Court of Appeals of Indiana | Memorandum Decision 79A02-1511-PC-2032 | February 28, 2017 Page 1 of 16

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

Steven Tuck

Pendleton Correctional Facility

Pendleton, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Steven Tuck,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

February 28, 2017

Court of Appeals Case No.

79A02-1511-PC-2032

Appeal from the Tippecanoe 

Superior Court

The Honorable Randy J. Williams, 

Judge

Trial Court Cause No.

79D01-0008-PC-2

Pyle, Judge.
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Statement of the Case

[1] Steven Tuck (“Tuck”) appeals the post-conviction court’s order granting the 

State’s motion to dismiss Tuck’s petition for post-conviction relief pursuant to 

the equitable doctrine of laches based on his failure to prosecute his postconviction petition. Tuck argues that the State failed to prove that he 

unreasonably delayed the prosecution of his post-conviction petition. 

Concluding that Tuck has failed to show that the post-conviction court erred by 

dismissing his post-conviction petition based on laches, we affirm the postconviction court’s judgment. 

[2] We affirm.

Issue

Whether the post-conviction court erred by determining that Tuck’s 

post-conviction claims were barred by the doctrine of laches.

Facts

[3] The facts of Tuck’s crimes were set forth in the memorandum decision from his 

direct appeal as follows:

Facts favorable to the judgment show that Fusiek met Tuck in 

late 1995 or early 1996. Fusiek visited Tuck’s apartment where 

Fusiek, through a friend[,] bought cocaine from Tuck. Later 

Fusiek bought cocaine directly from Tuck. Fusiek stopped using 

drugs, but then resumed use of cocaine and bought it from Tuck 

for three months toward the end of 1996. Fusiek also bought 

cocaine for others and retained a portion for his own use. For 

the first three months Fusiek would drive Tuck to Chicago in 

exchange for cocaine.
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Two of Fusiek’s buyers were confidential informants for 

Detective Weast. Weast, on two occasions in December, 1996, 

arranged sales of cocaine between Fusiek and Weast’s 

confidential informants. In December, 1997, Officer Davis 

approached Fusiek to work as a confidential informant. Fusiek 

made two controlled buys in early 1998.

Cassell Blackburn regularly purchased cocaine from Tuck 

through an intermediary by the name of Kenneth Josey. 

Additionally, Kris Holtsclaw would buy from Tuck to supply a 

Michael Alexander. Holtsclaw bought cocaine from Tuck from 

December, 1996, through early 1998.

Kenneth Josey was murdered and Detective Stonebraker was 

investigating the case. Stonebraker asked Tuck to come to the 

police station for an interview. At that interview Tuck admitted 

he had dealt drugs with Josey and that he knew Holtsclaw.

Tuck v. State, No. 79A02-9811-CR-867, *3 (Ind. Ct. App. Aug. 30, 1999). The 

trial court held a jury trial in July 1998. The jury found Tuck guilty as charged 

of two counts of Class A felony dealing in cocaine, two counts of Class A 

felony conspiracy to commit dealing in cocaine, two counts of Class B felony 

dealing in cocaine, two counts of Class B felony possession of cocaine, one 

count of Class C felony corrupt business influence, and one count of Class D 

felony operating while an habitual traffic violator. The trial court entered 

judgments of convictions on all but two of the convictions1 and sentenced Tuck 

to an aggregate term of seventy-eight (78) years in the Indiana Department of 

Correction. 

 

1 The trial court did not enter judgments of conviction on the two possession of cocaine charges.
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[4] On direct appeal, Tuck challenged: (1) the sufficiency of his Class C felony 

corrupt business influence conviction; (2) the trial court’s rulings on his motion 

to suppress his pretrial police statement and his motion to sever, and (3) the trial 

court’s evidentiary ruling to exclude evidence. On August 30, 1999, another 

panel of this Court affirmed Tuck’s convictions.

[5] Thereafter, in July 2000, Tuck filed a pro se petition for post-conviction relief. 

Tuck did not include his post-conviction petition in his Appellant’s Appendix; 

therefore, we are unaware of what post-conviction claims he raised. He also 

did not include the State’s answer to his petition.2 

[6] At the beginning of his post-conviction proceedings, Tuck was represented by 

the Indiana State Public Defender’s Office. Specifically, the State Public 

Defender’s Office entered an appearance on behalf of Tuck in October 2000. At 

that time, the State Public Defender filed a notice of inability to investigate and 

requested that the post-conviction court defer any ruling until the Public 

Defender filed a certificate of readiness. The post-conviction court granted the 

request. The State Public Defender did not file a certificate of readiness and 

ultimately withdrew its appearance in January 2004. 

