Court of Appeals of Indiana | Memorandum Decision 18A

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- 2503 | January 15, 2020 Page 1 of 13 

### 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.
A PPELLANT P RO S E Pedro Vicente Westville Correctional Facility Carlisle, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana


### IN THE 

# COURT OF APPEALS OF INDIANA

Pedro Vicente , Appellant

- Petitioner , v. 

### State of Indiana , Appellee

- Respondent January 15, 2020 Court of Appeals Ca se No. 18A

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- 2503 Appeal from the Clinton Circuit Court The Honorable Bradley K. Mohler, Judge Trial Court Cause No. 12C01

- 1505

- PC

- 436

Crone , Judge .Court of Appeals of Indiana | Memorandum Decision 18A

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- 2503 | January 15, 2020 Page 2 of 13 

### Case Summary
[1] Pedro Vicente, pro se, appeals the denial of his petition for post

- conviction relief (“PCR”). He asserts that the post

- conviction court abused its discretion in excluding evidence and in not offering him the option of presenting his evidence by affidavit; that he was deprived of due process because the State failed to prove all elements of his crime beyond a reasonable doubt; that the post
- conviction court clearly erred in determining that he failed t o demonstrate that he received the ineffective assistance of trial counsel; and that he received ineffective assistance of appellate counsel. Finding either that he failed to show the alleged error or that he waived his claim of error, we affirm. 

### Facts an d Procedural History
[2] In March 2012, nine

- year old J.M. lived with her mother (“Mother”) , her grandmother (“Grandmother”) , and Vi c ente , who was Mother’s boyfriend

. J.M. is profoundly disable d . She has cerebral palsy and epilepsy and is unable to eat, walk , or care for herself

. She communicates only nonverbally , such as smiling, eye contact, and raising her arms. Mother and Grandmother are her pri mary caregivers. Vicente also helped care for J.M.

[3] On March 2, 2012, via monitor, Mother observed Vicente change J.M

. ’s diaper. At one point, Mother saw Vicente jerk his hand away from between J.M.’s legs. Mother later noticed a small tear to the outside of J.M.’s vagina . However, Mother was not alarmed because she believed that Vicente had caused it byCourt of Appeals of Indiana | Memorandum Decision 18A

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- 2503 | January 15, 2020 Page 3 of 13 accidentally scrap ing J.M. with his fingernail. During the next few days, Mother noticed a slow trickle of blood from J.M.’s vaginal area.

[4] On March 7, 2010, about 5:30 p.m., Vicente came home from work. Mother and Grandmother decided to go to the grocery store. Before leaving, Mother changed J.M.’s diaper and observed that, o ther than the small injury noted earlier, J.M. was fine. Mother and Grandmother left between 6:00 and 6:30 p.m. Vicente remained home with J.M. He was sitting on the couch when Mother and Grandmother left ; this was the only time that day that anyone was home alone with J.M. Mother and Grandmother returned home between 7:30 and 7:45 p.m. Vicente was sitting on the couch

.
[5] Around 10:00 p.m., Mother changed J.M.’s di aper. Mother screamed when she discovered that J.M.’s diaper was filled with blood and a blood clot several inches long. Grandmother called 911 , and J.M. was taken by ambulance to the hospital. On the way to the hospital, Vicente kept telling Mother , “I ’m sorry [,] ” and , “I told you I didn’t mean to hurt her.” Trial Tr. Vol. 1 at 2 1 1

.
[6] At the hospital , J.M. was examined by d octors and a forensic nurse. J.M. had two tears to her vagina , both requir ing sti t ches . Doctors believed that such tears were caused by the penetration of J.M.’s vagina by blunt force trauma. Given that J.M. had arterial bleeding, J.M

. ’s injuries could not have occurred days earlier but must have occurred shortly before Mother changed J.M

. ’s diaper around 10:00 p.m. Dr. Roberta Hibbard testified at trial that she could notCourt of Appeals of Indiana | Memorandum Decision 18A

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- 2503 | January 15, 2020 Page 4 of 13 “give you a five minutes, ten min utes, yes, but it’s not days. It’s a matter of minutes to you know, an hour or so probably.” Trial Tr. Vol. 2 at 352.

[7] The State charg ed Vicente with class A felony child molesting

. At his trial, Vicente was represented by attorney Jeffr e y Little. At the close of the State’s evidence, Little moved for a directed verdict, arguing that the State had not produced sufficient evidence to show that Vicente was responsible for J.M.’s injuries or how her injuries were sustained. Id

. at 420

. The trial court denied the motion. The jury found Vicente guilty as charged . The trial court sentenced him to forty

- five years in the Indiana Department of Correction.

