Vazquez v. State, No. 79A02–1207–PC–545.

Docket NºNo. 79A02–1207–PC–545.
Citation995 N.E.2d 17
Case DateSeptember 19, 2013
CourtCourt of Appeals of Indiana

995 N.E.2d 17

Ivan Luis VAZQUEZ, Appellant–Defendant,
v.
STATE of Indiana, Appellee–Plaintiff.

No. 79A02–1207–PC–545.

Court of Appeals of Indiana.

Sept. 19, 2013.


Appeal from the Tippecanoe Circuit Court; The Honorable Donald L. Daniel, Judge; Cause No. 79C01–0607–PC–1.
Ivan Luis Vazquez, Carlisle, IN, Appellant Pro Se.

Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.


MEMORANDUM DECISION—NOT FOR PUBLICATION

BROWN, Judge.

Ivan Luis Vazquez, pro se, appeals the post-conviction court's denial of his petition for post-conviction relief. Vazquez raises four issues, which we revise and restate as whether the court erred in denying Vazquez's petition for post-conviction relief. We affirm.

FACTS AND PROCEDURAL HISTORY

On August 15, 2003, the State charged Vazquez with Count I, dealing in cocaine as a class A felony; Count II, possession of cocaine as a class C felony; Count III, dealing in cocaine as a class A felony; Count IV, possession of cocaine as a class C felony; Count V, conspiracy to commit dealing in cocaine as a class A felony; Count VI, possession of cocaine as a class C felony; Count VII, possession of methamphetamine as a class C felony; Count VIII, possession of a schedule IV controlled substance as a class D felony; Count IX, possession of a schedule IV controlled substance as a class D felony; Count X, possession of a schedule IV controlled substance as a class D felony; and Count XI, maintaining a common nuisance as a class D felony. On October 23, 2003, the State charged Vazquez with Count XII, corrupt business influence as a class C felony. That same day, the State also filed an amended information for Count V, conspiracy to commit dealing in cocaine.

In September 2004, Vazquez pled guilty to Count I, dealing in cocaine as a class A felony, and Count V, conspiracy to commit dealing in cocaine as a class A felony. Under the plea agreement, Vazquez consented to judicial fact-finding of aggravators and mitigators. On September 22, 2004, the court held a guilty plea hearing at which the court informed Vazquez of his rights. The following exchange occurred:

BY THE COURT: Do you understand that the Court may order that the sentences for the crimes charged in this case be served one at a time, what the law calls consecutively, so that the time you spend in prison for the sentence for—for instance, I believe it's Count Five, could be consecutive to the sentence imposed in Count One. Do you understand that?

BY MR. VAZQUEZ: Yes.

Guilty Plea Transcript at 12.


On April 11, 2005, the court held a sentencing hearing and accepted Vazquez's plea. At the hearing, Tiffany Hurst, Vazquez's ex-girlfriend, testified that she did not want to be at the sentencing hearing and that Vazquez had threatened her. The court found the following aggravating factors: (1) Vazquez's criminal history; (2) “numerous offenses over a substantial period of time with numerous transferees with respect to the drugs;” (3) that Vazquez “was a dealer, not a user, with respect to cocaine;” (4) that Vazquez “attempted to intimidate a witness prior to testimony;” and (5) that “[t]here have been attempts at rehabilitation.” Appellant's Direct Appeal Appendix at 7. Although the court did not identify any mitigators in its sentencing order, at the sentencing hearing the court stated that Vazquez's guilty plea was entitled to some weight and also gave “little weight” to the hardship on Vazquez's six dependents because it found that he had been supporting them by illegal means. Sentencing Transcript at 83. The court found that the aggravators outweighed any mitigators.

At the end of the sentencing hearing, Vazquez's trial counsel argued that the conviction for Count I should be merged and vacated. Specifically, the following exchange occurred:

BY THE COURT: ... I did not enter—impose sentence on Count One because I find it to be covered by terms of double-jeopardy by the same—by the terms of—

[Vazquez's Counsel]:—I think the language on that is it merges and you vacate it.

