Pursuant to Ind.Appellate Rule 65(D), this                           Aug 28 2013, 5:53 am
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.


ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

HILARY BOWE RICKS                               GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                MICHAEL GENE WORDEN
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                               IN THE
                    COURT OF APPEALS OF INDIANA

OSCAR EDUARDO PEREZ,                            )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )      No. 20A03-1212-PC-532
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE ELKHART CIRCUIT COURT
                        The Honorable Terry C. Shewmaker, Judge
                             Cause No. 20C01-0602-MR-2


                                     August 28, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                               STATEMENT OF THE CASE

       Appellant-Petitioner, Oscar Eduardo Perez (Perez), appeals the post-conviction

court’s denial of his petition for post-conviction relief.

       We affirm.

                                            ISSUE

       Perez raises two issues on appeal, which we consolidate and restate as the

following single issue: Whether Perez received ineffective assistance of counsel.

                         FACTS AND PROCEDURAL HISTORY

       We adopt this court’s statement of facts as set forth in our opinion issued in Perez’

direct appeal, Perez v. State, 872 N.E.2d 208, 210 (Ind. Ct. App. 2007), trans. denied:

       On February 18, 2006, Perez and others affiliated with a gang known as the
       Nortenos went to an under twenty-one-year old night club in Goshen,
       Indiana. At the club, the Nortenos got into a confrontation with a rival
       gang, the Surenos. Police officers came to disperse the group. Perez left
       the club and headed north on U.S. 33, riding in a red Acura with his brother
       driving. A group of the Nortenos traveled along with the Acura, riding
       separately in a grey Durango.

       While driving on U.S. 33, the Nortenos encountered a group of Surenos
       riding in a tan Malibu. The Nortenos in the Durango and the Surenos
       flashed gang signals at each other and at some point a passenger in the
       Durango fired a paintball gun several times at the Malibu. The Malibu
       swerved, came up behind the Durango, and rammed it from behind. Perez
       riding in the Acura just behind and to the side of the Malibu, grabbed his
       SKS assault rifle and fired three to five shots out of the window at the
       Malibu. The Malibu then drifted off the road.

       The Nortenos drove on to a residence where Perez dismantled the gun, hid
       part of it, and left with the remaining parts. Later, Perez returned and
       bragged that he fired at the Malibu and was certain he had hit it.




                                               2
       Fourteen-year-old Rogelio Reyes, who was riding in the tan Malibu, was
       hit in the eye by one of the shots. The bullet then passed through the left
       side of his brain, causing his death. Saul Rodriguez, who was driving the
       Malibu, was also hit by one of the bullets, and was seriously wounded.

       On February 3, 2006, the State filed an Information charging Perez with Count I,

murder, a felony, Ind. Code § 35-42-1-1 and Count II, criminal gang activity, a Class D

felony, I.C. § 35-45-9-3. On August 25, 2006, the State moved to amend the charging

Information by adding Count III, attempted murder, a Class A felony, I.C. §§ 35-41-5-1;

-42-1-1. During a hearing on August 31, 2006, Perez objected to the State’s motion to

amend but declined to seek a continuance of the trial. The trial court granted the State’s

motion to amend.

       On September 18 through September 21, 2006 a jury trial was conducted. At the

close of the evidence, the jury found Perez guilty as charged. On October 26, 2006,

during the sentencing hearing, the trial court sentenced Perez to fifty-five years on the

murder conviction, one and one-half years on criminal gang activity, to run concurrent

with the murder sentence, and thirty years on attempted murder, to run consecutive to the

murder sentence. Thus, Perez was sentenced to a total of eighty-five years. Perez

appealed his conviction, raising two issues: (1) jury instructions and (2) the sufficiency

of the evidence on his attempted murder conviction. On August 24, 2007, we affirmed

the trial court. See Perez, 872 N.E.2d at 214.

       On March 10, 2012, Perez filed a petition for post-conviction relief. The post-

conviction court conducted a hearing on his petition on, respectively, November 3, 2011




                                             3
and June 28, 2012. On November 21, 2012, the post-conviction court issued its findings

of fact and conclusions of law, denying Perez’ petition.

       Perez now appeals. Additional facts will be provided as necessary.

                              DISCUSSION AND DECISION

                                   I. Standard of Review

       Under the rules of post-conviction relief, the petitioner must establish the grounds

for relief by a preponderance of the evidence.          Ind. Post-Conviction Rule 1, § 5;

Strowmatt v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). To succeed on appeal

from the denial of relief, the post-conviction 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. Id. at 975. The purpose of post-conviction relief is

not to provide a substitute for direct appeal, but to provide a means for raising issues not

known or available to the defendant at the time of the original appeal. Id. If an issue was

available on direct appeal but not litigated, it is waived. Id.

