David Lyons v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 24, 2017
• Docket: 76A03-1609-PC-2180
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 24 2017, 9:30 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 David E. Lyons Curtis T. Hill, Jr. Carlisle, Indiana Attorney General of Indiana

Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David E. Lyons, April 24, 2017 Appellant-Defendant, Court of Appeals Case No. 76A03-1609-PC-2180 v. Appeal from the Steuben Circuit Court State of Indiana, The Honorable Allen N. Wheat, Appellee-Plaintiff Judge Trial Court Cause No. 76C01-1305-PC-4

Vaidik, Chief Judge.

[1] David E. Lyons was convicted of five counts of Class A felony child molesting,

and the trial court sentenced him to 150 years. We affirmed his convictions on

Court of Appeals of Indiana | Memorandum Decision 76A03-1609-PC-2180 | April 24, 2017 Page 1 of 3 direct appeal. Lyons v. State, 976 N.E.2d 137 (Ind. Ct. App. 2012). Lyons, pro

se, later sought post-conviction relief, and the post-conviction court issued an

order denying him relief. He now appeals.

[2] Lyons’s arguments in his brief are deficient in several respects. For example, he

raises freestanding claims that were available to him on direct appeal:

prosecutorial misconduct and a due-process violation based on the court

reporter allegedly providing an inaccurate transcript of his jury trial. By failing

to present these claims on direct appeal, Lyons is foreclosed from raising them

on post-conviction. See Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002). But

the more fundamental problem is that Lyons has not supported any of his

arguments with citations to the record as required by Indiana Appellate Rule

46(A)(8)(a). For example, Lyons’s first claim of error is that “Trial Attorney

failed to make timely objections to prosecutor’s closing arguments.”

Appellant’s Br. p. 24. But Lyons does not direct us to the portion of the record

where his attorney should have objected, choosing instead to send us on a wild-

goose chase to pinpoint his trial counsel’s alleged failure to object. This failure

to cite the record applies to all of the arguments Lyons makes on appeal. See id.

at 24-27. And this failure is particularly egregious given that Lyons’s statement

of the facts in his brief is one-sentence long. See id. at 23 (“There was a trial, an

appeal, a PCR, and now, another appeal.”). Because we will not search the

record to find a basis for a party’s argument, Thomas v. State, 965 N.E.2d 70, 77

Court of Appeals of Indiana | Memorandum Decision 76A03-1609-PC-2180 | April 24, 2017 Page 2 of 3 n.2 (Ind. Ct. App. 2012), trans. denied, we affirm the post-conviction court’s

denial of relief.1

[3] Affirmed.

Bailey, J., and Robb, J., concur.

1 We note that Lyons, at the beginning of his appellant’s brief, inserted a copy of his proposed findings of fact and conclusions of law that he filed with the post-conviction court. But Lyons does not tell us, in accordance with the relevant standard of review, how the post-conviction court erred in resolving the claims that he set forth in his proposed order.

Court of Appeals of Indiana | Memorandum Decision 76A03-1609-PC-2180 | April 24, 2017 Page 3 of 3