MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                     Sep 15 2015, 8:46 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Albert Pauley, Jr.                                        Gregory F. Zoeller
Pendleton, Indiana                                        Attorney General of Indiana

                                                          Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Albert Pauley, Jr.,                                      September 15, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         12A02-1501-PC-46
        v.                                               Appeal from the Clinton Circuit
                                                         Court;
                                                         The Honorable Jeffrey Edens,
State of Indiana,                                        Special Judge;
Appellee-Plaintiff.                                      12C01-1303-PC-274




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 12A02-1501-PC-46 | September 15, 2015    Page 1 of 7
[1]   Albert Pauley, Jr., appeals the denial of his petition for post-conviction relief.

      We consolidate and restate the issues presented as:


      1.         Whether the post-conviction court properly determined Pauley’s claims

      regarding his sentencing were barred by res judicata; and


      2.         Whether the post-conviction court properly determined Pauley’s

      remaining claims were barred by laches.


[2]   We affirm.


                                     Facts and Procedural History
[3]   On March 17, 1995, a jury found Pauley guilty of murder. 1 The trial court

      sentenced Pauley to sixty years. Pauley appealed his conviction and sentence,

      and our Indiana Supreme Court affirmed the judgment. Pauley v. State, 668

      N.E.2d 1212 (Ind. 1996).


[4]   On March 15, 2013, Pauley filed a petition for post-conviction relief alleging

      inappropriate sentence, prosecutorial misconduct, and abuse of discretion by

      the trial court when admitting certain evidence. The post-conviction court

      denied his petition with findings of fact and conclusions of law on December

      26, 2014.




      1
          Ind. Code § 35-42-1-1 (1993).


      Court of Appeals of Indiana | Memorandum Decision 12A02-1501-PC-46 | September 15, 2015   Page 2 of 7
                                     Discussion and Decision
[5]   Post-conviction proceedings are not “super appeals”; rather, those proceedings

      afford petitioners a limited opportunity to raise issues that were unavailable or

      unknown at trial and on direct appeal. Wilkes v. State, 984 N.E.2d 1236, 1240

      (Ind. 2013). Post-conviction proceedings are civil in nature, and petitioners

      bear the burden of proving their grounds for relief by a preponderance of the

      evidence. Id.


[6]   When a petitioner appeals the denial of post-conviction relief, he appeals from a

      negative judgment and has the burden of proof. Id. Consequently, we may not

      reverse unless the petitioner demonstrates the evidence as a whole leads

      unerringly and unmistakably to a decision opposite that reached by the post-

      conviction court. Id. “‘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.’” Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002)

      (emphasis in original). We accept the post-conviction court’s findings of fact

      unless they are clearly erroneous, but we do not defer to its conclusions of law.

      State v. Hollin, 970 N.E.2d 147, 151 (Ind. 2012). We may not reweigh the

      evidence or assess the credibility of the witnesses. Id. at 150.


                                                 Res Judicata

[7]   Pauley argues the trial court at sentencing and the Supreme Court when

      deciding his direct appeal considered incorrect aggravators, inappropriately




      Court of Appeals of Indiana | Memorandum Decision 12A02-1501-PC-46 | September 15, 2015   Page 3 of 7
       weighed aggravators, and did not acknowledge mitigating factors that were

       supported by the record.


[8]    Those claims are barred by res judicata. “[W]hen this Court decides an issue on

       direct appeal, the doctrine of res judicata applies, thereby precluding its review in

       post-conviction proceedings.” State v. Holmes, 728 N.E.2d 164, 168 (Ind. 2000).

       “This prevents the repetitious litigation of that which is essentially the same

       dispute.” Id. “A petitioner cannot escape the effect of claim preclusion merely

       by using different language to phrase an issue and define an alleged error.” Id.


[9]    On direct appeal, Pauley claimed “the trial court’s findings are inadequate to

       support enhancing the sentence to sixty years.” Pauley v. State, 668 N.E.2d

       1212, 1213 (Ind. 1996). 2 Our Indiana Supreme Court determined the trial court

       had properly considered the aggravators and had provided an adequate

       assessment of Pauley that supported his sentence. Id. at 1213-14. It noted

       Pauley did “not claim on appeal that there were any [mitigators].” Id. at 1213.


