Court of Appeals of Indiana | Memorandum Decision 49A02-1506-PC-547 | March 28, 2016 Page 1 of 14

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this 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

Cynthia M. Carter

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Angela N. Sanchez

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Mauricio Martinez,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

March 28, 2016

Court of Appeals Case No.

49A02-1506-PC-547

Appeal from the Marion Superior 

Court

The Honorable Marc T. 

Rothenberg, Judge

The Honorable Amy J. Barbar, 

Magistrate

Trial Court Cause No.

49G02-0810-PC-230416

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-PC-547 | March 28, 2016 Page 2 of 14

Case Summary

[1] Appellant-Petitioner Mauricio Martinez (“Martinez”) appeals the denial of his 

petition for post-conviction relief, following his convictions for Murder and 

Carrying a Handgun Without a License. We affirm.

Issues

[2] Martinez presents two issues for review:

I. Whether he was denied the effective assistance of trial 

counsel; and

II. Whether he was denied the effective assistance of appellate 

counsel.

Facts and Procedural History

[3] The relevant facts were recited by a panel of this Court on direct appeal, as 

follows:

In the early morning hours of August 17, 2008, Luis Velez 

(“Luis”) was drinking beer in an outside stairwell of the Eagle 

Terrace Apartment Complex (“Eagle Terrace”) in Indianapolis 

with his friend, Anjel Valazques-Luis, known as “Cowboy.” 

Several other people were present in the area, including a woman 

known as “Tee,” a man named Jose, whose nickname was 

“Mechanico,” and a prostitute who was known as “Cherry.” 

Cowboy was trying to arrange to “do business,” or to have sex 

with Cherry. Cherry was not interested in doing business with 

either Cowboy or his friend from across the street because of 

Cowboy’s drunken state.
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A dark colored Mitsubishi Eclipse carrying four people pulled up 

and parked nearby. Martinez exited the passenger side of the 

vehicle and began to talk to Cherry. Martinez and Cherry had 

done business two or three times over the past eight years, with 

the most recent being approximately three weeks prior. Martinez 

and Cherry were “talking business,” and Cowboy became 

increasingly upset, interrupting their conversation several times. 

Luis tried to diffuse the situation by calling Cowboy over to the 

stairwell to give him a beer and a cigarette to calm him. Cowboy 

only stayed with Luis for a few minutes, then went back to 

Martinez and Cherry. Luis could see the body language of 

Cowboy and Martinez getting more hostile, and Cherry moved 

away. The two men were within arm’s reach of each other. 

Martinez then shot Cowboy twice, once from close range, with 

the gun touching the abdomen, and again in the shoulder as 

Cowboy tried to flee across the street. Cowboy collapsed on the 

sidewalk, and everyone fled from the area. Cowboy died as a 

result of the shooting.

On October 8, 2008, Martinez was arrested and taken to the 

Indianapolis Metropolitan Police Department headquarters to be 

interviewed shortly after midnight. The interview was conducted 

by Detective Chris Minka and Officer Jesus Soria (“Officer 

Soria”), who acted as the interpreter, and was done almost 

entirely in Spanish. Martinez signed a waiver of rights form 

written in Spanish. Initially, Martinez denied ever being at Eagle 

Trace and denied ever seeing Cowboy. He denied having any 

friends and stated he only left his home to go to work to provide 

for his family. Eventually, Martinez claimed to have gone to 

Eagle Terrace to buy beer with his friend, Raleigh. Officer Soria 

tried to end the interview at one point, but Martinez indicated 

that he wanted to continue and told the officer that he had 

argued with Cowboy regarding where he and Raleigh parked and 

that Cowboy had pulled a gun on him. Martinez stated that, 

when he exited the apartment after purchasing the beer, Cowboy 

and others armed with machetes approached him. Martinez was 
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not entirely clear, but he told the officer that one of the men had 

a gun. He claimed that Raleigh threw him a handgun, and he 

fired two shots, hitting Cowboy from a distance of approximately 

eight feet. Martinez also stated that, although a prostitute was 

present, he and Cowboy were not fighting about her.

The State charged Martinez with murder and carrying a handgun 

without a license as a Class A misdemeanor.

Martinez v. State, No. 49A02-0910-CR-948, slip op. at 1-3 (Ind. Ct. App. May 

17, 2010) (record citations omitted). On September 1, 2009, a jury found 

Martinez guilty as charged. He was given an aggregate sentence of fifty years. 