[8] Vicente , represented by an attorney , appealed his conviction

. Vicente v. State , No. 12A04

- 1403

- CR

- 133 , 2014 WL 6977925 (Ind. Ct. App. Dec. 10, 2014) , trans. denied (2015)

. In his direct appeal, Vicente argu ed that the trial court committed revers i ble error in denying Vicente’s for

- cause juror challenges and in instructing the jury

. Another panel of this Court concluded that Vicente failed to show that he was prejudiced by the denial of his juror challenges and that the tri al court did not abuse its discretion in instructing the jury

. Id

. at * 7

. Vicente’s conviction was affirmed, and his petition for transfer was denied.

[9] In April 2015, Vicente , pro se , filed a PCR petition, alleging that his trial counsel and appellate counsel were ineffective and stating that he would develop support for his allegations in an amended petition. PCR App . Vol. 2 at 17. In May 2017, Vicente amended his PCR petition to allege tha t his trial
cou nsel was ineffective in failing to investigate and provide a meaningfulCourt of Appeals of Indiana | Memorandum Decision 18A

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- 2503 | January 15, 2020 Page 5 of 13 defense , and that if trial counsel had investigated , counsel would have found that forensic evidence established that J.M. was not in his ca r e when the alleged molestati on occurred

. Id . at 23. His amended PCR petition did not address his initi al allegation regardin g ineffective assistance of appellate counsel.

[10] In August 2018, the post

- conviction court held an evidentiary hearing on Vicente’s PCR petition. During the hearing, Vicente was assisted by a translator. Vicente called trial counsel Little to testify. Before beginning direct examination , Vicente proff er ed fifteen pages of the trial transcript as exhibit 1. The State objected that Vicente had not provided the State with any exhibits , despite having been ordered to prov i de any exhibits thirty days prior to the hearing. The post
- conviction court decline d to admit Vicente’s exhibit but indicated that it would reconsider if trial counsel was unable to recall the trial

. PC R Tr. at 5. During his direct examination of attorney Little, Vicente repeatedly attempted to ask about the evidence at trial that he s aid would show his innocence. The State repeatedly objected to Vicente’s attempts to have attorney Little comment on the evidence . The post

- conviction court sustained the State’s objection s and explained to Vicente the purpose of the hearing more than once . For example, the post

- co nviction court told Vicente,
What

– what you need to

– Mr. Viciente [sic] . What you’re trying to do with a post

- conviction relief is to show either that Mr. Little didn’t do what you think he was supposed to or t hat the Court made a mistake at some point. This is not a new trial. I’m not evaluating the evidence. I’m not second

- guessing what the jury did. Your job is to outline or ask questions about anything where you think a mistake was made either by theCourt of Appeals of Indiana | Memorandum Decision 18A

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- 2503 | January 15, 2020 Page 6 of 13 Court o r by the attorney. But, this [is] not me re
- evaluating the evidence.

.... If you think a mistake was made during the trial then we can talk about that. This is not

– you have to focus on what was done during the trial.
PCR Tr. Vol. 2 at 6

- 7 ; see also id . at 9 ( “Now for what you have to go through today is to try to say, again what Mr. Little did or did not do.”)

. To help Vicente ask the appropriate questions, the post

- conviction court asked him to state in his own words what attorney Little did or did not do that was ineffective. V icente thought that perhaps there were questions that attorney Little failed to ask of witness es , and the post

- conviction court suggested that Vicente ask attorney Little about questions to witness es . However, Vicente continued to refer to the trial evidence.

[11] At one point, t he post

- conviction court said to V icente , “If you h ave a question about what he did or did not do that you wanna ask him I’ll give you that chance. Otherwise I’m gonna let him step down because all you’re doing is wanting to re

- hash evidence that the jury looked at.” Id. at 10. Vicente questioned attorney Little about the evidence the State had used to support the child molestation charge against him. After allowing attorney Little to respond, the post

- conviction court told Vicente that it would give Vicente one last opportunity for questions about attorney Little’s representation. Id . at 13. Vicente responded that all his questions were similar to questions he hadCourt of Appeals of Indiana | Memorandum Decision 18A

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- 2503 | January 15, 2020 Page 7 of 13 already asked and that he would wait for another occasion

. T he post

conviction court allow ed attorney Little to step dow n and explained to Vicente that there was not going to be another hearing. The post
- conviction court again asked Vicente if he would like to state in his own words why he believed attorney Little did not do a good job

. Id

. Vicente told the post
- conviction court that he believed that attor ney Little failed by not bring ing to the jury’s attention that one of the doctors had testified that J.M’s injury was caused about an hour before it was discovered , at th e time Mother and Grandmother had control over J.M. , and his accidental fingernail scraping of J.M. had occurred two days earlier. Id . at 13

- 14. The post

- conviction court took the matter under advisement and subsequently issued findings of fact and conclu sions of law , denying Vicente’s petition. Vicente filed an objection and request for rehearing , which the post

- conviction court also denied. This appeal ensued. 

