Opinion
24A-PC-473
12-11-2024
Bobby A. Lomax, Appellant-Petitioner v. State of Indiana, Appellee-Respondent
APPELLANT PRO SE Bobby A. Lomax Bunker Hill, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Robert M. Yoke 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Marion Superior Court The Honorable James K. Snyder, Magistrate Trial Court Cause No. 49D28-2303-PC-8449.
APPELLANT PRO SE Bobby A. Lomax Bunker Hill, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Robert M. Yoke Deputy Attorney General Indianapolis, Indiana.
Bailey and Foley, Judges concur.
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] In 1995, Bobby A. Lomax pled guilty to one count of Level B felony dealing in cocaine. Lomax filed a petition for post-conviction relief ("PCR petition") on March 24, 2023. Following an evidentiary hearing on the petition, the postconviction court denied Lomax's petition. We affirm.
Facts and Procedural History
[¶2] In August of 1995, Lomax pled guilty to one count of Level B felony dealing in cocaine. The State agreed to dismiss all remaining counts and the court sentenced Lomax to six years executed. Lomax did not appeal his conviction.
[¶3] On March 24, 2023, Lomax filed a PCR petition. In the petition, Lomax alleged the following: that he had been denied effective assistance of trial counsel because "counsel misadvised [Lomax] to plead guilty to habitual offender enhancement"; that he had been denied effective assistance of appellate counsel because counsel "failed to follow through with known lack of evidence of a prior felony"; and that "no record exists to support two prior felonies for habitual offender enhancement. Records had been destroyed, and do not exist." Appellant's App. Vol. II p. 13.
[¶4] The post-conviction court held an evidentiary hearing on the PCR petition on January 9, 2024. At the hearing, Lomax presented evidence which indicated that "after a diligent search" a Marion Superior Court court reporter had not been able to locate the record of Lomax's guilty plea in order to prepare a transcript of the proceedings. Ex. Vol. I p. 4. Lomax presented additional evidence which similarly indicated that original files or transcripts of his 1995 guilty plea, sentencing, or other related hearings could not be located. Lomax further argued at the evidentiary hearing that his trial counsel had never attempted to find his records.
[¶5] At Lomax's request, the post-conviction court took judicial notice of the trial record. The State argued that the PCR petition should be denied because Lomax had not been alleged to have been a habitual offender in this case, so his attorneys could not have been ineffective as he had alleged in his petition. The post-conviction court further took judicial notice of the relevant statutes in effect at the time of Lomax's conviction, which provided that the penalty range for a Class B felony was six to twenty years, and the penalty range for the habitual offender enhancement attached to a Class B felony was an additional ten to thirty years. The post-conviction court found that if Lomax had been both convicted of a Class B felony and found to be a habitual offender, his minimum sentence would have been sixteen years.
[¶6] The post-conviction court found that there was not "any information within the case file to show that the habitual offender was filed," and concluded that Lomax had not proven any of his claims by a preponderance of the evidence. Tr. Vol. II p. 29. At the conclusion of the hearing, the post-conviction court denied Lomax's PCR petition.
Discussion and Decision
[¶7] "Post-conviction procedures do not afford the petitioner with a super-appeal." Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). "Instead, they create a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules." Id. A petitioner who has been denied post-conviction relief appeals from a negative judgment and as a result, faces a rigorous standard of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715 N.E.2d 940, 942 (Ind.Ct.App. 1999), trans. denied.
[¶8] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Therefore, to prevail, a petitioner must establish his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition, a petitioner must convince this court that the evidence, taken as a whole, "leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court." Stevens, 770 N.E.2d at 745. "In other words, the [petitioner] must convince this Court that there is no way within the law that the court below could have reached the decision it did." Id. (emphasis in original). "It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law." Godby v. State, 809 N.E.2d 480, 482 (Ind.Ct.App. 2004), trans. denied. "The post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses." Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
[¶9] On appeal, Lomax first contends that "there is not sufficient evidence to support the habitual offender enhancement." Appellant's Br. p. 6. Review of the record and Lomax's brief reveals that he is mistaken about the underlying case related to his PCR petition. In his brief, Lomax details a habitual-offender enhancement as applied to another cause number related to a murder conviction from 2001. This case, however, includes only one count of Level B felony dealing in cocaine. The post-conviction court did not find "any information within the case file to show that the habitual offender was filed" in this case, nor any evidence "that it was even threatened." Tr. Vol. II p. 29. Review of the record reveals the same. Although the conviction in this case may have been used to support a habitual-offender enhancement for a later conviction, a post-conviction petition in this case is not the appropriate place to challenge it.
[¶10] Lomax next contends that his trial counsel was ineffective because
trial counsel's bad advice ... caused Lomax to plead guilty to the Habitual Offender charge. Had counsel done his due diligence, and properly investigated the issue, he would have known that the habitual was not supported by a sufficient number of prior felonies; and would have known that there was NO record of one of the two required prior felonies (1995 Dealing)[.]
Appellant's Br. p. 14. Again, Lomax appears to be conflating this case with another. Simply put, there is no habitual-offender enhancement to challenge in this case. Moreover, Lomax's claim of ineffective assistance of appellate counsel fails because, as mentioned, he did not directly appeal his conviction in this case and was never represented by appellate counsel. Consequently, we cannot say that the post-conviction court erred in denying Lomax's claims.Lomax failed to show that the evidence, taken as a whole, unerringly and unmistakably leads to a "decision opposite that reached by the post-conviction court." Stevens, 770 N.E.2d at 745.
To the extent that Lomax argues that this case does not exist, he is mistaken. Considering that the postconviction court took judicial notice of the case file during the post-conviction hearing at his request, it clearly exists.
In the conclusion of his brief, Lomax argues that he is still "awaiting a proper 'findings of fact and conclusions of law' addressing each issue raised by him in his post-conviction petition." Appellant's Br. p. 17. Here, the post-conviction court found that the record established that Lomax was never charged with the habitual offender enhancement in this case; that Lomax received the minimum sentence for dealing cocaine; and that had Lomax been charged with a habitual offender enhancement in this case, his minimum sentence would have been sixteen years. The post-conviction court concluded that Lomax had proven neither his ineffective assistance claims nor, to the extent that it sought relief, his third claim. These findings of fact and conclusions of law were sufficient. See Rose v. State, 120 N.E.3d 262, 268 (Ind.Ct.App. 2019) (citations and quotations omitted), (providing that the post-conviction court must make findings of fact and conclusions of law that communicate the basis upon which the petition is granted or denied, and must be sufficient for review on appeal), trans. denied.
[¶11] The judgment of the post-conviction court is affirmed.
Bailey, J., and Foley, J., concur.