GUERRIERO v. STATE (2026)

MEMORANDUM DECISION

[1] David Guerriero appeals the denial of his petition for post-conviction relief. We affirm.

Facts and Procedural History

[2] The relevant facts as discussed in Guerriero's direct appeal follow:

Guerriero and Michael Hill (“Hill”) met in 1995 as cadets at West Point Military Academy in New York, where they were roommates for four years. Guerriero and Hill were both initially stationed at Fort Sill, Oklahoma before being assigned to different locations. Guerriero and Hill reunited in 2012 in Richmond, Virginia, where Guerriero moved in with Hill and Hill's family. Hill's family includes two minor children, M.H. and a younger daughter, and Hill's wife, “Mary.” Guerriero and the Hill family moved to Indiana in 2013, and Guerriero, who stayed with the family periodically after the move, began living with the Hill family on a full-time basis around August of 2016.

On August 2, 2017, the State charged Guerriero with Counts I and II, child molesting as Level 4 felonies, and Counts III and IV, sexual misconduct with a minor as Level 4 felonies. The victim was M.H. At Guerriero's March 12 and 13, 2019, jury trial, the following testimony and evidence was presented.

M.H.’s mother and father testified that Guerriero developed a relationship with M.H., who called him Uncle Dave. While living with the Hill family beginning in 2016, Guerriero had his own room in the basement, a key to the house, and knowledge of the garage door code. Guerriero was also left alone with M.H. “often” and watched the girls “[a]ll the time.”

M.H. testified that Guerriero engaged in sexual conduct with her on four occasions between 2013 when the Hill family moved to Indiana and July 12, 2017, when Guerriero moved out. The first instance of sexual conduct happened when M.H. was twelve years old. M.H. was startled awake in the middle of the night by Guerriero, who began touching her while she was in bed. M.H. stated that Guerriero touched “around my private parts and just rubbing like along my thighs and my stomach.” Guerriero began rubbing M.H. on top of her clothes and then touched her underneath her clothes. M.H. stated that the touching “would vary from like my stomach and thighs to around my vagina above where you would put a tampon.” M.H. pretended she was asleep because she was afraid and then eventually went to her mother's bedroom and asked her mother if she could sleep with her. Mary told M.H. to return to her room. M.H. did not tell her mother about the assault at the time because she was afraid of how her mother would react and that she would doubt what M.H. was saying.

The second instance happened when M.H. was twelve or thirteen years old. Guerriero got in bed with M.H. again and started rubbing her under her clothes. M.H. stated that Guerriero “made me hold his penis and continued to just rub around my private parts and my stomach and thighs.” The third instance happened after M.H. had turned fourteen years old when M.H. was on a couch in a downstairs living room. M.H. was sitting under a blanket on the couch while her family was outside, and Guerriero approached her and began rubbing her thighs. M.H. stated that Guerriero then sat on the ground and “started licking around my private parts ․ under my clothing ․ right above where you would put a tampon.”

The fourth instance happened after M.H. returned from church camp in mid-to-late June of 2017. The rest of the Hill family was not at home, and M.H. was sitting on a couch in an upstairs loft, where Guerriero approached her and began rubbing her thighs. M.H. stated that Guerriero “sat down on the ground and put my calves on his shoulders and pulled down my pants and started licking around my private parts again.” Guerriero also touched M.H. on the stomach and breasts. The encounter lasted ten to fifteen minutes before M.H. got up to take a shower. Guerriero asked if he could take a shower with her, but M.H. went into the bathroom and locked the door. However, M.H. was still scared because there was a key to the bathroom above the doorframe.

M.H. first told “one of [her] really good friends at the time” about the sexual assaults in a telephone conversation. Although M.H. described her friendship with this friend as “toxic,” she also stated that they were “really good friends.” Mary testified that Guerriero abruptly moved out of the house on July 12, 2017, after hearing M.H. read a book out loud to Mary about sex and dating. Mary and Hill testified that, after learning that Guerriero would be returning to the Hill home for a cookout, M.H. told her mother on July 29 about the sexual assaults. Mary and Hill contacted the police about the accusations on July 31, desiring to wait until Monday morning because they assumed that “the people who do this all the time are the people that are there Monday to Friday.”

