MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                     Jul 17 2017, 8:43 am
court except for the purpose of establishing                                      CLERK
the defense of res judicata, collateral                                       Indiana Supreme Court
                                                                                 Court of Appeals
estoppel, or the law of the case.                                                  and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Curtis T. Hill, Jr.
Public Defender of Indiana                                Attorney General of Indiana

Kathleen Cleary                                           Ellen H. Meilaender
Deputy Public Defender                                    Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Delarosa,                                         July 17, 2017
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          29A02-1612-PC-2852
        v.                                                Appeal from the Hamilton
                                                          Superior Court
State of Indiana,                                         The Honorable Steven R. Nation,
Appellee-Respondent.                                      Judge
                                                          Trial Court Cause No.
                                                          29D01-1110-PC-15029



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1612-PC-2852 | July 17, 2017              Page 1 of 15
                                        Statement of the Case
[1]   Anthony Delarosa appeals from the post-conviction court’s denial of his

      petition for post-conviction relief. Delarosa raises the following two issues for

      our review:

              1.       Whether he received ineffective assistance from his trial
                       counsel.


              2.       Whether he received ineffective assistance from his
                       appellate counsel.


[2]   We affirm.


                                  Facts and Procedural History
[3]   The facts underlying Delarosa’s convictions were stated by the Indiana

      Supreme Court in Delarosa’s direct appeal:


              The bodies of Rebecca Payne and her boyfriend, George Benner,
              were discovered in her bedroom at her house in Home Place,
              Indiana, around noon of April 5, 2007. Police investigation
              quickly focused on Toby Payne, Rebecca’s estranged husband
              against whom she had obtained a protective order a month
              earlier. Rebecca, who was in the final stages of divorcing Payne,
              had been living apart from him with their six-year-old son.


              Phone records led the police to arrest Juan Lucio, Kyle
              Duckworth, and Anthony Delarosa within two weeks of the
              murders. Lucio and Duckworth lived in Frankfort, and Delarosa
              lived in Zionsville. A search of Delarosa’s bedroom uncovered
              dark-colored clothing, dark gloves, a letter purportedly from
              Payne, a rag that smelled of a solvent often used to clean guns,

      Court of Appeals of Indiana | Memorandum Decision 29A02-1612-PC-2852 | July 17, 2017   Page 2 of 15
        and two keys. A search of Lucio’s person and vehicle uncovered
        two keys. All four keys locked and unlocked Rebecca’s front
        door. Delarosa was charged with two counts of murder and one
        count of conspiracy to commit murder, all Class A felonies. The
        State requested life sentences without parole for the two murder
        charges.


        Duckworth testified at Delarosa’s trial pursuant to a plea
        agreement. Tara Cassada, Lucio’s girlfriend, and Erica Tamayo,
        Duckworth’s girlfriend, also testified. Lucio, Duckworth,
        Cassada, and Tamayo socialized together frequently, and the two
        boyfriends often confided in their girlfriends. Cassada was
        granted “use immunity” to testify.


        Cassada testified that sometime[] in the fall of 2006, Payne began
        making plans with Lucio to kill Rebecca to get full custody of
        their son, and he gave Lucio a key and a map to Rebecca’s
        house. Lucio originally planned to do the shooting himself, but
        hired Delarosa because “he would go in and be out quick.”
        Lucio and Delarosa would then split Rebecca’s $100,000 life
        insurance policy.


        Duckworth testified that in late March or early April of 2007,
        Lucio asked him to help with the shooting. They were not to
        harm Payne’s son, but would kill George if he was there.
        Duckworth would be the driver, and he would receive $200 or a
        quarter pound of weed for his involvement.


        On the evening of April 2, 2007, Duckworth picked up Lucio and
        Delarosa, and the trio drove to a parking lot behind Rebecca’s
        house. Lucio gave a gun to Delarosa and instructed him where
        to go. Delarosa left the car, returned about 20 minutes later, said
        nobody was home, and gave the gun back to Lucio.




Court of Appeals of Indiana | Memorandum Decision 29A02-1612-PC-2852 | July 17, 2017   Page 3 of 15
        Two days later, on April 4, the trio tried again. Duckworth
        picked up Lucio from his home in Frankfort and Delarosa from
        his home in Zionsville. Duckworth drove to the same parking
        lot, and Lucio again gave the gun to Delarosa, who left the car
        around 9:00 PM. Duckworth moved his car to a different spot,
        prompting a cell phone call from Delarosa about 20 minutes later
        asking where they were. When Delarosa returned to the car, he
        said, “they’re done,” and recounted how he walked in on George
        performing oral sex on Rebecca in her bedroom. Delarosa said
        he emptied his clip, shot them both, and left her body on the bed
        and his body on the floor. Cassada and Tamayo both testified as
        to what their respective boyfriends said Delarosa said that
        evening. On the way home, at 9:41 PM, Duckworth was pulled
        over because his license plate light was out. The officer knew
        and recognized Delarosa, who was sitting in the back seat of the
        car, and testified that Delarosa was wearing dark-colored
        clothing.