Martinez appealed, raising a single issue challenging the evidentiary admission 

of his statement to police. His convictions were affirmed. Slip op. at 4. 

[4] On April 26, 2011, Martinez filed a pro-se motion for post-conviction relief, 

alleging that he had received ineffective assistance from his trial and appellate 

counsel. With the assistance of counsel, Martinez filed an amended petition. 

An evidentiary hearing was conducted on December 17, 2014. On May 11, 

2015, the post-conviction court issued findings of fact and conclusions of law 

and an order denying Martinez post-conviction relief. He now appeals.

Discussion and Decision

Standard of Review

[5] The petitioner in a post-conviction proceeding bears the burden of establishing 

the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction 
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Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing 

from the denial of post-conviction relief, the petitioner stands in the position of 

one appealing from a negative judgment. Id. On review, we will not reverse 

the judgment of the post-conviction court unless the evidence as a whole 

unerringly and unmistakably leads to a conclusion opposite that reached by the 

post-conviction court. Id. A post-conviction court’s findings and judgment will 

be reversed only upon a showing of clear error, that which leaves us with a 

definite and firm conviction that a mistake has been made. Id. In this review, 

findings of fact are accepted unless they are clearly erroneous and no deference 

is accorded to conclusions of law. Id. The post-conviction court is the sole 

judge of the weight of the evidence and the credibility of witnesses. Id.

Self-Defense

Effectiveness of Trial Counsel 

[6] Martinez contends he was denied the effective assistance of trial counsel in four 

respects: trial counsel (1) failed to tender an instruction on a lesser-included 

offense; (2) failed to conduct an adequate independent investigation; (3) failed 

to offer into evidence a toxicology report concerning the victim; and (4) 

proffered a discovery deposition in violation of Martinez’s Sixth Amendment 

right of confrontation. 

[7] Effectiveness of counsel is a mixed question of law and fact. Strickland v. 

Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims 

of ineffective assistance under the two-part test announced in Strickland. Id. To 
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prevail on an ineffective assistance of counsel claim, a defendant must 

demonstrate both deficient performance and resulting prejudice. Dobbins v. 

State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687). 

Deficient performance is that which falls below an objective standard of 

reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d 

1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that 

“there is a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different. A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.” 

Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind. 

1996). The two prongs of the Strickland test are separate and independent 

inquiries. Strickland, 466 U.S. at 697. 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.” Id.

[8] We “strongly presume” that counsel provided adequate assistance and 

exercised reasonable professional judgment in all significant decisions. McCary 

v. State, 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded 

considerable discretion in the choice of strategy and tactics. Timberlake v. State, 

753 N.E.2d 591, 603 (Ind. 2001). Counsel’s conduct is assessed based upon the 

facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d 

1258, 1261 (Ind. 1997). We do not “second-guess” strategic decisions requiring 

reasonable professional judgment even if the strategy in hindsight did not serve 

the defendant’s interests. Id. In sum, trial strategy is not subject to attack 
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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).

[9] Initially, Martinez complains that his trial counsel did not tender an instruction 

on a lesser-included offense such as voluntary manslaughter.1 At the postconviction hearing, trial counsel conceded that he did not offer any such 

instruction. He further explained:

If my memory is correct, because of [Martinez’s] statement, I 

think we were somewhat confined as to what our defenses were. 

So I don’t recall that we had any theories other than self defense.

(P.C.R. Tr. at 33.) According to Martinez, although an “all or nothing 

defense” of self-defense2is reasonable in some circumstances, his statement to 

 

1 Although he includes a reference to reckless homicide in his summary of the argument, Martinez does not 

address the propriety of a reckless homicide instruction in his actual argument.

[1] 2 Defense of self or others as an affirmative defense is established by Indiana Code Section 35-

41-3-2(c): “A person is justified in using reasonable force against any other person to protect 

the person or a third person from what the person reasonably believes to be the imminent use 

of unlawful force.”

To support a claim of self-defense, a defendant must have acted without 

fault, been in a place where he had a right to be, and been in reasonable fear 

or apprehension of bodily harm. Brewer v. State, 646 N.E.2d 1382, 1386 (Ind. 

1995). The defendant’s belief ... must be reasonable and in good faith, and 

his “reaction to that belief must be reasonable based upon the surrounding 

circumstances under which the events have occurred.” Geralds v. State, 647 

N.E.2d 369, 373 (Ind. Ct. App. 1995).
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police regarding an attack by armed men did not thus constrain trial counsel’s 

choice of tactics. (Appellant’s Br. at 10.) 

