MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Jul 20 2018, 5:46 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Marzono R. Shelly                                         Curtis T. Hill, Jr.
Carlisle, Indiana                                         Attorney General of Indiana
                                                          Justin F. Roebel
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Marzono R. Shelly,                                        July 20, 2018
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          46A03-1702-PC-274
        v.                                                Appeal from the LaPorte Circuit
                                                          Court
State of Indiana,                                         The Honorable Thomas J.
Appellee-Respondent.                                      Alevizos, Judge
                                                          Trial Court Cause No.
                                                          46C01-1606-PC-6



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A03-1702-PC-274 | July 20, 2018              Page 1 of 8
[1]   Marzono R. Shelly (“Shelly”) appeals the LaPorte Circuit Court’s denial of his

      petition for post-conviction relief. Concluding that Shelly has failed to raise any

      issues that are available for post-conviction review, we affirm.


                                  Facts and Procedural History
[2]   The following facts and procedural history of Shelly’s case are taken from the

      unpublished memorandum decision of his direct appeal:


              In 2012, seventy-three-year-old Charles Harper lived in a house
              in Michigan City with his friend, Vincent Fayson. On January
              19, 2012, Shelly arrived at Harper’s house and asked Fayson if
              Harper was available. Harper asked Shelly to come inside and
              gave Fayson some money so that he could leave the house and
              go out with his friends. Fayson left the house sometime around
              eight o’clock at night.


              Around 10:30 p.m., Fayson, still out with his friends, called
              Harper and received no answer. When Fayson returned to
              Harper’s house later that night, Harper’s truck was gone, but the
              lights and television were still on and the door to the house was
              unlocked. Fayson entered the house and noticed that a chair was
              propped underneath the doorknob to the kitchen door. Fayson
              removed the chair, opened the door, and found Harper lying in a
              pool of blood.


              Harper had been shot five times, including once in the back of
              the head and once in the face. Fayson contacted the police and
              informed them that Shelly was the last person he had seen with
              Harper. Later that evening, officers discovered Harper’s truck
              parked at an apartment complex. The next morning, officers
              knocked on the door of an apartment at the complex belonging to
              Doris Parr, who invited them inside. The officers soon
              discovered Shelly hiding in the furnace room and arrested him.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1702-PC-274 | July 20, 2018   Page 2 of 8
        Officers then spoke with a woman who was in Parr’s apartment
        when Shelly was arrested. She informed them that Shelly had
        been carrying a twelve-pack box of Icehouse beer and that he had
        attempted to hide the box when police arrived. After Parr
        consented to a search of her apartment, the officers found the
        Icehouse box hidden underneath [Shelly’s] jacket in the furnace
        room. They searched the box and found, among other things,
        Harper’s wallet, keys, two handguns, and ammunition.


        The State charged Shelly with murder, felony murder, class A
        felony robbery, and class B felony serious violent felon in
        possession of a firearm. The State later requested an habitual
        offender sentence enhancement. Shelly filed a motion to suppress
        the evidence found inside the Icehouse box, which the trial court
        denied. Shelly also filed a motion asking the trial court to declare
        Jury Rule 20(a)(8), which allows jurors and alternates to discuss
        the evidence amongst themselves during recesses prior to the
        commencement of deliberations, unconstitutional. The trial court
        denied this motion as well.


        During the jury selection process, one of the prospective jurors,
        Gorski, informed the trial court that he believed one of [Shelly’s]
        tattoos signified that he had previously murdered someone.
        Gorski said that he had shared these thoughts with other
        prospective jurors.


        Shelly moved for a mistrial. The trial court denied the motion,
        finding that any taint could be cured by individually questioning
        all of the prospective jurors. When questioned, only two
        prospective jurors indicated that they had discussed [Shelly’s]
        tattoo with Gorski. Both prospective jurors, along with Gorski,
        were dismissed. No other prospective juror indicated that they
        had participated in or overheard such discussions and the trial
        court admonished all that remained that they must not speak
        about the case with anyone.