### Discussion and Decision
[12] Initially , we note that Vicente has chosen to proceed pro se. It is well settled that pro se litigants are held to the same legal standards as licensed attorneys. Lowrance v. State , 64 N. E.3d 935, 938 (Ind. Ct. App. 2016) , trans. denied (2017). This means that they must follow our established rules of procedure and accept the consequences when they fail to do so. Id

.
[13] The a ppellate standard of review regarding post

- conviction proceedings is well settled.Court of Appeals of Indiana | Memorandum Decision 18A

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- 2503 | January 15, 2020 Page 8 of 13 Post

- conviction proceedings are civil proceedings in which the defendant must establish his claims by a preponderance of the evidence. Post

- conviction proceedings do not o ffer a super appeal, rather, subsequent collateral challenges to convictions must be based on grounds enumerated in the post

- conviction rules. Those grounds are limited to issues that were not known at the time of the original trial or that were not avail able on direct appeal. Issues available but not raised on direct appeal are waived, while issues litigated adversely to the defendant are res judicata. Claims of ineffective assistance of counsel and juror misconduct may be proper grounds for post

- convic tion proceedings. Because the defendant is appealing from the denial of post

conviction relief, he is appealing from a negative judgment and bears the burden of proof. Thus, the defendant must establish that the evidence, as a whole, unmistakably and uner ringly points to a conclusion contrary to the post

- conviction court’s decision. In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did. We review the post

- con viction court’s factual findings for clear error, but do not defer to its conclusions of law.
Wilkes v. State , 984 N.E.2d 1236, 1240 (Ind. 2013) (citations and quotation marks omitted). We will not reweigh the evidence or judge the credibility of witnesses and will consider only the probative evidence and reasonable inferences flowing therefrom that support the pos t
- conviction court’s decision. Hinesley v. State , 999 N.E.2d 975, 981 (Ind. Ct. App. 2013), trans. denied (2014).Court of Appeals of Indiana | Memorandum Decision 18A

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### Secti on 1

– The post - conviction court did not abuse i t s discretion in excluding evidence . [14] Vicente argues that the post
- conviction court erred by not p ermitting him to refer to trial evidence. As with a trial court, a post
- conviction court has broad discretion in ruling on the admissibility of evidence, and we will reverse a post

conviction court ’ s ruling only for an abuse of that discretion. Truax v. State , 856 N.E.2d 116, 124 (Ind. Ct. App. 2006)

. An abuse of discretion occurs when the court’s ruling is clearly against the logic and effect of the facts and circumstances before it

. Id

.
[15] Vicente contends that trial evidence was admissible because the “purpose for having an evidentiary hear ing in this case, was to make a record of facts/evidence from the trial, that [ Vicente ] needed to show, that attorney Little was ineffective as trial counsel.” Appellant’s Br. at 12 (emphas e s omitted). Vicente appears to claim that it was necessary to se t forth the trial evidence to show that trial counsel was ineffective. While trial evidence might be relevant to establishing prejudice resulting from some types of ineffective assistance, Vicente ignores that the first step in establishing ineffective ass istance focuses on trial counsel’s performance. See Humphrey v. State , 73 N.E.3d 677, 682 (Ind. 2017) ( explaining t hat to show ineffective assistance of counsel , d efendant must first show deficient performance and then prejudice resulting from counsel’s unprofessional errors ). P erformance includes conduct such as failure to investigate, file motions, cross - examine witnesses , object to evidence , etc. Here, the post
- conviction court explained several times to Vicente that heCourt of Appeals of Indiana | Memorandum Decision 18A

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- 2503 | January 15, 2020 Page 10 of 13 needed to ask trial counsel what he did or did not do to show that counsel made a mistake . However , Vicente appeared not to have any q uestions as to what trial counsel did or did not do at trial

. Therefore, we cannot say that the trial court abused its discretion in excluding evidence

.



