MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Sep 15 2015, 8:46 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Albert Pauley, Jr. Gregory F. Zoeller Pendleton, Indiana Attorney General of Indiana
Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Albert Pauley, Jr., September 15, 2015
Appellant-Defendant, Court of Appeals Case No. 12A02-1501-PC-46 v. Appeal from the Clinton Circuit Court; The Honorable Jeffrey Edens, State of Indiana, Special Judge; Appellee-Plaintiff. 12C01-1303-PC-274
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 12A02-1501-PC-46 | September 15, 2015 Page 1 of 7 [1] Albert Pauley, Jr., appeals the denial of his petition for post-conviction relief.
We consolidate and restate the issues presented as:
1. Whether the post-conviction court properly determined Pauley’s claims
regarding his sentencing were barred by res judicata; and
2. Whether the post-conviction court properly determined Pauley’s
remaining claims were barred by laches.
[2] We affirm.
Facts and Procedural History [3] On March 17, 1995, a jury found Pauley guilty of murder. 1 The trial court
sentenced Pauley to sixty years. Pauley appealed his conviction and sentence,
and our Indiana Supreme Court affirmed the judgment. Pauley v. State, 668
N.E.2d 1212 (Ind. 1996).
[4] On March 15, 2013, Pauley filed a petition for post-conviction relief alleging
inappropriate sentence, prosecutorial misconduct, and abuse of discretion by
the trial court when admitting certain evidence. The post-conviction court
denied his petition with findings of fact and conclusions of law on December
26, 2014.
1 Ind. Code § 35-42-1-1 (1993).
Court of Appeals of Indiana | Memorandum Decision 12A02-1501-PC-46 | September 15, 2015 Page 2 of 7 Discussion and Decision [5] Post-conviction proceedings are not “super appeals”; rather, those proceedings
afford petitioners a limited opportunity to raise issues that were unavailable or
unknown at trial and on direct appeal. Wilkes v. State, 984 N.E.2d 1236, 1240
(Ind. 2013). Post-conviction proceedings are civil in nature, and petitioners
bear the burden of proving their grounds for relief by a preponderance of the
evidence. Id.
[6] When a petitioner appeals the denial of post-conviction relief, he appeals from a
negative judgment and has the burden of proof. Id. Consequently, we may not
reverse unless the petitioner demonstrates the evidence as a whole leads
unerringly and unmistakably to a decision opposite that reached by the post-
conviction court. Id. “‘In other words, the [petitioner] must convince this
Court that there is no way within the law that the court below could have
reached the decision it did.’” Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002)
(emphasis in original). We accept the post-conviction court’s findings of fact
unless they are clearly erroneous, but we do not defer to its conclusions of law.
State v. Hollin, 970 N.E.2d 147, 151 (Ind. 2012). We may not reweigh the
evidence or assess the credibility of the witnesses. Id. at 150.
Res Judicata
[7] Pauley argues the trial court at sentencing and the Supreme Court when
deciding his direct appeal considered incorrect aggravators, inappropriately
Court of Appeals of Indiana | Memorandum Decision 12A02-1501-PC-46 | September 15, 2015 Page 3 of 7 weighed aggravators, and did not acknowledge mitigating factors that were
supported by the record.
[8] Those claims are barred by res judicata. “[W]hen this Court decides an issue on
direct appeal, the doctrine of res judicata applies, thereby precluding its review in
post-conviction proceedings.” State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000).
“This prevents the repetitious litigation of that which is essentially the same
dispute.” Id. “A petitioner cannot escape the effect of claim preclusion merely
by using different language to phrase an issue and define an alleged error.” Id.
[9] On direct appeal, Pauley claimed “the trial court’s findings are inadequate to
support enhancing the sentence to sixty years.” Pauley v. State, 668 N.E.2d
1212, 1213 (Ind. 1996). 2 Our Indiana Supreme Court determined the trial court
had properly considered the aggravators and had provided an adequate
assessment of Pauley that supported his sentence. Id. at 1213-14. It noted
Pauley did “not claim on appeal that there were any [mitigators].” Id. at 1213.
[10] To the extent Pauley is arguing our Indiana Supreme Court misrepresented the
facts, his avenue of redress would have been to ask for a rehearing. Pauley may
not re-litigate an issue that has already been decided. See Lowery v. State, 640
N.E.2d 1031, 1037 (Ind. 1994) (issue raised and found against an appellant on
direct appeal is res judicata in post-conviction proceedings).