Court of Appeals of Indiana | Memorandum Decision 46A03-1702-PC-274 | July 20, 2018   Page 3 of 8
        Following jury selection, Shelly moved to discharge the jury
        panel, alleging that the prosecutor had made statements that
        improperly informed the jury of the facts of the case,
        misinformed the jury as to the elements of the crimes charged,
        and improperly commented upon [Shelly’s] exercise of his right
        against self-incrimination. The trial court denied this motion as
        well.


        On August 12, 2013, Shelly was tried before a jury. At the close
        of evidence, Shelly moved for a mistrial, alleging that the State
        had failed to disclose evidence of Harper’s past criminal activity,
        about which Shelly had just learned. The trial court denied the
        motion, finding that there was not a reasonable probability that
        the evidence would have affected the outcome of the trial. The
        trial court also denied [Shelly’s] request to instruct the jury on
        involuntary manslaughter.


        The jury found Shelly guilty on all counts, and the trial court
        later found him to be an habitual offender. The trial court merged
        [Shelly’s] conviction for felony murder with his conviction for
        murder. Shelly was sentenced to sixty-five years for the murder
        conviction, thirty years for the class A felony robbery conviction,
        ten years for the class B felony violent felon in possession of a
        firearm conviction, and thirty years for the habitual offender
        finding. With the exception of the class B felony violent felon in
        possession of a firearm sentence, which was to be served
        concurrently to the murder sentence, the trial court ordered all
        sentences to be served consecutively, resulting in a total executed
        sentence of 125 years.


Shelly v. State, 46A03-1404-CR-133, 2015 WL 1228314, Slip op. at *1–*2 (Ind.

Ct. App. March 17, 2015).




Court of Appeals of Indiana | Memorandum Decision 46A03-1702-PC-274 | July 20, 2018   Page 4 of 8
[3]   On direct appeal, our court held that Shelly’s merged convictions for murder

      and felony murder, and his conviction for class A felony robbery violated

      double jeopardy. This court, therefore, instructed the trial court to vacate the

      felony murder the conviction and remanded the case to enter a judgment for

      robbery, as a class C felony. On remand, the trial court was ordered to revise his

      sentence accordingly. As to the remaining convictions, this court affirmed. See

      id. at *11.


[4]   On June 7, 2016, Shelly filed a pro se petition for post-conviction relief. Shelly

      filed an amended pro se petition for post-conviction relief on November 14,

      2016. In his amended petition, Shelly raised numerous arguments which we

      summarize as: (1) whether the trial court abused its discretion by allowing the

      State to amend the habitual offender charge; (2) whether the possession of a

      firearm by a violent offender and the habitual offender enhancement violated

      double jeopardy; (3) whether he was prejudiced by an allegedly improper jury

      instruction regarding motive; (4) whether the trial court erred by not giving an

      involuntary manslaughter instruction to the jury; (5) whether certain jury

      instructions were ambiguous; (6) whether the trial court abused its discretion in

      denying a motion for mistrial; and (7) whether the trial court abused its

      discretion in denying a motion for judgment on the evidence. See Appellant’s

      Am. App. pp. 37–43.


[5]   At the post-conviction hearing on January 10, 2017, the post-conviction court

      made the following findings:



      Court of Appeals of Indiana | Memorandum Decision 46A03-1702-PC-274 | July 20, 2018   Page 5 of 8
        Petitioner elected not to introduce any evidence other than the
        transcript of his criminal trial. The State argued that Petitioner’s
        petition should be barred by laches or by waiver.


        “The purpose of a petition for post-conviction relief is to raise
        issues unknown or unavailable to a defendant at the time of the
        original trial and appeal. When an issue is known and available
        but not raised on direct appeal, it is waived for post-conviction
        proceedings.”