 

2

In fact, Tuck has failed to include in his Appellant’s Appendix the vast majority of “pleadings and other 

documents from the Clerk’s Record” that were part of his post-conviction proceeding, which is contrary to 

Indiana Appellate Rule 50. There were multiple motions filed and orders entered during the course of his 

post-conviction proceeding, and Tuck has not included these in his Appendix. Tuck’s failure to include these 

documents has required us to rely upon the chronological case summary to piece together the procedural 

facts of this case. Tuck’s scant Appendix has ultimately impeded our review of this case. 
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[7] After the State Public Defender’s Office withdrew from the case, Tuck did not 

take any action in his post-conviction proceeding for three and one-half years. 

In July 2007, Tuck filed a pro se motion for leave to amend his post-conviction 

petition, which the trial court granted.3 Tuck, however, did not amend his 

petition. 

[8] In November 2007, he filed another pro se motion for leave to amend his 

petition, which the trial court again granted and gave him thirty days to file the 

amended petition.4 Tuck did not file an amended petition. 

[9] In March 2008, Tuck filed a “Notice to Court[,]” in which he requested the 

post-conviction court to allow him to proceed pro se. (App. 18).5 In his notice, 

Tuck stated that he had hired private counsel, Marcel Katz (“Attorney Katz”), 

and that his counsel had not yet entered an appearance.6 In April 2008, the 

post-conviction court entered an order, permitting Tuck to proceed pro se, and 

the court set a status conference and ordered Attorney Katz to appear. 

[10] Attorney Katz entered his appearance in October 2008. Thereafter, the parties 

agreed that a post-conviction hearing would be scheduled for February 19, 

 

3 When the trial court granted Tuck leave to file an amended petition, it did so subject to the approval of the 

State Public Defender’s Office. The Public Defender’s Office then filed a notice of non-representation.

4 The trial court, again, granted Tuck leave to file an amended petition subject to the approval of the State 

Public Defender’s Office, and the Public Defender’s Office, thereafter, filed a notice of non-representation.

5 This notice was one of the very few pleadings that Tuck included in his Appellant’s Appendix.

6

In his motion, Tuck asserted that he had hired Attorney Katz in July 2005. 
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2009. Just prior to this scheduled hearing, Tuck filed a motion to continue. 

The parties then agreed that Tuck’s post-conviction hearing would be 

rescheduled for May 14, 2009. 

[11] Shortly before the May 2009 hearing, the parties agreed to vacate the postconviction hearing and to schedule a status conference for June 2009. The trial 

court held the June 2009 status conference, and then, by agreement of the 

parties, held additional status conferences in August 2009, September 2009, and 

December 2009. At the December 2009 hearing, pursuant to a request by Tuck, 

the post-conviction court scheduled another status hearing for January 29, 

2010.

[12] The record on appeal before us is silent as to whether the January 2010 status 

hearing occurred. The record indicates only that Tuck took no action on his 

post-conviction case for more than four years. In March 2014, Tuck filed a pro 

se motion to amend his post-conviction petition. The post-conviction court 

struck Tuck’s motion because he was represented by counsel, and it set a status 

hearing. 

[13] The post-conviction court held the status hearing in May 2014. At that time, 

the post-conviction court informed Tuck that he had until July 11, 2014 to file 

an amended post-conviction petition, and it scheduled another status hearing

for that same date.

[14] The post-conviction court held the July 2014 status hearing, but Tuck did not

file an amended petition. At the hearing, the parties agreed to set an additional 
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status hearing for August, 29, 2014, which was later reset by the post-conviction 

court for November 7, 2014. In the meantime, on October 28, 2014, Tuck filed 

a pro se motion to amend his post-conviction petition, which the postconviction court struck because Tuck was represented by counsel. 

[15] On October 30, 2014, the State filed, pursuant to Trial Rule 41(E), a motion to 

dismiss Tuck’s post-conviction petition for failure to prosecute his petition. 

