Senaca Lapsley v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 27 2019, 7:28 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Senaca Lapsley Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Senaca Lapsley, June 27, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-PC-2063
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D04-1602-PC-16
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Petitioner, Senaca Lapsley (Lapsley), appeals the post-conviction
court’s denial of his petition for post-conviction relief (PCR).
[2] We affirm.
ISSUES
[3] Lapsley presents three issues on appeal, which we restate as the following:
(1) Whether he received ineffective assistance of trial counsel;
(2) Whether his due process rights were violated when he received an
enhanced sentence on the aggravated battery conviction to which his
habitual offender enhancement was also attached; and
(3) Whether he was deprived of a fair post-conviction proceeding.
FACTS AND PROCEDURAL HISTORY
[4] The facts of the underling offenses, as found by this court, are as follows:
At around 12:00 a.m. on December 25, 2013, Lapsley asked his
girlfriend, Tequila James, if she would drop him off to see his
brother at Stein Tavern. James saw that Lapsley had a pistol “on
the side of his jacket and the pants pocket.” James dropped
Lapsley off at Stein Tavern and drove away.
At approximately 1:00 a.m. on December 25, 2013, Lapsley, who
had dreadlocks, his brother Lorenzo, and another man entered
Sports and Spirits, a tavern in Fort Wayne, Indiana. There were
around fifty people at the bar. Randy Daniels was working as a
doorman at the bar, and Anna Roque and Zachary Huddleston,
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both of whom worked as bartenders but were not working at the
time, were socializing with Daniels. At some point, Lorenzo
punched a man in the face, and Daniels rushed over to break up
the fight. Daniels attempted to defuse the situation and, with the
help of Huddleston, directed Lapsley, Lorenzo, and the third
man toward the door. Daniels, with Huddleston’s assistance,
forced the three men to exit the bar through the front door, and
Daniels locked the door.
Within seconds after he exited the building, Lapsley pulled a gun
out of his clothing, pointed it directly through the front window
of the bar, and fired the gun multiple times. Roque was struck in
the hand, and Huddleston was struck in the neck and abdomen.
A bullet entered Huddleston’s neck below his chin and exited out
of his jaw, shattering it. A second bullet entered Huddleston’s
abdomen, traveled through his bladder, and struck the femoral
artery in his left leg. Huddleston tried to scream but could not
because of the blood in his throat. Roque helped Huddleston roll
over so that he could cough so that he would not choke on his
own blood. A part of one of Roque’s fingers later had to be
amputated as a result of her injuries. Huddleston later
underwent approximately ten operations during three hospital
stays totaling about two months.
In the morning following the shooting, Lapsley told James that
Lorenzo had “knocked out somebody” at Sports and Spirits.
Later that night, Lapsley and James were watching the news, and
there was a report about the shooting at Sports and Spirits.
When the report showed a picture of the window of Sports and
Spirits with bullet holes in it, Lapsley yelled: “Damn, that look
like my holes I put through the windows.”
Lapsley v. State, No. 02A05-1408-CR-399 (Ind. Ct. App. March 20, 2015).
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[5] On December 27, 2013, the State filed an Information, charging Lapsley with
two Counts of Class B felony aggravated battery and three Counts of Class C
felony criminal recklessness. The State also alleged that Lapsley was an
habitual offender. Lapsley was appointed a public defender to represent him in
the proceedings. On July 9, 2014, a jury found Lapsley guilty as charged, and it
found that he was an habitual offender. On August 7, 2014, the trial court
sentenced Lapsley to twenty-year terms for each of the Class B felony
aggravated batteries and to eight years for one of the Counts of Class C felony
criminal recklessness, all to be served consecutively. The trial court enhanced
Lapsley’s sentence for the first Count of aggravated battery by thirty years for
being an habitual offender, for an aggregate sentence of seventy-eight years.
Lapsley pursued a direct appeal, challenging the sufficiency of the evidence
sustaining his convictions and the inappropriateness of his sentence. On March
20, 2015, this court affirmed his convictions and sentence. Id.
[6] On February 8, 2016, Lapsley filed his PCR. On May 19, 2017, the Public
Defender of Indiana filed an appearance but subsequently withdrew from the
case on August 17, 2017. Lapsley proceeded pro se with his PCR, which he
amended on October 2, 2017. Among his twenty-six contentions of ineffective
assistance of trial counsel, ineffective assistance of appellate counsel, and
prosecutorial misconduct, Lapsley alleged the following:
J. Trial counsel [] failed to object or correct the [S]tate’s
misrepresentation of crucial evidence used against me. Noted as
a 404(b) violation under Indiana Rules of Evidence. And a lesser
include[d] offense should’ve been given to the jurors.
