Pedraza v. State
| Decision Date | 23 July 2012 |
| Docket Number | No. 49A02–1111–PC–1076.,49A02–1111–PC–1076. |
| Citation | 971 N.E.2d 213 |
| Parties | Rosalio PEDRAZA, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Marion Superior Court; The Honorable Kurt Eisgruber, Judge; The Honorable Steven J. Rubick, Magistrate. Cause No. 49G01–0508–PC–139250.
Stephen T. Owens, Public Defender of Indiana, James T. Acklin, Chief Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Ian McClean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Rosalio Pedraza (“Pedraza”) appeals the denial of his petition for post conviction relief and argues that the post-conviction court clearly erred in concluding that Pedraza was not denied the effective assistance of counsel during his direct appeal.
We affirm.
In its opinion arising out of Pedraza's direct appeal, our supreme court set out the facts underlying Pedraza's convictions as follows:
Around midnight on August 13, 2005, appellant Rosalio Pedraza drove through a red light at a traffic intersection in front of the White River Gardens in Indianapolis. His SUV struck another vehicle containing five people who had just left a wedding reception. Two of the passengers died; one was seriously injured.
At the scene of the accident, Pedraza appeared confused and had bloodshot, watery eyes. He slurred his speech and smelled strongly of alcohol. Both empty beer cans and full ones lay strewn about the interior of his vehicle. A blood alcohol test revealed Pedraza's blood alcohol content was 0.26. Additional tests revealed cocaine metabolites in his bloodstream. Pedraza later admitted that he had been drinking since the day before and had consumed about fifteen beers that day.
Pedraza v. State, 887 N.E.2d 77, 78–79 (Ind.2008) (record citations omitted).
At the conclusion of a jury trial, Pedraza was found guilty of the following counts:
Count I: Class C Felony Operating a Motor Vehicle While Intoxicated (“OWI”) Causing Death
Count II: Class B Felony Operating a Motor Vehicle with a Blood Alcohol Content (“B.A.C.”) Greater than 0.15 Causing Death
Count III: Class C Felony Reckless Homicide
Count IV: Class C Felony OWI Causing Death
Count V: Class B Felony Operating a Motor Vehicle with a B.A.C. Greater than 0.15 Causing Death
Count VI: Class C Felony Reckless Homicide
Count VII: Class D Felony OWI Causing Serious Bodily Injury
Count VIII: Class D Felony Operating a Motor Vehicle with a BAC greater than 0.08 Causing Serious Bodily Injury
Count XIV: Class B Felony Operating a Motor Vehicle with a Metabolite in the Blood Causing Death
Count XV: Class B Felony Operating a Motor Vehicle with a Metabolite in the Blood Causing Death
After the jury returned verdicts on these counts, the trial court heard evidence outside the presence of the jury on the following enhancements:
Count IX: Enhancement of Count I to a Class B Felony due to prior OWI conviction
Count X: Enhancement of Count IV to a Class B Felony due to prior OWI conviction
Count XI: Enhancement of Count VII to a Class C Felony due to prior OWI conviction
Count XII: Enhancement of Count VIII to a Class C Felony Due to prior OWI conviction
Count XIII: Habitual Substance Offender Enhancement
Pedraza admitted to having certain prior OWI convictions supporting the enhancements and habitual offender allegation. Thereafter, the trial court entered judgment of conviction on each of the enhancement counts and adjudged Pedraza a habitual substance offender “based upon the defendant's admissions under oath that the State has met their burden of proof with respect to [the enhancements].” Trial Tr. p. 247.1
At Pedraza's August 25, 2006 sentencing hearing, the trial court vacated all of Pedraza's convictions except for those on Counts II, V, and XI, and the habitual substance offender enhancement. Pedraza was sentenced to eighteen years each on Counts II and V, and the sentence on Count II was enhanced by eight years based on the habitual substance offender adjudication. Pedraza was sentenced to another eight years for Count XI, and all sentences were ordered served consecutively, for an aggregate sentence of fifty-two years.
