Court of Appeals of Indiana | Memorandum Decision 71A03-1705-PC-1003 | September 29, 2017 Page 1 of 10

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.

ATTORNEYS FOR APPELLANT

Scott King

Russell W. Brown, Jr.

Scott King Group

Merrillville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Joseph Fuentes,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 29, 2017

Court of Appeals Case No.

71A03-1705-PC-1003

Appeal from the St. Joseph 

Superior Court

The Honorable Jane WoodwardMiller, Judge

Trial Court Cause No.

71D01-1508-PC-34

Robb, Judge.
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Case Summary and Issue

[1] Joseph Fuentes appeals the denial of his petition for post-conviction relief, 

raising one issue for our review: whether the post-conviction court erred in 

determining Fuentes’s trial counsel was not ineffective. Concluding Fuentes

did not receive ineffective assistance of trial counsel, we affirm. 

Facts and Procedural History 

[2] Fuentes was tried by a jury on charges of attempted murder, possession of a 

handgun by a felon, criminal recklessness, and resisting law enforcement. The 

relevant facts as summarized by this court on direct appeal are as follows:

On October 2, 2012, South Bend Police Officers John Comeau 

(“Officer Comeau”) and Tim Cichowicz (“Officer Cichowicz”) 

were dispatched to a house on Ford Street in South Bend, 

Indiana on a report of a possibly armed male. When the officers 

arrived at the scene, Fuentes was standing by his tan Cadillac. 

Another man, later identified as Jaime Duron (“Duron”) was 

standing in the yard of the house. Officer Comeau told Duron to 

approach him and ordered Fuentes not to move. Duron obeyed 

the officer’s commands, but Fuentes jumped into his car and 

drove away. Officer Cichowicz pursued Fuentes in his patrol car 

with the siren and flashing lights activated. Fuentes ignored 

Officer Cichowicz’s car and continued to flee, running through a 

stop sign. Soon thereafter, Fuentes lost control of his car and 

crashed into a nearby yard. Undaunted, Fuentes exited his car 

and fled on foot.

Officer Cichowicz got out of his patrol car and gave chase on 

foot. With Officer Cichowicz closing in on him, Fuentes slowed 

down, turned around, and pointed a firearm at Officer Cichowicz 

at head level. Officer Cichowicz dove for cover and heard 
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Fuentes fire the weapon. Fuentes then continued to flee down an 

alleyway. Officer Cichowicz continued to pursue Fuentes, took

cover behind a garage, and peered around the corner. Fuentes, 

who was approximately twenty-five yards away, fired his weapon 

two more times as Officer Cichowicz took cover.

Fuentes then took refuge in an abandoned home. After the 

police SWAT team surrounded the house and kicked in the door, 

Fuentes surrendered himself. When he was taken into custody, 

Fuentes did not have a firearm on his person. However, during a 

search of Fuentes’s car, the police found an AR-15 rifle in the 

trunk. Fuentes asked the police officer who transported him to 

jail, “if [the police] had found an A.R. rifle in the trunk of the car 

that [Fuentes] was driving.”

As a result of this incident, the State charged Fuentes on October 

4, 2012, with Class A felony attempted murder, Class C felony 

possession of a firearm by a felon, Class D felony criminal 

recklessness, Class D felony resisting law enforcement, Class D 

felony intimidation, and Class A misdemeanor carrying a 

handgun without a license. The State later dismissed the 

intimidation charge. A bifurcated jury trial commenced on 

September 3, 2013, with regard to all charges except possession 

of a firearm by a felon. The jury found Fuentes guilty the 

following day, and Fuentes then pleaded guilty to being a felon 

in possession of a firearm. At the October 2, 2013 sentencing 

hearing, the trial court “merged” the misdemeanor conviction for 

carrying a handgun without a license into the conviction for 

possession of a firearm by a felon and imposed an aggregate 

executed term of forty years. 

Fuentes v. State, 10 N.E.3d 68, 71-72 (Ind. Ct. App. 2014) (internal citations and 

footnote omitted), trans. denied. On appeal, Fuentes raised issues concerning 
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admission of evidence, instruction of the jury, and sufficiency of the evidence. 

We affirmed his convictions. Id. at 76.

[3] On August 3, 2015, Fuentes filed a verified petition for post-conviction relief 

alleging his trial counsel was ineffective for failing to strike a juror. Fuentes 

subsequently amended his petition to allege that his trial counsel was also 

ineffective for failing to adequately cross-examine a State witness. Specifically, 

Fuentes argued that his trial counsel should have impeached Officer Cichowicz

with his prior inconsistent statement regarding where Fuentes had pointed his 

gun during the second round of shots. Officer Cichowicz gave a videotaped 

interview to police on the evening of the crime. There, Officer Cichowicz

stated that Fuentes pointed his gun at him during both the first shot and the 

second round of shots. However, in his deposition and subsequent trial 

testimony, Officer Cichowicz testified Fuentes pointed his gun at him during 

the first shot, but pointed his gun in the air during the second round of shots. 

