Court of Appeals of Indiana | Memorandum Decision 18A-PC-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.

APPELLANT PRO SE

Pedro Vicente

Westville Correctional Facility

Carlisle, Indiana

ATTORNEYS FOR APPELLEE

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 Case No.

18A-PC-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-PC-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 to 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 and Procedural History

[2] In March 2012, nine-year old J.M. lived with her mother (“Mother”), her 

grandmother (“Grandmother”), and Vicente, who was Mother’s boyfriend. 

J.M. is profoundly disabled. 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 

primary 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 by
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accidentally scraping 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, other 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 diaper. 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 211.

[6] At the hospital, J.M. was examined by doctors and a forensic nurse. J.M. had 

two tears to her vagina, both requiring stitches. 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 not 
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“give you a five minutes, ten minutes, 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 charged Vicente with class A felony child molesting. At his trial, 

Vicente was represented by attorney Jeffrey 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 argued that the trial court 

committed reversible 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 trial 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 that his trial 

counsel was ineffective in failing to investigate and provide a meaningful 
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defense, and that if trial counsel had investigated, counsel would have found 

that forensic evidence established that J.M. was not in his care when the alleged 

molestation occurred. Id. at 23. His amended PCR petition did not address his 

initial allegation regarding 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 proffered 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 provide any exhibits thirty days prior to the 

hearing. The post-conviction court declined to admit Vicente’s exhibit but 

indicated that it would reconsider if trial counsel was unable to recall the trial. 

PCR Tr. at 5. During his direct examination of attorney Little, Vicente 

repeatedly attempted to ask about the evidence at trial that he said 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 objections and explained to Vicente the purpose of the hearing more 

than once. For example, the post-conviction 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 that 

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 the 
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Court or 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. Vicente thought that perhaps there were questions that attorney 

Little failed to ask of witnesses, and the post-conviction court suggested that 

Vicente ask attorney Little about questions to witnesses. However, Vicente 

continued to refer to the trial evidence.

[11] At one point, the post-conviction court said to Vicente, “If you have 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 had 
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already asked and that he would wait for another occasion. The postconviction court allowed attorney Little to step down 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 attorney Little failed by not bringing 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 the 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 conclusions 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 appellate standard of review regarding post-conviction proceedings is well 

settled. 
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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 offer 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 available 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-conviction 

proceedings.

Because the defendant is appealing from the denial of postconviction 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 unerringly 

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-conviction 

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 post-conviction court’s decision. 

Hinesley v. State, 999 N.E.2d 975, 981 (Ind. Ct. App. 2013), trans. denied (2014).
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Section 1 – The post-conviction court did not abuse its 

discretion in excluding evidence.

[14] Vicente argues that the post-conviction court erred by not permitting 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 postconviction 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 hearing 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 (emphases omitted). 

Vicente appears to claim that it was necessary to set 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 assistance focuses 

on trial counsel’s performance. See Humphrey v. State, 73 N.E.3d 677, 682 (Ind. 

2017) (explaining that to show ineffective assistance of counsel, defendant must 

first show deficient performance and then prejudice resulting from counsel’s 

unprofessional errors). Performance 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 he 
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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 questions 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 submitting 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 witness. 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. His argument amounts 

to a claim of insufficient evidence. As previously noted, post-conviction 

proceedings are not a substitute for a direct appeal from a conviction. Ind.

Post-Conviction Rule 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 was 
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sufficient to support his conviction was an issue available for direct appeal, but 

it was not raised. It is not now available for consideration in post-conviction 

proceedings. 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] When evaluating an ineffective assistance of counsel claim, we apply the twopart 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 

that, 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 strategy, 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 in 
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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, he did not present this 

contention 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

Richardson 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 

verdict, and therefore 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 that 

he failed to demonstrate that he received ineffective assistance of trial counsel. 
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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 assistance 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 thereof or even indicated in what 

respect appellate counsel was ineffective. At the PCR hearing, Vicente 

presented no evidence, witnesses, or argument pertaining to appellate counsel.

Therefore, Vicente has waived this claim. See Walker, 843 N.E.2d at 57.

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

[24] Affirmed.

May, J., and Pyle, J., concur.