Gerardo Nino Romero v. State of Indiana ( 2014 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Aug 11 2014, 10:34 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
GERARDO NINO ROMERO GREGORY F. ZOELLER
Bunker Hill, Indiana Attorney General of Indiana
IAN McLEAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GERARDO NINO ROMERO, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1208-PC-379
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D05-1201-PC-2
August 11, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Gerardo Nino Romero appeals the trial court’s order denying his petition for post-
conviction relief. Romero raises seven issues which we consolidate and restate as whether
the post-conviction court erred in denying his petition for relief. We affirm.
FACTS AND PROCEDURAL HISTORY
On July 2, 2010, Romero pled guilty to one count of dealing in cocaine or a narcotic
drug as a class A felony.1 Romero was sentenced to twenty years executed in the Department
of Correction. On January 4, 2012, Romero filed a pro se petition for post-conviction relief
alleging that his trial counsel rendered ineffective assistance by failing to review or to
challenge the arrest of a co-perpetrator named Leonard Lashley. The petition also raised
claims that a search warrant was improperly issued and that Romero was convicted on the
basis of fruit of the poisonous tree obtained from Lashley’s arrest.
On January 19, 2012, the State filed an answer to Romero’s petition for post-
conviction relief. On March 7, 2012, the State moved to require the case to be submitted by
affidavit. On March 13, 2012, pursuant to Indiana Post-Conviction Rule 1(9)(b), the court
granted the State’s motion to submit by affidavit. On April 12, 2012, Romero filed a
memorandum of law in support of his petition for post-conviction relief. On April 25, 2012,
Romero submitted his case by affidavit. On July 6, 2012, the State filed its response to
Romero’s affidavit. On July 9, 2012, the court entered an order denying Romero’s petition
for post-conviction relief by adopting the State’s response to Romero’s submission as the
court’s findings of fact and conclusions of law.
1
The record does not contain a copy of the plea agreement or the transcript of the guilty plea hearing.
2
On July 25, 2012, Romero filed a motion to correct error, which the court denied on
August 7, 2012. On August 31, 2012, Romero filed a notice of appeal. On January 14, 2013,
this court entered an order addressing Romero’s attempt to pursue an appeal from the trial
court’s denial of his motion to withdraw his guilty plea and held that Romero’s appeal was
untimely and therefore this appeal “shall proceed as to only [Romero’s] appeal from the trial
court’s July 9, 2012 order denying his petition for post-conviction relief.” January 14, 2013
Order.
After multiple filings, this court granted the State’s motion to dismiss the appeal and
denied Romero’s petition for rehearing. On February 21, 2014, Romero filed a petition to
transfer, and the Indiana Supreme Court reversed the order of dismissal and remanded the
case to this court for further proceedings.
DISCUSSION
Before discussing Romero’s allegations of error, we note that although Romero is
proceeding pro se, such litigants are held to the same standard as trained counsel and are
required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App.
2004), trans. denied. We also note the general standard under which we review a post-
conviction court’s denial of a petition for post-conviction relief. The petitioner in a post-
conviction proceeding bears the burden of establishing grounds for relief by a preponderance
of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule
1(5). When appealing from the denial of post-conviction relief, the petitioner stands in the
position of one appealing from a negative judgment. Fisher, 810 N.E.2d at 679. On review,
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we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably
leads to a conclusion opposite that reached by the post-conviction court. Id. Further, the
post-conviction court in this case adopted the State’s response to Romero’s submission as the
court’s findings of fact and conclusions of law, and Romero does not challenge the court’s
adoption of the State’s response. “A post-conviction court’s findings and judgment will be
reversed only upon a showing of clear error – that which leaves us with a definite and firm
conviction that a mistake has been made.” Id. In this review, we accept findings of fact
unless clearly erroneous, but we accord no deference to conclusions of law.2 Id.
