MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Aug 31 2018, 5:39 am

regarded as precedent or cited before any                                CLERK
                                                                     Indiana Supreme Court
court except for the purpose of establishing                            Court of Appeals
                                                                          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                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Bedolla,                                         August 31, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1712-PC-3004
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy Barbar,
Appellee-Respondent.                                     Magistrate
                                                         Trial Court Cause No.
                                                         49G02-0903-PC-34210



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1712-PC-3004 | August 31, 2018       Page 1 of 12
[1]   Anthony Bedolla appeals the post-conviction court’s denial of his October 20,

      2017 motion. Bedolla raises one issue which we revise and restate as whether

      the post-conviction court abused its discretion when it did not sanction a federal

      prisoner who refused to answer questions during a deposition without an

      attorney present. We affirm.


                                        Facts and Procedural History

[2]   The relevant facts as discussed in Bedolla’s direct appeal follow:


              In the early morning hours of March 8, 2009, Jose Reyes and his
              girlfriend, Sarai Solano, were at the El Rey De Copas club in
              Indianapolis. Solano had worked as a paid confidential
              informant for the police in other cases. Solano saw Erick
              Espinoza arguing with Bedolla in the club and saw Bedolla push
              Espinoza. Solano had known Bedolla for about a month, and
              she knew what Espinoza looked like. Near the 3:00 a.m. closing
              time, Reyes and Solano were leaving the club and walking
              toward their vehicle when Solano saw Espinoza walking through
              the parking lot. She also saw Bedolla in the parking lot with a
              gun and heard Bedolla shouting at Espinoza that Espinoza owed
              money to him. Bedolla then shot Espinoza. With Espinoza
              lying on the ground, Bedolla threw money at Espinoza’s feet and
              said that he did not need the money.

              Reyes also knew Bedolla. Reyes saw Bedolla in the parking lot
              with a gun and saw him shoot the gun, but he could not see what
              Bedolla was shooting at. Reyes heard three shots and saw
              Bedolla get in his vehicle and leave after the shooting.

              Espinoza died from his wounds, and police officers recovered
              money near Espinoza’s body. When the police arrested Bedolla
              two weeks later at the El Rey De Copas club, he had cocaine in
              his possession. The State charged Bedolla with murder and
              possession of cocaine as a Class D felony. Bedolla filed a motion

      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-PC-3004 | August 31, 2018   Page 2 of 12
              to attend Solano and Reyes’s depositions. Bedolla argued that he
              should be allowed to attend based on his right of confrontation
              and because he could assist his attorney with Spanish
              translations. The trial court denied Bedolla’s request but noted
              that, if Solano or Reyes failed to appear at the trial, their
              depositions would not be admissible. Solano and Reyes both
              testified at Bedolla’s bench trial in February 2010. Gerardo Baca
              Ramirez testified that he followed Espinoza into the parking lot,
              saw Espinoza talking to a man, who was not Bedolla, saw the
              man pull out a gun, and heard shots. The trial court found
              Solano and Reyes more credible than Ramirez and found Bedolla
              guilty as charged. The trial court sentenced Bedolla to forty-five
              years in the Department of Correction.


      Bedolla v. State, No. 49A02-1003-CR-368, slip op. at 1-3 (Ind. Ct. App. January

      20, 2011), trans. denied.


[3]   On direct appeal, Bedolla argued that the denial of his request to attend the

      depositions of two witnesses violated his confrontation rights or his right to

      assist in his defense and that the evidence was insufficient to sustain his

      conviction. Id. at 2. This Court affirmed. Id. at 6.


[4]   On October 3, 2011, Bedolla filed a petition for post-conviction relief alleging

      ineffective assistance of trial and appellate counsel. On September 21, 2016,

      and January 10, 2017, Bedolla amended the petition. On January 11, 2017, the

      court held an evidentiary hearing and scheduled another hearing for April 26,

      2017.


[5]   On April 10, 2017, Bedolla filed a third amendment to his petition for post-

      conviction relief alleging newly discovered evidence. Specifically, he stated:

      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-PC-3004 | August 31, 2018   Page 3 of 12
        The parties . . . appeared for . . . the evidentiary hearing on
        January 11, 2017. After the hearing, the Court ordered Bedolla
        returned to the prison where he is housed . . . . While Bedolla
        was awaiting transport, deputies placed him in a holding cell
        with another prisoner. That prisoner was Miguel [Barragan-
        Lopez], who was awaiting resolution of an unrelated case of his
        own. [Barragan-Lopez] and Bedolla conversed, and [Barragan-
        Lopez] told Bedolla that he knew the conviction was unjust and
        wrongful. Upon returning to the prison, Bedolla wrote to his
        attorneys and asked them to please meet with [Barragan-Lopez]
        and see exactly what information [Barragan-Lopez] had that
        could help the case. Counsel conferred with both [Barragan-
        Lopez] and his attorney, Brent Westereld.