This latter version of events was more consistent with another State witness, 

Thomas Soule, a neighborhood resident who witnessed part of the chase. Soule

testified that he heard a gunshot, looked out and saw Fuentes “running with a 

gun in his hand.” Appellant’s Appendix, Volume 2 at 70. As Soule watched, 

he stated Fuentes was “firing up in the air.” Id. Fuentes argues his trial counsel 

should have highlighted Officer Cichowicz’s inconsistency on crossexamination.

[4] Fuentes’s trial counsel testified at a post-conviction evidentiary hearing on 

February 10, 2017. Counsel explained that his theory of defense was that 
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Fuentes did not intend to kill Officer Cichowicz, but that he had fired the shots 

“to scare police away, so he could get away.” Transcript at 10. When counsel 

was pressed for an explanation as to why he did not impeach Officer Cichowicz 

with his prior inconsistent statement, counsel explained:

[Trial counsel:] I can’t get into his head, obviously, to say he 

changed his testimony to make it more consistent 

[with Soule’s testimony]. It was something I 

considered, but frankly it was more consistent with

our trial theory and so rather than–I mean, here’s 

the thing. I’ve got a jury of 12 people, and I know 

they’re going to hear [Fuentes] say some things on 

tape that aren’t going to make [Fuentes] look real 

good. 

[PCR counsel:] Right.

[Trial counsel:] I could have crossed Officer Cichowicz a 

little harder perhaps on that issue. I don’t know 

what it would have gotten me, however, because 

typically when confronted with something like that, 

you know, there’s always a plausible explanation for 

changing testimony rather than, oh, I just lied. Or I 

changed it to fit the right story. So I didn’t. 

If Officer Cichowicz had given testimony at trial 

that was inconsistent with his deposition, I would 

have hammered him with it as much as humanly 

possible, but when his deposition testimony and 

trial testimony were consistent and they were 

frankly more consistent with our theory of the case 

that it wasn’t an intentional shooting to kill, I went 

with it. 
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Id. at 16.

[5] After taking the matter under advisement, the post-conviction court entered 

findings of fact and conclusions of law denying Fuentes’s petition for postconviction relief. Fuentes now appeals. 

Discussion and Decision

I. Standard of Review 

[6] Our standard of review in these matters is firmly established. Post-conviction 

proceedings are civil in nature and the petitioner must prove his grounds for 

relief by a preponderance of the evidence. Shepherd v. State, 924 N.E.2d 1274, 

1280 (Ind. Ct. App. 2010), trans. denied; see also Ind. Post-Conviction Rule 1(5). 

A petitioner who has been denied post-conviction relief faces a “rigorous 

standard of review.” Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001). Postconviction proceedings are not a super appeal and we will neither reweigh the 

evidence nor judge witness credibility. McKnight v. State, 1 N.E.3d 193, 199 

(Ind. Ct. App. 2013), trans. denied. We consider only the evidence and 

reasonable inferences supporting the judgment. Hall v. State, 849 N.E.2d 466, 

468 (Ind. 2006). Therefore, if a post-conviction petitioner was denied relief in 

the proceedings below, “he or she must show that the evidence as a whole leads 

unerringly and unmistakably to an opposite conclusion than that reached by the 

post-conviction court.” Shepherd, 924 N.E.2d at 1280.
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[7] We do not defer to the post-conviction court’s legal conclusions, but do accept 

its factual findings unless they are clearly erroneous. Stevens v. State, 770 

N.E.2d 739, 746 (Ind. 2002), cert. denied, 540 U.S. 830 (2003). However, we 

note that where, as here, the judge who presided over the original trial is also 

the judge who presided over the post-conviction proceedings, the postconviction court’s findings and judgment are entitled to “greater than usual 

deference . . . .” Hinesley v. State, 999 N.E.2d 975, 982 (Ind. Ct. App. 2013), 

trans. denied. This court has found judges in that circumstance to be uniquely 

situated to assess whether trial counsel’s performance was ineffective. Id. 