        Forensics experts confirmed that Rebecca died from a gunshot
        wound to the head and that George died from a gunshot wound
        to the chest. They opined that the smearing and pooling of blood
        on the bed and on the floor, as well as the characteristics of the
        entry and exit wounds, were consistent with George performing
        oral sex on Rebecca when they were shot.


        Phone records confirmed a large amount of communication
        between Payne, Lucio, Duckworth, and Delarosa leading up to
        and following the murder, and allowed the officers to track the
        movements of the cell phones. The three days before the
        protective order was served on Payne, February 26-28, 2007,
        Lucio placed one call to Payne and two calls to Delarosa. On
        March 1, Lucio placed four phone calls to Payne and one to
        Delarosa. The following day, Lucio placed three calls to Payne
        and six to Delarosa. Records from April 2, the day of the first
        attempt, showed eleven calls between the four. On April 4,
        Lucio’s cell phone “hit on”—i.e., utilized—a tower in Frankfort

Court of Appeals of Indiana | Memorandum Decision 29A02-1612-PC-2852 | July 17, 2017   Page 4 of 15
              from 11:39 AM to 8:12 PM. From 8:27 PM to 8:29 PM, Lucio’s
              cell phone hit on a tower in Thorntown. At 9:27 PM, both Lucio
              and Delarosa’s cell phones hit on a tower in Home Place located
              about half-a-mile from Rebecca’s home. This hit corresponded
              with a call Delarosa placed to Lucio at 9:27 PM. Lucio’s cell
              phone then hit on towers in Brownsburg, from 9:50 PM to 9:53
              PM, and in Frankfort, at 10:14 PM. Phone records for April 5,
              the day the bodies were discovered, showed twenty calls between
              the four. On April 11, during the officers’ interviews of Cassada
              and her mother, Lucio and Delarosa exchanged six text messages
              and one phone call.


              A cellmate who was with Payne and Delarosa at the Hamilton
              County Jail testified that when Delarosa arrived at the cell block,
              Payne was already there. Delarosa said to Payne, “You got me
              hit on my cell phone.” A few days later, the cellmate overheard
              Delarosa asking Payne, “Where is the money?”


              The jury found Delarosa guilty on all three counts. At the
              sentencing hearing, Delarosa waived his right to a jury. The trial
              court found that Delarosa qualified for sentences of life without
              parole (LWOP) for the murder counts, and imposed consecutive
              LWOP sentences. The trial court imposed a sentence of fifty
              years for the conspiracy count, and ordered that to be served
              consecutively to the LWOP sentences.


      Delarosa v. State, 938 N.E.2d 690, 692-94 (Ind. 2010) (footnotes omitted)

      (“Delarosa I”).


[4]   In Delarosa I, Delarosa raised the following arguments for our Supreme Court’s

      review:


              1) Lucio’s statement to Cassada and Duckworth’s statement to
              Tamayo about the shooting after it occurred were hearsay

      Court of Appeals of Indiana | Memorandum Decision 29A02-1612-PC-2852 | July 17, 2017   Page 5 of 15
              because these statements were not in furtherance of the
              conspiracy and admitting these statements constituted
              fundamental error; 2) during closing arguments, the prosecutor
              committed misconduct by inappropriately commenting on
              Delarosa’s failure to testify at trial; and 3) the evidence was
              insufficient to convict Delarosa of the murder charges.


      Id. at 694. Our Supreme Court rejected Delarosa’s arguments and affirmed his

      convictions.


[5]   Thereafter, Delarosa filed his petition for post-conviction relief, which he later

      amended. The post-conviction court held an evidentiary hearing on Delarosa’s

      amended petition. The court then entered findings of fact and conclusions of

      law in which it denied the petition. This appeal ensued.


