Alejandro Sanchez-Hernandez, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2026)

MEMORANDUM DECISION

[1] Alejandro Sanchez-Hernandez (“Sanchez-Hernandez”) appeals the denial of his petition for post-conviction relief (“PCR”), which included a claim of ineffective assistance of trial counsel related to his decision to plead guilty. We restate the issue as whether counsel performed deficiently because he did not advise Sanchez-Hernandez that, if the case went to trial, it was possible to request a jury instruction on a lesser-included offense. We conclude that it was objectively reasonable for trial counsel not to discuss the possibility of a lesser-included instruction because, based on the evidence, the request would have been denied at trial. We therefore affirm the denial of the PCR petition.

Facts and Procedural History

[2] On September 9, 2022, K.B. reported to law enforcement that she received unwanted physical contact from a man later identified as Sanchez-Hernandez. Later that month, the State charged Sanchez-Hernandez with Level 6 felony sexual battery under Indiana Code section 35-42-4-8(a)(1)(A) (2014), alleging as follows: “Sanchez-Hernandez, with the intent to arouse or satisfy the sexual desires of Alejandro Sanchez-Hernandez, did compel Victim 1 to submit to a touching by force or imminent threat of force․” Ex. Vol. 1 p. 14.

[3] During the criminal proceedings, Sanchez-Hernandez was represented by attorney Jeffrey Little (“Trial Counsel”). Sanchez-Hernandez—who held a green card as a permanent resident of the United States—eventually decided to plead guilty. He entered his plea on January 29, 2024, and was sentenced on March 4, 2024. The trial court sentenced him to 547 days, with 365 days executed on home detention and 182 days suspended to probation. It also required him to comply with special probation conditions for sex offenders.

[4] On June 14, 2024, Sanchez-Hernandez filed the instant PCR petition claiming ineffective assistance of Trial Counsel. The contentions pertinent to this appeal were that Trial Counsel (1) “failed to provide [him] with the purported victim's interview, where she described a simple battery rather than a sexual battery” and (2) “further failed to advise [him] that if he went to trial on the sexual battery offense, he was entitled to ask the jury to consider the inherently lesser-included offense of simple battery rather than sexual battery.” Appellant's App. Vol. II p. 9. Sanchez-Hernandez cited caselaw for the proposition that, if there is a serious evidentiary dispute as to an element distinguishing a greater offense from a lesser offense, a trial court must give a lesser-included instruction when requested. Id. He asserted that Trial Counsel “misled him to believe that if he went to trial he would be convicted” and “did not advise him that he would be entitled to a lesser-included instruction of simple battery at trial.” Id. at 12–13. Sanchez-Hernandez claimed that Trial Counsel's performance “fell below the prevailing standard of reasonableness and would have resulted in [him] going to trial rather than pleading guilty ․” Id. at 13. He further asserted: “[E]ven if there was a possibility that [he] would be found guilty at trial, his guilty plea was the product of ineffective assistance of counsel and he could have insisted on going to trial but for the ineffective representation.” Id.

[5] The PCR court heard evidence on December 12, 2024, and March 10, 2025. At the hearing, Sanchez-Hernandez presented testimony from Trial Counsel, who confirmed that he did not advise Sanchez-Hernandez about any lesser-included offense. Trial Counsel recalled reviewing the statute for sexual battery and concluding that a lesser-included offense would not be available. At the PCR hearing, Sanchez-Hernandez introduced into evidence statements K.B. made about the criminal encounter on three occasions: (1) when first reporting the sexual contact to law enforcement; (2) when interviewed shortly after the report; and (3) during a deposition taken approximately two years later. Sanchez-Hernandez argued that there was a serious evidentiary dispute regarding an element distinguishing Level 6 felony sexual battery from Class B misdemeanor battery—i.e., the existence of force compelling the victim to submit to the sexual touching.

