MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Sep 29 2015, 9:28 am this 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 James A. Lynn Gregory F. Zoeller Pendleton, Indiana Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James A. Lynn, September 29, 2015 Appellant-Petitioner, Court of Appeals Case No. 70A01-1412-PC-534 v. Appeal from the Rush Circuit Court State of Indiana, The Honorable Beth A. Butsch, Appellee-Respondent. Special Judge Trial Court Cause No. 70C01-1405-PC-154
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015 Page 1 of 15 [1] James A. Lynn appeals the denial of his petition for post-conviction relief,
contending that the post-conviction court erred in denying his petition. On
appeal, he raises several issues that we consolidate and restate as:
I. Whether Lynn received ineffective assistance of trial counsel;
II. Whether Lynn’s freestanding allegations of error are procedurally defaulted and waived for appellate review; and
III. Whether the post-conviction court abused its discretion in allowing Lynn’s trial counsel to testify to statements Lynn made to him in order to explain counsel’s trial strategy.
[2] We affirm.
Facts and Procedural History [3] The facts supporting Lynn’s convictions as set forth by this court in an
unpublished decision on his direct appeal are as follows:
On December 21, 2012, Rebecca McDonald (“McDonald”) came home from work and saw a white truck that she did not recognize in her driveway. McDonald was talking to a friend on her cell phone and told her about the truck; the friend said that she would call 911. McDonald parked next to the truck and blocked its exit from her driveway. McDonald got out of her vehicle and saw Lynn bringing items out of her home and putting them into the white truck. Lynn saw McDonald in the driveway, and he reached across the inside of the truck and blew the horn. Another man came out of McDonald’s house and got into the white truck. The white truck fled and rammed McDonald’s car in the process. As the white truck fled, McDonald saw the license plate number of the truck and reported it to the police.
Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015 Page 2 of 15 Law enforcement investigated the license plate number and determined that the truck was registered to Paul Rice (“Rice”). Law enforcement also connected Lynn to the truck through photographs from a scrap yard in Delaware County. With this information, police were able to put together photo arrays to show McDonald. McDonald identified Lynn and Rice as the men who burglarized her house.
On January 11, 2013, the State charged Lynn with burglary as a Class B felony and theft, a Class D felony. Prior to trial, Lynn filed a motion to suppress the photo array prepared by police and shown to McDonald in an effort to identify him. Lynn claimed that he was denied due process because the photo array was unduly suggestive. The trial court denied Lynn’s motion. . . .
On May 7, 2013, the trial court conducted a jury trial. Lynn renewed his objection to the photo array when it was offered into evidence by the State. However, he did not object to McDonald’s in-court identification. The jury found Lynn guilty of both counts and the trial court set the matter for sentencing. The trial court held a sentencing hearing on June 6, 2013 and sentenced Lynn to twenty (20) years executed on the burglary conviction and three (3) years executed on the theft conviction. The trial court ordered all of the executed time served in the Department of Correction with the counts running concurrently.
Lynn v. State, No. 70A04-1307-CR-317, *1 (Ind. Ct. App. Feb. 28, 2014).
[4] After his conviction, Lynn filed a direct appeal of his convictions, and a panel
of this court affirmed his convictions and sentence. Id. On May 7, 2014, Lynn
filed a petition for post-conviction relief, which was later amended on July 15,
2014. An evidentiary hearing was held, and on November 25, 2014, the post-
Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015 Page 3 of 15 conviction court issued findings of facts and conclusions thereon, denying
Lynn’s petition for relief. Lynn now appeals.
Discussion and Decision [5] Post-conviction proceedings do not afford the petitioner an opportunity for a
super appeal, but rather, provide the opportunity to raise issues that were
unknown or unavailable at the time of the original trial or the direct appeal.
Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164
(2002); Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied,
cert. denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct
appeal and provide only a narrow remedy for subsequent collateral challenges
to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for post-
conviction relief bears the burden of proving the grounds by a preponderance of
the evidence. Ind. Post-Conviction Rule 1(5).
