MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 29 2017, 9:41 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott King Curtis T. Hill, Jr.
Russell W. Brown, Jr. Attorney General of Indiana
Scott King Group
Jesse R. Drum
Merrillville, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph Fuentes, September 29, 2017
Appellant-Defendant, Court of Appeals Case No.
71A03-1705-PC-1003
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jane Woodward-
Appellee-Plaintiff. Miller, 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 cross-
examination.
[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 post-
conviction 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). Post-
conviction 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 post-
conviction 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.
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