        [Barragan-Lopez] says he knew one of the State’s witnesses,
        Sarai Solano (“Solano”). Solano is the witness whose testimony
        the public defenders challenged at Bedolla’s bench trial and in the
        direct appeal. Solano and [Barragan-Lopez] became acquainted
        when they met at a nightclub, El Parral located on the Westside
        of Indianapolis. This was after Bedolla’s trial. They had a short-
        term casual relationship and met or went to a nearby hotel on
        four occasions. Solano confided to [Barragan-Lopez] that
        Bedolla did not murder Erick Espinoza. Solano told [Barragan-
        Lopez] her then-boyfriend, Jose Reyes, was the real killer and
        that she knows Bedolla is innocent.


Appellant’s Appendix Volume II at 141-142. He also alleged that this newly

discovered evidence met the nine criteria for a new trial including that the

evidence is not merely impeaching because “Solano recanted when she

confided in” Barragan-Lopez, and that the evidence would likely produce a

different result because “the case hinged upon the credibility of the witnesses.”

Id. at 143.



Court of Appeals of Indiana | Memorandum Decision 49A02-1712-PC-3004 | August 31, 2018   Page 4 of 12
[6]   On April 26, 2017, the court held an evidentiary hearing, and continued the

      hearing to July 28, 2017. On May 2, 2017, Bedolla filed a motion for Writ of

      Habeas Corpus Ad Testificandum, which requested that the court secure the

      attendance of Barragan-Lopez from the Grayson County Jail in Kentucky at the

      July 28, 2017 hearing. The court denied the motion as well as Bedolla’s motion

      to reconsider. On July 28, 2017, the court held an evidentiary hearing.


[7]   Bedolla filed a Motion for Leave to Depose Witness and Request to Serve

      Deposition Subpoena with respect to Barragan-Lopez. On August 18, 2017, the

      court granted the motion and ordered the parties to work together to schedule a

      satisfactory time to conduct the deposition.


[8]   On September 13, 2017, Barragan-Lopez was deposed in the Grayson County

      Detention Center in Kentucky. Through an interpreter, Barragan-Lopez

      testified that he had received a copy of the court’s August 18th order; that he

      understood it was a court order telling him to give his testimony; that he was in

      a holding cell with Bedolla on January 11, 2017; and that he spoke with Bedolla

      that day about the murder at El Rey de Copas. The prosecutor objected on the

      basis of leading questions. Barragan-Lopez asked why his attorney was not

      present at the deposition, and Bedolla’s counsel stated that Barragan-Lopez was

      “under a court subpoena as a witness in this case.” Appellant’s Appendix

      Volume III at 72. Bedolla’s counsel asked Barragan-Lopez, “And you told my

      client that you didn’t think that . . . .” Id. The prosecutor objected based upon

      the leading questions and asserted that the questions were inappropriate for a

      trial deposition. Barragan-Lopez stated, “If they’re not appropriate, then I want

      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-PC-3004 | August 31, 2018   Page 5 of 12
to leave.” Id. Bedolla’s counsel told Barragan-Lopez, “And for the record the

only thing that the prosecutor can object to is form. He cannot give you advice.

He’s not your attorney.” Id. Barragan-Lopez stated that he did not “want to be

[present] because it’s going to get me involved in something that I’m going to

get in trouble for” and “I can help him, but I don’t want to get in trouble.” Id.

at 73. After some discussion, Bedolla’s counsel stated that she was going to

need to ask for a ruling from the court “as when adverse witness and asking the

leading questions for that reason.” Id. at 76. Barragan-Lopez stated that he

wanted to leave and, when told by Bedolla’s counsel that he was under a court

order to give testimony, he stated: “Yes. But if it’s not an attorney here, if

there’s not an attorney here that can explain this to me, I’m not going to be

doing this.” Id. at 77. After further discussion, the prosecutor stated:


        Again at this point, I’m becoming uncomfortable with this. The
        witness has said repeatedly that he does not, that he told you and
        he has said repeatedly that he’s not going to be here without his
        lawyer representing him. And that he says he has a lawyer.

        I think it is highly inappropriate to go forward when you have a
        witness who said that he has told you that he wants an attorney
        here. He has stated on the record today that he wants his
        attorney here. And he’s not represented by a lawyer.