BY THE COURT: Now, merger is no longer the term that they use.

[Vazquez's Counsel]: Oh.

BY THE COURT: Go figure.

[Vazquez's Counsel]: Okay.

BY THE COURT: It's—it's certainly not dismissed. It's hanging out here in case there's something wrong with the conviction on Count V, it's still a viable count as to which sentence can be imposed, but I just find that based upon the Morgan case that I'm not permitted to impose the two. There would have to be, I think, something that makes it clear that the charges are separate and that—so that there's no question to the, you know, appellate reader that he's convicted of A and of B rather than A as part of B.

Id. at 86–87. In April 2005, the court sentenced Vazquez to fifty years with five years suspended for Count V, conspiracy to commit dealing in cocaine as a class A felony, and ordered that the sentence be served consecutive to his sentence under cause number 79D06–0210–FD–277.


On direct appeal, Vazquez argued that the trial court erred in sentencing him to the maximum term of fifty years with five years suspended to probation because it improperly found the aggravators of his criminal history, that he had committed “numerous offenses over a substantial period of time with numerous transferees,” and that he “was a dealer, not a user, with respect to cocaine.” Vazquez v. State, 839 N.E.2d 1229, 1231–1233 (Ind.Ct.App.2005), trans. denied. Vazquez also argued that his sentence was inappropriate and that the trial court erred in ordering his sentence to run consecutive to his sentence in another case. Id. at 1231. This court found that the trial court abused its discretion by finding that Vazquez “was a dealer, not a user, with respect to cocaine” as an aggravator, but ultimately concluded that the trial court did not abuse its discretion in sentencing Vazquez given the remaining aggravators and affirmed his sentence. Id. at 1234–1235.

In 2008, Vazquez filed a petition for post-conviction relief. In 2011, Vazquez filed an amended petition for post-conviction relief and alleged that his trial counsel misinformed him that he could be convicted and sentenced for both dealing in cocaine and conspiracy to commit dealing in cocaine, that his plea agreement was void in part because the trial court withheld judgment on Count I, dealing in cocaine, and that his trial counsel and appellate counsel were ineffective.

On January 13, 2012, the post-conviction court held a hearing. Vazquez testified that his trial counsel told him that he could be convicted and sentenced for both dealing in cocaine and conspiracy to commit dealing in cocaine. Vazquez also stated: “[I]f I would have known and had information about the law and it's [sic] rules that applied in this case in my case and the proceedings I am sure that I wouldn't have taken the plea agreement and I would have request[ed] a jury because I would have got a better result.” Post–Conviction Transcript at 49. Vazquez's trial counsel and appellate counsel also testified. On June 14, 2012, the post-conviction court denied Vazquez's petition.

DISCUSSION

Before discussing Vazquez's allegations of error, we note that although Vazquez 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, 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 entered findings of fact and conclusions thereon in accordance with Indiana Post–Conviction Rule 1(6). Id. “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. Id. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Id.

To the extent that Vazquez fails to put forth a cogent argument, cite to authority, or cite to the record, we conclude that such 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”); Shane v. State, 716 N.E.2d 391, 398 n.3 (Ind.1999) (holding that the defendant waived argument on appeal by failing to develop a cogent argument); Smith v. State, 822 N.E.2d 193, 202–203 (Ind.Ct.App.2005) (“Generally, a party waives any issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record.”), trans. denied.

To the extent that Vazquez raises freestanding claims of error, these claims fail. See Reed v. State, 866 N.E.2d 767, 768 (Ind.2007) (holding that the propriety of a defendant's sentence is not properly questioned through collateral proceedings and that only issues not known at the time of the original trial or issues not available on direct appeal may be properly raised through post-conviction proceedings); Sanders v. State, 765 N.E.2d 591, 592 (Ind.2002) (holding that in “post-conviction proceedings, complaints...

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