Jeremy Lahr v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 28 2017, 6:18 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Jeremy Lahr Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeremy Lahr, June 28, 2017
Appellant-Petitioner, Court of Appeals Case No.
02A03-1701-PC-136
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable John F. Surbeck,
Appellee-Respondent. Jr., Judge
Trial Court Cause No.
02D04-1601-PC-8
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017 Page 1 of 11
Case Summary and Issue
[1] Following a jury trial in 2010, Jeremy Lahr was convicted of five counts of
child molesting, one count of fondling in the presence of a minor, and one
count of dissemination of matter harmful to minors. The trial court sentenced
Lahr to an aggregate sentence of sixty years. On direct appeal, Lahr argued the
trial court abused its discretion in admitting certain evidence and we affirmed
Lahr’s conviction. In 2016, Lahr began pursuing post-conviction relief. Lahr,
pro se, now appeals the denial of his petition for post-conviction relief, raising
one issue for our review which we restate as whether the post-conviction court
erred in determining he did not receive ineffective assistance of appellate
counsel. Concluding the post-conviction court did not err, we affirm.
Facts and Procedural History
[2] We summarized the facts of this case in Lahr’s direct appeal:
K.M. was born in April 1998. Lahr began dating K.M.’s mother,
C.C., when K.M. was six years old. When K.M. was seven
years old, she and her mother moved in with Lahr and his two
sons. Between April 2004 and December 2008, Lahr molested
K.M. On one occasion, Lahr pulled down his and K.M.’s pants.
He then attempted to stick his “private” in K.M.’s “butt.” Lahr
also touched the “inside” of K.M.’s “private.” Lahr then
ejaculated and cleaned himself off with a towel. Lahr did this to
K.M. “every time” he woke her up for school. On other
occasions, Lahr kissed K.M. on the mouth and licked her breasts.
Sometimes when K.M. and Lahr were in the computer room,
Lahr showed K.M. pornography on the computer and stuck his
fingers inside K.M.’s vagina. Lahr also made K.M. put her
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017 Page 2 of 11
mouth on his penis and masturbate him with her hand until he
ejaculated. Lahr told K.M. not to tell anyone.
On December 12, 2008, Fort Wayne Community Schools nurse
Suzette Moore talked to K.M. about good and bad touches.
K.M. cried and said that her mother’s boyfriend had been
touching her vaginal area. Nurse Moore immediately called the
Department of Child Services.
DCS case manager Daniel Whiteley went to K.M.’s home that
very day. Lahr answered the door, and Whiteley indicated why
he was there. Lahr said he wanted to be present during
Whiteley’s interview with K.M. and her mother C.C, but Lahr
eventually agreed to leave the house. After Whiteley spoke with
K.M. and C.C, C.C. said that she and K.M. would immediately
leave the house and go stay with a relative.
Forensic interviewer Julie DeJesus interviewed K.M. at the Child
Advocacy Center one week later on December 19, 2008. K.M.
was ten years old at the time. K.M. told DeJesus that Lahr had
molested her on numerous occasions.
Lahr v. State, 02A03-1006-CR-337, slip op. at *1 (Ind. Ct. App. Feb. 14, 2011),
trans. denied.
[3] The State charged Lahr with five counts of child molesting, three counts as
Class A felonies and two counts as Class C felonies; one count of fondling in
the presence of a minor, a Class D felony; and one count of dissemination of
matter harmful to minors, a Class D felony. A jury found Lahr guilty as
charged.
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017 Page 3 of 11
[4] At sentencing, the trial court found as an aggravating factor that Lahr held a
position of trust over K.M., and as a mitigating factor that Lahr lacked a
criminal history. The court sentenced him to thirty years for each Class A
felony conviction, four years for each Class C felony conviction, and one and
one-half years for each Class D felony conviction. The trial court ordered
Counts I and II be run consecutively and the rest concurrently, for an aggregate
sentence of sixty years.
[5] On direct appeal, Lahr raised one issue: whether the trial court erred in
admitting certain testimony from the forensic interviewer, DeJesus. We
affirmed Lahr’s conviction.
[6] In January 2016, Lahr filed a pro se petition for post-conviction relief arguing
ineffective assistance of appellate counsel. On December 29, 2016, the post-
conviction court entered findings of fact and conclusions of law denying Lahr’s
petition for post-conviction relief. Lahr, pro se, now appeals.