                                     Discussion and Decision
                                             Standard of Review

[6]   Delarosa appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Our standard of review in such appeals is clear:


              “The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
              “When appealing the denial of post-conviction relief, the
              petitioner stands in the position of one appealing from a negative
              judgment.” Id. at 274. In order to prevail on an appeal from the
              denial of post-conviction relief, a petitioner must show that the
              evidence leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
              conviction court in this case entered findings of fact and

      Court of Appeals of Indiana | Memorandum Decision 29A02-1612-PC-2852 | July 17, 2017   Page 6 of 15
              conclusions of law in accordance with Indiana Post-Conviction
              Rule 1(6). Although we do not defer to the post-conviction
              court’s legal conclusions, “[a] post-conviction court’s findings
              and judgment will be reversed only upon a showing of clear
              error—that which leaves us with a definite and firm conviction
              that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
              102, 106 (Ind. 2000) (internal quotation omitted).


      Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017).


[7]   In this appeal, Delarosa contends that he received ineffective assistance of

      counsel.

              When evaluating an ineffective assistance of counsel claim, we
              apply the two-part test articulated in Strickland v. Washington, 466
              U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
              State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
              prong, “the defendant must show deficient performance:
              representation that fell below an objective standard of
              reasonableness, committing errors so serious that the defendant
              did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
              McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
              Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
              second prong, “the defendant must show prejudice: a reasonable
              probability (i.e. a probability sufficient to undermine confidence
              in the outcome) that, but for counsel’s errors, the result of the
              proceeding would have been different.” Id. (citing Strickland, 466
              U.S. at 694, 104 S. Ct. 2052).


      Id. at 682. Delarosa asserts that he received ineffective assistance from both his

      trial counsel and his appellate counsel. We consider each issue in turn.




      Court of Appeals of Indiana | Memorandum Decision 29A02-1612-PC-2852 | July 17, 2017   Page 7 of 15
                                           Issue One: Trial Counsel

[8]   We first consider Delarosa’s claim that he received ineffective assistance from

      his trial counsel. In particular, Delarosa asserts that his trial counsel’s

      assistance was ineffective for two reasons: (1) his counsel did not adequately

      prepare for the penalty phase of Delarosa’s trial1 and (2) his counsel failed to

      have a polygraph examination of Duckworth admitted into the record. We

      cannot agree that Delarosa received ineffective assistance from his trial counsel.


[9]   Delarosa’s first argument—that his trial counsel did not adequately prepare for

      the penalty phase—is not supported by the record. During the evidentiary

      hearing before the post-conviction court, Delarosa’s trial counsel, John

      Tompkins, testified that he met with Delarosa’s prior counsel, Steven Brock, on

      several occasions, and that Brock continued to assist Tompkins as a “mitigation

      specialist/expert.” P-C Tr. at 31. Brock informed Tompkins that Brock had

      investigated several potential mitigating factors; namely, Brock had interviewed

      Delarosa and Delarosa’s family members, and he had reviewed Delarosa’s

      criminal history and other records. Tompkins, who has experience with major

      felony cases, testified that he was familiar with potential mitigating




      1
        Delarosa also asserts that he did not knowingly, intelligently, and voluntarily waive his right to a jury
      during the penalty phase, but Delarosa’s argument on this issue is premised on his argument that his trial
      counsel had failed to adequately prepare for that phase of the trial. As we hold that Delarosa has not shown
      that his counsel failed to adequately prepare for the penalty phase, we need not consider Delarosa’s further
      argument with respect to his waiver of his jury right.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1612-PC-2852 | July 17, 2017             Page 8 of 15
       circumstances in such cases and that he “would meet with [Brock] regularly” to

       discuss any potential mitigating circumstances in Delarosa’s case. Id.


[10]   In light of his and Brock’s investigations, Tompkins concluded that it was

       “clear” that there were no “substantial mitigator[s]” to present during the

       penalty phase. Id. at 37. Rather, Tompkins advised Delarosa that “his best

       option” was to make only “legal arguments.” Id. Tompkins further testified

       before the post-conviction court that he felt prepared for the penalty phase and

       that, had he not felt prepared, he would have moved to continue, which he did

       not do.


[11]   The post-conviction court relied on Tompkins’ testimony and found that

       Tompkins effectively prepared for the penalty phase of Delarosa’s trial. As the

       court found:


               9.      Mr. Tompkins testified he was certified by the Indiana
               Public Defender Counsel for Death Penalty cases and had been
               involved with and tried several death penalty and Life Without
               Parole cases prior to his involvement in this case. Further, he
               testified he would have gone through his checklist of factors to
               look for regarding mitigating circumstances recommended by the
               Public Defender Council. He had personally gone to Boone
               County and reviewed [Delarosa’s] voluminous juvenile history
               and reviewed all of the documents provided by previous
               counsel[,] which included the Boone County Presentence
               Investigation and its attachments[,] which had been secured by
               the previous investigator, Charles Keenan. Although Steve
               Brock, a mitigation expert, did not complete his report[, that]
               does not change that [Tompkins] was well apprised of
               [Delarosa’s] social background, which includes the medical,


       Court of Appeals of Indiana | Memorandum Decision 29A02-1612-PC-2852 | July 17, 2017   Page 9 of 15
               family[,] and educational history as well as [Delarosa’s]
               substance abuse issues.


