Iraheta-Rosales v. State

138 N.E.3d 968 (Table)

Oscar IRAHETA-ROSALES, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 19A-PC-327

Court of Appeals of Indiana.

FILED November 8, 2019

Attorney for Appellant: Cynthia M. Carter, Indianapolis, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Chandra K. Hein, Deputy Attorney General, Indianapolis, Indiana

MEMORANDUM DECISION

Altice, Judge.

Case Summary

[1] Oscar Iraheta-Rosales pled guilty, without a plea agreement, to two counts of Class A felony child molesting and one count of Class C felony child molesting. He filed a direct appeal asserting that his sentence was inappropriate, and this court affirmed by memorandum decision. Following the denial of his petition for post-conviction relief, Iraheta-Rosales appeals and raises three issues that we consolidate and restate as:

I. Did Iraheta-Rosales receive ineffective assistance of trial counsel?

II. Was the judge who presided at the post-conviction evidentiary hearing validly appointed by the presiding judge?

[2] We affirm.

Facts & Procedural History

[3] The facts of Iraheta-Rosales's offense as summarized on direct appeal are as follows:

On or about July 7, 2008, Iraheta-Rosales took several children fishing at Eagle Creek Park in Indianapolis. At some point during the outing, Iraheta-Rosales led then-eleven-year-old I.A. away from the group. He then proceeded to fondle I.A.'s penis before telling I.A. to undress. Once I.A. had undressed, Iraheta-Rosales inserted his finger and then his penis into I.A.'s anus.

Upon questioning, Iraheta-Rosales claimed that I.A. had fondled him. He also admitted to inserting his finger into I.A.'s anus. Iraheta-Rosales v. State , No. 49A02-0905-CR-405, at *1 (Ind. Ct. App. Jan. 29, 2010). On July 16, 2008, the State charged Iraheta-Rosales in this case with two counts of Class A felony child molesting and one count of Class C felony child molesting under Cause Number 49G06-0807-FA-165849 (Cause 849). In September 2008, the State charged Iraheta-Rosales with two counts of Class A felony child molesting and three counts of Class C felony child molesting under Cause Number 49G06-0809-FA-206229 (Cause 229) relative to his conduct with another child, H.I. Iraheta-Rosales hired a private attorney, Jesse Coleman, to represent him in both Cause 849 and Cause 229.

[4] In Cause 849, Coleman failed to appear for an October 24, 2008 hearing. He was late to appear at an October 29, 2008 child hearsay hearing, and it was rescheduled to November 12. Coleman then failed to appear for a January 20, 2009 pretrial conference. Neither Coleman nor Iraheta-Rosales, who was in jail, appeared for jury trial on February 23, 2009, and the matter was continued due to a congested court calendar and reset for March 23, 2009. Coleman appeared for a final pretrial conference on March 17 at which the jury trial was confirmed for March 23 at 8:45 a.m. Iraheta-Rosales appeared in person on March 23 for trial, as did the State, witnesses, forty jury pool members, and two interpreters.¹ The record reflects that Coleman was not present at 9:02 a.m. and still was not present at 9:13 a.m., causing the trial court to issue an arrest warrant for him. The record reflects that Iraheta-Rosales was dressed in jail attire and did not have any clothes for trial. The trial court recessed and, upon resuming on the record, Coleman was present.² Coleman did not have an interpreter with him to converse with his client but the court allowed Coleman to use one of the court's certified interpreters, and Coleman did not bring clothes for Iraheta-Rosales to wear for trial.

[5] Coleman confirmed that the defense was "ready to proceed" and stated that Iraheta-Rosales wanted to withdraw his not guilty plea and enter a plea of guilty on all charges without a plea agreement. Prior Transcript at 77-73. Because there was some discussion as to whether Iraheta-Rosales intended to plead guilty to pending charges in both Cause 849 and Cause 229, Coleman conferred off-record with Iraheta-Rosales.

[6] When the cause resumed, Coleman asked the court to continue Cause 229, but Iraheta-Rosales then stated, "I want the two cases to be done together" and "I want to go ahead with both cases." Id. at 77. Thereafter, Coleman told the court, "He withdraws his previously entered plea of not guilty to both cases, and enters a plea of guilty to both cases." Id. at 78. Iraheta-Rosales was asked and confirmed that he "wish[ed] to do that without the benefit of a plea agreement." Id. The trial court asked the State about any plea offer that had been made and the prosecutor advised that a plea offer had been made that morning under which Iraheta-Rosales would plead guilty to one count of Class A felony child molesting in Cause 849 and another count of Class A felony child molesting in Cause 229, with a thirty-year executed sentence in Cause 849 and a consecutive sentence of not more than thirty years in Cause 229.³ Iraheta-Rosales told the trial court that he did not want to accept the State's offer. The trial court explained to Iraheta-Rosales that, by rejecting the State's offer, he was exposing himself to a longer sentence, but Iraheta-Rosales confirmed he wished to proceed without the benefit of a plea agreement.

