Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
                                                               May 23 2013, 8:28 am
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:

ROY AUSTIN SMITH                                    GREGORY F. ZOELLER
Wabash Valley Correctional Facility                 Attorney General of Indiana
Carlisle, Indiana
                                                    IAN MCLEAN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

ROY AUSTIN SMITH,                                   )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )      No. 49A02-1209-PC-783
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Grant W. Hawkins, Judge
                  The Honorable Christina R. Klineman, Master Commissioner
                                   Cause No. CR81-017E



                                           May 23, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                     Case Summary

       In 1982, Roy Austin Smith was convicted of murder and found to be a habitual

offender. In 2007, he sought post-conviction relief (“PCR”). The State asserted the defense

of laches. The PCR court denied Smith’s petition. On all of Smith’s claims relating to his

murder conviction, the PCR court concluded that the State had carried its burden on the

elements of its laches defense. However, the PCR court addressed the merits of Smith’s

claims relating to his habitual offender finding and found that he had failed to carry his

burden of proof.

       Smith now appeals the denial of his PCR petition. He argues that the PCR court

committed error relating to the State’s laches defense. However, based on his statements at

the PCR evidentiary hearing, his motion to strike the State’s tender of laches evidence, and

his arguments on appeal, it is apparent that Smith is seeking relief only for his habitual

offender finding. Smith’s claims on appeal address only the PCR court’s laches conclusion

that affects his murder conviction. Because the PCR court did not decide Smith’s habitual

offender claims based on laches, Smith’s arguments are misplaced. Therefore, we affirm.

                             Facts and Procedural History

       In 1982, Smith was convicted of murder and being a habitual offender and sentenced

to an executed term of sixty years for the murder enhanced by thirty years for the habitual

offender finding. His convictions and sentence were affirmed on direct appeal. Smith v.

State, 468 N.E.2d 512 (Ind. 1984). On September 21, 2007, Smith filed pro se a PCR




                                             2
petition and filed amended petitions on April 14 and July 20, 2010.1 The State asserted the

affirmative defense of laches.

        On May 4, 2011, the PCR court held an evidentiary hearing on Smith’s petition.

Smith appeared pro se. He called no witnesses and told the PCR court that he did not wish to

testify on his own behalf and that “[e]verything I’m complaining about is in the record.”

PCR Tr. at 5. The record of the underlying proceedings was admitted. The State asked for

additional time to complete its laches investigation and “submit any laches affidavit.” Id. at

16. The State explained that it would “either file laches affidavits or … a notice that the

State is not tendering any.” Id. at 17. The PCR court told Smith that he could respond to the

State’s laches determination.

        On August 12, 2011, the State filed its tender of laches evidence, which included (1)

an affidavit from a Erin Cronley, a paralegal in the Marion County Prosecutor’s Office, as to

her efforts to contact witnesses and her failure to receive any responses as well as her

discovery that some officers in the case had died, (2) an information and judgment of

conviction from a 2004 case, in which Smith was convicted of attempted murder,2 and (3) a

faxed copy of an affidavit from Dr. Robert Ransburg, who performed the autopsy on Smith’s

murder victim. The State also requested that it be allowed to substitute the faxed copy of the

doctor’s affidavit with the original affidavit upon receipt via mail, which the PCR court


        1
            None of Smith’s PCR petitions are included in his appellant’s appendix.
        2
           The State explained that the documents relating to Smith’s 2004 convictions were included “to
support the State’s laches argument that he had additional contact with attorneys before he filed for this PCR in
2007.” PCR Tr. at 22.


                                                       3
granted. On August 22, 2011, the State filed a motion for an additional sixty days to file the

original of the doctor’s affidavit, which the PCR court granted. On October 27, 2011, the

State filed its final tender of laches evidence, and the PCR court set a laches hearing.

       On November 30, 2011, the PCR court held a hearing on the State’s laches defense to

ensure that Smith had received copies of the State’s exhibits, which he had, and to give him

an opportunity to respond. The PCR court asked Smith if he would like to testify or present

any evidence. Smith replied that he was “just going off the record.” PCR Tr. at 20. The

PCR court informed Smith that he could state his position and also submit something in

writing. Smith was sworn in and testified as follows:

              [I]t’s my understanding the prosecutor – the State is filing a laches as a
       defense in this case and it’s also my understanding the laches defense only
       applies if it affects the State’s ability to retry me. I’m back on the habitual and
       if you was to vacate the habitual which is the relief I’m asking for in my PC,
       then that’ll just leave me with the 60 years and I’ve already served the 60-year
       sentence so I can’t be tried on that and as you know, in post-conviction
       proceeding laches only applies when it affects the State’s ability to retry me. I
       don’t think I can be retried on anything from my understanding.

Id. at 22 (emphasis added).

       On March 7, 2012, Smith filed a motion to strike State’s tender of laches evidence,

which stated in relevant part,

              13. Petitioner contends that the State cannot be prejudiced by an
       absence of any of the witnesses listed in Erin Cronley’s affidavit as none of
       those witnesses have any relevant testimony to offer at petitioner’s evidentiary
       hearing now concluded and there is no scenario that can be contemplated or
       can exist where petitioner will face retrial, if the court vacates the habitual
       offender finding.