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K. Trial counsel [] [was] ineffective [be]cause he failed to argue
defective indictment or information, lack of probable cause and
failure to properly inform me of the charges against me.
(Appellant’s App. Vol. II, p. 5).
[7] On October 25, 2017, the trial court granted the State’s motion to require
Lapsley to submit his case by affidavit. On November 6, 2017, Lapsley filed an
affidavit in support of his PCR. Lapsley’s affidavit contained general
allegations of ineffective assistance of trial and appellate counsel as well as the
averment that “Petitioner was denied fundamental due process failure [sic] to
inform defendant of prohibited conduct.” (Appellant’s App. Vol. II, p. 79). On
July 31, 2018, the post-conviction court denied Lapsley’s PCR. Regarding
Lapsley’s claim of ineffective assistance of trial counsel, the post-conviction
court concluded that Lapsley had failed to demonstrate any inadequacy in his
trial counsel’s performance because he did not identify any lesser-included
offenses he had been entitled to, nor had he specified how the Information had
been defective or failed to inform him of the charges against him.
[8] Lapsley now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[9] PCR proceedings are civil proceedings in which a petitioner may present
limited collateral challenges to a criminal conviction and sentence. Wilkes v.
State, 984 N.E.2d 1236, 1240 (Ind. 2013). In a PCR proceeding, the petitioner
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bears the burden of establishing his claims by a preponderance of the evidence.
Id. When a petitioner appeals from the denial of his PCR, he stands in the
position of one appealing from a negative judgment. Hollowell v. State, 19
N.E.3d 263, 269 (Ind. 2014). To prevail on appeal from the denial of a PCR,
the petitioner must show that the evidence “as a whole leads unerringly and
unmistakably to a conclusion opposite that reached by the [PCR] court.” Id. In
addition, where a PCR court makes findings of fact and conclusions of law in
accordance with Indiana Post-Conviction Rule 1(6), we do not defer to its legal
conclusions, but we will reverse its findings and judgment only upon a showing
of clear error, meaning error which leaves us with a definite and firm conviction
that a mistake has been made. Id.II. Ineffective Assistance of Trial Counsel
[10] Lapsley contends that his trial counsel was ineffective for failing to challenge
the Information because it did not allege that he committed the aggravated
batteries by means of a deadly weapon, namely, a firearm. He also argues that
his trial counsel was ineffective for failing to request an instruction for Class D
felony battery as a lesser-included offense of aggravated battery. However, in
his amended PCR and affidavit in support, Lapsley made general allegations
that his trial counsel should have challenged the Information and requested a
lesser-included instruction without raising the more specific arguments that he
now raises on appeal. It is well-settled that issues not raised in a PCR petition
may not be raised for the first time on appeal from the denial of that petition.
Pavan v. State, 64 N.E.3d 231, 233 (Ind. Ct. App. 2016). Accordingly, we find
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that these arguments were waived because they were not raised in the post-
conviction court proceedings.
[11] However, even if they had been argued below, Lapsley would not be entitled to
relief. We evaluate ineffective assistance of counsel claims under the two-part
test articulated in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on
such a claim, a petitioner must show that 1) his counsel’s performance was
deficient based on prevailing professional norms; and 2) that the deficient
performance prejudiced the defense. Wilkes, 984 N.E.2d at 1240 (citing
Strickland, 466 U.S. at 687). In order to demonstrate sufficient prejudice, the
petitioner must show that there is a reasonable probability that, but for his
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at 1241 (citing Strickland, 466 U.S. at 694). A reasonable
probability is one that is sufficient to undermine confidence in the outcome. Id.A petitioner’s failure to satisfy either the ‘performance’ or the ‘prejudice’ prong
of a Strickland analysis will cause an ineffective assistance of counsel claim to
fail. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006).
[12] We begin by noting that Lapsley did not include copies of the charging
Informations he challenges in his Appendix. However, the chronological case
summary for the underlying criminal case included in the Appendix indicates
that the State charged Lapsley with two Counts of aggravated battery under
Indiana Code section 35-42-2-1.5(2) (1997), which, at the time he committed
the offenses, provided, in relevant part, that
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[a] person who knowingly or intentionally inflicts injury on a
person that creates a substantial risk of death or causes:
***
(2) protracted loss or impairment of the function of a bodily
member or organ[]
***
commits aggravated battery, a Class B felony.
