Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be Dec 17 2014, 6:27 am
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: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER
Public Defender of Indiana Attorney General of Indiana
C. BRENT MARTIN KARL M. SCHARNBERG
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STEVEN R. SANTANA, )
)
Appellant-Petitioner, )
)
vs. ) No. 45A03-1406-PC-186
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Clarence D. Murray, Judge
The Honorable Kathleen A. Sullivan, Magistrate
Cause No. 45G02-1209-PC-12
December 17, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Petitioner, Steve Santana (Santana), appeals the post-conviction court’s
denial of his petition for post-conviction relief.
We affirm.
ISSUES
Santana raises two issue on appeal which we restate as:
(1) Whether the State’s failure to disclose an alleged plea agreement with the
State’s key witness constituted prosecutorial misconduct; and
(2) Whether Santana was denied effective assistance of trial counsel.
FACTS AND PROCEDURAL HISTORY
We adopt the recitation of facts as set forth in Santana’s direct appeal, Santana v.
State, No. 45A05-0710-CR-564,*1 (Ind. Ct. App. Jun. 13, 2008), trans. denied:
At approximately 3:00 p.m. on Saturday, July 1, 2006, Luis Ortiz met his
friend, Rudolph Swisher, while both were riding bicycles in their East Chicago
neighborhood. Ortiz was a member of the Latin Kings gang. Both Ortiz and
Swisher were wearing red shirts and had similar hair. While riding, they saw
Santana. Ortiz knew Santana was a member of a rival gang, the Imperial
Gangsters. As Santana reached under his shirt, he motioned for Ortiz and
Swisher to approach him. They rode away from Santana in different
directions.
Later that evening, Victor Madero came to Ortiz’s home. Madero was a
member of the Latin Kings. Ortiz told Madero of the earlier encounter with
Santana. They went to Madero’s house. While they were sitting on Madero’s
porch, Swisher and his girlfriend rode by on a bicycle. They talked and agreed
to meet at Ortiz’s house after Swisher dropped off his girlfriend. Ortiz and
Madero returned to Ortiz’s house.
At approximately 8:00 p.m. Juan Guardiola stopped by Ortiz’s house but did
not stay. Guardiola was associated with the Latin Kings but was not a member.
Shortly thereafter, Madero pointed out a person dressed in black pants, a black
hoodie, and black shoes lurking in the shadows of a nearby alley. Ortiz
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recognized the person as Santana.1 At that same time, Ortiz and Madero
noticed Swisher riding his bicycle toward Ortiz’s house. Santana came out of
the alley and approached Swisher from behind. Santana shot Swisher several
times from close range. Swisher fell from his bicycle, and Santana fled. Ortiz
ran out to Swisher in the street even as Santana fired additional shots at the
house. Swisher had been shot four times in the back and died from his wounds.
Ortiz and Madero were questioned by the police but denied seeing anything.
Three days later, they were arrested for pointing a gun at Santana’s mother and
stepfather. Ortiz told the police Santana killed Swisher. The police arrested
Santana and seized black clothing and other items from his home. A pair of
Santana’s black pants tested positive for blood, but the amount was insufficient
to permit a DNA test.
On July 7, 2006, the State charged Santana with murder. A jury trial
commenced on July 23, 2007. The State tendered a final jury instruction on
transferred intent, and the court gave a pattern instruction on transferred intent
over Santana’s objection. The jury returned a guilty verdict.
Ten days after Santana’s trial, the State entered into a plea agreement with
Ortiz for the charges related to pointing a gun at Santana’s mother and
stepfather. Two days before his sentencing hearing, Santana moved to correct
error claiming Ortiz and the prosecution misrepresented whether Ortiz was
testifying in return for leniency. The motion to correct error was denied. At
sentencing, the court found three aggravating circumstances: 1) Santana had
recently violated probation in two other cases; 2) Santana had a criminal
history; and 3) because of prior probation failures, Santana was in need of
correctional and rehabilitative treatment in a penal facility. The court found
no mitigating circumstances. Santana was sentenced to sixty-two years
imprisonment.
On direct appeal, Santana argued that (1) the State failed to disclose that Ortiz
might have received a plea deal by testifying against him; (2) the trial court erred in
instructing the jury on transferred intent; and (3) his sentence was inappropriate in light
of his character and offense. On June 13, 2008, we affirmed Santana’s conviction. See
1
While walking home from Ortiz’s house, Guardiola ran into Santana and an unidentified man. Guardiola
testified Santana was dressed in all black and wearing a hoodie. Guardiola became alarmed and ran home. Five
or ten minutes later, he called Ortiz and learned Swisher was dead.
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id. On September 20, 2012, Santana filed his pro se petition for post-conviction relief.
Subsequently, on March 12, 2013, Santana filed for leave to amend his petition for post-
conviction relief. In his amended petition, Santana raised two issues: First, Santana
claimed that he was denied effective assistance because his trial counsel failed to attach
Ortiz’s pre-trial transcript of June 28, 2007, to his motion to correct error, and in essence,
it would have revealed that Ortiz’s “case was set down for a change of plea hearing prior
to his testimony” and that it was reasonable to assume that Ortiz hoped to receive
favorable treatment from the State on his impending charges. (Appellant’s Br. p. 7).