[6] On the evening of September 9, 2022, K.B. contacted law enforcement to report that a male later identified as Sanchez-Hernandez had made unwanted contact with her. A dispatch log from that evening provided that “[K.B.] advised that ․ a male approached her in the parking lot of [Dollar General]” and asked her for directions. Ex. Vol. 1 p. 6. K.B. said that they exchanged numbers and “she sent him a screen shot of directions to [K]okomo.” Id. K.B. reported that the male “then started acting weird and wrapped his arm around her waist[ ] and asked to touch her breasts.” Id. “[K.B.] said she declined and got into her vehicle and left.” Id.

[7] Later that evening, K.B. met with law enforcement outside her home, where she provided a recorded statement. K.B. said that, when she finished shopping, Sanchez-Hernandez approached her and asked her for directions. After she gave him directions, K.B. “was like, okay, cool, have a good night,” and she went to “get back to [her] vehicle.” Ex. 30 at 2:50–3:01. At that point, Sanchez-Hernandez prevented her from leaving: “And all the sudden he's right there, keeping the door open.” Id. at 3:01–3:09. Sanchez-Hernandez then “started sliding his hand up [her] thigh” and put another arm around her. Id. at 3:11–3:19. K.B. was “just like in shock.” Id. She said her boyfriend lived nearby and she was “not interested.” Id. at 3:20–3:35. K.B. recounted saying: “I'm gonna [sic] close my door and you go back in your car and we're going to be done here.” Id. at 3:35–3:41. She said that Sanchez-Hernandez “just kept, like, getting closer” and “moving his arms in.” Id. at 3:41–3:48. He then asked to touch her breasts. Id. at 3:48–3:51. K.B. said no. She pushed Sanchez-Hernandez away, closed the door, and sped out of the parking lot. K.B. described being in a “tight space” outside her vehicle where she was “kind of trapped” between him and the console. Id. at 7:50–8:00. K.B. felt an erection through his pants, and Sanchez-Hernandez rubbed his erection against her.

[8] K.B. again recounted the physical encounter when deposed in November 2023. She described giving directions to Sanchez-Hernandez, then attempting to get into her vehicle: “I can't remember if the door was already opened or not, but I ․ went to get in and when I sat and went to close the driver's door, he was in between me and the door.” Ex. Vol. 1 p. 18. K.B. said she told Sanchez-Hernandez she was not interested and “that's when he started putting his hands on [her].” Id. at 19. She remembered one hand on her leg and the other hand going around her back. She said Sanchez-Hernandez gave her a compliment and asked to touch her breasts. K.B. recalled: “[A]t this point[,] he was pressing his groin area up against me. And it felt hard.” Id. at 20. K.B. said she told him she had a boyfriend nearby and was not interested, at which point Sanchez-Hernandez “seemed like almost more interested at that point” and “continued to kind of slide the hand that was on [her] leg up ․ further” and “moved the other hand that was around [her] kind of up towards [her] breast.” Id. at 21. K.B. said she was “in shock that this was happening ․” Id. K.B. could not remember all the details but said: “I do know that I began kind of like pushing up against him to try to get him to go away from the door so that I could close it.” Id. She got the door closed and drove off. K.B. described feeling “threatened by the fact that he was blocking ․ [her] ability to get away from him.” Id. at 23. She added: “[H]e didn't allow me to invite him closer and up until I was pushing him away, was not giving any space so he was kind of blocking me in.” Id. K.B. felt intimidated due to the physical contact, “especially his groin rubbing up against [her].” Id. at 24. She described the physical contact as “kind of like continual rubbing,” noting “[i]t wasn't like he was just standing there and it brushed because he was ․ close to [her].” Id.

[9] Sanchez-Hernandez did not dispute K.B.’s account when law enforcement interviewed him on September 13, 2022. He admitted that he asked K.B. if he could touch her breasts and that he rubbed his penis against her through his pants. He told the detective he was “tipsy” at the time and had been “waiting for this call” because he knew he had “fucked up.” Ex. 31 at 2:09–3:35.

[10] In proposed findings and conclusions, Sanchez-Hernandez asserted that, based on the evidence available, Trial Counsel should have informed him that, at trial, he could seek a jury instruction on battery as a lesser-included offense of sexual battery.¹ He contended that, in deciding to plead guilty, the difference between the two offenses was material—especially given his status as a permanent resident and the higher risk of deportation for the felony offense.