       Appellant’s App. Vol. 2 at 178-79. The post-conviction court’s findings and

       conclusions are supported by the record, and Delarosa’s argument to the

       contrary is merely a request for this court to reweigh the evidence, which we

       will not do. We also agree with the State that Delarosa failed to demonstrate to

       the post-conviction court any significant mitigating evidence that might have

       been presented during the penalty phase of his trial.


[12]   We likewise reject Delarosa’s second argument. On this issue, Delarosa asserts

       that Tompkins rendered ineffective assistance because he did not seek to have a

       polygraph examination entered into evidence either to impeach Duckworth or

       as a mitigating circumstance. But it is well-established that the results of

       polygraph examinations are not reliable and, as such, not admissible absent a

       stipulation by the parties. Hubbard v. State, 742 N.E.2d 919, 924 (Ind. 2001).

       We reject this purported basis for impugning Tompkins’ assistance. As the

       post-conviction court found, “there is no Indiana case [that] supports”

       Delarosa’s position on this issue. Appellant’s App. Vol. 2 at 181. We affirm

       the post-conviction court’s judgment that Delarosa did not receive ineffective

       assistance from his trial counsel.


                                       Issue Two: Appellate Counsel

[13]   We thus turn to Delarosa’s challenge of his appellate counsel’s assistance.

       Here, Delarosa avers that his appellate counsel, Jack Crawford, rendered


       Court of Appeals of Indiana | Memorandum Decision 29A02-1612-PC-2852 | July 17, 2017   Page 10 of 15
       ineffective assistance because he did not challenge the purported use of

       nonstatutory aggravating circumstances when the court imposed the sentence of

       life without parole. We cannot agree with Delarosa’s reading of the record on

       this issue.


[14]   In deciding whether to impose a sentence of life without parole, a trial court

       must limit its consideration of aggravating factors to only those enumerated in

       Indiana Code Section 35-50-2-9(b). See Corcoran v. State, 739 N.E.2d 649, 655

       (Ind. 2000). A written sentencing statement “guard[s] against the influence of

       improper factors at the trial level . . . .” Schiro v. State, 451 N.E.2d 1047, 1053

       (Ind. 1983). Further:

               It is usual practice for a trial judge to comment when the
               sentence is announced in open court. When a trial judge’s oral
               comments refer to factors not included in the court’s separate
               written findings, the issue may arise as to whether such remarks
               demonstrate impermissible use of a nonstatutory aggravating
               factor. Bellmore v. State, 602 N.E.2d 111, 129 (Ind. 1992).


       Corcoran, 739 N.E.2d at 656. In such circumstances, “the issue whether such

       [oral] remarks demonstrate impermissible use of a nonstatutory aggravating

       factor depends upon a determination under state law as to whether the judge

       relied upon the nonstatutory factor.” Bellmore, 602 N.E.2d at 128 n.6 (emphasis

       in original).


[15]   Here, in its oral pronouncement of Delarosa’s sentence, the court stated:




       Court of Appeals of Indiana | Memorandum Decision 29A02-1612-PC-2852 | July 17, 2017   Page 11 of 15
        The Court having incorporated the evidence from Phase 1 of the
        trial and evidence presented in this phase and the arguments of
        the counsel, the Court does now find that the State has proved
        beyond a reasonable doubt the aggravating circumstances of on
        or about April 4, 2007, in Hamilton County, Anthony D.
        Delarosa committed the murder of Rebecca Payne after having
        been hired to kill Rebecca Payne in violation of I.C. 35-50-2-9(a)
        and subpart (b)(4) as shown in Count 1 of the aggravating
        circumstances. . . .


        As to aggravating circumstance number 2, the Court finds that on
        or about April 4, 2007, in Hamilton County, Indiana, Anthony
        D. Delarosa[] committed another murder, to-wit: did kill George
        Benner in violation of I.C. 35-50-2-9(a) and subpart (b)(8). . . .