[7] The court engaged in extensive guilty plea questioning with Iraheta-Rosales, including asking him "Are you pleading guilty in any way because you believe your attorney is not ready for trial today?" and Iraheta-Rosales replied, "No." Id. at 86. The court told Iraheta-Rosales that it wanted "to make sure that you understand the sentencing ranges that you are facing here" and told him that, under Cause 849, he was facing a maximum one-hundred and eight years, and under Cause 229, he was facing up to one-hundred and twenty-four years. Id. at 85. Iraheta-Rosales confirmed repeatedly that he wished to proceed without a plea agreement. The court also explained to Iraheta-Rosales that, although he was a citizen of El Salvador, he would most likely need to serve his sentence first before he would be deported, and the court asked, "In other words, you're not pleading guilty in the belief that we'll simply send you back to your own country, are you?" and Iraheta-Rosales confirmed that he was not pleading guilty for that reason. Id. at 93.

[8] The trial court read the charging information of Cause 849, and Iraheta-Rosales stated his intention to plead guilty to those charges. The trial court then did likewise for Cause 229 and at the conclusion asked Iraheta-Rosales if he was pleading guilty to those charges, and Iraheta-Rosales replied, "No." Id at 99. The trial court, confused by this response, gave Coleman time to confer with Iraheta-Rosales off the record, and when the matter resumed, Coleman stated, "[H]e's not pleading guilty to 229." Id. at 101. After receiving additional unclear answers from Iraheta-Rosales about which charges he was pleading guilty to, the trial court asked Iraheta-Rosales, "Are you satisfied with the services of your attorney, Mr. Coleman?", and Iraheta-Rosales stated that he was. Id. at 102. The court also asked, "Is there anything you think your lawyer should have done for you that he didn't do?" and Iraheta-Rosales replied, "No, Your Honor." Id. After the State read a factual basis involving the acts occurring with the child victim, I.A. (Cause 849), Iraheta-Rosales confirmed that the facts as read were the truth and that he desired to plead guilty. The trial court accepted his plea of guilty and ordered a presentence investigation report in Cause 849, and the court continued Cause 229 at Iraheta-Rosales's request.

[9] At the April 9, 2009 sentencing hearing in Cause 849, the trial court noted that Iraheta-Rosales had entered the country illegally from El Salvador, and his work permits had expired. The trial court found as mitigating that he had no prior criminal history and had been molested as a child and found as aggravating that he had violated a position of trust. The court imposed a sentence of forty years, with ten years suspended, on Count I, the same sentence on Count II, and five years on Count III, with the sentences to run concurrently, for an aggregate executed sentence of thirty years. Coleman withdrew as counsel at the conclusion of the guilty plea hearing, and the trial court appointed a public defender for purposes of appeal.⁴

[10] On March 7, 2018, Iraheta-Rosales by counsel filed a petition for post-conviction relief, alleging that in Cause 849: (1) his trial counsel, Coleman, provided ineffective assistance of counsel and violated the Sixth Amendment to the United States Constitution; and (2) Coleman's representation violated Indiana's right to effective representation under Article 1, Section 13 of the Indiana Constitution and Indiana Due Course of Law provision, Article 1, Section 12. Iraheta-Rosales alleged:

Trial Counsel made numerous unprofessional mistakes. Upon information and belief, those mistakes include, but are not limited to: (1) Trial Counsel failed to explain the charges to his Client; (2) Trial Counsel failed to research the case and prepare a strategy for defending the case; (3) Trial Counsel failed to subpoena witnesses for the Jury Trial; (4) Trial Counsel failed to appear for multiple court proceedings; (5) Trial Counsel failed to secure clothing for his client to wear at trial; and (6) Trial Counsel failed to appear at the appointed time for the Client's Jury Trial, leaving the Client high and dry with no explanation and no jury clothes, which resulted in the Court issuing a warrant for Trial Counsel's arrest; and (7) Trial Counsel failed to negotiate a plea agreement for his Client.

Appellant's Appendix Vol. 2 at 16-17. Iraheta-Rosales argued in his petition that "this is a clear case of deficient performance," asserting that counsel's various failures to appear for hearings were not isolated mistakes but rather "exhibited a pattern of chronic neglect that...