2 The record does not include the briefs from Pauley’s direct appeal.
Court of Appeals of Indiana | Memorandum Decision 12A02-1501-PC-46 | September 15, 2015 Page 4 of 7 [11] To the extent Pauley argues this sentencing argument is not the same one he
presented on direct appeal, we note “issues that were available, but not
presented, on direct appeal are forfeited on post-conviction review.” Holmes,
728 N.E.2d at 168. As his sentencing argument was available at the time of his
direct appeal, it is now waived. See Timberlake v. State, 753 N.E.2d 591, 597
(Ind. 2001) (if an issue is known and available, but not raised on direct appeal,
it is waived).
Laches
[12] In his post-conviction petition, Pauley also asserted claims of prosecutorial
misconduct and inappropriate admission of evidence. The post-conviction
court found those claims barred by laches.
[13] “The equitable doctrine of laches operates to bar consideration of the merits of
a claim or right of one who has neglected for an unreasonable time, under
circumstances permitting due diligence, to do what in law should have been
done.” Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind. 2001). “For laches to
apply, the State must prove by a preponderance of the evidence that the
petitioner unreasonably delayed in seeking relief and that the State is prejudiced
by the delay.” Id. For purposes of demonstrating laches in a post-conviction
proceeding, “prejudice exists when the unreasonable delay operates to
materially diminish a reasonable likelihood of successful re-prosecution.” Id.
In reviewing claims that evidence is insufficient to show laches, we do not reweigh the evidence nor judge the credibility of the witnesses. We consider only that evidence most favorable to the judgment,
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Sep 15 2015, 8:46 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Albert Pauley, Jr. Gregory F. Zoeller Pendleton, Indiana Attorney General of Indiana
Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Albert Pauley, Jr., September 15, 2015
Appellant-Defendant, Court of Appeals Case No. 12A02-1501-PC-46 v. Appeal from the Clinton Circuit Court; The Honorable Jeffrey Edens, State of Indiana, Special Judge; Appellee-Plaintiff. 12C01-1303-PC-274
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 12A02-1501-PC-46 | September 15, 2015 Page 1 of 7 [1] Albert Pauley, Jr., appeals the denial of his petition for post-conviction relief.
We consolidate and restate the issues presented as:
1. Whether the post-conviction court properly determined Pauley’s claims
regarding his sentencing were barred by res judicata; and
2. Whether the post-conviction court properly determined Pauley’s
remaining claims were barred by laches.
[2] We affirm.
Facts and Procedural History [3] On March 17, 1995, a jury found Pauley guilty of murder. 1 The trial court
sentenced Pauley to sixty years. Pauley appealed his conviction and sentence,
and our Indiana Supreme Court affirmed the judgment. Pauley v. State, 668
N.E.2d 1212 (Ind. 1996).
[4] On March 15, 2013, Pauley filed a petition for post-conviction relief alleging
inappropriate sentence, prosecutorial misconduct, and abuse of discretion by
the trial court when admitting certain evidence. The post-conviction court
denied his petition with findings of fact and conclusions of law on December
26, 2014.
1 Ind. Code § 35-42-1-1 (1993).
Court of Appeals of Indiana | Memorandum Decision 12A02-1501-PC-46 | September 15, 2015 Page 2 of 7 Discussion and Decision [5] Post-conviction proceedings are not “super appeals”; rather, those proceedings
afford petitioners a limited opportunity to raise issues that were unavailable or
unknown at trial and on direct appeal. Wilkes v. State, 984 N.E.2d 1236, 1240
(Ind. 2013). Post-conviction proceedings are civil in nature, and petitioners
bear the burden of proving their grounds for relief by a preponderance of the
evidence. Id.
[6] When a petitioner appeals the denial of post-conviction relief, he appeals from a
negative judgment and has the burden of proof. Id. Consequently, we may not
reverse unless the petitioner demonstrates the evidence as a whole leads
unerringly and unmistakably to a decision opposite that reached by the post-
conviction court. Id. “‘In other words, the [petitioner] must convince this
Court that there is no way within the law that the court below could have
reached the decision it did.’” Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002)
(emphasis in original). We accept the post-conviction court’s findings of fact
unless they are clearly erroneous, but we do not defer to its conclusions of law.
State v. Hollin, 970 N.E.2d 147, 151 (Ind. 2012). We may not reweigh the
evidence or assess the credibility of the witnesses. Id. at 150.
Res Judicata
[7] Pauley argues the trial court at sentencing and the Supreme Court when
deciding his direct appeal considered incorrect aggravators, inappropriately
Court of Appeals of Indiana | Memorandum Decision 12A02-1501-PC-46 | September 15, 2015 Page 3 of 7 weighed aggravators, and did not acknowledge mitigating factors that were
supported by the record.