        As to aggravating circumstances 3, the Court does not find that
        the State of Indiana has proved beyond a reasonable doubt that
        on or about April 4, 2007, in Hamilton County, Indiana,
        Anthony D. Delarosa was on parole at the time the murder was
        committed in violation of I.C. 35-50-2-9(a) and subpart (b)(9)(d).
        No mitigating circumstances have been presented with the
        exception that the State has mentioned that the age may be a
        mitigator. The Court, because of the cold, calculating murder of
        these two innocent victims though finds that such mitigator has
        not been shown by a preponderance of the evidence. The Court
        finds that the aggravating circumstances as found[,] as shown
        beyond a reasonable doubt[,] outweigh any mitigating
        circumstances. The Court makes such finding based on the fact
        that the defendant knowingly and willingly entered into a
        conspiracy to kill Rebecca Payne and George Benner. The
        defendant accepted a key to enter Rebecca Payne’s residence and
        also accepted a gun on two occasions to carry out these murders.
        The defendant’s sole purpose for being brought into this
        conspiracy was to commit the actual killings. The defendant on
        April 2, 2007[,] first attempted to commit the murder of Rebecca
        Payne but she was not home. The defendant entered her

Court of Appeals of Indiana | Memorandum Decision 29A02-1612-PC-2852 | July 17, 2017   Page 12 of 15
               residence and sat on her bed before leaving. Instead of
               abandoning this conspiracy, it was decided that he would try
               again. On April 4th the parties drove, again[,] . . . to the
               residence. Again, the defendant entered the residence after
               receiving the gun. But this time the victims were present. He
               coldly executed the two victims by emptying his entire clip into their
               bodies and exiting the residence, leaving them to die. The defendant
               showed no remorse as to what he had done and even laughed and made
               crude comments about the condition of the victims. The defendant after
               killing these two innocent victims disposed of the handgun. Instead of
               having any remorse, the defendant’s only concern was when he entered
               the car and when he entered the Hamilton County Jail was when would
               he get paid. The Court finds that because of the coldness and because of
               no remorse being shown and the ability to kill two human beings in this
               fashion that the Court does find that the defendant as to Count 1 . . . and
               also as to Count 2 . . . should be sentenced to life without parole.


       Tr. at 1071-74 (emphasis added). In its written sentencing order, the trial court

       confirmed its findings as to the three statutory aggravating factors, that there

       were no significant mitigating factors, and that the aggravators outweighed any

       mitigators. The court further reiterated the facts and circumstances of

       Delarosa’s crimes as support for its findings.


[16]   At the evidentiary hearing before the post-conviction court, Crawford testified

       that he was aware of the prohibition against the court’s consideration of

       nonstatutory aggravating factors but did not believe that the court considered

       any such factors in its judgment. The post-conviction court agreed with

       Crawford’s assessment, finding as follows: “Bellmore and its progeny are not

       controlling[] for the reason that the Court merely enunciated the facts



       Court of Appeals of Indiana | Memorandum Decision 29A02-1612-PC-2852 | July 17, 2017   Page 13 of 15
       supporting its findings of the statutory aggravating factors.” Appellant’s App.

       Vol. 2 at 184-85. We agree with the post-conviction court.


[17]   Delarosa does not actually identify any nonstatutory aggravators that he asserts

       were improperly relied on by the trial court. Rather, he simply quotes the

       italicized language from above and asserts that that language was an improper

       aggravator. But the court’s oral and written statements make clear that the

       court was describing the nature and circumstances of Delarosa’s crimes. And

       the Indiana Supreme Court has made clear that “the circumstances of the crime

       often provides an appropriate context for consideration of the alleged

       aggravating and mitigating circumstances,” and that “[i]nclusion of the nature

       and circumstances of the offense in a trial court’s sentencing order does not

       necessarily compel a conclusion that such matters were improperly considered

       and weighed as aggravating circumstances.” Prowell v. State, 687 N.E.2d 563,

       567 (Ind. 1997).


[18]   That is the case here. The trial court thoroughly described the nature and the

       circumstances of Delarosa’s crimes, but nothing in the court’s oral or written

       statements demonstrates that the court improperly considered and weighed

       those facts as aggravating circumstances. To the contrary, the court’s

       assessment of the nature and the circumstances provided appropriate context

       for the court’s consideration of the argued aggravating and mitigating

       circumstances, which the court clearly delineated in its statements.

       Accordingly, Crawford did not render ineffective assistance when he did not



       Court of Appeals of Indiana | Memorandum Decision 29A02-1612-PC-2852 | July 17, 2017   Page 14 of 15
       raise this purported issue on direct appeal, and we affirm the post-conviction

       court’s judgment on this issue.


                                                    Conclusion

[19]   In sum, we hold that Delarosa has not met his burden to show that the post-

       conviction court’s judgment is contrary to law. We affirm the post-conviction

       court’s denial of his petition for post-conviction relief.


[20]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1612-PC-2852 | July 17, 2017   Page 15 of 15
