Opinion
23A-PC-269
05-22-2024
Johnny Lynn Langston, Appellant-Petitioner v. State of Indiana, Appellee-Respondent
Appellant Pro se Johnny L. Langston Bunker Hill, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Wells Circuit Court The Honorable Kenton W. Kiracofe, Judge Trial Court Cause No. 90C01-2008-PC-1
Appellant Pro se Johnny L. Langston Bunker Hill, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana
Sierra A. Murray Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
RILEY, JUDGE
STATEMENT OF THE CASE
[¶1] Appellant-Petitioner, Johnny Langston (Langston), appeals the post-conviction court's denial of his petition for post-conviction relief.
[¶2] We affirm.
ISSUES
[¶3] Langston presents this court with two issues, which we restate as:
(1) Whether several of his claims are procedurally defaulted; and
(2) Whether he received ineffective assistance of Trial Counsel relative to plea agreements proffered by the State.
FACTS AND PROCEDURAL HISTORY
[¶4] The facts of Langston's underlying convictions as found by this court on direct appeal are as follows:
Langston is step-grandfather to K.P., born in December 1996, and F.S., born in August 2001; the girls are sisters. K.P. lived in Bluffton with Langston and his wife, the girls' grandmother, for most of her life and thought of Langston as a father. When K.P. was in the third grade, around eight or nine years of age, Langston kissed her with his tongue and took her hand and used it to rub his penis. When she was eleven or twelve years of age, Langston rubbed her stomach and vagina, got on top of her, asked her if she had had sex before, and then engaged in sexual intercourse with her.
F.S. was at Langston's Bluffton home in December 2015. F.S. was asleep on a sofa when Langston carried her into a bedroom, took her pajamas off, inserted his finger into her vagina, and engaged in sexual intercourse with her. Langston repeatedly told F.S. that what was happening was a secret between the two of them. In February 2016, while F.S. was cooking for her grandmother, Langston came home from work, kissed her with his tongue, and touched F.S.'s vagina inside of her clothing. He reminded F.S. that what he was doing to her was a secret and warned her that she would get in trouble if she told anyone.
In February 2016, F.S. reported Langston's sexual abuse during an interview with the Department of Child Services. Shortly thereafter, K.P. reported Langston's abuse of her to the Bluffton police.
On March 31, 2016, the State charged Langston with Class A felony child molesting, three [C]ounts of Class C felony child molesting, two [C]ounts of Level 4 felony sexual misconduct with a minor, and two [C]ounts of Level 5 felony sexual misconduct with a minor. The State also sought an habitual offender enhancement.Langston v. State, No. 90A02-1703-CR-663, slip op. at 1 (Ind.Ct.App. August 18, 2017). Langston retained Trial Counsel to represent him. On June 24, 2016, the State offered Langston a plea agreement which called for Langston to plead guilty to one Count of Class C felony child molesting as to K.P. and to one Count of Level 4 felony sexual misconduct with a minor as to F.S. Langston was to admit to being an habitual offender, with the enhancement attached to the Class C felony conviction. Langston rejected the State's offer. On the morning of trial, the State offered Langston a second plea agreement that provided he would serve a twenty-year sentence, an offer which Langston also rejected. Langston moved to have the charges pertaining to his separate victims severed, a motion that the trial court denied.
[¶5] On February 6, 2017, the trial court convened Langston's three-day jury trial, at the conclusion of which the jury found Langston guilty as charged. Langston then admitted to being an habitual offender. On March 15, 2017, the trial court sentenced Langston to forty years for his Class A felony conviction, enhanced by thirty years for being an habitual offender. The trial court sentenced Langston to nine years for one of his Level 4 felony convictions, to be served consecutively. The trial court sentenced Langston on all his other convictions but ordered those sentences to be served concurrently, for an aggregate sentence of seventy-nine years.
[¶6] Langston pursued a direct appeal, and Appellate Counsel was appointed to represent him. On appeal, Langston presented two issues: (1) whether the trial court abused its discretion when it denied his motion to sever the charges; and (2) whether his sentence was inappropriate. On August 18, 2017, we affirmed his convictions and sentence. On October 24, 2017, our supreme court denied transfer.
