Court of Appeals of Indiana | Memorandum Decision 46A03-1702-PC-274 | July 20, 2018 Page 1 of 8

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

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

Marzono R. Shelly

Carlisle, Indiana 

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Justin F. Roebel

Supervising Deputy Attorney 

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Marzono R. Shelly,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

July 20, 2018

Court of Appeals Case No.

46A03-1702-PC-274

Appeal from the LaPorte Circuit 

Court

The Honorable Thomas J. 

Alevizos, Judge

Trial Court Cause No.

46C01-1606-PC-6

Mathias, Judge.
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[1] Marzono R. Shelly (“Shelly”) appeals the LaPorte Circuit Court’s denial of his 

petition for post-conviction relief. Concluding that Shelly has failed to raise any 

issues that are available for post-conviction review, we affirm.

Facts and Procedural History

[2] The following facts and procedural history of Shelly’s case are taken from the 

unpublished memorandum decision of his direct appeal:

In 2012, seventy-three-year-old Charles Harper lived in a house 

in Michigan City with his friend, Vincent Fayson. On January 

19, 2012, Shelly arrived at Harper’s house and asked Fayson if 

Harper was available. Harper asked Shelly to come inside and 

gave Fayson some money so that he could leave the house and 

go out with his friends. Fayson left the house sometime around 

eight o’clock at night.

Around 10:30 p.m., Fayson, still out with his friends, called 

Harper and received no answer. When Fayson returned to 

Harper’s house later that night, Harper’s truck was gone, but the 

lights and television were still on and the door to the house was 

unlocked. Fayson entered the house and noticed that a chair was 

propped underneath the doorknob to the kitchen door. Fayson 

removed the chair, opened the door, and found Harper lying in a 

pool of blood.

Harper had been shot five times, including once in the back of 

the head and once in the face. Fayson contacted the police and 

informed them that Shelly was the last person he had seen with 

Harper. Later that evening, officers discovered Harper’s truck 

parked at an apartment complex. The next morning, officers 

knocked on the door of an apartment at the complex belonging to 

Doris Parr, who invited them inside. The officers soon 

discovered Shelly hiding in the furnace room and arrested him.
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Officers then spoke with a woman who was in Parr’s apartment 

when Shelly was arrested. She informed them that Shelly had 

been carrying a twelve-pack box of Icehouse beer and that he had 

attempted to hide the box when police arrived. After Parr 

consented to a search of her apartment, the officers found the 

Icehouse box hidden underneath [Shelly’s] jacket in the furnace 

room. They searched the box and found, among other things, 

Harper’s wallet, keys, two handguns, and ammunition.

The State charged Shelly with murder, felony murder, class A 

felony robbery, and class B felony serious violent felon in 

possession of a firearm. The State later requested an habitual 

offender sentence enhancement. Shelly filed a motion to suppress 

the evidence found inside the Icehouse box, which the trial court 

denied. Shelly also filed a motion asking the trial court to declare 

Jury Rule 20(a)(8), which allows jurors and alternates to discuss 

the evidence amongst themselves during recesses prior to the 

commencement of deliberations, unconstitutional. The trial court 

denied this motion as well.

During the jury selection process, one of the prospective jurors, 

Gorski, informed the trial court that he believed one of [Shelly’s] 

tattoos signified that he had previously murdered someone. 

Gorski said that he had shared these thoughts with other 

prospective jurors.

Shelly moved for a mistrial. The trial court denied the motion, 

finding that any taint could be cured by individually questioning 

all of the prospective jurors. When questioned, only two 

prospective jurors indicated that they had discussed [Shelly’s]

tattoo with Gorski. Both prospective jurors, along with Gorski, 

were dismissed. No other prospective juror indicated that they 

had participated in or overheard such discussions and the trial 

court admonished all that remained that they must not speak 

about the case with anyone.
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Following jury selection, Shelly moved to discharge the jury 

panel, alleging that the prosecutor had made statements that 

improperly informed the jury of the facts of the case, 

misinformed the jury as to the elements of the crimes charged, 

and improperly commented upon [Shelly’s] exercise of his right 

against self-incrimination. The trial court denied this motion as 

well.

On August 12, 2013, Shelly was tried before a jury. At the close 

of evidence, Shelly moved for a mistrial, alleging that the State 

had failed to disclose evidence of Harper’s past criminal activity, 

about which Shelly had just learned. The trial court denied the 

motion, finding that there was not a reasonable probability that 

the evidence would have affected the outcome of the trial. The 

trial court also denied [Shelly’s] request to instruct the jury on 

involuntary manslaughter.

The jury found Shelly guilty on all counts, and the trial court 

later found him to be an habitual offender. The trial court merged 

[Shelly’s] conviction for felony murder with his conviction for 

murder. Shelly was sentenced to sixty-five years for the murder 

conviction, thirty years for the class A felony robbery conviction, 

ten years for the class B felony violent felon in possession of a 

firearm conviction, and thirty years for the habitual offender 

finding. With the exception of the class B felony violent felon in 

possession of a firearm sentence, which was to be served 

concurrently to the murder sentence, the trial court ordered all 

sentences to be served consecutively, resulting in a total executed 

sentence of 125 years. 

Shelly v. State, 46A03-1404-CR-133, 2015 WL 1228314, Slip op. at *1–*2 (Ind. 