The issue is whether the post-conviction court erred in denying Romero’s petition for
relief. Romero argues that he was not in possession of the cocaine because Lashley
possessed the cocaine. He asserts that had his trial counsel filed a motion for dismissal, “the
trial court would have granted that motion, there being no evidence, [he] would have not pled
guilty, and the state does not have evidence and should have not gone forth with charge, nor
plea, vindictive/selective prosecution procuring a conviction at all cost.” Appellant’s Brief at
12. Romero appears to contend that he did not enter into the plea agreement knowingly,
voluntarily, and intelligently because he was not fluent in English. He asserts that his
counsel denied him access to a translator and told him that he was a drug dealer and that he
had to plead guilty or go to prison for seventy years. He appears to argue that there was no
2
In his reply brief, Romero appears to argue that the post-conviction court erred by failing to hold an
evidentiary hearing. Romero did not raise this issue in his appellant’s brief. Therefore, we do not address this
argument. See Carden v. State, 873 N.E.2d 160, 162 n.1 (Ind. Ct. App. 2007) (holding that an issue not raised
in an appellant’s brief may not be raised for the first time in a reply brief).
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probable cause for a search warrant on his family residence. He also argues that he was
denied the right to withdraw his guilty plea as was necessary to correct the manifest injustice
that there was no evidence to convict him for dealing.
The State argues that Romero failed to submit evidence in support of his petition,
failed to show clear error in the post-conviction court’s findings, and waived his claims. The
State also contends that Romero’s assertion that his trial counsel failed to do any factual
investigation and legal analysis cannot be made from Romero’s personal knowledge because
there was no evidence indicating that Romero was continuously present with his trial counsel
during the pendency of the case. And the State further asserts that Romero’s claims of his
trial counsel’s statements were inadmissible hearsay and that in any event the post-conviction
court would have been entitled to note that Romero never explained how he understood trial
counsel’s threats or advice to plead guilty without an interpreter. To the extent that Romero
fails to put forth a cogent argument or cite to the record and to the extent he raises
freestanding claims, these arguments are waived. See, e.g., Cooper v. State, 854 N.E.2d 831,
834 n.1 (Ind. 2006) (holding that the defendant’s contention was waived because it was
“supported neither by cogent argument nor citation to authority”); Lambert v. State, 743
N.E.2d 719, 726 (Ind. 2001) (holding that post-conviction procedures do not provide a
petitioner with an opportunity to present freestanding claims that contend the original trial
court committed error), reh’g denied, cert. denied, 534 U.S. 1136, 122 S. Ct. 1082 (2002);
Neville v. State, 663 N.E.2d 169, 172 (Ind. Ct. App. 1996) (“By pleading guilty to the
charging information, Neville conceded that he committed the crimes and waived his right to
5
challenge the pre-trial rulings of the trial court.”).
To the extent that Romero develops a cogent argument and contends that his trial
counsel was ineffective, we observe that to prevail on a claim of ineffective assistance of
counsel, a petitioner must demonstrate both that his counsel’s performance was deficient and
that the petitioner was prejudiced by the deficient performance. Coleman v. State, 694
N.E.2d 269, 272 (Ind. 1998) (citing Strickland v. Washington, 466 U.S. 668, 687-696, 104 S.
Ct. 2052, 2064-2069 (1984), reh’g denied). A counsel’s performance is deficient if it falls
below an objective standard of reasonableness based on prevailing professional norms.
French v. State, 778 N.E.2d 816, 824 (Ind. 2002). To meet the appropriate test for prejudice,
the 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. Id. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.
Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong will cause the
claim to fail. French, 778 N.E.2d at 824. Most ineffective assistance of counsel claims can
be resolved by a prejudice inquiry alone. Id.
When considering a claim of ineffective assistance of counsel, a “strong presumption
arises that counsel rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Morgan v. State, 755 N.E.2d 1070, 1072
(Ind. 2001). “[C]ounsel’s performance is presumed effective, and a defendant must offer
strong and convincing evidence to overcome this presumption.” Williams v. State, 771
N.E.2d 70, 73 (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics
6
will not support a claim of ineffective assistance of counsel. Clark v. State, 668 N.E.2d
1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S. Ct. 1438 (1997).