[6] When a petitioner appeals a denial of post-conviction relief, he appeals a
negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),
trans. denied. The petitioner must establish that the evidence as a whole
unmistakably and unerringly leads to a conclusion contrary to that of the post-
conviction court. Id. We will disturb a post-conviction court’s decision as
being contrary to law only where the evidence is without conflict and leads to
but one conclusion, and the post-conviction court has reached the opposite
conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.
denied. The post-conviction court is the sole judge of the weight of the evidence
Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015 Page 4 of 15 and the credibility of witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct.
App. 2008), trans. denied. We accept the post-conviction court’s findings of fact
unless they are clearly erroneous, and no deference is given to its conclusions of
law. Fisher, 878 N.E.2d at 463.
I. Ineffective Assistance of Counsel [7] When evaluating a claim of ineffective assistance of counsel, we apply the two-
part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Perry v.
State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009) (citing Pinkins v. State, 799
N.E.2d 1079, 1093 (Ind. Ct. App. 2003), trans. denied), trans. denied. First, the
defendant must show that counsel’s performance was deficient. Id. This
requires a showing that counsel’s representation fell below an objective
standard of reasonableness and that the errors were so serious that they resulted
in a denial of the right to counsel guaranteed to the defendant by the Sixth and
Fourteenth Amendments. Id. Second, the defendant must show that the
deficient performance resulted in prejudice. Id. To establish prejudice, a
defendant must show that there is a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Id. A reasonable probability is a probability sufficient to undermine confidence
in the outcome. Id.
[8] Further, counsel’s performance is presumed effective, and a defendant must
offer strong and convincing evidence to overcome this presumption. Williams v.
State, 771 N.E.2d 70, 73 (Ind. 2002). We will not lightly speculate as to what
Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015 Page 5 of 15 may or may not have been an advantageous trial strategy, as counsel should be
given deference in choosing a trial strategy that, at the time and under the
circumstances, seems best. Perry, 904 N.E.2d at 308 (citing Whitener v. State,
696 N.E.2d 40, 42 (Ind. 1998)). Isolated omissions or errors, poor strategy, or
bad tactics do not necessarily render representation ineffective. Shanabarger v.
State, 846 N.E.2d 702, 708 (Ind. Ct. App. 2006), trans. denied. The two prongs
of the Strickland test are separate and independent inquiries. Manzano v. State,
12 N.E.3d 321, 325 (Ind. Ct. App. 2014), trans. denied, cert. denied, 135 S. Ct.
2376 (2015). “Thus, ‘[i]f it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice . . . that course should be followed.’” Id.
(quoting Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001), cert. denied, 537
U.S. 243 (1998)).
[9] Lynn argues that he received ineffective assistance of trial counsel both from
counsel who represented him during his trial and from counsel who represented
him during his sentencing. Prior and during trial, Lynn was represented by
Bryan Barrett (“Barrett”). Lynn initially contends that Barrett was ineffective
for failing to investigate an alibi defense and failing to present the testimony of
several witnesses that Lynn claims would have supported his alibi defense and
proven that he was not present at the victim’s home on the day of the burglary.
“Counsel is afforded considerable discretion in choosing strategy and tactics,
and these decisions are entitled to deferential review.” Benefield v. State, 945
N.E.2d 791, 797 (Ind. Ct. App. 2011). “[I]n the context of an ineffective
assistance claim, ‘a decision regarding what witnesses to call is a matter of trial
Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015 Page 6 of 15 strategy which an appellate court will not second-guess.’” McCullough v. State,
973 N.E.2d 62, 83 (Ind. Ct. App. 2012) (quoting Curtis v. State, 905 N.E.2d 410,
415 (Ind. Ct. App. 2009), trans. denied), trans. denied.