[¶7] On August 17, 2020, Langston filed a verified petition for post-conviction relief (original petition) alleging ineffective assistance of Trial Counsel based on the following purported errors: (1) Trial Counsel had abandoned the representation during the habitual offender stage by (a) failing to make closing and opening arguments, (b) failing to object to the admission of the State's evidence, and (c) failing to challenge the use of two out-of-state felonies to prove the enhancement; (2) Trial Counsel should have raised double jeopardy challenges to Counts V through VIII; and (3) Trial Counsel should have challenged the three Class C felony charges as being outside the applicable statute of limitations. After the Indiana State Public Defender's Office filed a notice of non-representation and the post-conviction court had ordered that the cause be submitted upon affidavit, Langston requested to amend his petition. The postconviction court denied the motion to amend and, on February 24, 2021, denied Langston's petition for post-conviction relief. Langston filed an appeal. On May 27, 2022, we granted a motion by Langston to dismiss his appeal without prejudice and remanded so that Langston could file an amended petition.
[¶8] On July 5, 2022, Langston filed his amended petition for post-conviction relief (amended petition). Langston raised two claims of Trial Counsel ineffectiveness, namely, that (1) Trial Counsel failed to adequately explain the June 24, 2016, plea agreement offer to him and/or failed to persuade him to accept the State's offer as being in his best interest; and (2) Trial Counsel should have challenged the State's habitual offender evidence which relied on two out-of-state felonies that were "dated way beyond [ten years] clear of the underlying felony" in "violation of evidence rule 404(b)." (Appellant's App. Vol. II, p. 36).
[¶9] On December 5, 2022, the post-conviction court held an evidentiary hearing on Langston's petition. At the beginning of the hearing, Langston affirmed that he was pursuing the claims presented in his amended petition. Langston acknowledged that Trial Counsel had mailed him a copy of the June 24, 2016, plea agreement providing that Langston would plead guilty to the Class C felony child molesting (K.P.) and to Level 4 sexual misconduct with a minor (S.F.). The plea agreement itself explained that it
The chronological case summary (CCS) in this matter indicates that on October 22, 2022, Langston filed his Motion for Post-Conviction Court to Take Judicial Notice of its Own Records. There is no indication in the CCS that the post-conviction court granted Langston's motion, and Langston did not renew his motion orally at the post-conviction hearing. The post-conviction court's Order denying relief noted the filing of the motion but did not indicate that it had granted it. Langston has not included a copy of his motion in the record on appeal. Langston did not move to incorporate the trial record into the post-conviction proceedings, nor did he have the trial record admitted as an exhibit.
reduces [Langston's] exposure to a range of 8 years to 32 years, (actual 4 1/2 to 19 years). Substantial reductions given to the habitual attaching to the C felony making it qualify under the old 2 for 1 credit system and the Class A felony being dismissed. Offer withdrawn if depositions taken. The habitual is solid as [the deputy prosecutor has] matched the fingerprints from [Langston's] prior convictions. The oldest child is also very solid in her recounting of the crime. The State will [d]ismiss: remaining counts[.](Exh. Vol. p. 21). According to Langston, he and Trial Counsel never discussed the June 24, 2016, plea agreement. Langston never asked Trial Counsel any questions about the plea agreement because "it was probably the furthest thing from [his] mind[.]" (Transcript p. 31). Regarding the plea agreement offered by the State on February 6, 2017, the morning of the commencement of Langston's jury trial, both he and Trial Counsel agreed that Trial Counsel had asked Langston, "You don't want [twenty] years?" and that Langston had replied, "No. I don't want no time." (Tr. p. 25). During crossexamination, the deputy prosecutor asked Langston if he was guilty of the offenses that were the subject of the plea agreement. Langston maintained that he was not guilty of the charges, any touching of K.P was accidental, and that any touching of K.P. and F.S. was not done to satisfy his or their sexual desires.
[¶10] Trial Counsel testified at the hearing that he visited Langston several times prior to the June 24, 2016, plea agreement offer being withdrawn and that they discussed the plea proffer "in detail[,]" including the importance of the provision relating to credit time. (Tr. p. 24). A letter sent by Trial Counsel to Langston on July 20, 2016, was admitted into evidence. In the letter, Trial Counsel set out the sentencing ranges for the various charges and the habitual offender enhancement and explained that, if Langston was convicted of the Class A felony and one of the Class C felony charges, he faced up to ninety-two years in prison. Trial Counsel stated the following in the July 20, 2016, letter:
Part of my duty as your attorney is to advise you of the law. I am not encouraging you to take a deal, but wanted to make sure that you fully understand what you are up against. I am working hard to present this case in the best possible light.(Exh. Vol. p. 24). Trial Counsel explained at the post-conviction hearing that he had told Langston in his July 20, 2016, letter that he wanted to make sure that Langston fully understood what he was "up against" because, throughout the representation, Langston had maintained his innocence and had never indicated that he would plead guilty. (Exh. Vol. p. 24).
