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 : ATTORNEYS FOR APPELLEE : ROY AUSTIN SMITH GREGORY F. ZOELLER Wabash Valley Correctional Facility A ttorney General of Indiana Carlisle, Indiana IAN M C LEAN Deputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APPEALS O F INDIANA

ROY AUSTIN SMITH, ) ) Appellant

- Petitioner , ) ) vs. ) No. 49A02

- 1209

- PC

- 783 ) STATE OF INDIANA, ) ) Appellee

- Respondent

. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Grant W. Hawkins, Judge The Honorable Christina R. Klineman , Ma ster Commissioner

Cause No. CR81

- 017E

May 23, 2013

MEMORANDUM DECISION
- NOT FOR PUBLICATION

CRONE, Judge2 Case Summary In 1982, Roy Austin Smith was convicted of murder and found to be a habitual
offender. In 2007, h e sought post

- conviction relief (“PCR”). The State asserted the defense
of laches

. The PCR court denied Smith’s petition

. On all of Smith’s claims relating to his murder conviction, the PCR court concluded that the State had carried its burden on the
elements of its laches defe nse. However, t he PCR court addressed the merits of Smith’s claims relating to his habitual offender finding and found that he had failed to carry his burden of proof.
Smith now appeals the denial of his PCR petition

. He argues that the PCR court
commit ted error relating to the State’s laches defense. However, based on his statements at the PCR evidentiary hearing, his motion to strike the State’s tender of laches evidence, and his arguments on appeal, it is apparent that Smith is seeking relief only fo r his habitual
offender finding

. Smith’s claims on appeal address only the PCR court’s laches conclusion
that affects his murder conviction . Because the PCR court did not decide Smith’s habitual
offender claims based on laches, Smith’s arguments are mispl aced. Therefore , we affirm

. Facts and Procedural History
In 1982 , Smith was convicted of murder and bei ng a habitual offender and sentenced
to an executed term of sixty years for the murder enhanced by thirty years for the habitual offender finding . His convictions and sentence were affirmed on direct appeal. Smith v.
State , 468 N.E.2d 51 2 (Ind. 1984). On September 21, 2007, Smith filed pro se a PCR3

petition and filed amended petitions on April 14 and July 20, 2010. 1 The State asserted the
affirmative defense of laches

. On May 4, 2011, the PCR court held an evidentiary hearing on Smith’s pe tition. Smith appeared pro se. He called no witnesses and told the PCR court that he did not wish t o testify on his own behalf and that “[e]verything I’m complainin g about is in the record.” PCR Tr. at 5. The record of the underlying proceedings was admitted. The State asked for additional time to complete its laches investigation and “submit any laches affidavit.” Id . at 16. The State explained that it would “e ither file laches affidavits or ... a notice that the State is not tendering any.” Id . at 17. The PCR court told Smith th at he could respond to the
State’s laches determination

. On August 12, 2011, the State filed its tender of laches evidence , which inclu ded (1)
an affidavit from a Erin Cronley, a paralegal in the Marion County Prosecutor’s Office , as to
her efforts to contact witnesses and her failure to receive any response s as well as her discovery that some officers in the case had died , (2) an informa tion and judgment of
conviction from a 2004 case , in which Smith was convicted of attempted murder, 2 and (3) a faxed copy of an affidavit from Dr

. Robert Ransburg , who performed the autopsy on Smith’s
murder victim

. The State also request ed that it be all owed to substitute the faxed copy of the
doctor’ s affidav it with the original aff i davit upon receipt via mail , which the PCR court

1 None of Smith’s PCR petitions are included in his a ppellant’s a pp endix

.

2 The State explained that the documents relating to Smith’s 2004 convictions were included “to support the State’s laches argument that he had additional contact with attorneys before he filed for this PCR in 2007.” PCR Tr. at 22.4

granted

. On August 22, 2011, the State filed a motion for an additional sixty days to file the original of the doctor’s affi davit , which the PCR court granted. On October 27, 2011, the
State filed its final tender of laches evidence , and the PCR court set a laches hearing. On November 30, 2011, the PCR court held a hearing on the State’s laches defense to
ensure that Smith had received copies of the State’s exhibits , which he had, and to give him an opportunity to respond. The PCR court asked Smith if he would like to testify or present any evidence. Smith replied that he was “just going off the record.” PCR Tr. at 20. The PCR court informed Smith that he could state his position and also submit something in writing. Smith was sworn in and testified as follows:

[I]t’s my understanding the prosecutor

– the State is filing a laches as a defense in this case and it’s also my u nderstanding the laches defense only applies if it affects the State’s ability to retry me. I’m back on the habitual and if you was to vacate the habitual which is the relief I’m asking for in my PC , then that’ll just leave me with the 60 years and I’ve a lready served the 60

- year sentence so I can’t be tried on that and as you know, in post

- conviction proceeding laches only applies when it affects the State’s ability to retry me. I don’t think I can be retried on anything from my understanding.
Id . at 22 (emphasis added)

. On March 7, 2012, Smith filed a motion to strike State’s tender of laches evidence , which stated in relevant part,

13. Petitioner contends that the State cannot be prejudiced by an absence of any of the witnesses listed in Erin Cronle y ’s affidavit as none of those witnesses have any relevant testimony to offer at petitioner’s evidentiary hearing now concluded and there is no scenario that can be contemplated or can exist where petitioner will face retrial, if the court vacates the habi tual offender finding.

