Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-893 | February 22, 2016 Page 1 of 9

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

Mark A. Bates

Schererville, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

James B. Martin

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Manuel Ocasio, Jr.,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

February 22, 2016

Court of Appeals Case No.

45A03-1507-CR-893

Appeal from the Lake Superior 

Court

The Honorable Jesse M. 

Villalpando, Judge

Trial Court Cause No.

45D12-1204-CM-419

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1507-CR-893 | February 22, 2016 Page 2 of 9

Case Summary and Issues

[1] Manuel Ocasio, Jr., appeals the denial of his petition for post-conviction relief, 

raising the following restated issue: whether Ocasio received ineffective 

assistance of trial counsel. Concluding Ocasio did not receive ineffective 

assistance of counsel, we affirm.

Facts and Procedural History

[2] On April 20, 2012, Ocasio was charged with resisting law enforcement, a Class 

A misdemeanor; battery on a law enforcement officer, a Class A misdemeanor; 

failure to yield to an emergency vehicle, an infraction; and operating a truck in 

a restricted lane, an infraction. A jury trial was held on August 9, 2013. The 

jury found Ocasio guilty of resisting law enforcement and not guilty of the 

remaining charges. The trial court declined to enter judgment of conviction, 

however, because it realized the jury was not instructed on the elements of each 

offense.

[3] During a brief recess, Ocasio agreed to plead guilty to resisting law enforcement 

under the terms of a plea agreement the State offered prior to trial. The plea 

agreement provided Ocasio would plead guilty to resisting law enforcement in 

exchange for the State dismissing the remaining charges, and that Ocasio would 

serve 365 days suspended to probation. Ocasio signed the plea agreement and a 

waiver of rights form, and the parties stipulated that the facts recited in the 

probable cause affidavits provided a sufficient factual basis for the guilty plea. 
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The trial court accepted the plea and entered judgment of conviction for 

resisting law enforcement. 

[4] On October 30, 2014, Ocasio filed a petition for post-conviction relief. 

Following an evidentiary hearing, the post-conviction court denied Ocasio’s 

petition. This appeal followed.

Discussion and Decision

I. Standard of Review

[5] Post-conviction proceedings “provide a narrow remedy to raise issues that were 

not known at the time of the original trial or were unavailable on direct 

appeal.” Garrett v. State, 992 N.E.2d 710, 718 (Ind. 2013). The petitioner bears 

the burden of establishing grounds for relief by a preponderance of the 

evidence. Ind. Post-Conviction Rule 1(5). A petitioner who is denied postconviction relief appeals from a negative judgment, which may be reversed only 

if “the evidence, as a whole, unmistakably and unerringly points to a 

conclusion contrary to the post-conviction court’s decision.” Wilkes v. State, 984 

N.E.2d 1236, 1240 (Ind. 2013) (citation omitted). 

[6] In reviewing a denial of post-conviction relief, we neither reweigh the evidence 

nor assess the credibility of witnesses. State v. Holmes, 728 N.E.2d 164, 169 

(Ind. 2000), cert. denied, 532 U.S. 1067 (2001). We consider only the evidence 

that supports the judgment and the reasonable inferences to be drawn from that 

evidence. Id. We accept the post-conviction court’s factual findings unless 
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clearly erroneous, but we do not defer to its legal conclusions. Stevens v. State, 

770 N.E.2d 739, 746 (Ind. 2002) (citing Ind. Trial Rule 52(A)), cert. denied, 540 

U.S. 830 (2003). 

II. Ineffective Assistance of Counsel

[7] Ocasio contends the post-conviction court erred in denying his petition for postconviction relief, which alleged he received ineffective assistance of trial 

counsel. The Sixth Amendment “right to counsel is the right to the effective 

assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) 

(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish a 

claim of ineffective assistance of counsel, a petitioner must demonstrate (1) 

counsel’s performance was deficient, and (2) the deficient performance 

prejudiced the defense. Id. at 687. Counsel’s performance was deficient if it fell 

below an objective standard of reasonableness based on prevailing professional 

norms. Id. at 688. 

