MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   Nov 20 2015, 8:24 am

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
Orlando D. Lynch                                        Gregory F. Zoeller
Pendleton, Indiana                                      Attorney General of Indiana
                                                        Richard C. Webster
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Orlando D. Lynch,                                       November 20, 2015
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        45A03-1506-CR-580
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Samuel L. Cappas,
Appellee-Respondent                                     Judge
                                                        Trial Court Cause No.
                                                        45G04-9205-CF-117



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1506-CR-580 | November 20, 2015        Page 1 of 4
[1]   On March 2, 1994, a jury convicted Orlando Lynch of two counts of murder

      and one count of attempted murder. The trial court sentenced him to two forty-

      year terms of incarceration for the two murders, to be served consecutively, and

      another twenty-year term of incarceration for the attempted murder, to be

      served concurrently. He appealed on the grounds of prosecutorial misconduct,

      but this Court ruled against him and affirmed his sentence in a memorandum

      decision. Lynch v. State, No. 45A03-9408-CR-302 (Ind. Ct. App. May 15,

      1995). Our Supreme Court denied transfer. On April 27, 1998, Lynch filed a

      petition for post-conviction relief, which the trial court denied on August 25,

      1998, based on the doctrine of laches.1 This Court affirmed that denial in

      another memorandum decision, Lynch v. State, 45A04-9810-PC-482 (Ind. Ct.

      App. May 24, 1999). Again, our Supreme Court denied transfer. From 2003 to

      2015, Lynch filed five more requests for post-conviction relief, all of which were

      denied by this Court.


[2]   Lynch’s current appeal stems from a Motion to Correct Erroneous Sentence,

      which he filed on May 12, 2015. He argued that his sentence was “facially

      erroneous,” alleging that his two murder sentences should have run

      concurrently, not consecutively. App. p. 16-17. The trial court denied this

      motion on the grounds that “a motion for correction of erroneous sentence may

      only be used to attack a sentence that is invalid on its face. The sentence in this

      case is not erroneous on its face.” Id. at 15. Lynch now appeals.


      1
        Laches is neglect for an unreasonable length of time, under circumstances permitting diligence, to do what
      in law should have been done. Perry v. State, 512 N.E.2d 841, 842 (Ind. 1987).

      Court of Appeals of Indiana | Memorandum Decision 45A03-1506-CR-580 | November 20, 2015           Page 2 of 4
[3]   In Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004), our Supreme Court held:


              a motion to correct sentence may only be used to correct
              sentencing errors that are clear from the face of the judgment
              imposing the sentence in light of the statutory authority. Claims
              that require consideration of the proceedings before, during, or
              after trial may not be presented by way of a motion to correct
              sentence. . . . As to sentencing claims not facially apparent, the
              motion to correct sentence is an improper remedy. Such claims
              may be raised only on direct appeal and, where appropriate, by
              post-conviction proceedings.


[4]   Lynch points to Hansford v. State for the proposition that where a trial court has

      not found aggravating circumstances, concurrent sentences are required. 490

      N.E.2d 1083 (Ind. 1986). He also claims that the trial court did not find any

      aggravating circumstances. Whatever the merits of this argument, Lynch is

      alleging the opposite of a facial defect; he is making a “[c]laim[] that require[s]

      consideration of the proceedings before, during or after trial. . . .” Robinson, 805

      N.E.2d at 787. His sentence is not facially defective—two consecutive forty-

      year sentences is a facially valid sentence for two murders. I.C. § 35-50-1-2(a);

      I.C. § 35-50-2-3.


[5]   Although the alternative avenue to bring such a claim might be in a post-

      conviction proceeding, Lynch has waived this possibility by not bringing his

      claim on direct appeal. As Robinson stated, “[s]uch claims may be raised only

      on direct appeal and, where appropriate, by post-conviction proceedings.” 805

      N.E.2d at 787 (emphasis added). “The purpose of the post-conviction relief

      process is to raise issues not known at the time of the original trial and appeal or

      Court of Appeals of Indiana | Memorandum Decision 45A03-1506-CR-580 | November 20, 2015   Page 3 of 4
      for some reason not available to the defendant at that time.” Schiro v. State, 533

      N.E.2d 1201, 1204 (Ind. 1989). “It has long been held that claims available on

      direct appeal but not presented are not available for post-conviction review.”

      Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2004).


[6]   Assuming for the sake of argument that Lynch’s argument regarding

      consecutive sentences is correct, there is no apparent reason why he could not

      have brought that argument on direct appeal. Both he and his attorney were

      present at his trial and at his sentencing hearing. The case he is relying upon

      was decided several years before his direct appeal. But instead of directly

      appealing the consecutive nature of his sentences, he appealed only what he

      saw as prosecutorial misconduct and ineffective assistance of counsel for his

      attorney’s failure to object to that conduct.


[7]   In sum, Lynch’s motion was properly denied because his sentence is not facially

      defective. Moreover, the substance of his claim cannot be brought in a post-

      conviction relief petition because he failed to bring it on direct appeal.


[8]   The judgment of the trial court is affirmed.


      Bailey, J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1506-CR-580 | November 20, 2015   Page 4 of 4