[11] On July 28, 2025, the PCR court entered an order denying the petition. It specifically found that K.B.’s statements about the events “were all consistent in describing the defendant's actions towards her on September 9, 2022,” adding that K.B. “would make a compelling witness.” Appellant's App. Vol. II p. 51. It further found that Trial Counsel “did provide a professional and accurate assessment of the strength of the State's case” and that “the facts of the case did not support a lesser included offense of misdemeanor battery.” Id. at 58.

[12] On August 27, 2025, Sanchez-Hernandez filed a motion to correct error, which the court denied on September 10, 2025. Sanchez-Hernandez now appeals.

Discussion and Decision

[13] Sanchez-Hernandez challenges the denial of his PCR petition. A post-conviction proceeding is a civil proceeding in which a defendant may present limited challenges to a conviction or sentence. Ind. Post-Conviction Rule 1(1)(b). One such challenge is a claim of ineffective assistance of counsel. See generally, e.g., Wilson v. State, 157 N.E.3d 1163, 1177 (Ind. 2020). To prevail on a PCR petition, the defendant must establish his claim by a preponderance of the evidence. P-C.R. 1(5). Where, as here, the defendant is appealing the denial of a PCR petition, he “must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.” Wilson, 157 N.E.3d at 1170 (quoting Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019), cert. denied). “When a defendant fails to meet this ‘rigorous standard of review,’ we will affirm the post-conviction court's denial of relief.” Gibson, 133 N.E.3d at 681 (quoting Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001)).

[14] “The Sixth Amendment guarantees a defendant the effective assistance of counsel at ‘critical stages of a criminal proceeding,’ including when he enters a guilty plea.” Lee v. United States, 582 U.S. 357, 363 (2017) (quoting Lafler v. Cooper, 566 U.S. 156, 165 (2012)). To establish ineffective assistance of counsel, the defendant must prove that (1) counsel's performance was deficient and (2) he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 688, 692 (1984). Here, we resolve this case on the first prong, concluding that Sanchez-Hernandez failed to demonstrate Trial Counsel's performance was deficient.

[15] To establish that counsel's performance was deficient, “the defendant must show that counsel's representation fell below an objective standard of reasonableness.” Id. at 688. The “proper measure” of attorney performance is “reasonableness under prevailing professional norms.” Id. The Indiana Supreme Court has identified “several important guidelines” in assessing counsel's performance. Gibson, 133 N.E.3d at 682. First, courts “strongly presume that, throughout the proceedings, counsel exercised ‘reasonable professional judgment’ and rendered adequate legal assistance.” Id. (quoting Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002)). Second, “defense counsel enjoys ‘considerable discretion’ in developing legal strategies for a client, and this discretion demands deferential judicial review.” Id. (quoting Stevens, 770 N.E.2d at 746). Finally, counsel's “[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Id. (quoting Stevens, 770 N.E.2d at 747).

[16] In Allen v. State, the Indiana Supreme Court explained that “trial counsel is not ineffective for not attempting a futile endeavor.” 686 N.E.2d 760, 780 (Ind. 1997). Moreover, in McDowell v. State, this court affirmed the denial of an ineffective assistance claim premised on trial counsel “failing to request an instruction on reckless homicide.” 102 N.E.3d 924, 933 (Ind. Ct. App. 2018), trans. denied. This court noted that “the trial court would properly have rejected such an instruction had one been requested” because there was no serious evidentiary dispute regarding the element distinguishing the two offenses. Id.

[17] Here, Sanchez-Hernandez contends that Trial Counsel should have advised him of the possibility of seeking a lesser-included jury instruction for battery. However, counsel does not perform deficiently by failing to pursue futile trial strategies. Cf. Allen, 686 N.E.2d at 780; McDowell, 102 N.E.3d at 933. As we explain below, the evidence indicates that an objectively reasonable attorney could forecast that a trial court would deny a request for the lesser-included instruction. Thus, Sanchez-Hernandez did not establish deficient performance.