On direct appeal to this court, Pedraza argued (1) that the trial court erroneously entered judgment of conviction on Count XI because it was merely an enhancement of VII, which the trial court had vacated due to double jeopardy concerns, (2) that the trial court erred by using the same prior OWI conviction to elevate Count XI to a Class C felony and as an aggravating circumstance in imposing sentence on that count, (3) that his sentence was inappropriate in light of the nature of the offenses and his character, and (4) that the trial court erred in ordering consecutive, above-advisory sentences. This court affirmed Pedraza's convictions and sentence in all respects.
Pedraza's appellate counsel then filed a petition for transfer, which was ultimately granted by our supreme court. On transfer, Pedraza argued that the trial court improperly used the same prior OWI conviction to elevate Count XI to a Class C felony and as an aggravating circumstance in imposing sentence on that count. Our supreme court rejected this argument, but granted Pedraza relief on other grounds not raised by appellate counsel. Specifically, the court noted that in Sweatt v. State, 887 N.E.2d 81 (Ind.2008), another case handed down the same day as Pedraza, it had held that “where enhancements of separate counts are based on the same prior conviction, ordering these sentences to run consecutively does constitute an improper double enhancement, absent explicit legislative authorization.” Pedraza, 887 N.E.2d at 81. In Pedraza's case, the same 2001 OWI conviction had been used to elevate Count XI to a Class C felony and to enhance the sentence on Count II based on Pedraza's habitual substance offender adjudication, and the trial court had ordered the sentences on these counts to run consecutively. Id. Based on its decision in Sweatt, the court directed the trial court “to resentence Pedraza such that the 2001 conviction is not used for both purposes in consecutive sentences.” Id. The court summarily affirmed this court's opinion in all other respects. Id.
On remand, the trial court vacated the enhancement in Count XI and reinstated Pedraza's underlying conviction on Count VII. Pedraza was sentenced to three years on Count VII, resulting in a five-year reduction of Pedraza's sentence and an aggregate sentence of forty-seven years.
On June 17, 2008, Pedraza filed a pro se petition for post-conviction relief, which was amended by counsel on October 27, 2010. In his amended petition, Pedraza alleged that he had been denied the effective assistance of counsel on direct appeal because appellate counsel failed to argue that Pedraza had not knowingly, intelligently, and voluntarily waived his right to a jury trial with respect to the habitual substance offender allegation and the enhancement of Count XI to a Class C felony due to a prior OWI conviction.2 The post-conviction court held an evidentiary hearing on Pedraza's amended petition on January 18, 2011. Pedraza's appellate counsel testified at the hearing and stated that he did not raise the issue of whether Pedraza had waived his right to a jury trial on the enhancements because he believed that Pedraza's admissions concerning his prior OWI convictions were “in the nature of a guilty plea[.]” P–CR Tr. p. 6. The post-conviction court entered an order denying Pedraza's petition on November 1, 2011, and Pedraza now appeals.
Post-conviction proceedings are not “super appeals” through which convicted persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d 389, 391 (Ind.2002). Rather, post-conviction proceedings afford petitioners a limited opportunity to raise issues that were unavailable or unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind.2002). A post-conviction petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind.2008). On appeal from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. To prevail on appeal from the denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. at 643–44.
Where, as here, the post-conviction court makes findings of fact and conclusions of law in accordance with Indiana Post–Conviction Rule 1(6), we do not defer to the court's legal conclusions, but “the 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. at 644.
On appeal, Pedraza argues that the post-conviction court clearly erred when it concluded that he had not been subjected to ineffective assistance of appellate counsel. We review claims of ineffective assistance of appellate counsel using the same standard applicable to claims of ineffective assistance of trial counsel. Id. Accordingly, to prevail on his claim, Pedraza was required to show both that counsel's performance was deficient and that the deficiency resulted in prejudice. Id.
Deficient performance is “ ‘representation that fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.' “ State v. McManus, 868 N.E.2d 778, 790 (Ind.2007) (quoting McCary, 761 N.E.2d 761 at 392). Counsel's performance is...
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