MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                        Feb 24 2017, 9:03 am

court except for the purpose of establishing                         CLERK
                                                                 Indiana Supreme Court
the defense of res judicata, collateral                             Court of Appeals
                                                                      and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Alexander E. Budzenski                                   Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Johiney Jesus Acuna-Hinojosa,                            February 24, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1605-CR-1096
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Linda E. Brown,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Steven J. Rubick,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49F10-0905-CM-47325



Altice, Judge.


                                         Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1096 | February 24, 2017   Page 1 of 8
[1]   Johiney Acuna-Hinojosa appeals from the denial of his petition for post-

      conviction relief (PCR Petition). He asserts that the post-conviction court erred

      in rejecting his claim of ineffective assistance of trial counsel.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On May 12, 2009, Acuna-Hinojosa was pulled over by Sergeant Allen Driver of

      the Indianapolis Metropolitan Police Department because the vehicle Acuna-

      Hinojosa was driving had a fake temporary license tag on the back. As soon as

      Acuna-Hinojosa stopped, Sergeant Driver noticed that he was moving around

      in the car and appeared to be reaching toward the passenger side. Acuna-

      Hinojosa then attempted to exit the vehicle. Sergeant Driver ordered him back

      inside the car, and Acuna-Hinojosa complied.


[4]   After Acuna-Hinojosa complied with orders to show his hands, Sergeant Driver

      approached the driver’s side door and immediately saw that there was a towel

      draped over the steering column, which he recognized from his experience as a

      sign that the car was potentially stolen. He also noted that Acuna-Hinojosa

      seemed “[v]ery nervous, very hyper” and that he was moving around while

      inside the vehicle. Exhibit 1 at 16. Sergeant Driver removed Acuna-Hinojosa

      from the car and immediately placed him in handcuffs at the rear of the vehicle.

      Upon returning to the driver’s door, Sergeant Driver removed the towel and

      observed that the steering column was broken. He also saw in plain view a

      black handgun sticking up between the armrests.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1096 | February 24, 2017   Page 2 of 8
[5]   Sergeant Driver asked Acuna-Hinojosa for his identification and registration,

      and Acuna-Hinojosa handed him a Mexican identification card. Because

      Acuna-Hinojosa spoke minimal English, Sergeant Driver called an interpreter

      to the scene. Acuna-Hinojosa admitted that he did not have a valid driver’s

      license and Sergeant Driver determined that there was no permit on file for the

      handgun. Sergeant Driver then placed Acuna-Hinojosa under arrest, and

      during a search of his person, Sergeant Driver discovered other forms of

      identification bearing a different name.


[6]   The State charged Acuna-Hinojosa with Class A misdemeanor carrying a

      handgun without a license and Class C misdemeanor driving without a license.

      After his initial hearing, public defender Tom Lee was appointed to represent

      Acuna-Hinojosa. Lee represented Acuna-Hinojosa at a pre-trial hearing and

      was supervising counsel during trial. Angka Morris, a certified legal intern

      under Lee’s supervision represented Acuna-Hinojosa at the September 2, 2009

      bench trial. The trial court found Acuna-Hinojosa guilty as charged and

      subsequently sentenced him to an aggregate term of 365 days, with credit for

      four days time served and 361 days suspended.


[7]   On December 5, 2014, Acuna-Hinojosa filed his PCR Petition. The post-

      conviction court held a fact-finding hearing on February 12, 2016. The post-

      conviction court entered its order denying Acuna-Hinojosa’s PCR petition on

      April 22, 2016. This appeal ensued.


                                          Discussion & Decision


      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1096 | February 24, 2017   Page 3 of 8
[8]    In a post-conviction proceeding, the petitioner bears the burden of establishing

       grounds for relief by a preponderance of the evidence. Bethea v. State, 983

       N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction

       relief, the petitioner stands in the position of one appealing from a negative

       judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In

       order to prevail, the petitioner must demonstrate that the evidence as a whole

       leads unerringly and unmistakably to a conclusion opposite the post-conviction

       court’s conclusion. Id. Although we do not defer to a post-conviction court’s

       legal conclusions, we will reverse its findings and judgment only upon a

       showing of clear error, i.e., “that which leaves us with a definite and firm

       conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729

       N.E.2d 102, 106 (Ind. 2000)).


[9]    A petitioner will prevail on a claim of ineffective assistance of counsel only

       upon a showing that counsel’s performance fell below an objective standard of

       reasonableness and that the deficient performance prejudiced the petitioner.

       Bethea, 983 N.E.2d at 1138. To satisfy the first element, the petitioner must

       demonstrate deficient performance, which is “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.

       (quoting McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)).


[10]   To satisfy the second element, the petitioner must show prejudice, which is “a

       reasonable probability that, but for counsel’s errors, the result of the proceeding

       would have been different.” Id. at 1139. “A reasonable probability is one that

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1096 | February 24, 2017   Page 4 of 8
       is sufficient to undermine confidence in the outcome.” Kubsch v. State, 934

       N.E.2d 1138, 1147 (Ind. 2010) (quoting Strickland v. Washington, 466 U.S. 668,

       694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Because a petitioner must prove

       both deficient performance and prejudice in order to prevail on a claim of

       ineffective assistance of counsel, the failure to prove either element defeats such

       a claim. See Young v. State, 746 N.E.2d 920, 927 (Ind. 2001).