Like many of the pleadings in this case, the State’s motion is not included in 

Tuck’s Appendix. Nevertheless, it appears from the record that the State also 

sought to dismiss Tuck’s post-conviction petition based on laches. 

[16] At the November 2014 status hearing, the post-conviction court gave Tuck until 

January 5, 2015 to file an amended post-conviction petition, and it set a postconviction hearing for January 2015. Tuck filed, by counsel, an amended 

petition on January 7, 2015. Tuck did not include his amended post-conviction 

petition in his Appellant’s Appendix; therefore, we are unaware of what postconviction claims he raised. Tuck has also failed to include in his Appendix the 

State’s answer to his amended petition. 

[17] On February 27, 2015, the post-conviction court held a hearing on the issue of 

laches only. Tuck was present at the hearing and was represented by his private 

counsel, Attorney Katz. At the beginning of the hearing, Tuck asserted that the 

post-conviction court should not grant the State’s motion to dismiss based on 

laches because: (1) the State had not raised laches in its initial answer to Tuck’s 

first post-conviction petition; (2) laches applied only to the delay in the filing of 
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the post-conviction petition, not the delay in prosecuting the post-conviction 

petition; and (3) the State could not show prejudice because it had acquiesced in 

the delay by consenting to Tuck’s continuances and by failing to raise a laches 

objection at the time of the continuances. The State argued that it did not raise 

a laches defense in its answer to Tuck’s initial post-conviction petition filed in 

2000 because there was no unreasonable delay at that point. The State asserted 

that it could not have anticipated in 2000 that Tuck would have delayed in the 

prosecution of his post-conviction petition for fifteen years. It also argued that 

it was not precluded from raising laches based on its agreement to Tuck’s 

requested delays. 

[18] During the hearing, in an effort to show an unreasonable delay, the State had 

the post-conviction court take judicial notice of the dockets from Tuck’s postconviction proceeding and his underlying criminal proceeding. In its attempt to 

show prejudice, the State presented testimony from two witnesses regarding the 

State’s diminished ability to re-prosecute the case. The State presented

testimony from an investigator from the prosecutor’s office who testified that he 

had contacted six police detectives associated with Tuck’s four controlled-buy 

cases and that these individuals were no longer active officers. The investigator 

also testified that he was unable to contact three others detectives. 

Additionally, the investigator testified that Tuck’s recorded statement to police,

which was “crucial evidence to the case[,]” no longer existed and that some of 

the evidence relating to the confidential informants was either destroyed or 

missing. (Tr. 19). The State also presented testimony from a drug task force 
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detective that was involved in one of the controlled buys from Tuck. This 

detective testified that he did not have an accurate recollection of Tuck’s case,

other than what was in his reports, and that he would not be comfortable 

testifying in a future jury trial. Tuck did not present any witnesses. The postconviction court took the laches matter under advisement. 

[19] Later, the post-conviction court notified the parties that the case of Thompson v. 

State—which dealt with the issue of whether laches applied to a delay in 

prosecuting a post-conviction petition—had a pending transfer petition, and the

court informed the parties that it was going to delay entry of an order until a 

final resolution of the Thompson case. See Thompson v. State, 31 N.E.3d 1002 

(Ind. Ct. App. 2015), trans. denied. 

[20] Following our supreme court’s denial of transfer in the Thompson case, the postconviction court issued an order and granted the State’s motion to dismiss 

Tuck’s post-conviction petition. The post-conviction court found, in relevant 

part:

Once [Tuck’s] PCR was filed the cause remained open for the 

next fifteen (15) years. [Tuck] filed his original Petition pro se 

and ultimately arranged representation through the State and 

privately, so he was aware of the remedy as early as July of 2000. 

The Court sees no reason to find that once a Petition has been 

filed a Petitioner can draw out a proceeding for as long [as] he 

wishes, absent a stay from the Court.

After the second PCR hearing date in this cause was set May 14, 

2009, was continued, [Tuck] did not move to stay [the] 

proceedings, withdraw his Petition[,] or set further hearings. No 
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further action was taken until March 18, 2014. Prior to March 5, 

2015, [Tuck] did not provide the record of proceedings to the 

State. The State did not waive the remedy of Laches by not 

raising the issue at every continuance sought by [Tuck]. Clearly, 

however, the claim is now ripe. The record clearly shows that 

[Tuck] unreasonably delayed proceeding through his actions 

alone, amounting to a conscious indifference o[r] procrastination, 

or acquiescence. . . .