[10] At the post-conviction hearing, evidence was elicited that Lynn confessed to
Barrett that he was involved in the burglary. Lynn’s confession would have
created ethical difficulties for Barrett that would have prohibited him from
presenting an alibi defense at trial. Additionally, the confession would have
made clear the strength of the State’s evidence identifying Lynn as one of the
burglars and highlighted the unlikelihood that Lynn’s alibi evidence would have
been more reliable than the victim’s identification. Barrett faced the State’s
evidence consisting of the victim’s positive identification of Lynn, whom she
had been able to observe on a clear afternoon while wearing her glasses and
looking directly at him as he placed her property inside of the Ford truck.
Faced with this evidence and having knowledge of Lynn’s confession, we
conclude that Barrett’s decision not to present an alibi defense at trial was one
of trial strategy that we do not find was unreasonable. Additionally, Lynn’s
contentions concerning Barrett’s failure to investigate are without merit. His
assertions regarding not investigating statements by certain witnesses was
contradicted by evidence that Barrett spoke with the witnesses and reviewed
pretrial statements made by the witnesses. Lynn also lists several additional
suspects that Barrett failed to investigate, but does not provide evidence about
who these witnesses are or what further investigation would have revealed.
Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015 Page 7 of 15 Lynn, therefore, failed to show deficient performance of Barrett or any
prejudice resulting from this alleged failure to investigate.
[11] Lynn also claims ineffective assistance of trial counsel due to Barrett’s failure to
timely file a motion to suppress the photo array used in the identification of
Lynn by the victim and failure to timely object at trial to the same evidence.
However, the evidence at the post-conviction hearing showed that Barrett did
file a motion to suppress the photo array evidence, which was denied by the
trial court. PCR Tr. at 50. Barrett also objected to the evidence during trial, and
such objection was overruled. Id. Lynn has failed to prove that Barrett was
ineffective for failing to challenge the identification evidence. Further, to the
extent that Lynn argues that Barrett was ineffective for failing to give Lynn the
opportunity to file an interlocutory appeal regarding the denial of his motion to
suppress, we do not find ineffective assistance of counsel as any claim of
prejudice was foreclosed by the decision on direct appeal. Lynn, No. 70A04-
1307-CR-317 at *2; see Kubsch v. State, 934 N.E.2d 1138, 1143 n.2 (Ind. 2010)
(“A petitioner for post-conviction relief cannot escape the effect of claim
preclusion merely by using different language to phrase an issue and define an
alleged error . . .[;] an issue previously considered and determined in a
defendant’s direct appeal is barred for post-conviction review on grounds of . . .
res judicata.”).
[12] Lynn next argues that his trial counsel was ineffective for failing to impeach the
victim’s testimony at trial. Lynn focuses on alleged discrepancies concerning
the order in which the victim first observed the burglars and not on her
Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015 Page 8 of 15 identification of the burglars, which was the focus of Barrett’s defense at trial.
Our Supreme Court has held that the method of impeaching a witness is a
tactical decision and a matter of trial strategy that does not amount to
ineffective assistance. Kubsch, 934 N.E.2d at 1151. We, therefore, conclude
that Lynn has failed to show Barrett was ineffective in his impeachment of the
victim.
[13] Lynn additionally asserts that Barrett was ineffective for not discussing
potential plea agreements with him. Lynn points to one draft plea agreement
and one partial second plea agreement that are included in his appendix.
Appellant’s App. at 23-25. However, at the post-conviction hearing, Lynn asked
Barrett if, after the suppression hearing, Lynn ever requested a continuance in
order to consider a plea agreement, to which Barrett stated he could not recall.
PCR Tr. at 51. The suppression hearing occurred on May 7, 2013, and one of
the draft plea agreements expired on May 2, 2013, while the second draft
agreement was missing the second page that would have contained the
expiration date. Lynn has failed to prove ineffective assistance for failure to
discuss potential plea agreements.