### Section 2

– The post - conviction court did not err by failing to

offer Vicente the option of submit ting his PCR evidence by affidavit.
[16] Vicente contends that the post
- conviction court erred by not allowing Vicente to submit his PCR evidence by affidavit when the court knew there was a serious language barrier. We observe that at the PCR hearing, Vicente had a translator to assist him and never indicated to the court that he was unable to understand the court or the w itness. In addition, Vicente never requested to submit his evidence by affidavit. We find no error here

.



### Section 3

– Vicente ’s due process argument is a sufficiency of the evidence argument that is unavailable in post - conviction proceedings . [17] Vicente asserts that he was denied due process because the State failed to prove every element of the crime beyond a reasonable doubt. Hi s argument a mounts to a claim of insufficient evidence

. As p reviously noted, p ost
- conv iction proceedings are not a substitute for a direct appeal from a conviction

. Ind

. Post

- C onviction R ule 1 (b)

. “ Issues that were available, but not presented, on direct appeal are forfeited on post

- conviction review. ” Ben

- Yisrayl v. State , 738 N.E.2d 253, 258 (Ind. 2000) , cert. denied (2002)

. Whether the evidence wasCourt of Appeals of Indiana | Memorandum Decision 18A

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- 2503 | January 15, 2020 Page 11 of 13 sufficient to sup port his conviction was an issue available for direct appeal, but it was not raised

. It is not now available for consideration in post

- conviction proceed ing s . Accordingly, we will not address the issue

. 

### Section 4

– The post - conviction court did not clearly err in finding that Vicente failed to show that his trial counsel ’s assistance was ineffective.
[18] W hen evaluating an ineffective assistance of counsel claim, we apply the two

part test articulated in Strickland v. Washington , 466 U.S. 668 (1984)

. Humphrey , 73 N.E.3d at 682 . “To satisfy the first prong, ‘the defendant must show deficient performance: 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) ). To satisfy the second prong, the defendant must show prejudice. Id

. To demonstrate prejudice from counsel’s deficient performance, a petitioner need only show “a reasonable probability tha t, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Middleton v. State , 72 N.E.3d 891, 891

- 92 (Ind. 2017) (emphasis and citation omitted). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id

.
[19] Isolated poor stra tegy, inexperience, or bad tactics does not necessarily constitute ineffective assistance. Hinesley , 999 N.E.2d at 982 . When considering a claim of ineffective assistance of counsel, we strongly presume “that counsel rendered adequate assistance and made all significant decisions inCourt of Appeals of Indiana | Memorandum Decision 18A

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- 2503 | January 15, 2020 Page 12 of 13 the exercise of reasonable professional judgment.” Id

. (citation omitted). We presume that counsel performed effectively, and a defendant must offer strong and convincing evidence to overcome this presumption. Id

.
[20] Vicente contends that his trial counsel provided ineffective assistance in failing to move for a directed verdict based on the State ’s failure to prove the elements of child molesting beyond a reasonable doubt. However, h e did not present this contenti on to the post

- conviction court. Post

- conviction claims that were not presented to the post

- conviction court are not available for appellate review. Walker v. State , 843 N.E.2d 50, 57 (Ind. Ct. App. 2006) , trans. denied ; see also Ric hardson v. State , 800 N.E.2d 639, 647 n.4 (Ind. Ct. App. 2003) (holding that petitioner waived claim because it was not presented to post

- conviction court), trans. denied (2004). At any rate, Vicente’s trial attorney moved for a directed verdic t, and t herefore cannot be deemed ineffective for failing to do so.

[21] To the extent that Vicente may be arguing that trial counsel was ineffective because counsel failed to pursue evidence at trial that proved Vicente’s innocence, we note that at the PCR hearing Vicente presented no evidence regarding what trial counsel did or did not do . As such, Vicente has not met his burden to show that the post

- conviction court clearly erred in determining tha t he failed to demonstrate that he received ineffective assistance of trial counsel.Court of Appeals of Indiana | Memorandum Decision 18A

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### Section 5

– Vicente waived his claim that his appellate counsel provided ineffective assistance.
[22] Vicente also claims that his appellate counsel provided ineffective as sistance by failing to consult with him before filing a brief on his behalf in his direct appeal. Vicente claimed ineffective assistance of appellate counsel in his original PCR petition, but he never alleged facts in support there of or even indicated in what respect appellate counsel was ineffective. A t the PCR hearing, Vicente presented no evidence, witnesses, or argument pertaining to appellate counsel. Therefore, Vicente has waived t his claim. See Walker , 843 N.E.2d at 57

.
[23] Based on the foregoing , we affirm the denial of Vicente’s petition for post

conviction relief.

[24] Affirmed.
May, J., and Pyle, J., concur.