Id. at 78-79. Barragan-Lopez stated: “I would like the prosecutor to know that I

don’t have any problems giving testimony. But I would like my attorney to be

present.” Id. at 80. Barragan-Lopez later stated that “if you come back with

my attorney, I will answer all of the questions you have.” Id. at 82. Bedolla’s

counsel stated that Barragan-Lopez left the room without permission, that she

Court of Appeals of Indiana | Memorandum Decision 49A02-1712-PC-3004 | August 31, 2018   Page 6 of 12
       called Barragan-Lopez’s attorney who was unavailable to participate in the

       matter, and that the deposition was suspended.


[9]    On September 20, 2017, the court held a status conference. The prosecutor

       objected to any further depositions of Barragan-Lopez. Bedolla’s counsel stated

       that she previously went down and talked to Barragan-Lopez and he refused to

       go on the record without a court order prior to obtaining the subpoena. When

       questioned by the court, Bedolla’s counsel indicated that she may not have

       notified Barragan-Lopez’s attorney of the notice of the deposition for September

       13th. The prosecutor indicated that Barragan-Lopez’s attorney did not

       technically represent him on any pending case and that he did not think the

       court had the power to appoint an attorney for a witness. The court stated that

       it was going to show the evidence as closed and ordered the parties to submit

       proposed findings of fact and conclusions of law on or before November 8th.

       Bedolla’s counsel asked to make an offer of proof, and the court indicated that

       this was a quasi-civil matter, that she had multiple opportunities to obtain

       Barragan-Lopez’s testimony, and that the evidence was closed.


[10]   On October 20, 2017, Bedolla filed a motion arguing in part that the court

       refused to allow him to make an offer of proof, refused to hear an argument

       concerning the right to move for sanctions against Barragan-Lopez, and that the

       deposing party has the right under Trial Rule 37 to request sanctions if the




       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-PC-3004 | August 31, 2018   Page 7 of 12
       deponent refuses to cooperate. 1 On October, 24, 2017, the court denied the

       motion. On November 24, 2017, Bedolla filed a petition to certify the order for

       interlocutory appeal and to stay the proceedings pending the outcome which

       the court granted.


                                                       Discussion

[11]   The issue is whether the post-conviction court abused its discretion when it did

       not sanction a federal prisoner who refused to answer questions during a

       deposition without an attorney present. Bedolla argues that the post-conviction

       court abused its discretion when it did not allow him to enforce the subpoena

       pursuant to the Trial Rules and did not allow him to pursue sanctions against

       Barragan-Lopez.


[12]   The State argues that Bedolla’s failure to request sanctions waived the issue for

       appellate review. The State contends that, waiver notwithstanding, Bedolla

       never properly subpoenaed Barragan-Lopez pursuant to the terms of the

       Uniform Interstate Depositions and Discovery Act (“UIDDA”) because he did

       not provide evidence that the subpoena was filed with or issued by the

       Kentucky court. The State asserts that it would be the Kentucky court that




       1
         Although Bedolla titled the motion “MOTION TO CORRECT ERROR,” we cannot say that the motion
       was properly titled. See Stephens v. Irvin, 730 N.E.2d 1271, 1277 (Ind. Ct. App. 2000) (treating a motion
       labeled a “Motion to Correct Error” filed before the entry of final judgment as a motion to reconsider),
       affirmed on reh’g, trans. denied; Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 (Ind. Ct. App. 1998) (“[M]otions to
       reconsider are properly made and ruled upon prior to the entry of final judgment” (citing Ind. Trial Rule
       53.4(A)); Trial Rule 59(C) (providing that motions to correct error are to be filed “not later than thirty (30)
       days after the entry of a final judgment”). Appellant’s Appendix Volume III at 34.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-PC-3004 | August 31, 2018             Page 8 of 12
       would be able to sanction Barragan-Lopez for refusing to testify had he been

       properly subpoenaed pursuant to the UIDDA. It also argues that the post-

       conviction court did not abuse its discretion in refusing to sanction Barragan-

       Lopez even if it were proper for an Indiana court to do so. It asserts that the

       alleged testimony from Barragan-Lopez would be merely impeaching and that

       Bedolla has also failed to demonstrate that the evidence would probably result

       in a different outcome or that the evidence is worthy of credit. In his reply

       brief, Bedolla asserts that the State failed to raise the argument regarding

       compliance with the UIDDA before the post-conviction court and accordingly

       has waived its argument.