Secondly, Santana argued that the State violated the standard of fairness mandated by
Giglio v. United States, 405 U.S. 150,154 (1972) (holding that a defendant is entitled to
a new trial if he can establish that the prosecutor intentionally or inadvertently failed to
correct materially false testimony relevant to the credibility of a key State witness). A
two-day evidentiary hearing was held on July 2, and July 30, 2013. On May 9, 2014, the
post-conviction court issued its Order denying Santana’s petition for post-conviction
relief.
Santana now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
It is well established that post-conviction proceedings do not afford the petitioner
with a super appeal but, rather, provide the opportunity to raise issues that were unknown
or unavailable at the time of the original trial or the direct appeal. Turner v. State, 974
N.E.2d 575, 581 (Ind. Ct. App. 2012), trans. denied. The proceedings do not substitute
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for a direct appeal and provide only a narrow remedy for subsequent collateral challenges
to convictions. Id. If an issue was available on direct appeal but not litigated, it is waived.
Id. A petitioner must establish his claims to post-conviction relief by a preponderance of
the evidence. Ind. Post-Conviction Rule 1, § 5.
Appeal from a denial of post-conviction relief is equivalent to an appeal from a
negative judgment. Turner, 974 N.E.2d at 581. We will therefore not reverse unless the
evidence as a whole leads unerringly and unmistakably to a decision opposite that
reached by the post-conviction court. Id. Where the post-conviction court has entered
findings of fact and conclusions of law, we accept the findings of fact unless clearly
erroneous, but accord no deference for conclusions of law. Id. We will disturb a post-
conviction court’s decision as being contrary to law only where the evidence is without
conflict and leads to but one conclusion, and the post-conviction court has reached the
opposite conclusion. Id. at 581-82. The post-conviction court is the sole judge of the
weight of the evidence and the credibility of witnesses. Id.
A. Failure to Disclose Information
Santana maintains that credibility of Ortiz as the key witness was essential to the
State’s case. As such, he argues that when Ortiz testified that he had not received any
set promises for his testimony, Ortiz “gave the jury a false impression that there were no
negotiations and he was merely testifying out of his sense of civic duty . . .” (Appellant’s
Br. p. 11). He argues that the State had an affirmative duty to correct Ortiz’s misleading
testimony; instead, it “repeatedly [] boost[ed] Ortiz’s credibility” throughout his entire
trial. (Appellant’s Br. p. 12). Based on the foregoing arguments, Santana maintains that
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the prosecutor’s failure to disclose the existence of Ortiz’s plea agreement established a
due process violation according to the holding in Giglio. Contrary to Santana’s
assertion, the State argues that Santana’s issue of prosecutorial misconduct, which
Santana reframes as a Giglio violation—which stands for the proposition that the
prosecution may not stand mute while testimony known to be false is received into
evidence—was litigated on appeal and is barred by the doctrine of res judicata.
We first note that Santana’s issue of prosecutorial misconduct, now redesigned
and bundled up as a due process claim, was readily available at the time of his direct
appeal. Post-conviction relief is a process for raising issues unknown at trial or not
available at trial. Tope v. State, 477 N.E.2d 873, 874 (Ind. Ct. App. 1985), reh‘g denied.
It is well established that a petition for post-conviction relief cannot include an issue
which was or could have been raised in the original trial. Id. Accordingly, to the extent
Santana now raises an issue that was available on direct appeal, he has waived his claim
for appellate review. See id.
Moreover, even if this exact issue was raised on Santana’s direct appeal, Santana
is foreclosed by the doctrine of res judicata from advancing his prosecutorial misconduct
claim. It is well established that a petitioner for post-conviction relief cannot escape the
effect of claim preclusion merely by using different language to phrase an issue and
define an alleged error. Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). On direct
appeal, we concluded that
Ortiz entered into a plea agreement with the State ten days after Santana’s
trial concluded, but Santana has not shown there was a confirmed promise
at the time of trial. Even if Ortiz’s plea agreement was the result of his
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testimony at Santana’s trial, Santana has not demonstrated the State made
promises to Ortiz before he testified. As such, Santana is unable to
demonstrate prosecutorial misconduct or fundamental error.
Santana, No. 45A05-0710-CR-564, slip op. at 2. Because this court determined that there
was no confirmed promise between Ortiz and the State, there was no prosecutorial
misconduct with respect to the State’s failure to disclose any understanding it had with
Ortiz. Santana should not get another bite at the apple by reframing the issue of
prosecutorial misconduct. In conclusion, we find that the post-conviction court did not
err when it denied his claim.