[10]   To the extent Pauley is arguing our Indiana Supreme Court misrepresented the

       facts, his avenue of redress would have been to ask for a rehearing. Pauley may

       not re-litigate an issue that has already been decided. See Lowery v. State, 640

       N.E.2d 1031, 1037 (Ind. 1994) (issue raised and found against an appellant on

       direct appeal is res judicata in post-conviction proceedings).




       2
           The record does not include the briefs from Pauley’s direct appeal.


       Court of Appeals of Indiana | Memorandum Decision 12A02-1501-PC-46 | September 15, 2015   Page 4 of 7
[11]   To the extent Pauley argues this sentencing argument is not the same one he

       presented on direct appeal, we note “issues that were available, but not

       presented, on direct appeal are forfeited on post-conviction review.” Holmes,

       728 N.E.2d at 168. As his sentencing argument was available at the time of his

       direct appeal, it is now waived. See Timberlake v. State, 753 N.E.2d 591, 597

       (Ind. 2001) (if an issue is known and available, but not raised on direct appeal,

       it is waived).


                                                      Laches

[12]   In his post-conviction petition, Pauley also asserted claims of prosecutorial

       misconduct and inappropriate admission of evidence. The post-conviction

       court found those claims barred by laches.


[13]   “The equitable doctrine of laches operates to bar consideration of the merits of

       a claim or right of one who has neglected for an unreasonable time, under

       circumstances permitting due diligence, to do what in law should have been

       done.” Armstrong v. State, 747 N.E.2d 1119, 1120 (Ind. 2001). “For laches to

       apply, the State must prove by a preponderance of the evidence that the

       petitioner unreasonably delayed in seeking relief and that the State is prejudiced

       by the delay.” Id. For purposes of demonstrating laches in a post-conviction

       proceeding, “prejudice exists when the unreasonable delay operates to

       materially diminish a reasonable likelihood of successful re-prosecution.” Id.

               In reviewing claims that evidence is insufficient to show laches, we do
               not reweigh the evidence nor judge the credibility of the witnesses.
               We consider only that evidence most favorable to the judgment,

       Court of Appeals of Indiana | Memorandum Decision 12A02-1501-PC-46 | September 15, 2015   Page 5 of 7
               together with all reasonable inferences to be drawn therefrom. If the
               determination of the court is supported by substantial evidence of
               probative value, the judgment will be affirmed.
       Williams v. State, 716 N.E.2d 897, 901 (Ind. 1999).


[14]   Pauley waited seventeen years to file his petition for post-conviction relief, and

       the post-conviction court found Pauley’s explanation for his delay lacked

       credibility. (See Appellant’s Br. at 37 (“Petitioner’s explanation for his delay in

       filing the petition is given no weight.”).) 3 The State presented evidence that its

       ability to re-prosecute this matter would be hindered by the passage of time and

       the death of one of the witnesses. As we may not reweigh the evidence or

       assess the credibility of the witnesses, we find no error in the court’s conclusion

       Pauley’s other claims were barred by laches.


[15]   Even if Pauley’s claims were not barred by laches, they were forfeited for post-

       conviction proceedings because they were available, but not raised, on direct

       appeal. See Holmes, 728 N.E.2d at 168 (issues available but not presented on

       direct appeal are forfeited on post-conviction review).




       3
        As Pauley did not include the post-conviction court’s findings of fact and conclusions of law in his
       appendix, we cite to the copy in his brief. The page numbers on the order are not consecutive to the page
       numbers in the brief. We have taken the liberty of numbering the pages consecutively.

       Court of Appeals of Indiana | Memorandum Decision 12A02-1501-PC-46 | September 15, 2015           Page 6 of 7
                                                 Conclusion
[16]   The claims Pauley raises as to his sentence are res judicata. Pauley’s claims

       regarding evidence and prosecutorial misconduct are barred by laches and were

       waived when they were not raised on direct appeal. Accordingly, we affirm.


[17]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 12A02-1501-PC-46 | September 15, 2015   Page 7 of 7