Thus, the statute did not require that the State allege or prove that the offense
was committed by means of a deadly weapon as Lapsley contends here on
appeal. Because there was no deficiency in the charging information, Lapsley
did not show that his counsel’s performance was deficient for failing to
challenge it, or that he was prejudiced thereby. See Grafe v. State, 686 N.E.2d
890, 896 (Ind. 1997) (“The failure to pose a meritless objection or present a
meritless argument cannot constitute ineffective assistance of counsel because it
does not result in prejudice to the defendant.”). Because Lapsley’s argument
regarding his counsel’s failure to request an instruction on the lesser-included
offense of Class D felony battery hinges on his contention that the State’s
charging information was deficient, that claim fails as well. For the same
reasons, the post-conviction court’s conclusion that Lapsley had failed to
demonstrate inadequate performance on the part of his trial counsel was not
clearly erroneous. See Hollowell, 19 N.E.3d at 269.
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[13] In this section of his brief, Lapsley also argues that the trial court violated his
due process rights by failing to instruct the jury that they must find that the
aggravated batteries were accomplished by means of a deadly weapon. This is
a freestanding claim of trial court error that was available to Lapsley on direct
appeal but was not raised. Thus, Lapsley was procedurally barred from
bringing that claim on post-conviction relief. See Timberlake v. State, 753 N.E.2d
591, 597 (Ind. 2001) (holding that issues that were known and available on
direct appeal, but not raised, are waived). In addition, as we have already
determined, it is a meritless claim because the State was not required to prove
the element of use of a deadly weapon in order to prove the offense. Lapsley’s
related argument that his post-conviction counsel was ineffective for failing to
raise the issue is also unavailing because, in addition to being based on a
meritless argument, Lapsley proceeded pro se in his post-conviction proceedings.
A pro se litigant may not raise a claim of ineffective assistance of counsel against
himself. Carter v. State, 512 N.E.2d 158, 162 (Ind. 1987).
III. Aggravated Battery Sentence
[14] Lapsley next argues that the trial court deprived him of his fundamental right to
due process when it enhanced his sentence on Count I for Class B felony
aggravated battery based on the same offenses that made the showing that he is
an habitual offender. As noted above, this is a freestanding claim of trial court
error that may not be raised in a PCR. Timberlake, 753 N.E.2d at 597. In
addition, Lapsley has not cited to the trial court’s sentencing statement or
written sentencing order, and so even if the claim were properly before us, he
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has failed to meet his burden on appeal to demonstrate that the trial court’s
sentencing was improper. See Wilkes, 984 N.E.2d at 1240. Lastly, even if the
trial court had sentenced him as Lapsley argues, he has not demonstrated any
error on the part of the trial court. Under the sentencing scheme in effect at the
time he committed the offenses, a trial court was not precluded from enhancing
a base felony with the same criminal record that supported the finding that the
defendant was an habitual offender. Pedraza v. State, 887 N.E.2d 77, 80 (Ind.
2008).
IV. Fair Post-Conviction Proceeding
[15] Lapsley’s final claim is that he was deprived of a fair post-conviction
proceeding because the Public Defender of Indiana withdrew from his case and
because he was provided a form at the prison library to file his affidavit in
support of his PCR that he contends was inadequate in some unspecified
manner. There is no constitutional right to counsel for post-conviction
proceedings under either the federal or state constitutions. Hill v. State, 960
N.E.2d 141, 145 (Ind. 2012). After the Public Defender withdrew from his
case, Lapsley had the right to proceed pro se with his PCR, which he did. Pro se
litigants such as Lapsley are “held to the same standards as a trained attorney
and [are] afforded no inherent leniency simply by virtue of being self-
represented.” Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). As a pro se
litigant, it was incumbent on Lapsley to prepare and file his affidavit and no one
else. We conclude that Lapsley was not deprived of a fair proceeding as he
pursued his PCR pro se.
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CONCLUSION
[16] Based on the foregoing, we conclude that Lapsley received effective assistance
of trial counsel, his freestanding claim of trial court error at sentencing is both
procedurally barred and without merit, and that he received a fair post-
conviction proceeding.
[17] Affirmed.
[18] Bailey, J. and Pyle, J. concur
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