David Lyons v. State of Indiana (mem. dec.) ( 2017 )

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
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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
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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.
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