[11]   There is a strong presumption that trial counsel rendered adequate service.

       Bethea, 983 N.E.2d at 1139. “We afford counsel considerable discretion in

       choosing strategy and tactics, and ‘[i]solated mistakes, poor strategy,

       inexperience, and instances of bad judgment do not necessarily render

       representation ineffective,’” State v. Hollin, 970 N.E.2d 147, 151 (Ind. 2012)

       (quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001)).


[12]   Acuna-Hinojosa first argues that a Cronic violation occurred. See U.S. v. Cronic,

       466 U.S. 648 (1984). He did not, however, present a Cronic claim to the post-

       conviction court and thus, the post-conviction court was not given the

       opportunity to rule on this independent ground. He has therefore waived this

       issue for our review. See Ind. Post-Conviction Rule 1(8) (“All grounds for relief

       available to a petitioner under this rule must be raised in his original petition”).


[13]   Waiver notwithstanding, Acuna-Hinojosa’s claim fails. The Sixth Amendment

       to the United States Constitution guarantees the assistance of counsel at all

       critical stages of proceedings. Id. at 659; see also Mosley v. State, 908 N.E.2d 599,

       604 (Ind. 2009). The right to assistance of counsel is so essential that prejudice


       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1096 | February 24, 2017   Page 5 of 8
       is presumed when there is actual or constructive denial of the assistance of

       counsel. Hernandez v. State, 761 N.E.2d 845, 849 (Ind. 2002) (citing Strickland,

       466 U.S. at 692). In Cronic, the United States Supreme Court created a narrow

       exception to the Strickland inquiry and held that in extreme cases “a

       presumption of ineffectiveness” may be justified as to obviate the need for

       inquiry into counsel’s actual performance. 466 U.S. at 662. There are only a

       few situations that justify such an extreme measure: (1) when counsel is

       completely denied; (2) when counsel wholly fails to subject the prosecution’s

       case to meaningful adversarial testing; and (3) when circumstances are such that

       “the likelihood that any lawyer, even a fully competent one, could provide

       effective assistance is so small that a presumption of prejudice is appropriate

       without inquiry into the actual conduct of the trial.” Conner v. State, 711 N.E.2d

       1238, 1254 (Ind. 1999) (quoting Cronic, 466 U.S. at 659-60).


[14]   Acuna-Hinojosa argues that he was completely denied the right to counsel prior

       to trial because he claims his appointed counsel met with him once on the day

       of trial and did not use an interpreter to aid in communication. Specifically, he

       maintains that his trial counsel failed to discharge his duty to make a reasonable

       investigation of his case, which he asserts should at least have included an

       effective pre-trial consultation with him.


[15]   Aside from his own self-serving assertions that he was deprived of counsel,

       Acuna-Hinojosa has failed to present any meaningful evidence in support of his

       claim. In fact, the record establishes that he was appointed a public defender

       and that the public defender appeared with Acuna-Hinojosa at a pre-trial

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1096 | February 24, 2017   Page 6 of 8
       conference and again met with him prior to trial, albeit briefly. During the trial,

       Acuna-Hinojosa was represented by a certified legal intern under the

       supervision of his public defender. The State’s case was subjected to adversarial

       testing in the form of a motion to suppress evidence and attempted refutation of

       Acuna-Hinojosa’s mens rea in committing the crimes. A relevance objection

       was also asserted with regard to introduction into evidence of pieces of

       identification belonging to someone other than Acuna-Hinojosa that were

       found on Acuna-Hinojosa’s person. Acuna-Hinojosa asserts no grounds that

       fall within the third situation presented in Cronic, and he has consequently failed

       to meet his heavy burden of establishing a Cronic violation.


[16]   We turn now to his claim of ineffective assistance of counsel under Strickland.

       We begin by noting that the gist of Acuna-Hinojosa’s claim is that his counsel

       did not meet with him prior to trial to discuss trial strategy or possible defenses.

       The only evidence in support of his claim is his own self-serving statements.

       Acuna-Hinojosa did not call or solicit evidence from his appointed counsel.

       When a petitioner does not present evidence from his trial counsel, it can be

       presumed that counsel’s testimony would not have been favorable. See

       Culvahouse v. State, 819 N.E.2d 857, 863 (Ind. Ct. App. 2004). Acuna-Hinojosa

       has not shown that his allegations are true, and in fact, the post-conviction

       court found them factually lacking. Acuna-Hinojosa has failed to overcome the

       presumption that his counsel rendered effective representation.


[17]   We further note that Acuna-Hinojosa failed to demonstrate how he was

       prejudiced by counsel’s performance. There was ample evidence of his guilt.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1096 | February 24, 2017   Page 7 of 8
       Indeed, Acuna-Hinojosa admitted that he did not have a driver’s license and

       Sergeant Driver testified that the handgun was in plain view as it was sticking

       out between the arm rests of the front seats. Acuna-Hinojosa was the only one

       in the car. His claim that the handgun was not his does not establish a defense

       to the crime of carrying a handgun without a license under these circumstances.

       Acuna-Hinojosa cannot show that counsel’s performance, even if deficient,

       affected the outcome.


[18]   In sum, we conclude that the post-conviction court did not err in denying

       Acuna-Hinojosa’s petition for post-conviction relief.


[19]   Judgment affirmed.


[20]   Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1096 | February 24, 2017   Page 8 of 8