[8] As for the prejudice prong, there are two types of ineffective assistance claims 

available to a defendant who pleaded guilty: “(1) failure to advise the 

defendant on an issue that impairs or overlooks a defense and (2) an incorrect 

advisement of penal consequences.” Manzano v. State, 12 N.E.3d 321, 326 (Ind. 

Ct. App. 2014) (citation omitted), trans. denied, cert. denied, 135 S. Ct. 2376 

(2015). Where a petitioner claims counsel provided incorrect advice regarding 

penal consequences, the petitioner must show “a reasonable probability that the 
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hypothetical reasonable defendant would have elected to go to trial if properly 

advised.” Segura v. State, 749 N.E.2d 496, 507 (Ind. 2001). 

[9] Ocasio argues counsel rendered ineffective assistance by (1) providing incorrect 

legal advice regarding whether Ocasio could be retried on all the charges if he 

did not plead guilty, and (2) stipulating that the facts recited in the probable 

cause affidavits constituted a sufficient factual basis for the charge of resisting 

law enforcement.1 

[10] At the hearing on Ocasio’s petition for post-conviction relief, several witnesses 

testified counsel advised Ocasio that he would be retried on all the charges if he 

did not plead guilty. Ocasio contends this advice was erroneous because double 

jeopardy precluded retrial on the battery charge and the infractions. He further 

contends he would have elected to go to trial if he had been properly advised. 

Indiana Code section 35-41-4-3(a) provides in relevant part, 

A prosecution is barred if there was a former prosecution of the 

defendant based on the same facts and for commission of the 

same offense and if:

(1) the former prosecution resulted in an acquittal or a 

conviction of the defendant . . . ; or

(2) the former prosecution was terminated after the jury 

 

1 Ocasio also argues counsel was ineffective by failing to recognize that the trial court did not advise Ocasio 

of the penalty range for each charge. See Ind. Code § 35-35-1-2(a)(3) (“The court shall not accept a plea of 

guilty . . . without first determining that the defendant . . . has been informed of the maximum possible 

sentence and minimum sentence for the crime charged . . . .”). This claim is unavailable, however, because 

Ocasio did not raise the issue in his petition for post-conviction relief. P-C.R. 1(8) (stating all grounds for 

relief must be raised in the original petition for post-conviction relief); Allen v. State, 749 N.E.2d 1158, 1171 

(Ind. 2001) (“Issues not raised in the petition for post-conviction relief may not be raised for the first time on 

post-conviction appeal.”), cert. denied, 535 U.S. 1061 (2002).
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was impaneled and sworn . . . unless . . . (iii) there was a 

legal defect in the proceedings that would make any 

judgment entered upon a verdict reversible as a matter of 

law . . . .

[11] Here, the trial court declined to enter judgment of conviction because the trial 

court realized the jury was not instructed on the elements of each offense. As 

we have previously stated, 

[T]he giving of an instruction detailing the elements of [the] 

offense . . . is necessary procedure in a criminal trial. [W]e have 

no doubt a total failure to give an instruction detailing the 

elements of the offense would be available as reversible error on 

appeal absent compliance with the contemporaneous objection 

requirement.

Taylor v. State, 922 N.E.2d 710, 718 (Ind. Ct. App. 2010) (emphasis omitted) 

(quoting Lacy v. State, 438 N.E.2d 968, 971 (Ind. 1982)), trans. denied. Although 

jeopardy typically attaches once the jury is impaneled and sworn, the grave 

omission in this case constituted “a legal defect in the proceedings that would 

make any judgment entered upon a verdict reversible as a matter of law . . . .” 

Ind. Code § 35-41-4-3(a)(2). As a result, the State could have retried Ocasio on 

all the charges. Because counsel did not provide incorrect legal advice in this 

regard, the post-conviction court properly denied relief on this claim.