[10] The record of a bench conference outside the presence of the jury indicates that 

trial counsel briefly considered offering an instruction on some lesser-included 

offense. However, the trial court questioned what evidence would support the 

giving of such an instruction, and counsel ultimately did not proffer an 

instruction on a lesser-included offense. 

[11] Even now, Martinez does not identify a lesser-included offense instruction that 

would have had evidentiary support such that the trial court would have 

instructed the jury accordingly. He relies upon Wilson v. State, 697 N.E.2d 466, 

474 (Ind. 1998), to support his proposition that “an instruction on voluntary 

manslaughter is supported when there is evidence of sufficient provocation to 

induce passion that renders a reasonable person incapable of cool reflection.” 

(Appellant’s Br. at 17.) However, to the extent that Martinez develops an 

argument with regard to supporting evidence, he asserts only that the victim, 

who had undefined “body language” indicating that he was upset, “was 

instigating the argument” and Martinez was trying to ignore him. (Appellant’s 

Br. at 11, 13.) Martinez’s abbreviated argument ignores the well-settled law 

that words alone are insufficient provocation to provide evidence of sudden 

 

White v. State, 699 N.E.2d 630, 635 (Ind. 1998).
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heat. See Conner v. State, 829 N.E.2d 21, 24 (Ind. 2005) (“Sudden heat excludes 

malice, and neither mere words nor anger, without more, provide sufficient 

provocation.”) Martinez has not shown that a tendered instruction would have 

been given by the trial court or that it would have likely impacted the jury’s 

verdict. 

[12] Martinez also contends that his trial attorney failed to complete an appropriate 

investigation and secure appropriate witnesses. However, he fails to identify 

any witness that would have been uncovered by further investigation. Nor does 

he point to relevant evidence that would have surfaced with more diligent 

efforts on the part of trial counsel. He has not shown ineffectiveness in this 

regard. See Coleman v. State, 694 N.E.2d 269, 274 (Ind. 1998) (observing that 

the petitioner claiming inadequate consultation or investigation bears the 

burden of showing what additional information may have been garnered and 

how that additional information would have aided in the preparation of the 

case).

[13] According to Martinez, his trial attorney was ineffective for failing to offer into 

evidence a toxicology report that indicated the victim was intoxicated and had 

metabolites from cocaine and marijuana in his urine. Although the report was 

not formally admitted, Martinez has not shown prejudice from the omission. 

This is because the forensic pathologist who conducted the victim’s autopsy 

testified in detail regarding the results of the toxicology report. Dr. Michael 

Kenny testified that the victim was “under the influence of ethyl alcohol,” and 

had metabolites for cocaine and marijuana in his urine, but “was not currently 
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under the influence” of the drugs because they had already been filtered by the 

kidneys. (Tr. at 225.) He also acknowledged that the alcohol concentrations 

were .24 in the urine and .16 in the blood. 

[14] Martinez claims that his trial counsel performed deficiently when he introduced 

into evidence the defense deposition of Cheryl Sladovnik (a/k/a “Cherry”) in 

lieu of her live testimony. According to Martinez, he had a “right to look the 

witness in the eye” and the jury should have been provided with the 

“opportunity to gauge whether or not she was being truthful.” (Appellant’s Br. 

at 23.) 

[15] Although Sladovnik had been subpoenaed and the trial court had verbally 

explained her obligation to appear in court, she failed to appear and provide incourt testimony at Martinez’s trial. A bench warrant was issued for her arrest, 

and she was declared an unavailable witness. Defense counsel, who had 

conducted a pre-trial deposition, requested that Sladovnik’s (redacted) 

deposition testimony be read into evidence. Although Martinez now complains 

that the procedure deprived him of the full exercise of his rights of 

confrontation, Martinez does not now identify what additional relevant 

evidence might have been elicited upon further questioning. He merely implies 

– without citation to supporting authority – that his right of confrontation could 

not be exercised by counsel but could only be satisfied by a personal face-to-face 

encounter between himself and a witness. 
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[16] Nor does Martinez describe any prejudice ensuing from the admission of the 

redacted deposition testimony. In her deposition, Sladovnik testified that she 

had been conversing with Martinez prior to the shooting, but she left. 