        Petitioner has elected not to present any evidence as to whether
        any of his allegations are result of newly found evidence or that
        which was not available to him at the time of trial or appeal.
        However, the Court, having read all the accusations of error in
        his amended petition, including 8(a), 8(b), 9(a), 10(a), 10(b),
        11(a), 11(b), 12(a), 12(b), 13(a), 13(b), 14(a), and 14(b), finds that
        nothing in those allegations indicate that the Petitioner or his
        counsel were not aware of these matters at the time of the trial or
        the appeal.


        Therefore, as all of the issues presented in Petitioner’s amended
        post-conviction relief petition were known to the Petitioner at the
        time of his trial, or at the time of his original appeal, these issues
        have been waived.


        Accordingly, Petitioner’s post-conviction relief petition should be
        DENIED.


Id. at 46. (internal citations omitted). Shelly now appeals.




Court of Appeals of Indiana | Memorandum Decision 46A03-1702-PC-274 | July 20, 2018   Page 6 of 8
                                     Discussion and Decision
[6]   The post-conviction petitioner bears the burden of establishing grounds for

      relief by a preponderance of the evidence. Willoughby v. State, 792 N.E.2d 560,

      562 (Ind. Ct. App. 2003), trans. denied. When a petitioner appeals the denial of a

      petition for post-conviction relief, the petitioner stands in the position of one

      appealing from a negative judgment. Id. On appeal, we neither reweigh

      evidence nor judge the credibility of witness. Id. Therefore, to prevail, Shelly

      must show that the evidence, as a whole, leads unerringly and unmistakably to

      a conclusion opposite that reached by the post-conviction court. Id.


[7]   Where, as here, the post-conviction court made specific findings of fact and

      conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

      must determine if the court’s findings are sufficient to support its judgment.

      Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947

      N.E.2d 962. Although we do not defer to the post-conviction court’s legal

      conclusions, we review the post-conviction court’s factual findings for clear

      error. Id. Accordingly, we will consider only the probative evidence and

      reasonable inferences flowing therefrom that support the post-conviction court’s

      decision. Id.


[8]   “It is . . . well-settled that, because a post-conviction relief proceeding is not a

      substitute for direct appeal but rather a process for raising issues unknown or

      not available at trial, an issue known and available but not raised on direct

      appeal may not be raised in post-conviction proceedings.” See Mills v. State, 868


      Court of Appeals of Indiana | Memorandum Decision 46A03-1702-PC-274 | July 20, 2018   Page 7 of 8
       N.E.2d 446, 452 (Ind. 2007) (quoting Collins v. State, 817 N.E.2d 230, 232 (Ind.

       2004)). The issues Shelly raises in his petition for post-conviction relief, which

       are listed above, were known and available on direct appeal.1


[9]    Shelly did not present any evidence, but merely asked the post-conviction court

       to take notice of the trial transcript and his motion and make a decision based

       on the court’s review of the transcript. See PCR Tr. p. 3. Post-conviction

       proceedings are not “super appeals” through which convicted persons can raise

       issues they failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d

       389, 391 (Ind. 2002), reh’g denied. These issues were available at the time of

       Shelly’s direct appeal, and therefore, may not be raised in post-conviction

       proceedings. See Mills, 868 N.E.2d at 452; Ind. Post-Conviction Rule 1(1)(b)

       (stating post-conviction relief “is not a substitute for a direct appeal from the

       conviction and/or sentence”).


[10]   For these reasons, we conclude that the post-conviction court did not err in

       denying Shelly post-conviction relief.


[11]   Affirmed.


       Riley, J., and May, J., concur.




       1
        Shelly argues that the post-conviction court erred when it denied his relief based on the doctrine of laches.
       However, it is obvious on the face of the trial court’s judgment that the court did not rely on laches when it
       denied Shelly’s petition.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1702-PC-274 | July 20, 2018                  Page 8 of 8
