MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Jun 27 2019, 7:28 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Senaca Lapsley                                           Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Senaca Lapsley,                                          June 27, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-PC-2063
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      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 1 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 conviction 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
              Lapsley 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 bar. 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 2 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 through 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 as 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 Spirits.
        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 look
        like my holes I put through the windows.”


Lapsley v. State, No. 02A05-1408-CR-399 (Ind. Ct. App. March 20, 2015).




Court of Appeals of Indiana | Memorandum Decision 18A-PC-2063 | June 27, 2019   Page 3 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 Lapsley 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

      found 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 be 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.

      Lapsley pursued a direct appeal, challenging the sufficiency of the evidence

      sustaining his convictions and the inappropriateness of his sentence. On March

      20, 2015, this court affirmed his convictions and sentence. Id.


[6]   On February 8, 2016, Lapsley filed his PCR. On May 19, 2017, the Public

      Defender of Indiana filed an appearance but subsequently withdrew from the

      case on August 17, 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, ineffective 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 4 of 11
              K. Trial counsel [] [was] ineffective [be]cause he failed to argue
              defective indictment or information, 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). On

      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 identify any lesser-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. Wilkes v.

      State, 984 N.E.2d 1236, 1240 (Ind. 2013). In a PCR proceeding, the petitioner


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2063 | June 27, 2019   Page 5 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 of 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 trial counsel was ineffective for failing to request an instruction for Class D

       felony battery as a lesser-included offense of aggravated battery. However, in

       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 denial of that petition.

       Pavan v. State, 64 N.E.3d 231, 233 (Ind. Ct. App. 2016). Accordingly, we find


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2063 | June 27, 2019   Page 6 of 11
       that these arguments were waived because they were not raised in the post-

       conviction court proceedings.


[11]   However, even if they had been 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. Wilkes, 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 (citing 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 ineffective 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 charging

       Informations he challenges in his Appendix. However, the 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 part, that



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2063 | June 27, 2019   Page 7 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 organ[]


        ***


        commits aggravated battery, a Class B felony.


Thus, the statute did not require that the State allege or prove that the offense

was committed by means of a deadly weapon as Lapsley contends here on

appeal. Because there was no deficiency in the charging information, Lapsley

did not show 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 constitute ineffective assistance of counsel because it

does not result in prejudice to the defendant.”). Because Lapsley’s argument

regarding his counsel’s failure to request an instruction on the lesser-included

offense of Class D felony battery hinges on his contention that the State’s

charging information was deficient, that claim fails as well. For the same

reasons, the post-conviction court’s conclusion that Lapsley had failed to

demonstrate inadequate performance on the part of his trial counsel was not

clearly erroneous. See Hollowell, 19 N.E.3d at 269.



Court of Appeals of Indiana | Memorandum Decision 18A-PC-2063 | June 27, 2019   Page 8 of 11
[13]   In this section of his brief, Lapsley 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 was 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 available 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 element 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, Lapsley 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]   Lapsley next argues 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, this 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, he


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2063 | June 27, 2019   Page 9 of 11
       has failed to meet his burden on appeal to demonstrate that the trial court’s

       sentencing was improper. See Wilkes, 984 N.E.2d at 1240. Lastly, even if the

       trial court had sentenced him as Lapsley argues, he has not demonstrated any

       error on the part of the trial court. Under 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 finding 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 Indiana 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

       proceedings 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 incumbent on Lapsley to prepare and file his affidavit and no one

       else. We conclude that Lapsley 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 10 of 11
                                             CONCLUSION
[16]   Based on the foregoing, we conclude that Lapsley received effective assistance

       of trial 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




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2063 | June 27, 2019   Page 11 of 11
