Orlando D. Lynch v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Nov 20 2015, 8:24 am
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
Orlando D. Lynch Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Orlando D. Lynch, November 20, 2015
Appellant-Petitioner, Court of Appeals Case No.
45A03-1506-CR-580
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Samuel L. Cappas,
Appellee-Respondent Judge
Trial Court Cause No.
45G04-9205-CF-117
Baker, Judge.
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[1] On March 2, 1994, a jury convicted Orlando Lynch of two counts of murder
and one count of attempted murder. The trial court sentenced him to two forty-
year terms of incarceration for the two murders, to be served consecutively, and
another twenty-year term of incarceration for the attempted murder, to be
served concurrently. He appealed on the grounds of prosecutorial misconduct,
but this Court ruled against him and affirmed his sentence in a memorandum
decision. Lynch v. State, No. 45A03-9408-CR-302 (Ind. Ct. App. May 15,
1995). Our Supreme Court denied transfer. On April 27, 1998, Lynch filed a
petition for post-conviction relief, which the trial court denied on August 25,
1998, based on the doctrine of laches.1 This Court affirmed that denial in
another memorandum decision, Lynch v. State, 45A04-9810-PC-482 (Ind. Ct.
App. May 24, 1999). Again, our Supreme Court denied transfer. From 2003 to
2015, Lynch filed five more requests for post-conviction relief, all of which were
denied by this Court.
[2] Lynch’s current appeal stems from a Motion to Correct Erroneous Sentence,
which he filed on May 12, 2015. He argued that his sentence was “facially
erroneous,” alleging that his two murder sentences should have run
concurrently, not consecutively. App. p. 16-17. The trial court denied this
motion on the grounds that “a motion for correction of erroneous sentence may
only be used to attack a sentence that is invalid on its face. The sentence in this
case is not erroneous on its face.” Id. at 15. Lynch now appeals.
1
Laches is neglect for an unreasonable length of time, under circumstances permitting diligence, to do what
in law should have been done. Perry v. State, 512 N.E.2d 841, 842 (Ind. 1987).
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[3] In Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004), our Supreme Court held:
a motion to correct sentence may only be used to correct
sentencing errors that are clear from the face of the judgment
imposing the sentence in light of the statutory authority. Claims
that require consideration of the proceedings before, during, or
after trial may not be presented by way of a motion to correct
sentence. . . . As to sentencing claims not facially apparent, the
motion to correct sentence is an improper remedy. Such claims
may be raised only on direct appeal and, where appropriate, by
post-conviction proceedings.
[4] Lynch points to Hansford v. State for the proposition that where a trial court has
not found aggravating circumstances, concurrent sentences are required. 490
N.E.2d 1083 (Ind. 1986). He also claims that the trial court did not find any
aggravating circumstances. Whatever the merits of this argument, Lynch is
alleging the opposite of a facial defect; he is making a “[c]laim[] that require[s]
consideration of the proceedings before, during or after trial. . . .” Robinson, 805
N.E.2d at 787. His sentence is not facially defective—two consecutive forty-
year sentences is a facially valid sentence for two murders. I.C. § 35-50-1-2(a);
I.C. § 35-50-2-3.
[5] Although the alternative avenue to bring such a claim might be in a post-
conviction proceeding, Lynch has waived this possibility by not bringing his
claim on direct appeal. As Robinson stated, “[s]uch claims may be raised only
on direct appeal and, where appropriate, by post-conviction proceedings.” 805
N.E.2d at 787 (emphasis added). “The purpose of the post-conviction relief
process is to raise issues not known at the time of the original trial and appeal or
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for some reason not available to the defendant at that time.” Schiro v. State, 533
N.E.2d 1201, 1204 (Ind. 1989). “It has long been held that claims available on
direct appeal but not presented are not available for post-conviction review.”
Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2004).
[6] Assuming for the sake of argument that Lynch’s argument regarding
consecutive sentences is correct, there is no apparent reason why he could not
have brought that argument on direct appeal. Both he and his attorney were
present at his trial and at his sentencing hearing. The case he is relying upon
was decided several years before his direct appeal. But instead of directly
appealing the consecutive nature of his sentences, he appealed only what he
saw as prosecutorial misconduct and ineffective assistance of counsel for his
attorney’s failure to object to that conduct.
[7] In sum, Lynch’s motion was properly denied because his sentence is not facially
defective. Moreover, the substance of his claim cannot be brought in a post-
conviction relief petition because he failed to bring it on direct appeal.
[8] The judgment of the trial court is affirmed.
Bailey, J., and Mathias, J., concur.
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