Detective Jesse Fulwider (“Det. Fulwider”) of the Hendricks County Sheriff's Department also testified. He stated that, after Guerriero's arrest on August 3, 2017, Det. Fulwider obtained a search warrant and searched the short-term rental “facility” where Guerriero was staying. During that search he recovered an Apple iPad from Guerriero's bedroom. Detective Jeremy Chapman (“Det. Chapman”) of the Avon Police Department testified that he did a forensic download of the iPad and printed the downloaded content. Det. Fulwider testified that the printed download from the iPad was contained in State's Exhibit 8, which was admitted over Guerriero's objection. Exhibit 8 contained an article entitled “I Worked as a Lawyer on Child Molestation Cases and Just Because Woody Allen Wasn't Prosecuted Doesn't Necessarily Mean He's Innocent” that had been saved as a bookmark on Guerriero's iPad.

Guerriero v. State, No. 19A-CR-1039, 2020 WL 356246 at *1-2 (Ind. Ct. App. Jan. 22, 2020) (record citations omitted).

[3] On August 2, 2017, the State charged Guerriero with two counts of child molesting (Counts I and II) and one count of sexual misconduct with a minor (Count III) as level 4 felonies. Guerriero appeared for an initial hearing on August 7, 2017. The court advised him as to the possible sentence if convicted of each level 4 felony charge. Thereafter, attorney Ralph Staples began representing Guerriero. Staples had previously worked as Chief Deputy Prosecutor in Marion County and had been involved in many high-level criminal cases. On October 29, 2018, the State added a second count of sexual misconduct with a minor (Count IV) as a level 4 felony.

[4] Throughout the pendency of this case, the court held nine pre-trial conferences. Staples appeared with Guerriero at seven of those conferences but failed to appear at two. During a conference held on September 18, 2017, Staples indicated that he had just obtained discovery from the State, that he anticipated deposing three witnesses, and that he had just gained access to a disc containing interviews that he needed to have transcribed. Between November 20, 2017, and January 2, 2018, Guerriero, through Staples, requested continuances.

[5] At a pre-trial conference on March 12, 2018, the prosecutor informed the court she had not had any contact with Staples in about four months and that the last she knew he was obtaining transcripts of interviews. On March 14, 2018, Staples moved to continue the jury trial indicating that he was still awaiting transcripts. The State did not object and the trial date was continued.

[6] On December 3, 2018, Staples appeared with Guerriero for a pre-trial conference. Staples filed a motion for more specific information and indicated to the court that the “discovery hurdles” had been “resolved.” Exhibit's Volume III at 45. The case was scheduled for jury trial on February 19, 2019.

[7] On February 10, 2019, Staples met with Guerriero to review a plea offer. The next day, Staples appeared with Guerriero for a pre-trial conference. Staples informed the court that Guerriero “decline[d] to accept that [plea] offer.” Id. at 49. The State moved for a continuance of the February trial date due to some “shuffling around in the prosecutor's office” and two new “deputies assigned to this case.” Id. at 50. The court granted the continuance and set a trial date for March 12, 2019. The court set a deadline of “February 28 at 4:00” for the parties to notify the court if they were able to finalize a plea agreement. Id.

[8] The court held a final pretrial conference on March 4, 2019. Staples appeared with Guerriero and all parties indicated that they were ready to proceed with the jury trial. On March 10, 2019, Staples met with Guerriero in person for the first time for approximately thirty to forty-five minutes to prepare for trial. They went over Guerriero's “statement with the police” and “some of the evidence that [Guerriero] thought supported his contention” that the molestations never happened. Post-Conviction Transcript Volume II at 9. They also discussed the final plea agreement offered by the State.