[12] As to the factual basis for the resisting law enforcement charge, the record 

includes two probable cause affidavits. A document titled “Information” 

includes the following account,
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[W]hile on regular patrol I observed a white 2001 freightliner 

south bound I-65 in the left lane . . . with no vehicles in the right 

lane. I pulled out of the crossover and caught up to the vehicle 

. . . and activated my emergency lights. The driver continued 

south on 65 at normal highway speed and turned on his right 

signal. Still not yielding, at the beginning of the south bound 

scale ramp I activated my siren and pulled next to the cab. The 

driver then pulled to the outer berm and finally came to a stop. I 

approached the driver’s door and climb[ed] up. Initially the 

driver wanted to argue, then somewhat cooperated by presenting 

his Indiana CDL, then refused to cooperate anymore and called 

911. I stepped down from the truck instructing the driver to step 

out and he attempted to close the door. I stopped the door from 

closing and I climbed back up onto the driver’s side and the 

driver turned in towards the sleeper and began reaching towards 

the back. I ordered him to turn around and show me his hands; 

he refused. I again ordered him to turn around and show me his 

hands[. A]s I attempted to turn . . . to see his hands . . . he threw 

his shoulder back and went further into the sleeper. I 

immediately followed. The driver began throwing left elbows 

striking me in the head and I disengaged while he went deeper 

into his sleeper berth as I ordered him out again. I pulled my 

chemical agent, aimed for his face, and sprayed. He immediately 

began thrashing around the truck, came back to the drivers area 

and attempted to close the door with me in between the door and 

door jam. I again ordered him out of the truck and sprayed again 

as he swung and kicked towards me. [Another officer] arrived on 

scene and the driver finally exited the truck and became 

combative again as we attempted to handcuff him. 

Appendix at 11. A document titled “Probable Cause Affidavit” alleges Ocasio 

“resisted, obstructed, or interfered by refusing to comply with orders to exit the 

truck, attempt[ing] to lock himself in his cab, and attempt[ing] to retreat into his 

sleeper berth . . . .” Id. at 12.
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[13] We conclude the facts recited in the probable cause affidavits provided a 

sufficient factual basis for the guilty plea. Indiana Code section 35-44-3-3(a)(1) 

(2011) provides, “A person who knowingly or intentionally . . . forcibly resists, 

obstructs, or interferes with a law enforcement officer . . . while the officer is 

lawfully engaged in the execution of the officer’s duties . . . commits resisting 

law enforcement . . . .” In this case, the probable cause affidavits state Ocasio 

argued with the officer, refused to comply with the officer’s orders to exit the

lawfully stopped vehicle, attempted to lock himself in the truck cab, elbowed 

the officer, continued to flail after the officer sprayed a chemical agent, and then 

fought being handcuffed. These facts comprise a sufficient factual basis for the 

charge of resisting law enforcement. See, e.g., Johnson v. State, 833 N.E.2d 516, 

516-17 (Ind. Ct. App. 2005) (holding a defendant who complied with an 

officer’s order to exit his vehicle and then allowed the officer to handcuff him 

forcibly resisted by “push[ing] away with his shoulders while cursing and 

yelling” when the officer attempted to search him and by “stiffen[ing] up” when 

the officer attempted to place him into a police vehicle).2 Accordingly, counsel 

was not ineffective by stipulating to the factual basis, and the post-conviction 

court properly denied relief on this claim.

 

2 Ocasio contends any of the facts that may have supported a conviction for battery on a law enforcement 

officer cannot be considered because the jury found Ocasio not guilty on that charge. Given our conclusion 

that jeopardy did not attach during the trial, we disagree.
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Conclusion

[14] Ocasio did not receive ineffective assistance of trial counsel. We therefore 

affirm the post-conviction court’s denial of post-conviction relief.

[15] Affirmed.

Barnes, J., and Altice, J., concur.