Discussion and Decision
I. Post-Conviction Standard of Review
[7] Post-conviction proceedings are not an opportunity for a super-appeal. See
Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839(2002). Rather, they create a narrow remedy for subsequent collateral
challenges to convictions that must be based on grounds enumerated in the
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017 Page 4 of 11
post-conviction rules. See id. The petitioner must establish his claims by a
preponderance of the evidence. Ind. Post-Conviction Rule 1(5).
[8] A petitioner who has been denied post-conviction relief faces a “rigorous
standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).
In reviewing the judgment of a post-conviction court, we consider only the
evidence and reasonable inferences supporting the judgment. Hall v. State, 849
N.E.2d 466, 468 (Ind. 2006). We may not reweigh the evidence or reassess the
credibility of the witnesses. Id. at 468-69. The post-conviction court’s denial of
post-conviction relief will be affirmed unless the evidence leads “unerringly and
unmistakably to a decision opposite that reached by the post-conviction court.”
McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). Only where the evidence is
without conflict and leads to but one conclusion, and the post-conviction court
reached the opposite conclusion, will the court’s findings or conclusions be
disturbed as being contrary to law. Hall, 849 N.E.2d at 469. Finally, we do not
defer to the post-conviction court’s legal conclusions, but we do accept its
factual findings unless they are clearly erroneous. Stevens v. State, 770 N.E.2d
739, 746 (Ind. 2002), cert. denied, 540 U.S. 830 (2003).
II. Ineffective Assistance of Appellate Counsel
[9] Lahr contends the post-conviction court erroneously determined he did not
receive ineffective assistance of appellate counsel. On direct appeal, appellate
counsel raised one issue: whether the trial court erred in admitting certain
testimony from DeJesus. Lahr argues appellate counsel should have raised two
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017 Page 5 of 11
other issues: whether his sentence was inappropriate and whether the trial court
improperly determined he was a credit restricted felon. To establish ineffective
assistance of appellate counsel, Lahr must show appellate counsel was deficient
in his performance and the deficiency resulted in prejudice. Garrett v. State 992
N.E.2d 710, 719 (Ind. 2013).
[10] Appellate counsel is not ineffective for failing to raise issues that are unlikely to
succeed. See Singleton v. State, 889 N.E.2d 35, 41 (Ind. Ct. App. 2008). When a
defendant claims ineffective assistance of appellate counsel due to the omission
of an issue,
[A] post-conviction court is properly deferential to appellate
counsel’s choice of issues for appeal unless such a decision was
unquestionably unreasonable. Such deference is appropriate
because the selection of issues for direct appeal is one of the most
important strategic decisions of appellate counsel. Appellate
counsel’s performance, as to the selection and presentation of
issues, will thus be presumed adequate unless found
unquestionably unreasonable considering the information
available in the trial record or otherwise known to appellate
counsel. In crafting an appeal, counsel must choose those issues
which appear from the face of the record to be most availing.
Experienced advocates since time beyond memory have
emphasized the importance of winnowing out weaker arguments
on appeal and focusing on one central issue if possible, or at most
on a few key issues. Thus, to prevail in such claim in post-
conviction proceedings, it is not enough to show that appellate
counsel did not raise some potential issue; instead, the defendant
must show that the issue was one which a reasonable attorney
would have thought availing.
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017 Page 6 of 11
Hampton v. State, 961 N.E.2d 480, 491-92 (Ind. 2012) (citations and internal
quotation marks omitted). Applying this standard to the present case, we
cannot say appellate counsel acted unreasonably.
A. Lahr’s Sentence
[11] Indiana Appellate Rule 7(B) empowers appellate courts to revise a sentence “if,
after due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.”
[12] Lahr argues his sentence likely would have been reduced if challenged on direct
appeal. He points to several other cases in which our supreme court exercised
its authority to revise a sentence downward. In Walker v. State, 747 N.E.2d 536,
538 (Ind. 2001), the Indiana Supreme Court revised the defendant’s forty-year
sentences for twice performing oral sex on a child to run concurrently instead of
consecutively. In Serino v. State, 798 N.E.2d 852, 858 (Ind. 2003), the Indiana
Supreme Court reduced the defendant’s 385-year sentence for numerous sexual
acts with a teenage boy to three consecutive thirty-year terms. And in Harris v.
State, 897 N.E.2d 927, 930 (Ind. 2008), the Indiana Supreme Court revised the
defendant’s fifty-year sentences for two counts of child molesting to run
concurrently instead of consecutively. Lahr argues the facts of those cases are
similar to his case and therefore his sentence also would have been reduced if
appealed. We disagree.