[14] Lynn also contends that Barrett was ineffective for failing to object to a final
jury instruction on aiding and abetting because Lynn claims the instruction
should have required “proof of specific intent of crime specified” and relies on
Hopkins v. State, 759 N.E.2d 633 (Ind. 2001). However, that case dealt with
aiding and abetting in a prosecution for attempted murder and is not applicable
to the present case. The jury instruction given in this case was a correct
Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015 Page 9 of 15 statement of the law and properly instructed the jury that in order to find Lynn
guilty as an accomplice, the State was required to prove that Lynn knowingly or
intentionally aided another person in breaking and entering the victim’s home
with the intent to commit theft. Trial Tr. at 311-12. We find no ineffective
assistance of counsel.
[15] Lastly, Lynn argues that he received ineffective assistance of his counsel at
sentencing. During sentencing, Barret withdrew, and Andrew Eads (“Eads”)
represented Lynn. Lynn initially contends that Barrett and Eads were
ineffective because they allowed his rights to be violated under Blakely v.
Washington, 542 U.S. 296 (2004) as the jury did not decide the aggravating
factors during sentencing. However, the Indiana Legislature enacted a new
sentencing regime in response to Blakely, which eliminated fixed terms and
created a sentencing scheme in “which there is no longer a maximum sentence
a judge ‘may impose without any additional findings.’” Anglemyer v. State, 868
N.E.2d 482, 489 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)
(quoting Blakely, 542 U.S. at 304). Therefore, any claims concerning violations
under Blakely have no merit.
[16] Lynn next asserts that Eads was ineffective for failing to present character
witnesses during sentencing and witnesses who would have testified to
mitigating factors that should have been presented to the trial court. During the
post-conviction hearing, Lynn presented the testimony of several witnesses,
who all testified that they had information that would have been relevant at
sentencing, but did not testify as to what that information would have been.
Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015 Page 10 of 15 He, therefore, failed to establish that the failure to have these witnesses testify at
sentencing prejudiced him. Lynn also contends that Eads was ineffective for
failing to allow Lynn to testify at sentencing. However, Lynn did not testify at
the post-conviction hearing and did not question Eads in detail about
conversations they had about Lynn’s demand to testify at sentencing. We
conclude that Lynn has not shown how he was prejudiced by this strategic
decision by Eads, especially in light of the evidence presented at sentencing of
Lynn’s extensive criminal history and the circumstances of the crime in which
Lynn and his co-defendant struck the victim’s vehicle that she was standing
near at the time and shoved it out of the way to escape from the crime scene.
[17] Lynn also claims that he received ineffective assistance of counsel at sentencing
due to Eads’s failure to obtain Lynn’s educational and mental health records or
to consult with a mental health professional. However, Lynn did not admit any
educational or mental health records at the post-conviction hearing or any
testimony regarding what information a mental health professional would have
provided to the trial court. Additionally, at sentencing, the trial court was able
to consider the pre-sentencing report and discussed Lynn’s physical illnesses
and mental health conditions when it pronounced the sentence, considering
such as a mitigating factor. Lynn has not established how he was prejudiced by
any failure to present further mental health evidence.
[18] Lynn further contends that Eads was ineffective for failing to object to
admission of the victim’s list of values for the jewelry stolen from her during the
burglary that was used to establish the restitution order. During the sentencing
Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015 Page 11 of 15 hearing, Eads cross-examined the victim regarding how she assigned values to
the jewelry and argued the issue of valuation and that the victim’s listed values
seemed high. A victim’s in-court testimony may be sufficient to support a
restitution order. See Blixt v. State, 872 N.E.2d 149, 153-54 (Ind. Ct. App. 2007)
(holding evidence sufficient to support restitution order based solely on
testimony from victim’s mother that she paid a certain amount to cover
daughter’s psychiatric services). We find that Eads was not ineffective as to his
handling of the victim’s restitution request.
[19] Lastly, Lynn raises a claim that all of the contentions he has asserted constitute
a “compilation of errors” that taken cumulatively amount to ineffective
assistance of counsel. Appellant’s Br. at 21. “Alleged ‘[t]rial irregularities which
standing alone do not amount to error do not gain the stature of reversible error
when taken together.’” Kubsch, 934 N.E.2d at 1154 (quoting Reaves v. State, 586
N.E.2d 847, 858 (Ind. 1992)). We, therefore, conclude that Lynn is not entitled
to relief on this claim.