[9] The jury trial began on March 11, 2019. On the second day of trial, Staples made a record informing the court of the State's final plea offer and Guerriero's rejection of the same. At the conclusion of trial, the jury found Guerriero guilty as charged. The court held a sentencing hearing on April 9, 2019, after which the court imposed an eight-year sentence on Count I and a six-year sentence on Count II, to run concurrently; a six-year sentence on Count III, to run consecutively to Counts I and II; and a six-year sentence on Count IV, to run consecutively to Counts I, II, and III, with three years suspended to probation.

[10] On direct appeal, the sole issue raised was whether there was insufficient evidence to support Guerriero's convictions due to the victim's “incredibly dubious” testimony. Guerriero v. State, No. 19A-CR-1039, 2020 WL 356246 at *1 (Ind. Ct. App. Jan. 22, 2020). This Court affirmed Guerriero's convictions. Id. Guerriero filed a petition for post-conviction relief on October 12, 2020. That petition was dismissed on October 27, 2021, prior to any evidentiary hearing. On December 11, 2024, Guerriero filed a second petition for post-conviction relief alleging he received ineffective assistance of trial counsel. The State filed a response on December 17, 2024.

[11] On February 24, 2025, the court held an evidentiary hearing. Guerriero was present by video and his post-conviction counsel appeared in person. Guerriero was the only witness who testified. In relevant part, Guerriero testified that Staples communicated with him primarily through a paralegal. According to Guerriero, he had very little communication with Staples prior to trial. Guerriero noted that Staples did not “appear at all of [his] court hearings.” Post-Conviction Transcript Volume II at 8. He testified that Staples’ paralegal was the person who conveyed to him the “first three” plea offers via “text message or a phone call.” Id. at 11. Guerriero stated that Staples presented the State's final “written” plea offer to him during their meeting just before trial. Id. Guerriero recalled that the agreement said “something to the effect of no jail time[,] four years suspended, two years’ probation no jail time[.]” Id. at 23. Guerriero stated that he told Staples that he did not “want to admit to a crime that [he] didn't commit” but that he needed Staples’ “advice.” Id. at 12. Guerriero testified that Staples responded, “I can't advise you all I can do is present you with the offer as it is written.” Id. According to Guerriero, Staples never discussed with him the advantages of the plea offer versus the risks of trial. Guerriero stated that he was never informed by Staples of the sex offender registration requirements upon his conviction of the charged crimes. Guerriero testified that had he known that accepting the plea agreement would have meant he would not be a lifetime registered sex offender, it would have been enough to convince him to take the plea. When questioned by the court, Guerriero admitted that the plea agreement that was presented to him by Staples was “in writing,” and that he may have “failed to read” any reference to the sex offender registry requirements so he “didn't know” the plea agreement would not have required “a lifetime registration.” Id. at 23.

[12] Guerriero further testified that at some point after his incarceration, he became aware that Staples “had some disciplinary actions.” Id. at 18. He stated that, had he known Staples “was facing disciplinary actions and was potentially going to be disbarred,” he “would not have hired him.” Id.¹

[13] On April 17, 2025, the court issued extensive findings of fact, conclusions of law, and judgment denying Guerriero's petition for post-conviction relief. Specifically, the court found in relevant part:

10. The Court agrees with Guerriero and concludes that Staples’ lack of communication prior to trial falls below an objective standard of reasonableness. The evidence in the record makes Guerriero's testimony on this issue credible. Specifically, the two (2) instances in the record where the deputy prosecutor noted that she had not communicated with Staples in many months support Guerriero's testimony.

11. The Court does not agree with Guerriero and concludes that despite his lack of communication with his client, Staples’ overall performance was not so egregious as to deny Guerriero a fair trial. Staples was more than qualified and capable of handling a child molest case and performed more than adequately at trial.[2]

12. It's clear from the record that Guerriero's strategy was that he did not do the things he was accused of doing. Staples made a clear record prior to trial of the terms of the State's last plea offer, and that Guerriero had rejected the last plea offer. Guerriero testified on his own behalf at trial, and the jury did not belie[ve] his testimony. On the other hand, the jury weighed the testimony of the victim and found her more credible. The Court of Appeals did not find the victim's testimony incredibly dubious.