The record further suggests that the State would be prejudiced at 

this time if it were required to go forward with a re-trial of the 

case.

(App. 14-15). Tuck now appeals. 

Decision

[21] At the outset, we note that Tuck has chosen to proceed pro se and that his 

Appendix did not fully comply with our Appellate Rules. It is well settled that 

pro se litigants are held to the same legal standards as licensed attorneys. Evans 

v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. Thus, pro se 

litigants are bound to follow the established rules of procedure and must be 

prepared to accept the consequences of their failure to do so. Id. “We will not 

become a party’s advocate, nor will we address arguments that are 

inappropriate, improperly expressed, or too poorly developed to be 

understood.” Barrett v. State, 837 N.E.2d 1022, 1030 (Ind. Ct. App. 2005), trans. 

denied.
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[22] Tuck appeals the post-conviction court’s order granting the State’s motion to 

dismiss Tuck’s petition for post-conviction relief pursuant to the equitable 

doctrine of laches.

[23] Our Indiana Supreme Court has explained our standard of review in a laches

case as follows:

The equitable doctrine of laches operates to bar consideration of 

the merits of a claim or right of one who has neglected for an 

unreasonable time, under circumstances permitting due 

diligence, to do what in law should have been done. For laches 

to apply, the State must prove by a preponderance of the 

evidence that the petitioner unreasonably delayed in seeking 

relief and that the State is prejudiced by the delay. For postconviction laches purposes, prejudice exists when the 

unreasonable delay operates to materially diminish a reasonable 

likelihood of successful re-prosecution. 

Because the State had the burden of proving laches as an 

affirmative defense, [a post-conviction petitioner does] not 

appeal[] from a negative judgment, and the applicable standard 

of review requires that we affirm unless we find that the 

judgment was clearly erroneous. This is a review for sufficiency 

of evidence. Without reweighing the evidence or assessing the 

credibility of witnesses but rather looking only to the evidence 

and reasonable inferences favorable to the judgment, we will 

affirm if there is probative evidence to support the postconviction court’s judgment. 

Armstrong v. State, 747 N.E.2d 1119, 1120-21 (Ind. 2001) (internal citations 

omitted). 

[24] Recently, our Court has explained that laches applied not only to a petitioner’s 

delay in filing a post-conviction petition but also—as is relevant to the situation 
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in this case—to a petitioner’s delay in prosecuting a post-conviction petition. 

See Thompson, 31 N.E.3d at 1007. In Thompson, the petitioner filed a postconviction petition in 1992 and, thereafter, filed several amendments, “but [he] 

neglected to prosecute the petition until 2014.” Id. at 1003. The State filed a 

motion to dismiss his post-conviction petition based on laches for his delay in 

prosecuting his petition, and the post-conviction court granted the State’s 

motion. Id. at 1005. On appeal, our Court rejected the petitioner’s argument 

that laches applied only to an unreasonable delay between the final decision of 

the trial court and the original filing of a post-conviction petition, and we held 

that the delay element of laches may be based on an unreasonable delay in 

prosecuting a post-conviction petition. Id. at 1003-07.

7

[25] Here, the State argued, and the post-conviction court found, that laches barred 

Tuck’s post-conviction petition. Specifically, the post-conviction court found 

that Tuck unreasonably delayed in prosecuting his post-conviction petition and 

that the delay prejudiced the State. 

[26] Tuck does not challenge the post-conviction court’s determination that the State 

was prejudiced by his delay. Instead, he argues that the post-conviction court 

erred by finding that the delay between the filing of his post-conviction petition 

and his hearing was an unreasonable delay. He acknowledges that there was a 

long delay and that he had “an excessive amount of continuances.” (Tuck’s Br. 

 

7

In Thompson, our Court did not analyze the prejudice element of laches because the parties stipulated that 

the petitioner’s delay had resulted in prejudice to the State. See Thompson, 31 N.E.3d at 1005.
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6). Tuck, however, asserts that the State should not be allowed to attribute the 

delay to him because: (1) he was represented by private and public counsel 

(Attorney Katz and the State Public Defender) and was, therefore, not 

personally responsible for the delay; and (2) the State “acquiesced to the delays 

by consenting” to his continuances. (Tuck’s Br. 6). 

