.E.2d 591,

      597 (Ind. 2001), cert. denied, 537 U.S. 839 (2002). To prevail on an ineffective

      assistance claim, Fuentes must demonstrate two components: deficient

      performance by his trial counsel and resulting prejudice. Strickland v.

      Washington, 466 U.S. 668, 687 (1984). Deficient performance requires a

      showing that counsel’s representation fell below “an objective standard of

      reasonableness” based on “prevailing professional norms.” French v. State, 778

      N.E.2d 816, 824 (Ind. 2002). Counsel’s representation, however, is presumed

      effective and a petitioner can only overcome such a presumption with “strong

      Court of Appeals of Indiana | Memorandum Decision 71A03-1705-PC-1003 | September 29, 2017   Page 7 of 10
       and convincing evidence” of ineffectiveness. Overstreet v. State, 877 N.E.2d 144,

       152 (Ind. 2007). To establish the second component, prejudice, a petitioner

       must “show that there is a reasonable probability that but for counsel’s

       unprofessional errors, the result of the proceeding would have been different.”

       Perry v. State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009), trans. denied.


[9]    Fuentes argues he was denied effective assistance of counsel when his trial

       counsel failed to adequately cross-examine the State’s key witness. Specifically,

       Fuentes contends that counsel should have impeached Officer Cichowicz with

       his prior inconsistent statement regarding where the gun was pointed during the

       second round of shots. By highlighting the inconsistency, Fuentes argues he

       could show that “Officer Cichowicz modified his statement to comport with

       Mr. Soule’s statement[,]” thus attacking his credibility and allowing the jury to

       question Officer Cichowicz’s other testimony. Amended Brief of Appellant at

       11.


[10]   At the evidentiary hearing, Fuentes’s counsel agreed that Officer Cichowicz’s

       credibility and testimony were central issues for trial because the State lacked

       physical evidence to support a charge of attempted murder. However, counsel

       testified that his failure to impeach Officer Cichowicz with his prior

       inconsistent statement was intentional because Officer Cichowicz’s latter

       version of events was more conducive to his theory of the case and overall trial

       strategy.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1705-PC-1003 | September 29, 2017   Page 8 of 10
[11]   We reiterate that counsel’s performance is presumed to be effective and that

       Fuentes can only overcome that presumption with a showing of “strong and

       convincing evidence” of ineffectiveness. Overstreet, 877 N.E.2d at 152. Our

       supreme court has held that counsel is permitted to make reasonable judgments

       in trial strategy regarding the impeachment of witnesses. See, e.g., Bivins v. State,

       735 N.E.2d 1116, 1134 (Ind. 2000). “It is well-established that trial strategy is

       not subject to attack through an ineffective assistance of counsel claim, unless

       the strategy is so deficient or unreasonable as to fall outside of the objective

       standard of reasonableness.” Autry v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).


[12]   Here, counsel’s trial strategy was not unreasonable. Although it is true that

       counsel’s theory of defense could not have completely exonerated Fuentes,

       there is no such requirement. See Allen v. State, 686 N.E.2d 760, 778 (Ind. 1997)

       (finding no ineffective assistance where counsel’s theory of defense was to avoid

       a murder conviction and possible death penalty in favor of conviction for

       voluntary manslaughter). Counsel’s strategy of proving Fuentes lacked specific

       intent would have avoided an attempted murder conviction, the most serious of

       the charges Fuentes faced. See Spradlin v. State, 569 N.E.2d 948, 951 (Ind. 1991)

       (holding that, “by definition, there can be no ‘attempt’ to perform an act unless

       there is a simultaneous ‘intent’ to accomplish such act.”). The record supports

       counsel’s trial strategy and we will not second-guess the propriety of those

       tactics. See Davidson v. State, 763 N.E.2d 441, 446 (Ind. 2002), cert. denied, 537

       U.S. 1122 (2003). Fuentes has failed to present strong and convincing evidence

       that his counsel’s performance in this regard was deficient. As such, we have


       Court of Appeals of Indiana | Memorandum Decision 71A03-1705-PC-1003 | September 29, 2017   Page 9 of 10
       no need to determine whether Fuentes suffered prejudice. See French, 778

       N.E.2d at 824 (noting failure to prove either prong of an ineffective assistance

       claim will cause the claim to fail).


[13]   Considering the high hurdle for ineffective assistance of counsel claims and

       counsel’s considerable discretion in strategy, Fuentes’s argument fails to

       establish that the evidence as a whole leads unerringly and unmistakably to a

       conclusion opposite the one reached by the post-conviction court.


                                               Conclusion
[14]   For the reasons set forth above, we conclude that Fuentes failed to demonstrate

       clear error in the post-conviction court’s findings and judgment. Accordingly,

       we affirm the denial of his petition for post-conviction relief.


[15]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1705-PC-1003 | September 29, 2017 Page 10 of 10
