Mercado v. State, 21A-PC-2263

Citation21A-PC-2263
Case DateSeptember 21, 2022
CourtCourt of Appeals of Indiana

Leobardo Mercado, Appellant-Defendant,
v.

State of Indiana, Appellee-Plaintiff.

No. 21A-PC-2263

Court of Appeals of Indiana

September 21, 2022


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.

Appeal from the Elkhart Superior Court The Honorable Teresa L. Cataldo, Judge Trial Court Cause No. 20D03-1910-PC-49

ATTORNEY FOR APPELLANT

Scott H. Duerring

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Attorney General for Indiana

Kelly A. Loy

Assistant Section Chief, Criminal Appeals

Indianapolis, Indiana

MEMORANDUM DECISION

Bailey, Judge.

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Case Summary

[¶1] Leobardo Mercado appeals the trial court's denial of his petition for post-conviction relief. Mercado raises three issues, which we consolidate and restate as whether he was denied the effective assistance of trial counsel. We affirm.

Facts and Procedural History

[¶2] In Mercado's direct appeal, this Court stated the facts and procedural history as follows:

M.F., who was born in September of 2000, lived with her mother Laura ("Mother"), step-father Francisco ("Francisco") (collectively "parents") and her two younger siblings in Elkhart, Indiana and had lived there since she moved from Mexico at age six or seven Mother's sister Beatriz ("Beatriz") lived in Chicago with her husband Mercado at this time, and M.F referred to Mercado as "Uncle." Over the years, Mercado, Beatriz, and their children would visit M.F. and her family in Elkhart. They would stay in Mother[]s and Francisco's apartment during holidays, summer vacations, and for M.F.'s birthdays. Sometimes, Mercado and Beatriz would pick up M.F. in Elkhart and bring her to Chicago to spend time with them.
Mercado began grooming M.F. at an early age. He and Beatriz treated M.F. differently than her siblings. They paid more attention to her, took her places that they did not take the other children, and bought her gifts that they would not buy the other children. When Mercado and his family visited M.F. and her family, Mercado would reach under M.F.'s underwear to touch her breasts and to digitally penetrate her vagina.
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Mercado and his family visited M.F. and her family to celebrate M.F.'s fourteenth birthday. One evening, the family, including Mercado and M.F., were watching television in the living room. M.F. fell asleep on the couch, and she awoke to find Mercado kneeling beside her and touching her. M.F. tried to get up and Mercado asked where she was going. M.F. told him she wanted to go upstairs, but Mercado told her to not leave and held her down on the couch. As M.F. tried to push him away, Mercado put one hand under her shirt and started moving his hand toward her breasts and put his other hand down her pants, rubbed her vagina, and penetrated it with his fingers.
Mercado told M.F. not to tell anyone, saying no one would believe her because he was an adult, and she was just a child. Mercado also told M.F. that if she told others what Mercado had done, M.F. would never see Beatriz again, which M.F. interpreted as a threat to Beatriz.
After she turned fourteen, M.F. began first communion classes at her family's Catholic parish. Before M.F. could take her first communion, she was required to confess to her priest. During her confession, M.F. told the priest that she thought she was a bad daughter because her uncle had touched her inappropriately. The priest encouraged M.F. to tell her parents.
Later that week, M.F. was in the dining room with Mother talking about selecting godparents for her first communion, and her mother suggested Beatriz and Mercado; M.F. began to cry. M.F. explained that Mercado had been touching her inappropriately. Her parents took her to the police to make a report.
The State charged Mercado with two counts of child molesting under Indiana Code [S]ection 35-42-4-3(a)(1), one as a Class A felony for an offense that occurred before July 1, 2014, and one
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as a Level 1 felony, for an offense that occurred after July 1, 2014.
The State later filed a motion in limine to prevent Mercado from asking the parents at trial about the family's immigration status, including whether they had consulted an immigration attorney before the allegations against Mercado came to light, and whether M.F. fabricated the allegations so that she and her family could obtain a "U-Visa," a type of visa that can prevent an undocumented person from being deported if they are a victim of certain crimes and if they help law enforcement investigate the crime. Mercado responded that he only intended to ask whether M.F. or her family consulted an immigration attorney either before or during the pendency of the charges-"it's that simple." The trial court decided to "preliminarily keep it out" and would re-address the issue if "the door is opened or I feel it is appropriate, then it will be addressed at that time."
* * *
Before Mercado took the stand, his lawyer notified the trial court that he had just received a copy of Mercado's bank statement, which listed bank transactions dating to the last half of September of 2014, around the time of M.F.'s fourteenth birthday. Although the trial court judge, the prosecutor, and Mercado's counsel discussed the bank records at length, the defense eventually declined to introduce the records as evidence.
During the trial, the State requested to amend Count I to attempted child molesting. The trial court granted the request. The jury returned guilty verdicts on both counts, attempted child molesting (Count I) and child molesting (Count II).
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[¶3] Mercado v. State, No. 18A-CR-1280, 2018 WL 6837776, at *1-3 (Ind.Ct.App. Dec. 31, 2018) (footnote and citations to the record omitted). The trial court entered judgment of conviction accordingly and sentenced Mercado forty years on each count, to run consecutively, with ten years suspended to probation.

[¶4] On direct appeal, Mercado in relevant part alleged that the court had denied his right to present a defense when it did not allow him to question M.F.'s parents about their immigration status or present bank statements as evidence and that his sentence was inappropriate. As to the first issue, this Court held that Mercado's counsel had only argued for the admission of evidence regarding M.F.'s parent's immigration status during a hearing on a motion in limine but did not tender any evidence during trial and, thus, failed to preserve the issue for appeal. The Court also held that, while the parties discussed the bank records at length, Mercado eventually "declined" to introduce them as evidence. Id. at *4. Accordingly, this Court affirmed Mercado's convictions.[1]However, this Court agreed with Mercado that his sentence was inappropriate in light of his character and revised his sentence to concurrent terms of forty years. Id. at *8.

[¶5] On October 28, 2018, Mercado filed a petition for post-conviction relief in which he asserted that he had received ineffective assistance from his trial

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counsel. In particular, Mercado alleged that his trial counsel had "failed to perform adequate pretrial investigation and preparation," "failed to interview potential defense witnesses[,]" failed to submit bank records as evidence, and failed to "introduce possible motive" related to the immigration status of M.F.'s parents. Appellant's App. Vol. 2 at 5. Following a fact-finding hearing, the court entered findings of fact and conclusions thereon denying Mercado's petition. This appeal ensued.

Discussion and Decision

[¶6] Mercado appeals the post-conviction court's denial of his petition for post- conviction relief. Our standard of review in such appeals is clear:

"The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence." Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014). "When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment." Id. at 274. In order to prevail on an appeal from the denial of post-conviction relief, a petitioner must show that the evidence leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-conviction court in this case entered findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6). Although we do not defer to the post-conviction court's legal conclusions, "[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." Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (internal quotation omitted). . . .
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When evaluating an ineffective
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