[8] Those claims are barred by res judicata. “[W]hen this Court decides an issue on
direct appeal, the doctrine of res judicata applies, thereby precluding its review in
post-conviction proceedings.” State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000).
“This prevents the repetitious litigation of that which is essentially the same
dispute.” Id. “A petitioner cannot escape the effect of claim preclusion merely
by using different language to phrase an issue and define an alleged error.” Id.
[9] On direct appeal, Pauley claimed “the trial court’s findings are inadequate to
support enhancing the sentence to sixty years.” Pauley v. State, 668 N.E.2d
1212, 1213 (Ind. 1996). 2 Our Indiana Supreme Court determined the trial court
had properly considered the aggravators and had provided an adequate
assessment of Pauley that supported his sentence. Id. at 1213-14. It noted
Pauley did “not claim on appeal that there were any [mitigators].” Id. at 1213.
[10] To the extent Pauley is arguing our Indiana Supreme Court misrepresented the
facts, his avenue of redress would have been to ask for a rehearing. Pauley may
not re-litigate an issue that has already been decided. See Lowery v. State, 640
N.E.2d 1031, 1037 (Ind. 1994) (issue raised and found against an appellant on
direct appeal is res judicata in post-conviction proceedings).
2 The record does not include the briefs from Pauley’s direct appeal.
Court of Appeals of Indiana | Memorandum Decision 12A02-1501-PC-46 | September 15, 2015 Page 4 of 7 [11] To the extent Pauley argues this sentencing argument is not the same one he
presented on direct appeal, we note “issues that were available, but not
presented, on direct appeal are forfeited on post-conviction review.” Holmes,
728 N.E.2d at 168. As his sentencing argument was available at the time of his
direct appeal, it is now waived. See Timberlake v. State, 753 N.E.2d 591, 597
(Ind. 2001) (if an issue is known and available, but not raised on direct appeal,
it is waived).
Laches
[12] In his post-conviction petition, Pauley also asserted claims of prosecutorial
misconduct and inappropriate admission of evidence. The post-conviction
court found those claims barred by laches.
[13] “The equitable doctrine of laches operates to bar consideration of the merits of
a claim or right of one who has neglected for an unreasonable time, under
circumstances permitting due diligence, to do what in law should have been
done.” Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind. 2001). “For laches to
apply, the State must prove by a preponderance of the evidence that the
petitioner unreasonably delayed in seeking relief and that the State is prejudiced
by the delay.” Id. For purposes of demonstrating laches in a post-conviction
proceeding, “prejudice exists when the unreasonable delay operates to
materially diminish a reasonable likelihood of successful re-prosecution.” Id.
In reviewing claims that evidence is insufficient to show laches, we do not reweigh the evidence nor judge the credibility of the witnesses. We consider only that evidence most favorable to the judgment,
Court of Appeals of Indiana | Memorandum Decision 12A02-1501-PC-46 | September 15, 2015 Page 5 of 7 together with all reasonable inferences to be drawn therefrom. If the determination of the court is supported by substantial evidence of probative value, the judgment will be affirmed. Williams v. State, 716 N.E.2d 897, 901 (Ind. 1999).
[14] Pauley waited seventeen years to file his petition for post-conviction relief, and
the post-conviction court found Pauley’s explanation for his delay lacked
credibility. (See Appellant’s Br. at 37 (“Petitioner’s explanation for his delay in
filing the petition is given no weight.”).) 3 The State presented evidence that its
ability to re-prosecute this matter would be hindered by the passage of time and
the death of one of the witnesses. As we may not reweigh the evidence or
assess the credibility of the witnesses, we find no error in the court’s conclusion
Pauley’s other claims were barred by laches.
[15] Even if Pauley’s claims were not barred by laches, they were forfeited for post-
conviction proceedings because they were available, but not raised, on direct
appeal. See Holmes, 728 N.E.2d at 168 (issues available but not presented on
direct appeal are forfeited on post-conviction review).
3 As Pauley did not include the post-conviction court’s findings of fact and conclusions of law in his appendix, we cite to the copy in his brief. The page numbers on the order are not consecutive to the page numbers in the brief. We have taken the liberty of numbering the pages consecutively.
Court of Appeals of Indiana | Memorandum Decision 12A02-1501-PC-46 | September 15, 2015 Page 6 of 7 Conclusion [16] The claims Pauley raises as to his sentence are res judicata. Pauley’s claims
regarding evidence and prosecutorial misconduct are barred by laches and were
waived when they were not raised on direct appeal. Accordingly, we affirm.
[17] Affirmed.
Robb, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 12A02-1501-PC-46 | September 15, 2015 Page 7 of 7