13. In sum, Guerriero has not shown a reasonable probability that, despite Staples lack of communication, the outcome would have been different. Guerriero testified that he would have pled guilty had he known about the sex offender registration requirements. Guerriero also pointed out certain life changes, including becoming a father, that would have changed his mind about pleading guilty. However, this Court finds this testimony self-serving and lacking credibility considering Guerriero's trial position and strategy.

Appellant's Appendix Volume II at 44-45. Guerriero filed a notice of appeal on May 15, 2025.

Discussion

[14] Guerriero asserts that he received the ineffective assistance of trial counsel. 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. 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. “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. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Id.

[15] Generally, to prevail on an ineffective assistance of counsel claim, a petitioner “must show (1) that his counsel's performance fell short of prevailing professional norms, and (2) that counsel's deficient performance prejudiced his defense.” Gibson v. State, 133 N.E.3d 673, 682 (Ind. 2019) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)), reh'g denied, cert. denied, 141 S. Ct. 553 (2020). A showing of deficient performance under the first of these two prongs requires proof that legal representation lacked an objective standard of reasonableness, effectively depriving the defendant of his Sixth Amendment right to counsel. Id. To demonstrate prejudice, the defendant must show a reasonable probability that, but for counsel's errors, the proceedings below would have resulted in a different outcome. Id. “Although the two parts of the Strickland test are separate [inquiries], a claim may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). “Strickland declared that the ‘object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ․ that course should be followed.’ ” Id. (quoting Strickland, 466 U.S. at 697).

[16] We have little difficulty disposing of Guerriero's ineffective assistance claim under the second Strickland prong. Guerriero bore the burden of proving by a preponderance of the evidence that he was prejudiced by Staples's alleged deficient representation, i.e., a reasonable probability that the result of his proceeding would be different. He argues that he was prejudiced by Staples's “failure to advise on a plea offer involving lifetime sex offender registration, failure to review evidence, failure to communicate adequately, and failure to address the addition of Count [IV], which resulted in a consecutive sentence.” Appellant's Brief at 4. As already noted, Guerriero was the sole witness who testified during the post-conviction hearing. He did not call Staples as a witness.³ It is well established that when trial counsel does not testify in post-conviction proceedings, it is the court's prerogative to “infer that trial counsel would not have corroborated appellant's allegations.” Dickson v. State, 533 N.E.2d 586, 589 (Ind. 1989) (citations omitted).

[17] Regarding Staples's failure to communicate adequately with Guerriero pre-trial, the post-conviction court agreed with Guerriero that such failure fell below an objective standard of reasonableness. However, the court concluded that the record supports the conclusion that Staples's overall performance at trial was adequate and that Guerriero failed to establish that the outcome at trial would have been different had Staples communicated with Guerriero more frequently. Indeed, the post-conviction court found that Guerriero testified on his own behalf at trial, the victim also testified, and the jury “weighed the testimony” and found the victim “more credible.” Appellant's Appendix Volume II at 45. We agree with the post-conviction court that Guerriero has not met his burden to establish prejudice as a result of Staples’ failure to communicate adequately.

[18] With respect to Staples's alleged failure to review “the State's evidence” with him or discuss “the strength of the prosecution's case,” Appellant's Brief at 7, the record reveals that Staples indeed provided Guerriero with ample information regarding the case against him, including forensic interviews and witness statements, and Guerriero was well aware what the victim was claiming had occurred. Significantly, as found by the post-conviction court, Guerriero's defense theory was that he was wholly innocent of the charged crimes. He has not met his burden to establish that any further review of the evidence against him would have changed his decision to proceed to trial on that theory or the outcome.