Ct. App. March 17, 2015).
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[3] On direct appeal, our court held that Shelly’s merged convictions for murder 

and felony murder, and his conviction for class A felony robbery violated 

double jeopardy. This court, therefore, instructed the trial court to vacate the 

felony murder the conviction and remanded the case to enter a judgment for 

robbery, as a class C felony. On remand, the trial court was ordered to revise his 

sentence accordingly. As to the remaining convictions, this court affirmed. See 

id. at *11.

[4] On June 7, 2016, Shelly filed a pro se petition for post-conviction relief. Shelly 

filed an amended pro se petition for post-conviction relief on November 14, 

2016. In his amended petition, Shelly raised numerous arguments which we 

summarize as: (1) whether the trial court abused its discretion by allowing the 

State to amend the habitual offender charge; (2) whether the possession of a 

firearm by a violent offender and the habitual offender enhancement violated 

double jeopardy; (3) whether he was prejudiced by an allegedly improper jury 

instruction regarding motive; (4) whether the trial court erred by not giving an 

involuntary manslaughter instruction to the jury; (5) whether certain jury 

instructions were ambiguous; (6) whether the trial court abused its discretion in 

denying a motion for mistrial; and (7) whether the trial court abused its 

discretion in denying a motion for judgment on the evidence. See Appellant’s 

Am. App. pp. 37–43. 

[5] At the post-conviction hearing on January 10, 2017, the post-conviction court 

made the following findings:
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Petitioner elected not to introduce any evidence other than the 

transcript of his criminal trial. The State argued that Petitioner’s 

petition should be barred by laches or by waiver.

“The purpose of a petition for post-conviction relief is to raise 

issues unknown or unavailable to a defendant at the time of the 

original trial and appeal. When an issue is known and available 

but not raised on direct appeal, it is waived for post-conviction 

proceedings.”

Petitioner has elected not to present any evidence as to whether 

any of his allegations are result of newly found evidence or that 

which was not available to him at the time of trial or appeal. 

However, the Court, having read all the accusations of error in 

his amended petition, including 8(a), 8(b), 9(a), 10(a), 10(b), 

11(a), 11(b), 12(a), 12(b), 13(a), 13(b), 14(a), and 14(b), finds that 

nothing in those allegations indicate that the Petitioner or his 

counsel were not aware of these matters at the time of the trial or 

the appeal.

Therefore, as all of the issues presented in Petitioner’s amended 

post-conviction relief petition were known to the Petitioner at the 

time of his trial, or at the time of his original appeal, these issues 

have been waived.

Accordingly, Petitioner’s post-conviction relief petition should be 

DENIED.

Id. at 46. (internal citations omitted). Shelly now appeals.
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Discussion and Decision

[6] The post-conviction petitioner bears the burden of establishing grounds for 

relief by a preponderance of the evidence. Willoughby v. State, 792 N.E.2d 560, 

562 (Ind. Ct. App. 2003), trans. denied. When a petitioner appeals the denial of a 

petition for post-conviction relief, the petitioner stands in the position of one 

appealing from a negative judgment. Id. On appeal, we neither reweigh 

evidence nor judge the credibility of witness. Id. Therefore, to prevail, Shelly

must show that the evidence, as a whole, leads unerringly and unmistakably to 

a conclusion opposite that reached by the post-conviction court. Id.

[7] Where, as here, the post-conviction court made specific findings of fact and 

conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we 

must determine if the court’s findings are sufficient to support its judgment. 

Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947 

N.E.2d 962. Although we do not defer to the post-conviction court’s legal 

conclusions, we review the post-conviction court’s factual findings for clear 

error. Id. Accordingly, we will consider only the probative evidence and 

reasonable inferences flowing therefrom that support the post-conviction court’s 

decision. Id.

[8] “It is . . . well-settled that, because a post-conviction relief proceeding is not a 

substitute for direct appeal but rather a process for raising issues unknown or 

not available at trial, an issue known and available but not raised on direct 

appeal may not be raised in post-conviction proceedings.” See Mills v. State, 868 
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N.E.2d 446, 452 (Ind. 2007) (quoting Collins v. State, 817 N.E.2d 230, 232 (Ind. 

2004)). The issues Shelly raises in his petition for post-conviction relief, which 

are listed above, were known and available on direct appeal.1

[9] Shelly did not present any evidence, but merely asked the post-conviction court 

to take notice of the trial transcript and his motion and make a decision based 

on the court’s review of the transcript. See PCR Tr. p. 3. Post-conviction 

proceedings are not “super appeals” through which convicted persons can raise 

issues they failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d 

389, 391 (Ind. 2002), reh’g denied. These issues were available at the time of 

Shelly’s direct appeal, and therefore, may not be raised in post-conviction 

proceedings. See Mills, 868 N.E.2d at 452; Ind. Post-Conviction Rule 1(1)(b) 

(stating post-conviction relief “is not a substitute for a direct appeal from the 

conviction and/or sentence”).

[10] For these reasons, we conclude that the post-conviction court did not err in 

denying Shelly post-conviction relief.

[11] Affirmed.

Riley, J., and May, J., concur. 

 

1

Shelly argues that the post-conviction court erred when it denied his relief based on the doctrine of laches. 

However, it is obvious on the face of the trial court’s judgment that the court did not rely on laches when it 

denied Shelly’s petition.