MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                Jul 21 2020, 8:49 am
court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Joseph C. Lehman                                          Curtis T. Hill, Jr.
Goshen, Indiana                                           Attorney General of Indiana

                                                          Ian McLean
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph C. Lehman,                                         July 21, 2020
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          20A-PC-514
        v.                                                Appeal from the
                                                          Elkhart Superior Court
State of Indiana,                                         The Honorable
Appellee-Respondent.                                      David C. Bonfiglio, Judge
                                                          Trial Court Cause No.
                                                          20D06-1904-PC-16



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-PC-514 | July 21, 2020                      Page 1 of 6
[1]   Joseph C. Lehman (“Lehman”) appeals the denial of his petition for post-

      conviction relief. Lehman contends that the post-conviction court should have

      granted summary disposition in his favor on his claim that he did not validly

      waive his right to a jury trial in his direct appeal. Finding no error, we affirm.


                                  Facts and Procedural History
[2]   Lehman was convicted of three counts of practicing law as a non-attorney, as

      Class B misdemeanors, and his convictions were affirmed by this court. See

      Lehman v. State, 55 N.E.3d 863 (Ind. Ct. App. 2016), trans. denied. Lehman filed

      a pro se petition for post-conviction relief (“the petition”) on April 9, 2020,

      alleging that that he did not validly waive his right to a jury trial. Appellant’s

      App. Vol. II at 3; Appellee’s App. Vol. 2 at 3. On August 14, 2019, Lehman

      requested summary disposition on the petition. Appellant’s App. Vol. II at 5-7;

      Appellee’s App. Vol. 2 at 6-7. The post-conviction court conducted a hearing on

      the petition on November 7, 2019, at which both Lehman and the State

      presented argument. Appellant’s App. Vol. II. at 5-6; Tr. Vol. 2 at 1-26. On

      January 2, 2020, the post-conviction court denied the petition, finding that the

      claim in the petition was barred by res judicata and unavailable for post-

      conviction litigation and granting summary disposition in favor of the State.

      Appellant’s App. Vol. II. at 6; Appellant’s Br. at 7-9. On January 24, 2020, the

      post-conviction court denied Lehman’s motion to reconsider. Appellant’s App.

      Vol. II. at 6. Lehman now appeals.




      Court of Appeals of Indiana | Memorandum Decision 20A-PC-514 | July 21, 2020   Page 2 of 6
                                         Discussion and Decision
[3]   Lehman appeals from the post-conviction court’s entry of summary disposition

      in favor of the State on his petition for post-conviction relief.1 Indiana Post-

      Conviction Rule 1(4)(g) provides as follows with respect to summary

      disposition:


               The court may grant a motion by either party for summary
               disposition of the petition when it appears from the pleadings,
               depositions, answers to interrogatories, admissions, stipulations
               of fact, and any affidavits submitted, that there is no genuine
               issue of material fact and the moving party is entitled to
               judgment as a matter of law. . . . If an issue of material fact is
               raised, then the court shall hold an evidentiary hearing as soon as
               reasonably possible.


      An appellate court reviews the grant of a motion for summary disposition in

      post-conviction proceedings the same way as a motion for summary judgment.

      Brown v. State, 131 N.E.3d 740, 742 (Ind. Ct. App. 2019) (citing Norris v. State,

      896 N.E.2d 1149, 1151 (Ind. 2008)), trans. denied. Thus, summary disposition—

      like summary judgment—is a matter for appellate de novo review. Norris, 896

      N.E.2d at 1151.




      1
        To the extent Lehman asserts that the post-conviction court erred by not entering findings and conclusions
      in its order denying his motion for summary disposition, we observe that the post-conviction court’s order
      noted that the parties agreed that the facts are not in dispute, referred to the relevant portions of this court’s
      opinion from Lehman’s direct appeal concerning the factual and legal basis of his claim as to the validity of
      the waiver, and set forth its rationale in concluding that res judicata barred Lehman’s post-conviction claim
      regarding the waiver’s validity. Appellant’s Br. at 6, 7-9. We find no error on this basis.