[¶11] On January 5, 2023, the post-conviction court entered its Order, denying Langston relief. As to Langston's claim that Trial Counsel was ineffective relative to the June 24, 2016, plea agreement offer, the post-conviction court found that, in light of the evidence that the plea offer had been mailed to Langston, Trial Counsel met with Langston, Trial Counsel had gone over the offer in detail with Langston, and Trial Counsel had explained the possible penal consequences of conviction after trial, his performance had not been deficient. The post-conviction court concluded that Langston had failed to demonstrate any prejudice on this issue, as he had maintained his innocence pre-trial, through trial, and during the post-conviction hearing, such that the trial court would have been unable to accept his guilty plea for lack of a factual basis. The post-conviction court also rejected Langston's claim based on the evidence supporting his habitual offender status, finding that he had failed to present any cogent argument to support it.
[¶12] Langston now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[¶13] Langston appeals the denial of his petition for post-conviction relief. Postconviction proceedings are civil in nature and are limited to seeking relief on issues unknown at trial or unavailable on direct appeal. Ind. Post-Conviction Rule 1(1)(b); Wilson v. State, 157 N.E.3d 1163, 1169 (Ind. 2020). A defendant seeking post-conviction relief bears the burden of establishing his claims by a preponderance of the evidence. P-C.R. 1(5); Conley v. State, 183 N.E.3d 276, 282 (Ind. 2022). Because Langston appeals from a negative judgment denying his petition for post-conviction relief, in order to prevail on appeal, he "'must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision.'" Gibson v. State, 133 N.E.3d 673, 681 (Ind. 2019) (quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000)). If Langston fails to meet this rigorous burden, we will affirm the post-conviction court's denial of relief. Gibson, 133 N.E.3d at 681.
[¶14] On appeal, Langston proceeds pro se, as he did in the post-conviction proceedings. It is well-established that pro se post-conviction litigants are held to the same standards as trained attorneys. Rose v. State, 120 N.E.3d 262, 266 (Ind.Ct.App. 2019), trans. denied. We do not undertake to become an advocate for a pro se litigant, and we do not develop arguments on his behalf. Lowrance v. State, 64 N.E.3d 935, 938 (Ind.Ct.App. 2016), trans. denied.
II. Langston's Claims for Post-Conviction Relief
A. Procedural Default
[¶15] On appeal, Langston offers the following arguments:
• Trial Counsel was ineffective for failing to advise him that his out-of-state felonies were insufficient to prove the habitual offender enhancement because those convictions had to be
considered Level 6 felonies and two Level 6 felonies were inadequate to support the enhancement;
• Trial Counsel was ineffective for failing to recognize and challenge the double jeopardy implications of the Level 4 and Level 5 felony charges as lesser-included offenses of the Class A and Class C felony charges, including failing to proffer jury instructions on these purported lesser-included offenses;
• Trial Counsel was ineffective for failing to object to the duplicative nature of Counts V through VIII;
• Trial Counsel was ineffective for failing to advise him that Indiana courts do not recognize an Alford plea; and
• Appellate Counsel was ineffective for failing to raise claims of ineffectiveness of Trial Counsel on direct appeal and for failing to adequately consult with Langston prior to filing the direct appeal.
Although Langston raised some of these claims in his original petition, Langston did not raise any of these issues in his amended petition for postconviction relief. The Post-Conviction Rules provide that all grounds for relief available to a petitioner under this rule must be raised in the petition. P-C.R. 1(8). "Issues not raised in the petition for post-conviction relief may not be raised for the first time on post-conviction appeal[,]" because such issues are waived and are not available for our review. Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001); Coleman v. State, 196 N.E.3d 731, 738 n.3 (Ind.Ct.App. 2022), trans. denied. Because Langston explicitly stated at the post-conviction hearing that he was proceeding only on the claims contained in his amended petition and he did not raise these issues in his amended petition, they are waived and are not properly before us. See Allen, 749 N.E.2d at 1171 (declining to review Allen's claims of ineffective assistance of his trial counsel which were not raised in his petition for post-conviction relief). Therefore, we do not address them.
B. Plea Agreement Offers
[¶16] Langston's single preserved claim is that Trial Counsel was ineffective for failing to advise him regarding the plea agreements tendered by the State. We evaluate ineffective assistance of trial counsel claims under the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Conley v. State, 183 N.E.3d 276, 282 (Ind. 2022). To prevail on such a claim, a defendant must show that 1) his counsel's performance was deficient; and 2) that the deficient performance prejudiced the defense. Id. To establish that counsel's performance was deficient, a petitioner must show that counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms. Nix v. State, 212 N.E.3d 194, 203 (Ind.Ct.App. 2023), trans. denied. In order to demonstrate sufficient prejudice, the defendant 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. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. The performance and prejudice prongs of a Strickland analysis are separate inquires, and the failure to satisfy either prong will cause the claim to fail. Baumholser v. State, 186 N.E.3d 684, 689 (Ind.Ct.App. 2022), trans. denied.