[18] To determine whether Sanchez-Hernandez could have obtained a lesser-included instruction at trial, we apply the three-part test set out in Wright v. State: a trial court first considers whether the alleged lesser offense is inherently included in the crime charged; if not, whether it is factually included; and, if either, whether the evidence presents a serious evidentiary dispute as to the element distinguishing the two offenses such that a jury could find the lesser, but not the greater, offense committed. 658 N.E.2d 563, 566–67 (Ind. 1995). In this case, neither party disputes that Class B misdemeanor battery—a “rude, insolent, or angry” touching, Ind. Code § 35-42-2-1(c)(1) (2020)—is inherently included in Level 6 felony sexual battery, which additionally requires that the touching be sexual in nature and take place when the victim is “compelled to submit to the touching by force or the imminent threat of force,” I.C. § 35-42-4-8(a)(1)(A). Instead, the parties focus their arguments on whether the evidence available to Trial Counsel presented a serious evidentiary dispute that the sexual touching of K.B. was compelled by force or the imminent threat of force.

[19] To examine the presence of force, there is a subjective test that “looks to the victim's perception of the circumstances surrounding the incident” in question. Smith v. State, 678 N.E.2d 1152, 1155 (Ind. Ct. App. 1997), trans. denied. The pertinent inquiry is whether the victim perceived herself to be compelled to submit to the touching by force or imminent threat of force. Id. Force may be inferred from the circumstances and need not be physical or violent. Scott-Gordon v. State, 579 N.E.2d 602, 604 (Ind. 1991). However, evidence that a victim did not voluntarily consent to a touching does not, by itself, establish that the defendant compelled the victim to submit to the touching by force or imminent threat of force. Smith, 678 N.E.2d at 1155. Rather, the victim's perception of force must precede the touching. Chatham v. State, 845 N.E.2d 203, 207–08 (Ind. Ct. App. 2006).

[20] In Scott-Gordon, our Supreme Court determined there was insufficient evidence of compulsion by force or imminent threat of force where the defendant approached the victim from behind, grabbed his buttocks, and told him he received “a free feel.” 579 N.E.2d at 604. The victim said he did not fear the defendant nor did the defendant threaten him—and there was evidence the touching stopped when the victim immediately jumped back and punched the defendant. This court likewise found insufficient evidence in Smith, where the defendant reached into the backseat of a truck and fondled the victim, who testified that he had no reason to be afraid of the defendant before the touching. 678 N.E.2d at 1155; see also Chatham, 845 N.E.2d at 207–08 (determining only a simple battery occurred where the defendant groped the victim from behind, then ran off). In contrast, in Bailey v. State, this court identified sufficient evidence where the defendant grabbed the victim's buttocks from behind under circumstances where, on a previous occasion, the defendant approached the victim from behind and made a crude proposition, and she told him to leave her alone. 764 N.E.2d 728, 732 (Ind. Ct. App. 2002), trans. denied. The court found it reasonable to infer that the victim had “reason to fear” the defendant. Id.

[21] K.B.’s account of the touching is less like the events in Scott-Gordon and Smith, and more like those in Bailey, where the defendant touched the victim when she previously rebuffed his advance. Here, K.B. described how Sanchez-Hernandez positioned himself in her open car door so she could not close it. K.B. said she was not interested. Rather than heed K.B.’s protest, Sanchez-Hernandez continued to advance while blocking her exit. In her recorded statement, K.B. described how Sanchez-Hernandez “just kept, like, getting closer” and “moving his arms in.” Ex. 30 at 3:41–3:48. He then asked to touch her breasts. K.B. said no. She pushed Sanchez-Hernandez away, closed the door, and sped out of the parking lot. K.B. described being in a “tight space” outside her vehicle where she was “kind of trapped” between him and the console. Id. at 7:50–8:00. K.B. gave consistent testimony in her deposition describing the same door-blocking conduct and her refusal of the advance before Sanchez-Hernandez asked to touch her breasts: “I can't remember if the door was already opened or not, but I ․ went to get in and when I sat and went to close the driver's door, he was in between me and the door.” Ex. Vol. 1 p. 18. K.B. said she told Sanchez-Hernandez she was not interested and “that's when he started putting his hands on [her].” Id. at 19. She described feeling “threatened by the fact that he was blocking ․ [her] ability to get away from him” and was “not giving any space.” Id. at 23.