      Court of Appeals of Indiana | Memorandum Decision 20A-PC-514 | July 21, 2020                            Page 3 of 6
[4]   Lehman contends that he did not validly waive his claim to a jury trial, that his

      state and federal due process rights were violated, and that he was “illegally

      denied” a jury trial because the trial court failed to follow Indiana Rule of

      Criminal Procedure 22. Appellant’s Br. at 4. He asserts that he is entitled to

      judgment as a matter of law on summary disposition and that his convictions

      should be vacated. The State maintains that the post-conviction court correctly

      determined that the claim in Lehman’s petition was previously addressed in his

      direct appeal and that res judicata bars him from raising it again in post-

      conviction litigation. We agree with the State.


[5]   Post-conviction proceedings do not grant a petitioner a “super-appeal” but are

      limited to those issues available under the Indiana Post Conviction Rules.

      Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001) (citing Ind. Post-Conviction

      Rule 1(1)). As a general rule, when 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). The

      doctrine of res judicata prevents the repetitious litigation of that which is

      essentially the same dispute. Id. In addressing Lehman’s claims concerning his

      jury trial waiver in his direct appeal, this court upheld the validity of Lehman’s

      waiver as follows:


              Indiana Criminal Procedure Rule 22 provides as follows:


              A defendant charged with a misdemeanor may demand trial by
              jury by filing a written demand therefor not later than ten (10)
              days before his first scheduled trial date. The failure of a

      Court of Appeals of Indiana | Memorandum Decision 20A-PC-514 | July 21, 2020   Page 4 of 6
        defendant to demand a trial by jury as required by this rule shall
        constitute a waiver by him of trial by jury unless the defendant
        has not had at least fifteen (15) days advance notice of his
        scheduled trial date and of the consequences of his failure to
        demand a trial by jury.


        On January 7, 2015, Lehman received and signed his advisement
        of rights and penalties which included the right “To a speedy and
        public trial by jury. In misdemeanors cases defendant MUST file
        a written request [ ] for a jury trial at least ten (10) days before the
        Omnibus date.” Appellant’s Amended App. p. 20. Indiana
        Code section 35-36-8-l(c) provides that


        (c) The omnibus date for persons charged only with one (1) or
        more misdemeanors:


        (1) must be set by the judicial officer at the completion of the
        initial hearing;


        (2) must be no earlier than thirty (30) days (unless the defendant
        and the prosecuting attorney agree to an earlier date), and no
        later than sixty-five (65) days, after the initial hearing; and


        (3) is the trial date.


        The CCS shows that, at the March 18, 2015 hearing, the trial
        court set the omnibus date for April 22, 2015. Accordingly,
        Lehman was required to file a request for jury trial by April 12,
        2015 or waive that right. Ind. Crim. Proc. R. 22. Lehman filed a
        request for jury trial on April 22, 2015. Accordingly, he waived
        his right to a jury trial. Lehman’s argument that he was unaware
        that April 22 was considered his first scheduled trial date for Rule
        22 purposes lacks merit. Ignorance is no excuse for failing to
        comply with the court’s rules. See generally Evolga v. State, 519

Court of Appeals of Indiana | Memorandum Decision 20A-PC-514 | July 21, 2020       Page 5 of 6
              N.E.2d 532, 534 (Ind. 1988) (“Ignorance of the court’s
              procedural rules is not a valid reason for being granted
              permission to file a belated appeal.”).


      Lehman, 55 N.E.3d at 868. Lehman’s claim in this post-conviction proceeding

      concerning his waiver of a jury trial has been previously litigated and was

      decided adversely to him on direct appeal. His post-conviction claim argues the

      same alleged error, which is a claim that was known and available to him

      during his direct appeal. Therefore, Lehman’s claim is barred by res judicata.

      See Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012) (Noting that “[i]ssues available

      on direct appeal but not raised are waived, while issues litigated adversely to the

      defendant are res judicata.”) The post-conviction court did not err in granting

      summary disposition in favor of the State and in denying Lehman’s petition.


[6]   Affirmed.


      Najam, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 20A-PC-514 | July 21, 2020   Page 6 of 6