In his petition for post-conviction relief, Langston referred only to the June 24, 2016, plea agreement. At the post-conviction evidentiary hearing, Langston elicited testimony from Trial Counsel regarding the plea offer tendered by the State on February 6, 2017, the morning his jury trial commenced. Because the second plea agreement offer was discussed at the hearing, we will include the February 6, 2017, plea agreement offer in our analysis of Langston's claim.
[¶17] As to the June 24, 2016, plea agreement, Langston contends, as he did below, that Trial Counsel failed to advise him regarding "the consequences he faced by punishment of his offenses." (Appellant's Br. p. 20). However, at the postconviction hearing, Langston acknowledged that he had received a copy of the plea offer that Trial Counsel had mailed him. Trial Counsel testified that he discussed the June 24, 2016, offer with Langston "in detail[.]" (Tr. p. 24). Trial Counsel also sent Langston the July 20, 2016, letter in which Trial Counsel detailed the sentencing ranges for each of the charges and the habitual offender enhancement and explained that, if Langston was convicted of the Class A felony and one of the Class C felony charges, he faced up to ninety-two years of imprisonment. This information was equally applicable to the State's February 6, 2017, plea offer. Thus, the post-conviction court was faced with a conflict in the evidence that it resolved against Langston. Pursuant to our standard of review, we do not second-guess the post-conviction court's assessment of witness credibility, nor do we reweigh the evidence. Nix, 212 N.E.3d at 207. As a result, we conclude that Langston has failed to establish that Trial Counsel's performance relative to the plea agreement offers was deficient.
[¶18] Neither may we credit Langston's argument that he was prejudiced by Trial Counsel's allegedly deficient performance. In Jervis v. State, 28 N.E.3d 361, 366 (Ind.Ct.App. 2015), trans. denied, the defendant, who was convicted of murder, claimed on appeal from the denial of his petition for post-conviction relief that he would have accepted a plea offer limiting his sentence to forty years if his counsel would have counseled him to accept that offer. In reviewing Jervis' claim of prejudice flowing from his counsel's performance, we held that a defendant making such a claim must "show that he would have accepted the plea and that neither the State nor the trial court would have thwarted implementation of the defendant's plea agreement." Id. at 367. We concluded that Jervis failed to make that showing because he had maintained his innocence of the charge up to and including the post-conviction hearing. Id. We also observed that it was evident from Jervis' protestations of his innocence at the post-conviction hearing that the trial court would not have accepted his guilty plea. Id. As a result, Jervis' claim of Strickland prejudice failed. Id.
[¶19] We reach the same conclusion here. Trial Counsel testified at the postconviction hearing that Langston maintained his innocence to the charges throughout the representation. At the post-conviction hearing, Langston maintained that he was not guilty of the offenses and that his touching of K.P. and F.S. was accidental and was not done to arouse sexual desire. Knowing or intentional conduct is an element of both offenses that were the subject of the State's plea agreement offers, and touching done with the intent to arouse the sexual desires of the defendant or the victim was an element of the Class C felony offense. See I.C. § 35-42-4-3(b) (2007) (Class C felony child molesting); I.C. § 35-42-4-9(a)(1) (2014) (Level 4 felony sexual misconduct with a minor). In light of this evidence, there was insufficient evidence that Langston would have accepted the State's plea agreement offers, and there is sufficient evidence that the trial court would not have accepted Langston's guilty plea. See Jervis, 28 N.E.3d at 367. Having failed to establish any prejudice as a result of Trial Counsel's representation, Langston's claim fails. See Baumholser, 186 N.E.3d at 689.
In his amended petition for post-conviction relief, Langston asserted that Trial Counsel was ineffective for failing to challenge his habitual offender enhancement on the grounds that the State relied on two out-of-state felonies that were "dated way beyond [ten years] clear of the underlying felony" in "violation of evidence rule 404(b)." (Appellant's App. Vol. II, p. 36). On appeal, Langston does not mention this particular claim. Therefore, we do not address it. See Ind. Appellate Rule 46(A)(8)(a) (appellate contentions must be supported by cogent reasoning, legal authority, and citations to the record).
CONCLUSION
[¶20] Based on the foregoing, we hold that Langston waived the majority of his claims and that he has failed to establish that Trial Counsel rendered ineffective performance that resulted in prejudice to him.
[¶21] Affirmed.
Brown, J. and Foley, J. concur