              ….


                                               4
              21. Petitioner objects to State’s Exhibit 3, the affidavit of Doctor
       Robert Ransburg. What relevant testimony could Dr. Ransburg provide
       concerning the issues presented in petitioner’s petition for post-conviction
       relief. [sic] And if Dr. Ransburg were allowed to give some type of
       testimony, where would Dr. Ransburg’s testimony be given. Not the post-
       conviction court and not the trial court so as a result, how is doctor Ransburg’s
       testimony or presence be [sic] relevant.

Appellant’s Supp. App. at 3-4, 5.

       On May 5, 2012, the PCR court set June 15, 2012, as the date for the parties to submit

proposed findings of fact and conclusions of law. On September 11, 2012, the PCR court

issued its findings of fact, conclusions of law, and judgment denying Smith relief. Regarding

the State’s laches defense, the court’s judgment reads in pertinent part,

              The Court concludes that the State has proven both elements of its
       affirmative laches defense by a preponderance of the evidence. Smith’s [PCR
       petition] is accordingly denied, as to claim VI6 and as to all other claims to the
       extent that success on said claims would result in a retrial of Smith on the
       murder charge.

               [6Claim VI in Smith’s Amended Petition filed July 28, 2010, essentially
       alleges ineffectiveness of trial counsel for failure to object to lack of trial court
       jurisdiction due to non-filing of charging information, probable cause affidavit,
       arrest warrant, and amended information.

               It is also worth noting that, Smith’s testimony on November 30, 2011,
       could be interpreted to express his intent to proceed only on issues pertaining
       to the habitual offender, though he did not expressly withdraw Claim VI.]




                                                5
Appellant’s Br. at 50 p. 10 (emphases added). However, the PCR court did not apply the

State’s laches defense to Smith’s habitual offender claims and decided those claims on the

merits against Smith.3

        Smith appeals.

                                        Discussion and Decision

        Smith represented himself at the post-conviction level and is self-represented on

appeal. A defendant or convicted person who proceeds pro se “‘accepts the burdens and

hazards incident to his position.’” Boykin v. State, 702 N.E.2d 1105, 1106 n.1 (Ind. Ct. App.

1998) (quoting Houston v. State, 553 N.E.2d 117, 118 (Ind. 1990)). “Pro se litigants without

legal training are held to the same standard as trained counsel and are required to follow

procedural rules.” Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct .App. 2004) trans. denied.

        Smith challenges the PCR court’s rulings granting the State an extension of time to

determine if it would pursue its laches defense and granting the State’s request to submit

evidence in support of its laches defense. The State’s laches evidence was relevant only to

Smith’s murder conviction and not his habitual offender finding. Smith stated at the


        3
            The claims that failed on the merits were Smith’s claims that his trial counsel was ineffective for
“failure to raise the issue of whether fundamental error occurred,” which the PCR court interpreted as failure to
object (1) “when the information was amended to add the habitual offender count as a matter of substance less
than thirty (30) days before the omnibus hearing,” (2) “when the trial court failed to conduct a hearing … to
determine whether good cause existed in order to allow the State to amend the information to add the habitual
offender count as a matter of substance more than ten (10) days after the omnibus hearing,” (3) “when the State
failed to comply with the ‘Lawrence procedure,’ then after the State had rested on the principle [sic] charge,
the State notified Smith for the first time that the State intended to seek enhancement … [with] the habitual
offender count,” and (4) “when Smith was denied his … right to be represented by counsel at all stages of the
proceedings when the trial court conducted an exparte [sic] hearing where the trial court received and granted
the State’s motion to amend the information to include the habitual offender count.” Id. at 50 pp. 11-16
(quotation marks omitted).


                                                       6
evidentiary hearing that he was proceeding only on his claims pertaining to his habitual

offender finding. PCR Tr. at 22. His motion to strike the State’s tender of laches evidence

shows that he believed that the State’s laches evidence was irrelevant to his habitual offender

claims. On appeal, Smith’s claims of prejudice relate only to his habitual offender finding,

and the relief he requests is for the thirty-year habitual offender enhancement to be vacated.

Appellant’s Br. at 43, 45-46, 47, 49. However, because the PCR court did not apply the

State’s laches defense to Smith’s claims relating to his habitual offender finding, Smith’s

arguments on appeal are misplaced. The PCR court decided Smith’s habitual offender claims

on the merits, and Smith does not challenge the court’s decisions on the merits.4

Accordingly, we affirm the PCR court’s denial of Smith’s PCR petition.

        Affirmed.

ROBB, C.J. and FRIEDLANDER, J., concur.




        4
           As for Smith’s argument that the PCR court erred in holding an evidentiary hearing on the laches
issue without permitting him to present evidence other than evidence relating to the laches issue, we observe
that an evidentiary hearing on the merits of his claims had already been held on May 4, 2011, and he had been
given the opportunity then to present evidence. The evidence that he claims he was denied an opportunity to
present could have been, and should have been, presented at the May 4, 2011, hearing on his PCR petition.
Accordingly, this argument is without merit.

                                                     7