“Reasonable strategy is not subject to judicial second guesses.” Burr v. State, 492 N.E.2d
306, 309 (Ind. 1986). We “will not lightly speculate as to what may or may not have been an
advantageous trial strategy as counsel should be given deference in choosing a trial strategy
which, at the time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d
40, 42 (Ind. 1998).
Because Romero was convicted pursuant to a guilty plea, we must analyze his claims
under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura categorizes two main types of
ineffective assistance of counsel cases. The first category relates to “an unutilized defense or
failure to mitigate a penalty.” Willoughby v. State, 792 N.E.2d 560, 563 (Ind. Ct. App. 2003)
(citing Segura, 749 N.E.2d at 507), trans. denied. With respect to this category, the Court
held that “in order to establish that the guilty plea would not have been entered if counsel had
performed adequately, the petitioner must show that a defense was overlooked or impaired
and that the defense would likely have changed the outcome of the proceeding.” Segura, 749
N.E.2d at 499. The Court also held that “in the case of claims related to a defense or failure
to mitigate a penalty, it must be shown that there is a reasonable probability that a more
favorable result would have obtained in a competently run trial.” Id. at 507.
The second category relates to “an improper advisement of penal consequences,” and
this category has two subcategories: (1) “claims of intimidation by exaggerated penalty or
enticement by an understated maximum exposure;” or (2) “claims of incorrect advice as to
7
the law.” Id. With respect to this category, the Court in Segura concluded:
[I]n order to state a claim for postconviction relief a petitioner may not
simply allege that a plea would not have been entered. Nor is the petitioner’s
conclusory testimony to that effect sufficient to prove prejudice. To state a
claim of prejudice from counsel’s omission or misdescription of penal
consequences that attaches to both a plea and a conviction at trial, the
petitioner must allege, in Hill’s terms, “special circumstances,”3 or, as others
have put it, “objective facts”4 supporting the conclusion that the decision to
plead was driven by the erroneous advice.
We believe a showing of prejudice from incorrect advice as to the penal
consequences is to be judged by an objective standard, i.e., there must be a
showing of facts that support a reasonable probability that the hypothetical
reasonable defendant would have elected to go to trial if properly advised.
Nevertheless, . . . a petitioner may be entitled to relief if there is an objectively
credible factual and legal basis from which it may be concluded that “there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill[ v. Lockhart, 474 U.S.
52,] 59, 106 S. Ct. 366 [(1985)].
*****
[F]or claims relating to penal consequences, a petitioner must establish, by
objective facts, circumstances that support the conclusion that counsel’s errors
in advice as to penal consequences were material to the decision to plead.
Merely alleging that the petitioner would not have pleaded is insufficient.
Rather, specific facts, in addition to the petitioner’s conclusory allegation,
must establish an objective reasonable probability that competent
representation would have caused the petitioner not to enter a plea.
Id.Based upon our review of the search warrant affidavit, affidavit for probable cause,
and supplementary offense report and in light of Romero’s arguments, we cannot say that
3
Hill [v. Lockhart, 474 U.S. 52, 60, 106 S. Ct. 366 (1985)].
4
McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996); State v. Donald,
198 Ariz. 406, 10 P.3d 1193, 1201 (Ct. App. 2000)[, review denied, cert. denied, 534 U.S.
825, 122 S. Ct. 63 (2001)].
8
trial counsel was ineffective for failing to file a motion to dismiss. With respect to Romero’s
other claims, including that he was not fluent in English, we observe that Romero does not
point to the transcript of his guilty plea hearing or indicate that he provided the post-
conviction court with this transcript, and he did not provide the post-conviction court with an
affidavit from his trial counsel. Under the circumstances, we cannot say that the evidence as
a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-
conviction court. See Tapia v. State, 753 N.E.2d 581, 588 n.10 (Ind. 2001) (“It is practically
impossible to gauge the performance of trial counsel without the trial record, as we have no
way of knowing what questions counsel asked, what objections he leveled, or what
arguments he presented.”).
CONCLUSION
For the foregoing reasons, we affirm the post-conviction court’s denial of Romero’s
petition for post-conviction relief.
Affirmed.
BARNES, J., and BRADFORD, J., concur.
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