                            II. Ineffective Assistance of Counsel

       Perez contends that he was denied the effective assistance of both trial and

appellate counsel. The standard by which we review claims of ineffective assistance of

counsel is well established. In order to prevail on a claim of this nature, a defendant must

satisfy a two-pronged test, showing that: (1) his 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. Johnson v. State, 832 N.E.2d 985, 996 (Ind. Ct. App. 2005),


                                               4
trans. denied (citing Strickland v. Washington, 466 U.S. 668, 690, 694, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984), reh’g denied). The two prongs of the Strickland test are separate

and independent inquiries. Johnson, 832 N.E.2d at 996. Thus, “[i]f it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course

should be followed.” Timberlake, v. State, 753 N.E.2d 591, 603 (Ind. 2001), reh’g

denied, cert. denied, 537 U.S. 839 (2002) (quoting Strickland, 466 U.S. at 697).

       Counsel is afforded considerable discretion in choosing strategy and tactics and

we will accord those decisions deference. Timberlake, 753 N.E.2d at 603. A strong

presumption arises that counsel rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment. Id. The Strickland Court

recognized that even the finest, most experienced criminal defense attorneys may not

agree on the ideal strategy or the most effective way to represent a client. Id. Isolated

mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily

render representation ineffective. Id. Furthermore, we will not speculate as to what may

or may not have been advantageous trial strategy as counsel should be given deference in

choosing a trial strategy which, at the time and under the circumstances, seems best.

Johnson, 832 N.E.2d at 997.

                                     A. Trial Counsel

       Perez argues that he received ineffective assistance of trial counsel. Specifically,

he urges us to find that his trial counsel was ineffective for failing to present a self

defense or defense of others at trial. The record reflects that trial counsel advanced a trial




                                              5
theory of criminal recklessness and reckless homicide in the hope that the jury would

convict Perez of the lesser included charge of recklessness rather than murder.

       After hearing testimony of trial counsel, the post-conviction court found, in

pertinent part, that:

       12. [Trial counsel] testified that he reviewed all the State’s discovery and
       discussed the evidence with [Perez]. [Trial counsel] also testified that he
       considered all defenses, and in his professional opinion, the evidence did
       not support arguing defense of others because [Perez] placed a long rifle
       outside a window and fired. [Trial counsel’s] decision to advance a theory
       of recklessness over self defense/defense of others was, in his own words, a
       “strategic decision.” Strategic choices made after thorough investigation of
       law and facts relevant to plausible options are virtually unchallengeable;
       and strategic choices made after less than complete investigation are
       reasonable precisely to the extent that reasonable professional judgments
       support the limitation investigation. In this case, [trial counsel] conducted
       a full investigation, and thus is afforded the highest level of deference.
       [Trial counsel] is an experienced attorney, having practiced criminal law
       since 1978 as both defense and prosecutor. This court declines to second
       guess that [trial counsel’s] decision regarding defenses. Therefore, the
       court finds that [Perez] has failed to meet his burden of proving ineffective
       assistance of trial counsel.

(Appellant’s App. pp. 34-35) (internal citation omitted).

       First, we observe that the choice of defense theory is a matter of trial strategy.

Overstreet v. State, 877 N.E.2d 144, 154 (Ind. 1990). 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.

Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998). This is the case even when such

choices may be subject to criticism or the choice ultimately proves detrimental to the

defendant. Id. Here, the choice of a criminal recklessness or reckless homicide defense

did not fall outside the boundaries of reasonableness. Indiana Code section 35-42-1-5


                                             6
provides that “[a] person who recklessly kills another human being commits reckless

homicide, a Class C felony.” Reckless is defined as engaging “in the conduct in plain,

conscious, and unjustifiable disregard of harm that might result and the disregard

involves a substantial deviation from acceptable standards of conduct.” I.C. § 35-41-2-2.

In this regard, it is not unreasonable to argue that firing an assault rifle out of a speeding

car at another speeding car resulting in the death of one of the passengers, fits this

reckless behavior.

       Moreover, even if trial counsel would have advanced a defense of others strategy,

that was doomed to fail. Defense of self or others as an affirmative defense is established

by statute. “A person is justified in using reasonable force against another person to

protect the person or a third person from what the person reasonably believes to be the

imminent use of lawful force.” I.C. § 35-41-3-2(a). However, “firing multiple shots [at a

victim] undercuts a claim of self-defense.” Randolph v. State, 755 N.E.2d 572, 576 (Ind.

2001). Therefore, based on the evidence before us, we cannot say that trial counsel’s

performance amounted to ineffective assistance of counsel.

                                   B. Appellate Counsel

       Next, Perez contends that his appellate counsel rendered ineffective assistance.

Specifically, he argues that appellate counsel failed to allege in his appellate brief that the

trial court erred when it permitted the State to amend the charging information in

violation of the directives proponed in Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007).