II. Ineffective Assistance
Lastly, Santana urges us to find that his trial counsel was ineffective for failing to
investigate. The standard by which we review claims of ineffective assistance of counsel
is well established. In order to prevail on a claim of this nature, a defendant must satisfy
a two-pronged test, showing that: (1) his counsel’s performance fell below an objective
standard of reasonableness based on prevailing professional norms; and (2) there is a
reasonable probability that, but for counsel’s errors, the result of the proceeding would
have been different. Johnson v. State, 832 N.E.2d 985, 996 (Ind. Ct. App. 2005) (citing
Strickland v. Washington, 466 U.S. 668, 690, 694 (1984), reh’g denied), trans. denied.
The two prongs of the Strickland test are separate and independent inquiries. Id. 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.” Timberlake, v. State, 753 N.E.2d 591, 603
(Ind. 2001) (quoting Strickland, 466 U.S. at 697), reh’g denied, cert. denied, 537 U.S.
839 (2002).
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Counsel is afforded considerable discretion in choosing strategy and tactics and we
will accord those decisions deference. Id. A strong presumption arises that counsel
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment. Id. The Strickland Court recognized that even the
finest, most experienced criminal defense attorneys may not agree on the ideal strategy
or the most effective way to represent a client. Id. Isolated mistakes, poor strategy,
inexperience, and instances of bad judgment do not necessarily render representation
ineffective. Id. Furthermore, we will not speculate as to what may or may not have been
advantageous trial strategy as counsel should be given deference in choosing a trial
strategy which, at the time and under the circumstances, seems best. Johnson, 832 N.E.2d
at 997.
Further, a claim of ineffective assistance of counsel based on a failure to
investigate requires a showing of what additional information may have been garnered
from further consultation or investigation, and how that additional information would
have aided in the preparation of the case. Turner, 974 N.E.2d at 585. Here, Santana
argues that had his trial counsel conducted “minimal investigation” in obtaining a copy
of Ortiz’s pretrial transcript, his motion to correct error would have prevailed.
(Appellant’s Br. p. 13). He further states that while “no specific agreement was
memorialized, the evidence leads to the logical and reasonable conclusion that the State
was promising to offer [] Ortiz leniency in his pending cases upon completing his
cooperation in Santana’s case.” (Appellant’s Br. p. 16). Again, we disagree.
8
Our review of the record reveals that trial counsel’s performance did not fall below
the objective standard of reasonableness. During Santana’s evidentiary hearing, his trial
counsel testified that he was unaware of the looming plea deal between Ortiz and the
State. He further stated that when he learned of it, he immediately filed a motion to
correct error, to which he attached two affidavits sworn by Santana’s parents stating that
the prosecutor had informed them that Ortiz’s plea agreement was issued in exchange for
Ortiz’s testimony against their son, as well as a copy of Ortiz’s plea agreement.
We fail to see how a copy of Ortiz’s pre-trial transcript indicating a rescheduling
of Ortiz’s pre-trial to a later date after Santana’s trial, would have yielded a positive result
to Santana’s motion to correct error. As stated before, this court determined there was
no confirmed plea deal between the State and Ortiz; therefore, any inaction from trial
counsel in obtaining a copy of the pre-trial transcript was not vital to Santana’s murder
trial. In this regard, we find that Santana’s trial attorney representation was well within
the bounds of professional norms and was therefore effective. More importantly, even
with the presentation of Ortiz’s pre-trial transcript at his evidentiary hearing, Santana was
unable to prove that an agreement had been reached.
Additionally, Ortiz’s counsel testified that the fictitious plea deal that Santana
believes that State struck with Ortiz had zero effect on his murder trial. During Santana’s
evidentiary hearing, Ortiz’s counsel testified that at the time of Santana’s trial, he was
representing Ortiz in two separate cases. In the first case, Ortiz had been charged with
attempted battery, two counts of criminal recklessness, carrying a handgun without a
license, and two counts of criminal mischief. The second case related to Ortiz pointing
9
a gun at Santana’s parents, carrying a handgun without a license, and possession of
marijuana. Ortiz’s counsel testified that there had been no discussion with the State as to
whether consideration would be given in exchange for Ortiz’s testimony against Santana.
Rather, he credited the plea negotiations on the fact that State’s cases against Ortiz were
shaky. In the battery case, Ortiz’s counsel believed that the victim was not necessarily
dead set on cooperating with the prosecution. As for Ortiz’s second case where Ortiz had
pointed a firearm at Santana’s parents, Ortiz’s counsel had been in communication with
the prosecution, and had the impression that the State was unwilling to prosecute the case.
He further testified that since it was not Ortiz’s wish to go to trial, he vacated Ortiz’s pre-
trial date for a later one all in the hopes of biding time and allowing the State to sweeten
Ortiz’s plea deal.
In sum, Santana fails to overcome the presumption that his trial counsel’s
performance was effective. Thus, he failed to satisfy his burden of showing that his trial
counsel’s performance fell below an objective standard of reasonableness and that there
is a reasonable possibility that the result of the proceeding would have been different if
his counsel had not made the alleged error.
CONCLUSION
Based on the foregoing, we conclude that the post-conviction court properly
denied Santana’s petition for post-conviction relief.
Affirmed.
VAIDIK, C. J. and BAKER, J. concur
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