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017 Page 7 of 11
[13] As the post-conviction court and the State emphasized, Lahr faced a maximum
sentence of 172 years. Lahr’s sixty-year aggregate sentence accounts for little
more than one-third of the maximum sentence. In that respect, Lahr’s sentence
is already comparable to the revised sentences in Walker and Harris. While
Serino’s revised sentence represented less than one-fifth the maximum he faced,
the Indiana Supreme Court noted the “substantial uncontested testimony from
numerous witnesses speaking to Serino’s positive character traits.” Serino, 798
N.E.2d at 858. In particular, the victim’s mother asked the trial court to impose
less than a life sentence and added, “If he gets the minimum, that is fine with
us.” Id. Such testimony is not present here. As a result, Lahr’s comparisons to
those cases as evidence his sentence would be reduced are unpersuasive.
[14] We are also not persuaded, considering only the facts of Lahr’s case, that his
sentence is inappropriate in light of the nature of the offense and his character.
As to the nature of the offense, Lahr held a position of trust in relation to the
victim. Lahr dated K.M.’s mother and K.M. lived in Lahr’s home. Lahr took
advantage of that position of trust by repeatedly molesting K.M. The
molestations began when K.M. was only seven years old and continued for
over four years. As detailed by the State, “Lahr kissed K.M., licked K.M’s
breasts, showed his penis to K.M., penetrated K.M.’s vagina with his fingers,
anally penetrated her with his penis, had K.M. perform oral sex on him, and
showed K.M. explicit, pornographic images that included naked pictures of her
own mother.” Brief of Appellee at 11.
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017 Page 8 of 11
[15] Next, we consider Lahr’s character. In arguing his sentence is inappropriate,
Lahr points to his lack of criminal history. However, the lack of a criminal
record is not uncommon in child molestation cases, and Lahr’s actions took
place over a long period of time. He began molesting K.M. when she was
seven-years-old and the molestations continued for four years. The long
duration of Lahr’s actions reflect negatively on his character. In sum, Lahr’s
sentence is not inappropriate in light of the nature of the offense and his
character.
[16] Lastly, the State is correct to note that an appeal seeking a reduction of Lahr’s
sentence could have resulted in an increased sentence instead. When a
defendant requests appellate revision of a criminal sentence, the court may
“affirm, reduce, or increase the sentence.” McCullough v. State, 900 N.E.2d 745,
750 (Ind. 2009). Lahr’s sentence was barely over one-third of the maximum.
Appellate counsel could have reasonably chosen not to appeal the sentence
because of the risk the sentence would be increased.
[17] Considering Lahr’s sentence was barely over one-third the maximum possible,
the nature of the offense and his character, and the risk of an increased sentence
on appeal, Lahr has not shown appellate counsel acted unreasonably by
omitting this issue. Therefore, the post-conviction court did not err in denying
Lahr’s petition on this claim.
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017 Page 9 of 11
B. Credit Restricted Felon
[18] Lahr also argues the trial court improperly determined he was a credit restricted
felon under Indiana Code section 35-41-1-5.5 (2008). The statute took effect on
July 1, 2008. Therefore, Lahr must have molested K.M. at least once after June
30, 2008 in order to be considered a credit restricted felon. Lahr argues the
State provided insufficient evidence he molested K.M. after June 30, 2008, and
that his appellate counsel was ineffective for omitting that issue on direct
appeal. We disagree.
[19] K.M. reported Lahr’s actions in December 2008, five months after the statute
took effect. K.M. testified that Lahr molested her every time he woke her up
for school when her mother was away at work. In addition, K.M.’s mother
testified that she worked in the early mornings during September and October
of 2008. Therefore, it is reasonable to infer that Lahr molested K.M. at least
once after June 30, 2008. See Sharp v. State, 970 N.E.2d 647, 648 n.1 (Ind. 2008)
(noting victim’s testimony that defendant molested him “about every other
weekend” for the two years preceding October 2008 provided sufficient
evidence to infer defendant molested him after June 30, 2008). Based on these
facts, appellate counsel did not act unreasonably by choosing not to appeal this
issue. Consequently, the post-conviction court did not err in denying Lahr’s
petition on this claim.
Conclusion
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017 Page 10 of 11
[20] Concluding the post-conviction court did not err in denying Lahr’s petition for
relief on his claim of ineffective assistance of appellate counsel, we affirm.
[21] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017 Page 11 of 11