       The standard by which we review claims of ineffective assistance of appellate

counsel is the same standard applicable to claims of trial counsel ineffectiveness. Wright


                                              7
v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), reh’g denied, trans. denied. In

Bieghler, our supreme court identified three categories of appellate counsel

ineffectiveness claims, including: (1) denial of access to an appeal; (2) waiver of issues;

and (3) failure to present issues well. Bieghler v. State, 690 N.E.2d 188, 193-95, reh’g

denied, cert. denied, 525 U.S. 1021 (1998). In evaluating these claims, we use the

following two part 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

raised issues. Id. at 194. Otherwise stated, to prevail on a claim of ineffective assistance

of appellate counsel, a defendant must show from the information available in the trial

record or otherwise known to appellate counsel that appellate counsel failed to present a

significant and obvious issue and that this failure cannot be explained by any reasonably

strategy. Ben-Yisrayl v. State, 738 N.E.2d 253, 260-61 (Ind. 2000), reh’g denied, cert.

denied, 534 U.S. 1164 (2002).

       Perez was originally charged on February 23, 2006 with murder and criminal gang

activity. Less than one month before trial, the State moved to amend the Information by

adding Count III, attempted murder. Over Perez’ objection, the trial court granted the

State’s motion and the State filed the amended Information on September 5, 2006, with

trial commencing September 18, 2006, resulting in the jury finding Perez guilty as

charged. Perez appealed his conviction and filed his appellate brief on March 7, 2007;

we issued our opinion on August 24, 2007.

       After the filing of Perez’ appellate brief but prior to our opinion, the supreme court

issued its decision in Fajardo, 859 N.E. 2d at 1207 holding that:


                                             8
       Subsection 5(b) [of I.C. § 35-3.1-1-5] presently prohibits any amendment
       as to matters of substance unless made thirty days before the omnibus date
       for felonies and fifteen days before the omnibus date for misdemeanors.
       The statutory prerequisite requiring that an amendment not prejudice the
       substantial rights of the defendant applies only to amendments of certain
       immaterial defects under subsection 5(a)(9) and to amendments related to a
       defect, imperfection, or omission in form as provided in subsection 5(c).
       But as to an amendment relating to matters of substance, the statute is clear:
       the only prerequisite is that it must be filed the specified number of days
       before the omnibus date, pursuant to subsection 5(b).

       Perez now maintains that because the State’s requested amendment to the charging

Information was one of substance and was filed untimely pursuant to Fajardo, Perez’

appellate counsel should have raised this issue in his appellate brief. Although Fajardo

was issued after the appellate brief was filed, Perez asserts that appellate counsel should

have “filed additional authorities or otherwise amended the Brief once the new decision

came down[.]” (Appellant’s Br. p. 19).

       Notwithstanding Fajardo’s holding, we do not need to decide whether the State’s

amendment amounted to one of substance or form. In Hurst v. State, 890 N.E.2d 88, 95

(Ind. Ct. App. 2008), trans. denied, we stated:

       For over twenty years prior to Fajardo, case law regularly permitted
       amendments related to matters of substance as long as the substantial rights
       of the defendant were not prejudiced, regardless of whether the
       amendments were untimely under I.C. § 35-34-1-5(b). On January 16,
       2007, our [s]upreme [c]ourt changed course and held that the statute clearly
       required amendments of substance to the made not less than thirty days
       before the omnibus date, even if a defendant’s substantial rights are not
       prejudiced by the amendment. The legislature immediately responded to
       Fajardo by amending the statute, effective May 8, 2007, to reflect the pre-
       Fajardo law (i.e., amendments of substance permitted anytime before trial
       so long as the defendant’s substantial rights are not prejudiced). Thus,
       Fajardo was superseded by statute in less than four months. This prompt
       return to pre-Fajardo law indicates urgency in the legislature’s desire to
       negate the effects of Fajardo. Though the legislature did not expressly


                                             9
         provide for retroactive application of the amended statute, we are confident
         that this was the clear intent of such legislation. Therefore, the current
         statute applied in the instant case.

Likewise here, because the legislative amendment was effective on May 8, 2007 and we

issued our appellate opinion in Perez on August 24, 2007, the amended statute, returning

to a pre-Fajardo status quo, would have applied even if appellate counsel had raised the

issue.

         At the time appellate counsel filed his appellate brief, the Fajardo issue was not

obvious from the face of the record. See Bieghler, 690 N.E.2d at 194. Moreover, in light

of the short life of the Fajardo decision and the rapid reaction by the legislature which

superseded Fajardo prior to issuing our appellate decision, we cannot conclude that

Perez’ appellate attorney was ineffective for failing to raise the issue on appeal.

                                      CONCLUSION

         Based on the foregoing, we conclude that Perez received effective assistance of

counsel.

         Affirmed.

KIRSCH, J. and C J. ROBB concur




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