MEMORANDUM DECISION
ON REHEARING
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               Jun 24 2016, 9:41 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
court except for the purpose of establishing                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cynthia M. Carter                                         Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Angela N. Sanchez
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mauricio Martinez,                                        June 24, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1506-PC-547
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Marc T.
Appellee-Plaintiff                                        Rothenberg, Judge
                                                          The Honorable Amy J. Barbar,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49G02-0810-PC-230416



Bailey, Judge.



Court of Appeals of Indiana |Mem. Decision on Rehearing 49A02-1506-PC-547| June 24, 2016      Page 1 of 3
[1]   Mauricio Martinez (“Martinez”) appealed the denial of his petition for post-

      conviction relief, alleging that he was denied the effective assistance of trial and

      appellate counsel. We affirmed the denial, and Martinez petitions for

      rehearing, contending that this Court failed to acknowledge that his trial lawyer

      “neither requested a body attachment nor issued a defense subpoena, regarding

      the Constitution’s Sixth Amendment right to confrontation.” Pet. for

      Rehearing at 3.


[2]   The record indicates that the State had subpoenaed Cheryl Sladovnik, who later

      failed to appear. A bench warrant was issued for her arrest, and she was

      declared an unavailable witness. Her redacted deposition (previously taken by

      defense counsel) was read into evidence. According to Martinez, “the

      reasonable and preferred strategy would be to have the witness herself appear

      and testify.” Pet. for Rehearing at 3-4. Because his trial attorney did not issue a

      defense subpoena, Martinez was unable to request that the trial court issue a

      body attachment. Martinez wishes to have these facts specifically

      acknowledged, purportedly to assist in his petition for transfer.


[3]   We do not express disagreement with Martinez’s preference for live testimony.

      Had his trial counsel gone above and beyond the State’s efforts to secure

      Sladovnik as a witness, it is possible that Sladovnik’s attendance could have

      been secured through a body attachment. Indiana Code Section 34-29-2-3

      provides: “An attachment for contempt, for failure to obey the command of a

      subpoena to testify, is a civil process within the meaning of this article.”

      Court of Appeals of Indiana |Mem. Decision on Rehearing 49A02-1506-PC-547| June 24, 2016   Page 2 of 3
[4]   However, we do not review counsel’s performance for “preferred strategy.”

      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 the

      objective standard of reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141

      (Ind. 1998). Moreover, Martinez did not articulate the prejudice he suffered, as

      is required under Strickland v. State, 466 U.S. 668 (1984).


[5]   Martinez did not demonstrate that he was denied the effective assistance of

      counsel. We thus deny the petition for rehearing.


      Vaidik, C.J., and Crone, J., concur.




      Court of Appeals of Indiana |Mem. Decision on Rehearing 49A02-1506-PC-547| June 24, 2016   Page 3 of 3