[22] Sanchez-Hernandez did not offer a competing account of the encounter. Rather, in his recorded interview with law enforcement, he admitted that he asked K.B. if he could touch her breasts and rubbed his penis against her through her pants, adding that he was “waiting for this call” because he knew he “fucked up.” Ex. 31 at 3:32–3:35. The only description of the encounter in this record, then, is the one provided by K.B., which was consistent through her three separate statements, and which Sanchez-Hernandez did not dispute. K.B. consistently described an encounter in a parking lot and, when interviewed and later deposed, provided consistent details about Sanchez-Hernandez positioning himself in a way that prevented her from driving away, her refusal of his advance, and Sanchez-Hernandez touching her anyway. In each instance, K.B. was consistent that Sanchez-Hernandez's use of force, and her fear, preceded his touching.

[23] Trial Counsel testified that he did not discuss the possibility of a lesser-included instruction with Sanchez-Hernandez because, based on his reading of the sexual battery statute, he did not believe there was a lesser-included offense available. Sanchez-Hernandez argues that Trial Counsel's testimony established that counsel never made a strategic decision—he simply “missed the issue”—so Trial Counsel is not entitled to deference for strategic decision-making in declining to advise him of the potential defense. Appellant's Br. p. 25.

[24] For support, he directs us to Myers v. Neal, 975 F. 3d 611 (7th Cir. 2020), a federal case we find distinguishable. Myers involved trial counsel's unexplained failure to assess the admissibility of the State's evidence that undercut an alibi defense. 975 F.3d at 621. In other words, the case involved a mistake that cost the defendant a course of action with value. Here, Trial Counsel's stated reasoning is beside the point: even an attorney who fully appreciated that battery was a lesser-included offense of sexual battery would have gained nothing by requesting the instruction if the evidence did not support giving it. This court reached the same conclusion under similar circumstances in McDowell, where trial counsel was “mistaken with regard to the availability” of a lesser-included offense, yet was not ineffective for failing to request an instruction on the potential lesser offense, because the trial court would have properly refused the request regardless. 102 N.E.3d at 933. Counsel is not ineffective for failing to pursue, or discuss with a client, a futile trial strategy—whatever the source of counsel's conclusion that the strategy would fail. Cf. Allen, 686 N.E.2d at 780 (“[T]rial counsel is not ineffective for not attempting a futile endeavor.”).

[25] The PCR court found K.B.’s three accounts “consistent,” found she “would make a compelling witness,” and determined that “the facts of the case did not support a lesser included offense of misdemeanor battery.” Appellant's App. Vol. II pp. 51, 58. Trial Counsel also thought K.B. would make a compelling witness; he testified that, at the deposition, he questioned her specifically on the force element and found her “very sure” on that point. Tr. Vol. 2 pp. 178–79.

[26] On this record, an objectively reasonable attorney could forecast that a trial court would deny a request for a lesser-included battery instruction. Trial Counsel's failure to discuss that futile strategy with Sanchez-Hernandez before he pleaded guilty accordingly did not fall below an objective standard of reasonableness. Thus, Sanchez-Hernandez failed to establish deficient performance of Trial Counsel, which is a necessary element of a claim of ineffective assistance of counsel. And because Sanchez-Hernandez has not established deficient performance of counsel, we need not address the element of resulting prejudice. See Strickland, 466 U.S. at 697 (explaining that a court need not address both prongs of the inquiry where the defendant makes an insufficient showing on one). We affirm the denial of the PCR petition.

[27] Affirmed.

FOOTNOTES

1.   The parties’ proposed findings and conclusions were not transmitted on appeal, however, we accessed the documents through the Odyssey case-management system.

Foley, Judge.

Vaidik, J., and Altice, J., concur.