According to Sladovnik, the victim had been holding a bottle of tequila, he was 

intoxicated, and he liked to “talk crack” or threaten to get his friends to assist 

him. (Tr. at 410.) In other words, Sladovnik offered corroboration that the 

victim was belligerent and confrontational, tending to support Martinez’s claim 

of fearfulness. 

[17] Finally, Martinez argues that he is entitled to a new trial because of cumulative 

deficiencies on the part of trial counsel. Our review of counsel’s performance 

leads to the conclusion that the jury’s rejection of the self-defense theory was 

not due to an inadequacy on the part of counsel. Trial counsel was placed in a 

very difficult position by Martinez’s admission that he remained at a distance 

from Valazques-Ruiz, but was eventually compelled to shoot him because of 

threats presented by the victim and his machete or knife-wielding friends. The 

trial witnesses and the physical evidence did not support that version of events. 

No weapon was recovered from the victim, who had endured multiple 

gunshots: one a contact shot to the abdomen and a second to the shoulder. No 

witness indicated that any person other than Martinez had been armed.

[18] Trial counsel attempted to have Martinez’s statement excluded. When that 

strategy was unsuccessful, he elicited evidence that the victim had been 

drunken, intimidating, and aggressive. Trial counsel’s efforts and strategy, 

although they did not ultimately achieve the result desired by Martinez, were 
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not so unreasonable as to constitute ineffective assistance of counsel. See Badelle 

v. State, 754 N.E.2d 510, 539 (Ind. Ct. App. 2001) (deciding in relevant part 

that, when trial counsel’s efforts were “more than adequate” to support a 

chosen defense, counsel’s decision not to seek out additional witnesses was a 

judgment call within the wide range of reasonable assistance), trans. denied.

Effectiveness of Appellate Counsel

[19] A defendant is entitled to the effective assistance of appellate counsel. Stevens v. 

State, 770 N.E.2d 739, 760 (Ind. 2002). The two-pronged standard for 

evaluating the assistance of trial counsel first enunciated in Strickland is 

applicable to appellate counsel ineffective assistance claims. Bieghler v. State, 

690 N.E.2d 188, 192 (Ind. 1997). There are three basic categories of alleged 

appellate ineffectiveness: (1) denying access to an appeal, (2) waiver of issues, 

and (3) failure to present issues well. Id. at 193-95. Here, the second category is 

implicated, as Martinez argues that appellate counsel failed to raise two obvious 

issues: Martinez’s absence at a critical stage of trial and the shortcomings of the 

discovery deposition.

[20] The decision of what issue or issues to raise on appeal is one of the most 

important strategic decisions to be made by appellate counsel. Id. at 193. 

Ineffectiveness is rarely found when the issue is the failure to raise a claim on 

direct appeal. Id. The petitioner must show from the information available in 

the trial record or otherwise known to appellate counsel that counsel failed to 
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present a significant and obvious issue and that this failure cannot be explained 

by any reasonable strategy. Stevens v. State, 770 N.E.2d at 760.

[21] Martinez suggests that appellate counsel should have claimed fundamental 

error occurred because Martinez was absent from the courtroom for a bathroom 

break at a critical stage of the trial. The brief discussion between counsel and 

the trial court regarding the possible proffer of a lesser-included offense 

instruction took place during the bathroom break. Then, as now, Martinez was 

lacking the evidentiary support for such an instruction. We do not agree with 

Martinez that his absence amounts to a denial of due process, much less 

fundamental error that should have been raised on appeal.

3

 See United States v. 

Gagnon, 470 U.S. 522, 526 (1985) (clarifying that “the presence of a defendant is 

a condition of due process to the extent that a fair and just hearing would be 

thwarted by his absence, and to that extent only.”)

[22] Additionally, Martinez contends that his appellate counsel should have claimed 

that the admission of Sladovnik’s deposition deprived Martinez of his right of 

confrontation. As previously observed, Sladovnik was unavailable at trial, she 

had been deposed by defense counsel, and no omitted question was later 

identified. Martinez has not shown that appellate counsel omitted a significant 

and obvious issue. 

 

3

Fundamental error is that which is a clear and blatant violation of basic and elementary principles that 

would deny a defendant fundamental due process if left uncorrected. Cain v. State, 955 N.E.2d 714, 721 (Ind. 

2011).
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Conclusion

[23] Martinez was not denied the effective assistance of trial or appellate counsel. 

The post-conviction court properly denied the petition for post-conviction relief. 

[24] Affirmed. 

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