Court of Appeals of Indiana | Memorandum Decision 18A

- PC

- 2063 | June 27, 2019 Page 1 of 11 

### 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.

A PPELLANT PRO SE Senaca Lapsley Michigan City, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA
Senaca Lapsley , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. June 27, 2019 Court of Appeals Ca se No. 18A

- PC

- 2063 Appeal from the Allen Superior Court The Honorable Frances C. Gull, Judge Trial Court Cause No. 02D04

- 1602

- PC

- 16

Riley , Judge .Court of Appeals of Indiana | Memorandum Decision 18A

- PC

- 2063 | June 27, 2019 Page 2 of 11 

### 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 convicti on 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 Laps ley 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 b ar. Randy Daniels was working as a doorman at the bar, and Anna Roque and Zachary Huddleston,Court of Appeals of Indiana | Memorandum Decision 18A

- PC

- 2063 | June 27, 2019 Page 3 of 11 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 thro ugh 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 a s 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 Spir its. 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 loo k like my holes I put through the windows.” Lapsley v. State , No. 02A05

- 1408

- CR

- 3 9 9 (Ind. Ct. App. March 20, 2015).Court of Appeals of Indiana | Memorandum Decision 18A

- PC

- 2063 | June 27, 2019 Page 4 of 11 [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 Laps le y 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 fo und 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 b e 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. Lapsl e y pursued a direct appeal , challenging t he sufficiency of the evidence sustaining his convictions and the in appropriateness of his sentence

. On March 20, 2015, t his court affirmed his convictions and sentenc e
. Id

.
[6] On February 8, 2016, Lapsley filed his PCR. On May 19 , 2017, the P ublic D efen der of Indiana filed an appearance but subsequently withdrew from the case on August 1 7 , 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, ineffe ctive 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.Court of Appeals of Indiana | Memorandum Decision 18A

- PC

- 2063 | June 27, 2019 Page 5 of 11 K. Trial counsel [] [was] ineffective [be] cause he failed to argue defective indictment or i nformation, 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). O n 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 identif y any l esser - 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. W ilkes v. State , 984 N.E.2d 1236, 1240 (Ind. 2 013 ). In a PCR proceeding, the petitionerCourt of Appeals of Indiana | Memorandum Decision 18A

- PC

- 2063 | June 27, 2019 Page 6 of 11 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 o f 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 t rial counsel was ineffective for failing to request a n instruction for Class D felony battery as a lesser

- included offense of aggravated battery . However, i n 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 deni al of that petition. Pavan v. State , 64 N.E.3d 231, 233 (Ind. Ct. App. 2016). Accordingly, we findCourt of Appeals of Indiana | Memorandum Decision 18A

- PC

- 2063 | June 27, 2019 Page 7 of 11 that these arguments were waived because they were not raised in the post

conviction court proceedings.

[11] However, e ven if they had be en 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. W ilkes , 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 (citi ng 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 in effective 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 charg ing Information s he challenges in his Appendix . However, t he 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 p art, thatCourt of Appeals of Indiana | Memorandum Decision 18A

- PC

- 2063 | June 27, 2019 Page 8 of 11 [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 orga n []

* * * commits aggravated battery, a Class B felony.

Th us, the statute did not require that the State allege or prove that the offense was committed by means of a deadly weapon as Laps le y contends here on appeal

. Because there was no deficiency in the charging information, Laps ley did not sh ow 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 constitu te ineffective assistance of counsel because it does not result in pre judice to the defendant.”). Because Laps le y’s argument regarding his counsel’s failure to request an instruction on the lesser

- included offense of Class D felony battery hinges on his c ontention that the State’s charging information was deficient, that claim fails as well. For the same reasons, t he post

- conviction court’s conclusion that Lapsley had failed to demonstrate inadequate performance on the part of his trial counsel was not cl early erroneous. See Hollowell , 19 N.E.3d at 269.Court of Appeals of Indiana | Memorandum Decision 18A

- PC

- 2063 | June 27, 2019 Page 9 of 11 [13] In this section of his brief, Laps le y 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 wa s 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 avail able 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 el ement 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, Lapsl ey 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] Lap sley next argue s 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, th is 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, heCourt of Appeals of Indiana | Memorandum Decision 18A

- PC

- 2063 | June 27, 2019 Page 10 of 11 has failed to meet his burden on appeal to demonstrate that the trial court ’s sentencing was improper

. See W ilkes , 984 N.E.2d at 1240. Lastly, even if the trial court had sentenced him as Lapsley argues , he h as not demonstrated any error on the part of the trial court. U nder 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 findin g 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 Indian a 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 proce edings 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 incumbe nt on Lapsley to prepare and file his affidavit and no one else. We conclude that Laps le y was not deprived of a fair proceeding as he pursued his PCR pro se .Court of Appeals of Indiana | Memorandum Decision 18A

- PC

- 2063 | June 27, 2019 Page 11 of 11 

### CONCLUSION
[16] Based on the foregoing, we conclude that Lapsley received effective assistance of tr ial 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