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Gomez v. State

Court of Appeals of Indiana

February 3, 2015

Fabian Gomez, Appellant-Petitioner,
v.
State of Indiana, Appellee-Respondent

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

Appeal from the Lake Superior Court. The Honorable Samuel L. Cappas, Judge. The Honorable Natalie Bokota, Magistrate. Cause No. 45G04-1003-PC-5.

Fabian Gomez, APPELLANT, Pro se, Carlisle, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, Indiana.

Baker, Judge. Vaidik, C.J., and Riley, J., concur.

MEMORANDUM DECISION

Baker, Judge.

[¶ 1] Fabian Gomez appeals the denial of his petition for post-conviction relief. He argues that the trial court considered an improper aggravating factor during his sentencing and contends that his appellate counsel was ineffective for failing to argue that the same sentencing factor was improper on direct appeal. Finding that Gomez failed to show that appellate counsel was ineffective because there was no error in sentencing, we affirm.

Facts

[¶ 2] The facts underlying this case are as follows:

On December 28, 2006, Gomez shot his girlfriend, Jennifer Montejano, in the face during an argument inside their apartment in East Chicago, Indiana. Gomez called the police, and the responding officer found Jennifer lying on the floor of the apartment with blood on her face. The officer observed that Jennifer was still alive, but was having difficulty breathing, and that it sounded like " she was drowning in her own blood." Jury Trial Tr. at 224. The paramedics arrived and transported Jennifer to the hospital. She had a gunshot wound to the bridge of her nose and was in critical condition. Jennifer was admitted into the hospital and died on January 7, 2007. An autopsy was performed and revealed that the cause of death was a gunshot wound to the face.

Gomez v. State, 907 N.E.2d 607, 609 (Ind.Ct.App. 2009). On December 29, 2006, the State charged Gomez with aggravated Class B felony battery, Class C felony battery, and Class C felony criminal recklessness. On September 28, 2007, the trial court allowed the State to amend the charging information; a count of murder was added.

[¶ 3] On July 31, 2008, a jury convicted Gomez of class A felony voluntary manslaughter, class B felony aggravated battery, class C felony aggravated battery, and class C felony criminal recklessness. The trial court entered judgment on only the voluntary manslaughter conviction. During sentencing, the trial court considered the fact that Gomez had committed the crime in front of minor children as an aggravator and also considered the facts and circumstances surrounding the crime as an aggravator. It sentenced Gomez to forty years imprisonment at the Department of Correction.

[¶ 4] In his direct appeal, Gomez argued that the trial court had improperly allowed the State to amend the charging information and maintained that the State had not presented sufficient evidence to support his voluntary manslaughter conviction. This Court affirmed his conviction. Gomez, 907 N.E.2d at 608. Gomez filed his petition for post-conviction relief on March 22, 2010, but it was withdrawn on July 30, 2010. It was reactivated on August 28, 2013, and the post-conviction court held a hearing on the petition on November 25, 2013. The ...


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