[27] As to Tuck’s argument that any delay should not be attributed to him because 

he was represented by private counsel, we note that such an argument “runs 

counter to our longstanding rule that a client is bound by his attorney’s 

actions.” Weinreb v. TR Developers, LLC, 943 N.E.2d 856, 867 (Ind. Ct. App. 

2011), trans. denied. See also Parker v. State, 676 N.E.2d 1083, 1086 (Ind. Ct.

App. 1997) (explaining that the “general rule is that a client is bound by his 

attorney’s actions in civil proceedings”).

[28] However, any delay during his representation by the Indiana Public Defender’s 

Office would not be counted against him for the purposes of laches. We have 

explained that, when reviewing the unreasonable delay element of laches, a 

petitioner will not be “penalized” for the delays between the filing of the postconviction petition and the hearing on the petition, where such delays were 

caused by the Public Defender’s Office, because “[o]ne arm of the State (the 

Prosecutor) may not take advantage of a delay created by another arm of the 

State (the Public Defender) to the detriment of the defendant.” Douglas v. State,

634 N.E.2d 811, 816 (Ind. Ct. App. 1994), opinion corrected on reh’g, trans. denied. 

See also Horton v. State, 510 N.E.2d 648, 649 (Ind. 1987) (declining to charge the 

petitioner with any delay, for the purpose of laches, that occurred after he had 
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contacted the Public Defender’s Office); Edwards v. State, 676 N.E.2d 1087, 

1090 (Ind. Ct. App. 1997) (holding that “laches w[ould] not lie” where the 

petitioner was “diligent in maintaining contact with the Public Defender” and 

was “continuously promised assistance”), reh’g denied, trans. denied.

[29] Here, Tuck was represented by the State Public Defender’s Office for only the 

first four years of the fifteen years that his post-conviction petition was pending. 

Specifically, Tuck filed his pro se post-conviction petition in July 2000 and was 

represented by the Indiana State Public Defender’s Office from October 2000 to 

January 2004, during which time the Public Defender had filed a notice of 

inability to investigate. Therefore, Tuck will not be “penalized” for this fouryear delay where it was caused by the Public Defender’s Office. See Douglas,

634 N.E.2d at 816. 

[30] However, aside from this initial four-year period, Tuck, had additional time 

periods where he delayed in the prosecution of his post-conviction petition. 

First, Tuck did not take any action in his post-conviction proceeding for three 

and one-half years after the State Public Defender withdrew from the case (i.e., 

delay from January 2004 to July 2007). Next, after Tuck’s private counsel, 

Attorney Katz, entered his appearance in October 2008, Tuck delayed the postconviction hearing and sought multiple status hearings during the subsequent 

year or so. We acknowledge that the State agreed to the status hearings; 

however, the State’s acquiescence to Tuck’s request for these hearings during 

the period from October 2008 to December 2009 does not negate the fact that 

Tuck continued to thereafter delay in the prosecution of his post-conviction 
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petition. Specifically, Tuck had a more than four-year period—from December 

2009 to March 2014—during which he took absolutely no action on his postconviction petition. Then, Tuck continued to delay the proceedings when he 

failed to file an amended post-conviction petition despite the trial court’s 

permission to do so. Upon Tuck’s failure to file an amended petition by a date 

specified by the post-conviction court (July 11, 2014), the State filed a motion to 

dismiss Tuck’s petition based on laches and failure to prosecute. Finally, when 

the post-conviction court gave Tuck until January 5, 2015 to file an amended 

petition, he filed it on January 7, 2015. 

[31] Given the specific facts of this case—especially the more than four-year delay 

between 2009 and 2014 when Tuck took no action on his petition after the State 

had already given him the time and opportunity to prepare his post-conviction 

case by complying with his requests for status hearings, as well as, his 

subsequent failure to file an amended petition despite the post-conviction 

court’s grant of his request to do so—we conclude that the post-conviction court 

did not err by concluding that the State had met its burden of proving that Tuck 

had unreasonably delayed in his prosecution of his post-conviction petition. 

See, e.g., Thompson, 31 N.E.3d at 1007 (holding that laches applies to a 

petitioner’s delay in prosecuting a post-conviction petition). Accordingly, we 

affirm the post-conviction court judgment granting the State’s motion to dismiss 

Tuck’s petition. 
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[32] Affirmed.

Baker, J., and Mathias, J., concur.