[13]   Bedolla cites Ind. Trial Rule 37(B)(1), which provides: “Sanctions by court in

       county where deposition is taken. If a deponent fails to be sworn or to answer a

       question after being directed to do so by the court in the county in which the

       deposition is being taken, the failure may be considered a contempt of that

       court.” The deposition was taken in Kentucky, and even if the Marion

       Superior Court could impose sanctions, we cannot say that reversal is

       warranted.


[14]   Generally, we assign the selection of an appropriate sanction for a discovery

       violation to the trial court’s sound discretion. Whitaker v. Becker, 960 N.E.2d

       111, 115 (Ind. 2012). “Trial judges stand much closer than an appellate court to

       the currents of litigation pending before them, and they have a correspondingly

       better sense of which sanctions will adequately protect the litigants in any given

       case, without going overboard, while still discouraging gamesmanship in future

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-PC-3004 | August 31, 2018   Page 9 of 12
       litigation.” Id. Accordingly, we review a trial court’s sanction only for an

       abuse of discretion. Id.


[15]   Bedolla asserted in his third amended petition and on appeal that Barragan-

       Lopez would testify that Solana told him that her boyfriend was the actual

       killer. Generally, new evidence will mandate a new trial only when the

       defendant demonstrates that: (1) the evidence has been discovered since the

       trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely

       impeaching; (5) it is not privileged or incompetent; (6) due diligence was used

       to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be

       produced upon a retrial of the case; and (9) it will probably produce a different

       result at retrial. Carter v. State, 738 N.E.2d 665, 671 (Ind. 2000) (citing Fox v.

       State, 568 N.E.2d 1006, 1007 (Ind. 1991)). We analyze these nine factors “with

       care, as ‘[t]he basis for newly discovered evidence should be received with great

       caution and the alleged new evidence carefully scrutinized.’” Id. (quoting Reed

       v. State, 508 N.E.2d 4, 6 (Ind. 1987)). “The burden of showing that all nine

       requirements are met rests with the petitioner for post-conviction relief.” Taylor

       v. State, 840 N.E.2d 324, 330 (Ind. 2006). As to the ninth prong, in determining

       whether newly discovered evidence would likely produce a different result at a

       new trial, the post-conviction court may consider the weight a reasonable trier

       of fact would give the evidence and may evaluate the probable impact the

       evidence would have in a new trial considering the facts and circumstances

       shown at the original trial. Nunn v. State, 601 N.E.2d 334, 337 (Ind. 1992). The




       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-PC-3004 | August 31, 2018   Page 10 of 12
       newly discovered evidence must raise a strong presumption a new trial would

       achieve a different result. Id.


[16]   Even if Barragan-Lopez testified at a new trial, the State would have an

       opportunity to introduce Solano’s testimony. We observe that Bedolla did not

       present any testimony from Solano at the post-conviction hearing. We cannot

       say that he demonstrated that Barragan-Lopez’s testimony would not be merely

       impeaching. See Taylor, 840 N.E.2d at 330 (holding that the Court did not see

       how using an affidavit to show that a witness was lying at trial would not be

       impeachment and that the petitioner had not demonstrated that a different

       result would be produced at a new trial); Coates v. State, 534 N.E.2d 1087, 1098

       (Ind. 1989) (“Furthermore, evidence that merely impeaches generally does not

       support a claim for a new trial based on newly discovered evidence.”) (citing

       Downs v. State, 482 N.E.2d 716 (Ind. 1985)). Accordingly, we cannot say that

       the trial court abused its discretion. 2


[17]   For the foregoing reasons, we affirm the trial court’s order. 3




       2
        To the extent Bedolla cites Beasley v. State, 46 N.E.3d 1232 (Ind. 2016), that case involved Ind. Evidence
       Rule 804(b), which provides: “The following are not excluded by the hearsay rule if the declarant is
       unavailable as a witness. . . . (3) Statement Against Interest. A statement that . . . a reasonable person in the
       declarant’s position would have made only if the person believed it to be true because, when made, it was so
       contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the
       declarant’s claim against someone else or to expose the declarant to civil or criminal liability.”). Unlike in
       Beasley where the statement at issue was made by an individual who was ultimately shot and killed, Bedolla
       has made no argument that Solano is unavailable for the purpose of Evidence Rule 804.

       3
         We make no comment on the ultimate determination of whether Bedolla is entitled to post-conviction
       relief.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-PC-3004 | August 31, 2018              Page 11 of 12
[18]   Affirmed.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-PC-3004 | August 31, 2018   Page 12 of 12