II. Ineffective Assistance of Counsel

[8] On appeal, Fuentes has abandoned his claim that trial counsel was ineffective 

for failing to strike a juror and focuses solely upon whether his counsel was 

ineffective for failing to adequately cross-examine the State’s witness. A claim 

of ineffective assistance of counsel, if not raised on direct appeal, is properly 

presented in a post-conviction proceeding. Timberlake v. State, 753 N.E.2d 591,

597 (Ind. 2001), cert. denied, 537 U.S. 839 (2002). To prevail on an ineffective 

assistance claim, Fuentes must demonstrate two components: deficient 

performance by his trial counsel and resulting prejudice. Strickland v. 

Washington, 466 U.S. 668, 687 (1984). Deficient performance requires a 

showing that counsel’s representation fell below “an objective standard of 

reasonableness” based on “prevailing professional norms.” French v. State, 778 

N.E.2d 816, 824 (Ind. 2002). Counsel’s representation, however, is presumed 

effective and a petitioner can only overcome such a presumption with “strong 
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and convincing evidence” of ineffectiveness. Overstreet v. State, 877 N.E.2d 144, 

152 (Ind. 2007). To establish the second component, prejudice, a petitioner 

must “show that there is a reasonable probability that but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.”

Perry v. State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009), trans. denied. 

[9] Fuentes argues he was denied effective assistance of counsel when his trial

counsel failed to adequately cross-examine the State’s key witness. Specifically, 

Fuentes contends that counsel should have impeached Officer Cichowicz with 

his prior inconsistent statement regarding where the gun was pointed during the 

second round of shots. By highlighting the inconsistency, Fuentes argues he 

could show that “Officer Cichowicz modified his statement to comport with 

Mr. Soule’s statement[,]” thus attacking his credibility and allowing the jury to 

question Officer Cichowicz’s other testimony. Amended Brief of Appellant at 

11. 

[10] At the evidentiary hearing, Fuentes’s counsel agreed that Officer Cichowicz’s 

credibility and testimony were central issues for trial because the State lacked 

physical evidence to support a charge of attempted murder. However, counsel 

testified that his failure to impeach Officer Cichowicz with his prior 

inconsistent statement was intentional because Officer Cichowicz’s latter 

version of events was more conducive to his theory of the case and overall trial 

strategy.
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[11] We reiterate that counsel’s performance is presumed to be effective and that 

Fuentes can only overcome that presumption with a showing of “strong and 

convincing evidence” of ineffectiveness. Overstreet, 877 N.E.2d at 152. Our 

supreme court has held that counsel is permitted to make reasonable judgments 

in trial strategy regarding the impeachment of witnesses. See, e.g., Bivins v. State, 

735 N.E.2d 1116, 1134 (Ind. 2000). “It is well-established that trial strategy is 

not subject to attack through an ineffective assistance of counsel claim, unless 

the strategy is so deficient or unreasonable as to fall outside of the objective 

standard of reasonableness.” Autry v. State, 700 N.E.2d 1140, 1141 (Ind. 1998). 

[12] Here, counsel’s trial strategy was not unreasonable. Although it is true that 

counsel’s theory of defense could not have completely exonerated Fuentes, 

there is no such requirement. See Allen v. State, 686 N.E.2d 760, 778 (Ind. 1997) 

(finding no ineffective assistance where counsel’s theory of defense was to avoid 

a murder conviction and possible death penalty in favor of conviction for 

voluntary manslaughter). Counsel’s strategy of proving Fuentes lacked specific 

intent would have avoided an attempted murder conviction, the most serious of 

the charges Fuentes faced. See Spradlin v. State, 569 N.E.2d 948, 951 (Ind. 1991) 

(holding that, “by definition, there can be no ‘attempt’ to perform an act unless 

there is a simultaneous ‘intent’ to accomplish such act.”). The record supports 

counsel’s trial strategy and we will not second-guess the propriety of those 

tactics. See Davidson v. State, 763 N.E.2d 441, 446 (Ind. 2002), cert. denied, 537 

U.S. 1122 (2003). Fuentes has failed to present strong and convincing evidence 

that his counsel’s performance in this regard was deficient. As such, we have 
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no need to determine whether Fuentes suffered prejudice. See French, 778 

N.E.2d at 824 (noting failure to prove either prong of an ineffective assistance 

claim will cause the claim to fail). 

[13] Considering the high hurdle for ineffective assistance of counsel claims and 

counsel’s considerable discretion in strategy, Fuentes’s argument fails to 

establish that the evidence as a whole leads unerringly and unmistakably to a 

conclusion opposite the one reached by the post-conviction court. 

Conclusion

[14] For the reasons set forth above, we conclude that Fuentes failed to demonstrate 

clear error in the post-conviction court’s findings and judgment. Accordingly, 

we affirm the denial of his petition for post-conviction relief.

[15] Affirmed.

Riley, J., and Pyle, J., concur.