MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                          Nov 30 2016, 11:31 am
regarded as precedent or cited before any
court except for the purpose of establishing                        CLERK
                                                                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
Robert Payton                                           Gregory F. Zoeller
Michigan City, Indiana                                  Attorney General of Indiana

                                                        J.T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert Payton,                                          November 30, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        20A03-1602-PC-433
        v.                                              Appeal from the Elkhart Circuit
                                                        Court
State of Indiana,                                       The Honorable Terry C.
Appellee-Plaintiff.                                     Shewmaker, Judge
                                                        Trial Court Cause No.
                                                        20C01-1405-PC-16



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1602-PC-433| November 30, 2016   Page 1 of 8
                                          Statement of the Case
[1]   Robert Payton appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Payton raises four issues for our review, which we restate as

      the following three issues:1

               1.    Whether Payton received ineffective assistance of trial
               counsel.


               2.    Whether the post-conviction court erred when it denied
               Payton’s request to appoint post-conviction counsel.


               3.    Whether the post-conviction court abused its discretion
               when it denied Payton’s request to subpoena his co-defendant.


[2]   We affirm.


                                    Facts and Procedural History
[3]   This court stated the facts underlying Payton’s convictions and sentence in his

      direct appeal as follows:


               Payton pled guilty and admitted the following factual allegations
               that supported his convictions: Payton admitted that he and a
               companion went to a high crime area to solicit sex in exchange




      1
        In addition to the three issues we address, Payton also asks that we “excuse any procedural default that
      may exist by him submitting the testimony of the victims as evidence to support his ineffective assistance
      claim.” Appellant’s Br. at 16. While Payton asserts that this is an issue potentially dispositive of his appeal,
      we disagree and consider it part-and-parcel with his argument that he had received ineffective assistance from
      his trial counsel. The State, on the other hand, interprets Payton’s statement to be a request for this court to
      declare the availability of federal habeas corpus relief. We do not interpret Payton’s statements that way but,
      to be sure, we express no opinion on whether he might be entitled to any kind of relief from a federal court.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1602-PC-433| November 30, 2016               Page 2 of 8
              for drugs. After arriving, Payton and his companion forced S.K.
              to perform fellatio by physically overpowering her. Later,
              Payton and his companion forced C.W. to submit to anal
              intercourse by physically overpowering her. Both woman
              suffered extreme pain as a result of Payton’s assaults.


              Pursuant to a plea agreement, Payton agreed to a sentencing cap
              of seventy-five years executed. Payton was sentenced to forty
              years for each offense with ten years suspended from each to run
              consecutively for an aggregate sentence of sixty years.


      Payton v. State, No. 20A03-0803-CR-100, 2008 WL 2915717 at *1 (Ind. Ct.

      App. July 30, 2008), trans. denied.


[4]   Thereafter, Payton filed numerous petitions for post-conviction relief. In

      relevant part, Payton alleged that his trial counsel had rendered ineffective

      assistance when he did not investigate whether the State’s charges had been

      based on the same evidence, especially with respect to whether the State had

      elevated the charges based on the same aggravating facts. Payton requested the

      post-conviction court to issue a subpoena to Payton’s co-defendant, which the

      post-conviction court denied, and Payton requested the court to appoint him

      post-conviction counsel, which the court also denied. Following a hearing, the

      post-conviction court denied Payton’s petition for relief. This appeal ensued.


                                     Discussion and Decision
                                            Standard of Review

[5]   Payton appeals the post-conviction court’s denial of his petition for post-

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

      Court of Appeals of Indiana | Memorandum Decision 20A03-1602-PC-433| November 30, 2016   Page 3 of 8
              [The petitioner] bore the burden of establishing the grounds for
              post[-]conviction relief by a preponderance of the evidence. See
              Ind. Post-Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d
              591, 597 (Ind. 2001). Post-conviction procedures do not afford a
              petitioner with a super-appeal, and not all issues are available.
              Timberlake, 753 N.E.2d at 597. Rather, subsequent collateral
              challenges to convictions must be based on grounds enumerated
              in the post-conviction rules. Id. If an issue was known and
              available, but not raised on direct appeal, it is waived. Id. If it
              was raised on appeal, but decided adversely, it is res judicata. Id.

              In reviewing the judgment of a post-conviction court, appellate
              courts consider only the evidence and reasonable inferences
              supporting the post-conviction court’s judgment. Hall v. State,
              849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is
              the sole judge of the evidence and the credibility of the witnesses.
              Id. at 468-69. Because he is now appealing from a negative
              judgment, to the extent his appeal turns on factual issues [the
              petitioner] must convince this court that the evidence as a whole
              leads unerringly and unmistakably to a decision opposite that
              reached by the post-conviction court. See Timberlake, 753 N.E.2d
              at 597. We will disturb the decision only if the evidence is
              without conflict and leads only to a conclusion contrary to the
              result of the post-conviction court. Id.


      Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.