[19] Regarding Staples's alleged failure to address amendments to the charging information with Guerriero, we observe that the record reveals that, during the October 15, 2018 pretrial hearing, Staples requested additional time to discuss the addition of Count IV with Guerriero and determine if there were any objections. The court gave Staples ten days to file an objection if he deemed an objection necessary. Although Staples did not file an objection to the amendment and the charge was added, Staples subsequently filed a motion for more specific information, which was granted by the court, requiring the State to provide a more definite statement as to Guerriero's alleged criminal conduct. Additionally, on the first day of trial, Staples advised the court that he had reviewed the amended charging information with Guerriero prior to waiving the initial hearing on the State's amendment. Significantly, the record reveals that, prior to the amendment, the court advised Guerriero that he was facing a maximum sentence of thirty-six years. With the amendment and addition of Count IV, Guerriero was sentenced to an aggregate twenty-year sentence, which was well below the maximum sentence he was facing prior to the amendment. Accordingly, Guerriero has not established that he was prejudiced by any failure by Staples to address the amendment or that his decision to proceed to trial or the outcome would have changed.

[20] As far as Guerriero's claim that Staples failed to advise him regarding a plea offer, the post-conviction court observed, “it was clear from the [trial] record that Guerriero's strategy was that he did not do the things he was accused of doing.” Appellant's Appendix Volume II at 45. In addition, during trial, after Staples made a record of the last plea agreement being rejected, “Guerriero did not speak up or make any indication he wished to be heard as to any plea offers.” Id. at 41. The post-conviction court was not obligated to credit Guerriero's self-serving testimony that “avoiding lifetime” sex offender registration “would have been decisive in accepting a plea,” or his claim that “counsel refused to advise on the plea and failed to explain its terms.” Appellant's Brief at 13 (citing Post-Conviction Transcript at 13-14, 22). As noted by the court, Guerriero now points to certain life changes, such as becoming a father, that would have changed his mind about pleading guilty. The court found this testimony “self-serving and lacking credibility considering Guerriero's trial position and strategy.” Appellant's Appendix Volume II at 45. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Fisher, 810 N.E.2d at 679; see Isom v. State, 170 N.E.3d 623, 640 (Ind. 2021) (no ineffective assistance for counsel's alleged failure to “properly present” plea offer when defendant maintained innocence, refused to accept any plea or defense that involved admission of guilt, and counsel addressed the plea offer in defendant's presence on the record before the trial court and the court was satisfied that defendant did not wish to plead guilty).

[21] Because Guerriero has not established that he was prejudiced by his trial counsel's deficient performance, we cannot say he has demonstrated that reversal is warranted.

[22] For the foregoing reasons, we affirm the post-conviction court's order.

[23] Affirmed.

FOOTNOTES

1.   As found by the post-conviction court, Staples was disciplined in 2012 for “several violations of the Indiana Rules of Professional Conduct, including failing to keep a client reasonably informed and failing to explain to a client to the extent reasonably necessary to permit the client to make informed decisions.” Appellant's Appendix Volume II at 38. This resulted in a sixty-day suspension and twenty-four months of probation. Staples was also subject to discipline in 2016, which resulted in a public reprimand. After his representation of Guerriero, on October 20, 2021, the Indiana Supreme Court Disciplinary Commission filed a third complaint against Staples “alleging that he committed acts of misconduct beginning in 2018” including that he “failed to properly discuss the topic of a fee division with a client and failed to appear when ordered to do so by a court.” Id. The Indiana Supreme Court imposed a one-year suspension.

2.   As found by the post-conviction court, during the State's case-in-chief, “Staples made many objections including relevancy, hearsay, leading questions, and speculation.” Appellant's Appendix Volume II at 41. The court further found that “Staples was able to get the Court to strike a portion of the victim's mother's testimony as it related to a description of a change in the child's behavior” and he “successfully maneuvered to gain redaction of certain obscene and/or pornographic material from the knowledge of the jury.” Id.

3.   In its findings of fact, the post-conviction court stated, “Staples did not testify at this PCR hearing. Guerriero's PCR counsel represented that efforts to locate Staples and retrieve the contents of Mr. Guerriero's file were not successful.” Appellant's Appendix Volume II at 42.

Brown, Judge.

Felix, J., and Scheele, J., concur.