....5 21. Petitioner objects to State’s Exhibit 3, the affidavit of Doctor Robert Ransburg. What relevant testimony could Dr. Ransburg provide concerning the issues presented in petitioner’s petition for post

- conviction relief. [si c] And if Dr. Ransburg were allowed to give some type of testimony, where would Dr. Ransburg’s testimony be given. Not the post

conviction court and not the trial court so as a result, ho w is doctor Ransburg’s testimony or presence be [sic] relevant. Ap pellant’s Supp

. App. at 3

- 4, 5. On May 5, 2012, the PCR court set June 15, 2012, as the date for the parties to submit proposed findings of fact and conclusions of law. On September 11, 2012, the PCR court
issued its findings of fact , conclusions of law , and judgment denying Smith relief. R egard ing the State’s laches defense, the court’s judgment reads in pertine n t part ,

The Court concludes that the State has proven both elements of its affirmative laches defense by a preponderance of the evidence. Smith ’s [PCR petition] is accordingly denied, as to claim VI 6 and as to all other claims to the extent that success on said claims would result in a retrial of Smith on the murder charge

. [ 6 Claim VI in Smith’s Amended Petition filed July 28, 2010, essent i a l l y alleges ineffectiveness of trial counsel for failure to object to lack of trial court jurisdic ti on due to non

- filing o f charging information, probable cause affidavit, arrest warrant, and amended information. It is also worth noting that, Smith’s testimon y on November 30, 2011, could be interpreted to express his intent to proceed only on issues pertaining to the habitual offender , though he did not expressly withdraw Claim VI. ]6

Appellant’s Br. at 50 p. 10 (emphas e s added)

. However, the PCR court did not apply the
State’s laches defense to Smith’s habitual offender claims and decided those claims on the merits against Smith. 3 Smith appeals.
Discussion and Decision
Smith represented himself at the post

- conviction level and is self

- represented on appeal. A defendant or convicted person who proceeds pro se “ ‘accepts the burdens and hazards incident to his position.’ ” Boykin v. State , 702 N.E.2d 1105, 1106 n.1 (Ind. Ct. App. 1998) (quoting Houston v. State , 553 N.E.2d 117, 118 (Ind. 1990)). “Pro se litiga nts without legal training are held to the same standard as trained counsel and are required to follow procedural rules.” Evans v. State , 809 N.E.2d 338, 344 (Ind. Ct .App. 2004 ) trans. denied

. Smith challenges the PCR court’s rulings granting the State a n extension of time to
d etermine if it would pursue its laches defense and granting the State’s request to submit evidence in support of its laches defense

. The State’s laches evidence was relevant only to
Smith’s murder conviction and not his habitual of fender finding. Smith stated at the

3 The claims that failed o n the merits were Smith’s claims that his trial counsel was ineffective for “failure to raise the issue of whether fundamental error occurred,” which the PCR court interpreted as failure to object (1) “when the information was amended to add the habitual o ffender count as a matter of substance less than thirty (30) days before the omnibus hearing,” (2) “when the trial court failed to conduct a hearing ... to determine whether good cause existed in order to allow the State to amend the information to add the h abitual offender count as a matter of substance more than ten (10) days after the omnibus hearing,” (3) “when the State failed to comply with the ‘Lawrence procedure,’ then after the State had rested on the principle [sic] charge, the State notified Smith for the first time that the State intended to seek enhancement ... [with] the habitual offender count,” and (4) “when Smith was denied his ... right to be represented by counsel at all stages of the proceedings when the trial court conducted an exparte [sic] h earing where the trial court received and granted the State’s motion to amend the information to include the habitual offender count.” Id . at 50 pp. 11

- 16 (quotation marks omitted).7

evidentiary hearing that he was proceeding only on his claims pertaining to his habitual offender finding. PCR Tr. at 22

. His motion to strike the State’s tender of laches evidence
shows that he believed that the Stat e’s laches evidence was irrelevant to his habitual offender
claims

. On appeal, Smith’s claims of prejudice relate only to his habitual offender finding , and the relief he request s is for the thirty

- year habitual offender enhancement to be vacated

. Appell ant’s Br. at 43, 45

- 46, 47 , 49

. However , because the PCR court did not apply the State’s laches defense to Smith’s claims relating to his habitua l offender finding , Smith’s arguments on appeal are misplaced

. The PCR court decided Smith’s habitual offende r claims on the merits, and Smith does not challenge the court’s decisions on the merits. 4 Accordingly, we affirm the PCR court’s denial of Smith’s PCR petition.
Affirmed. ROBB, C.J. and FRIEDLANDER, J., concur.

4 As for Smith’ s argument that the PCR court erred in holding an eviden tiary hearing on the laches issue without permitting him to present evidence other than evidence relating to the laches issue, we observe that an evidentiary hearing on the merits of hi s claims had already been held on May 4, 2011, and he had been given th e opportunity then to present evidence. The evidence that he claims he was denied an opportunity to present could have been, and should have been, presented at the May 4, 2011, hearing on his PCR petition. Accordingly, this argument is without merit.