                                        Issue One: Trial Counsel

[6]   On appeal, Payton first asserts that his trial counsel rendered ineffective

      assistance when he did not attempt to have various charges against Payton

      reduced or dismissed. In particular, Payton argues that, had the State obtained

      verdicts against Payton on each of its original five charges, it would have

      violated Payton’s double jeopardy rights to have convictions entered against

      Court of Appeals of Indiana | Memorandum Decision 20A03-1602-PC-433| November 30, 2016   Page 4 of 8
      him as alleged in each of those charges. As such, he continues, his trial counsel

      should have attempted to have the State’s charges reduced or dismissed. And,

      because his trial counsel did not seek to have the charges reduced or dismissed,

      Payton further asserts that he did not enter into his guilty plea fully informed.


[7]   Generally, a claim of ineffective assistance of counsel must satisfy two

      components. Strickland v. Washington, 466 U.S. 668 (1984). First, the criminal

      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. Id.

      at 687-88. Second, the criminal 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. at 694.


[8]   Payton cannot demonstrate that he received ineffective assistance of trial

      counsel. Regarding Payton’s assertion that his counsel should have sought to

      have the State’s charges reduced or dismissed based on the likely evidence to

      support the charges at trial, we agree with the State that double jeopardy had

      not yet attached to Payton’s case. Normally, double jeopardy attaches when

      there is “an actual risk of trial and conviction,” namely, “‘when a jury has been

      impaneled and sworn.’” Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App.

      2001) (quoting Bryant v. State, 660 N.E.2d 290, 299 (Ind. 1995)). There is no

      evidence that the State’s charges against Payton advanced that far; to the

      contrary, the parties agree that the only relevant procedural history for our

      Court of Appeals of Indiana | Memorandum Decision 20A03-1602-PC-433| November 30, 2016   Page 5 of 8
      review is the State charging Payton in April of 2001 and his ensuing plea

      agreement in May of 2002. Accordingly, we cannot say that the post-

      conviction court’s rejection of Payton’s argument that his trial counsel failed to

      apply double jeopardy law to the charging information is clearly erroneous.


[9]   Likewise, we affirm the post-conviction court’s rejection of Payton’s assertion

      that he would not have pleaded guilty had he been properly informed of the

      potential application of double jeopardy law to the State’s charges. Presumably

      Payton’s argument here is that, had he not pleaded guilty and instead been

      found guilty, the trial court could not have entered all the charges against him

      in accordance with double jeopardy law. That is, Payton seems to argue that,

      had his counsel properly informed him of those consequences, Payton would

      not have pleaded guilty.2 But Payton presented no evidence to the post-

      conviction court other than his own assertion that he would not have pleaded

      guilty had he been more well informed, and Indiana’s courts have long held

      that more than a defendant’s own conclusory statement in that regard is

      required to state such a claim. E.g., Segura v. State, 749 N.E.2d 496, 507 (Ind.

      2001). Accordingly, we cannot say that the post-conviction court’s rejection of

      this issue is clearly erroneous.




      2
        We acknowledge that the State interprets Payton’s argument to be that his counsel failed to inform him of a
      defense he might have had at trial. We read Payton’s argument to go to the viability of the enhancements of
      the charges against him, and, therefore, to the sentence he would have received rather than the convictions
      themselves. Nonetheless, we agree with the State that, at least with respect to the two convictions to which
      he pleaded guilty, the State’s evidence was plainly based on different victims and therefore presented no
      double jeopardy issues.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1602-PC-433| November 30, 2016            Page 6 of 8
                                  Issue Two: Post-Conviction Counsel

[10]   Payton next asserts that the post-conviction court erred when it denied his

       request to appoint post-conviction counsel. In particular, Payton argues that

       the post-conviction court’s denial of his request for post-conviction counsel

       denied him his state and federal constitutional rights to counsel. Payton is

       incorrect. The Indiana Supreme Court has long recognized that there is no

       right to counsel in post-conviction proceedings. Baum v. State, 533 N.E.2d

       1200, 1201 (Ind. 1989). Accordingly, we affirm the post-conviction court’s

       denial of Payton’s request.


                                           Issue Three: Subpoena

[11]   Finally, Payton asserts that the post-conviction court abused its discretion when

       it denied his request to subpoena his co-defendant. An abuse of discretion

       occurs when the court’s judgment is clearly against the logic and effect of the

       facts and circumstances before it. E.g., Speybroeck v. State, 875 N.E.2d 813, 818

       (Ind. Ct. App. 2007).


[12]   We cannot say that the post-conviction court’s judgment was against the logic

       and effect of the facts and circumstances before it. Payton sought the subpoena

       in an attempt to establish that his victims’ injuries did not occur. But in

       pleading guilty Payton had already admitted to the factual basis for the injuries.

       The post-conviction court did not abuse its discretion when it denied Payton the

       opportunity to impeach his own admission. We affirm the post-conviction

       court’s judgment.


       Court of Appeals of Indiana | Memorandum Decision 20A03-1602-PC-433| November 30, 2016   Page 7 of 8
[13]   Affirmed.


       Vaidik, C.J., and Baker, J, concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1602-PC-433| November 30, 2016   Page 8 of 8