II. Free-standing Claims of Error [20] Post-conviction proceedings are civil proceedings that provide defendants the
opportunity to raise issues not known or available at the time of the original
trial or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007)
(citing Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999), cert. denied, 531 U.S.
829 (2000)), cert. denied, 552 U.S. 1314 (2008). Thus, if an issue was known and
available but not raised on direct appeal, the issue is procedurally foreclosed.
Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015 Page 12 of 15 Id. (citing Timberlake, 753 N.E.2d at 597). “In post-conviction proceedings,
complaints that something went awry at trial are generally cognizable only
when they show deprivation of the right to effective counsel or issues
demonstrably unavailable at the time of trial or direct appeal.” Id.
[21] In the present case, Lynn raises several free-standing claims of error in his
appellate brief. He first contends that the trial court erred when it did not
conduct an inquiry at sentencing as to his ability to pay before entering a
restitution order and that the restitution order and sentence were illegal. Lynn
also argues that he was denied due process based on a violation of Criminal
Rule 4(B). He further claims that he suffered a due process violation because of
several errors in his sentencing including: (1) the aggravators were improperly
found; (2) improper aggravators were used by the trial court to enhance his
sentence; and (3) he was not allowed to present evidence at sentencing.
[22] These freestanding issues raised by Lynn were all known and available at the
time of his direct appeal. Therefore, the issues had to be raised on direct
appeal, and because they were not, they are procedurally foreclosed and may
not be raised now for the first time on post-conviction relief. We conclude that
Lynn’s freestanding claims of error are foreclosed from our review on appeal.
Further, to the extent that he attempts to argue that his appellate attorney was
ineffective for failing to raise these issues in his direct appeal, we find such
argument waived for failure to provide a cogent argument in support of such
contention. A party waives an issue where the party fails to develop a cogent
argument or provide adequate citation to authority and portions of the record.
Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015 Page 13 of 15 Wingate v. State, 900 N.E.2d 468, 475 (Ind. Ct. App. 2009); see also Ind.
Appellate Rule 46(A)(8) (requiring that contentions in appellant’s brief be
supported by cogent reasoning and citations to authorities, statutes, and the
appendix or parts of the record on appeal). Here, Lynn merely provides a
single sentence that his appellate attorney’s failure to address these issues
deprived him of due process. Appellant’s Br. at 33. Therefore, Lynn has waived
any claim regarding ineffective assistance of appellate counsel by failing to
provide a cogent argument in support of such claim.
III. Counsel’s Testimony [23] Lynn contends that the post-conviction court abused its discretion when, in
order to explain the trial strategy he employed, the post-conviction court
allowed Barrett to testify to statements that Lynn made to Barrett prior to trial.
The admission or exclusion of evidence in a post-conviction proceeding is
within the post-conviction court’s sound discretion. Hyppolite v. State, 774
N.E.2d 584, 600 (Ind. Ct. App. 2002), trans. denied. We defer to the post-
conviction court and will not disturb its ruling on review unless there was an
abuse of discretion. Id. A defendant waives the attorney-client privilege when
he files a petition for post-conviction relief on the grounds of ineffective
assistance of counsel. Carter v. State, 738 N.E.2d 665, 674 n.6 (Ind. 2000).
“‘When the professional integrity of an attorney is attacked by a client, that
attorney has a right to defend his conduct as counsel.’” Id. (quoting Logston v.
State, 266 Ind. 395, 399, 363 N.E.2d 975, 977 (1977)). We, therefore, conclude
that the post-conviction court did not abuse its discretion in allowing Barrett to
Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015 Page 14 of 15 testify regarding statements made by Lynn in order to explain counsel’s trial
strategy.
[24] Affirmed.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 70A01-1412-PC-534 | September 29, 2015 Page 15 of 15