MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Jun 28 2017, 6:18 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
Jeremy Lahr                                              Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeremy Lahr,                                             June 28, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         02A03-1701-PC-136
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Respondent.                                     Jr., Judge
                                                         Trial Court Cause No.
                                                         02D04-1601-PC-8



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017          Page 1 of 11
                                Case Summary and Issue
[1]   Following a jury trial in 2010, Jeremy Lahr was convicted of five counts of

      child molesting, one count of fondling in the presence of a minor, and one

      count of dissemination of matter harmful to minors. The trial court sentenced

      Lahr to an aggregate sentence of sixty years. On direct appeal, Lahr argued the

      trial court abused its discretion in admitting certain evidence and we affirmed

      Lahr’s conviction. In 2016, Lahr began pursuing post-conviction relief. Lahr,

      pro se, now appeals the denial of his petition for post-conviction relief, raising

      one issue for our review which we restate as whether the post-conviction court

      erred in determining he did not receive ineffective assistance of appellate

      counsel. Concluding the post-conviction court did not err, we affirm.



                            Facts and Procedural History
[2]   We summarized the facts of this case in Lahr’s direct appeal:

              K.M. was born in April 1998. Lahr began dating K.M.’s mother,
              C.C., when K.M. was six years old. When K.M. was seven
              years old, she and her mother moved in with Lahr and his two
              sons. Between April 2004 and December 2008, Lahr molested
              K.M. On one occasion, Lahr pulled down his and K.M.’s pants.
              He then attempted to stick his “private” in K.M.’s “butt.” Lahr
              also touched the “inside” of K.M.’s “private.” Lahr then
              ejaculated and cleaned himself off with a towel. Lahr did this to
              K.M. “every time” he woke her up for school. On other
              occasions, Lahr kissed K.M. on the mouth and licked her breasts.
              Sometimes when K.M. and Lahr were in the computer room,
              Lahr showed K.M. pornography on the computer and stuck his
              fingers inside K.M.’s vagina. Lahr also made K.M. put her

      Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017   Page 2 of 11
              mouth on his penis and masturbate him with her hand until he
              ejaculated. Lahr told K.M. not to tell anyone.


              On December 12, 2008, Fort Wayne Community Schools nurse
              Suzette Moore talked to K.M. about good and bad touches.
              K.M. cried and said that her mother’s boyfriend had been
              touching her vaginal area. Nurse Moore immediately called the
              Department of Child Services.


              DCS case manager Daniel Whiteley went to K.M.’s home that
              very day. Lahr answered the door, and Whiteley indicated why
              he was there. Lahr said he wanted to be present during
              Whiteley’s interview with K.M. and her mother C.C, but Lahr
              eventually agreed to leave the house. After Whiteley spoke with
              K.M. and C.C, C.C. said that she and K.M. would immediately
              leave the house and go stay with a relative.


              Forensic interviewer Julie DeJesus interviewed K.M. at the Child
              Advocacy Center one week later on December 19, 2008. K.M.
              was ten years old at the time. K.M. told DeJesus that Lahr had
              molested her on numerous occasions.


      Lahr v. State, 02A03-1006-CR-337, slip op. at *1 (Ind. Ct. App. Feb. 14, 2011),

      trans. denied.


[3]   The State charged Lahr with five counts of child molesting, three counts as

      Class A felonies and two counts as Class C felonies; one count of fondling in

      the presence of a minor, a Class D felony; and one count of dissemination of

      matter harmful to minors, a Class D felony. A jury found Lahr guilty as

      charged.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017   Page 3 of 11
[4]   At sentencing, the trial court found as an aggravating factor that Lahr held a

      position of trust over K.M., and as a mitigating factor that Lahr lacked a

      criminal history. The court sentenced him to thirty years for each Class A

      felony conviction, four years for each Class C felony conviction, and one and

      one-half years for each Class D felony conviction. The trial court ordered

      Counts I and II be run consecutively and the rest concurrently, for an aggregate

      sentence of sixty years.


[5]   On direct appeal, Lahr raised one issue: whether the trial court erred in

      admitting certain testimony from the forensic interviewer, DeJesus. We

      affirmed Lahr’s conviction.


[6]   In January 2016, Lahr filed a pro se petition for post-conviction relief arguing

      ineffective assistance of appellate counsel. On December 29, 2016, the post-

      conviction court entered findings of fact and conclusions of law denying Lahr’s

      petition for post-conviction relief. Lahr, pro se, now appeals.



                                 Discussion and Decision
                      I. Post-Conviction Standard of Review
[7]   Post-conviction proceedings are not an opportunity for a super-appeal. See

      Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839

      (2002). Rather, they create a narrow remedy for subsequent collateral

      challenges to convictions that must be based on grounds enumerated in the




      Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017   Page 4 of 11
      post-conviction rules. See id. The petitioner must establish his claims by a

      preponderance of the evidence. Ind. Post-Conviction Rule 1(5).


[8]   A petitioner who has been denied post-conviction relief faces a “rigorous

      standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

      In reviewing the judgment of a post-conviction court, we consider only the

      evidence and reasonable inferences supporting the judgment. Hall v. State, 849

      N.E.2d 466, 468 (Ind. 2006). We may not reweigh the evidence or reassess the

      credibility of the witnesses. Id. at 468-69. The post-conviction court’s denial of

      post-conviction relief will be affirmed unless the evidence leads “unerringly and

      unmistakably to a decision opposite that reached by the post-conviction court.”

      McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). Only where the evidence is

      without conflict and leads to but one conclusion, and the post-conviction court

      reached the opposite conclusion, will the court’s findings or conclusions be

      disturbed as being contrary to law. Hall, 849 N.E.2d at 469. Finally, we do not

      defer to the post-conviction court’s legal conclusions, but we do accept its

      factual findings unless they are clearly erroneous. Stevens v. State, 770 N.E.2d

      739, 746 (Ind. 2002), cert. denied, 540 U.S. 830 (2003).


               II. Ineffective Assistance of Appellate Counsel
[9]   Lahr contends the post-conviction court erroneously determined he did not

      receive ineffective assistance of appellate counsel. On direct appeal, appellate

      counsel raised one issue: whether the trial court erred in admitting certain

      testimony from DeJesus. Lahr argues appellate counsel should have raised two


      Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017   Page 5 of 11
       other issues: whether his sentence was inappropriate and whether the trial court

       improperly determined he was a credit restricted felon. To establish ineffective

       assistance of appellate counsel, Lahr must show appellate counsel was deficient

       in his performance and the deficiency resulted in prejudice. Garrett v. State 992

       N.E.2d 710, 719 (Ind. 2013).


[10]   Appellate counsel is not ineffective for failing to raise issues that are unlikely to

       succeed. See Singleton v. State, 889 N.E.2d 35, 41 (Ind. Ct. App. 2008). When a

       defendant claims ineffective assistance of appellate counsel due to the omission

       of an issue,

               [A] post-conviction court is properly deferential to appellate
               counsel’s choice of issues for appeal unless such a decision was
               unquestionably unreasonable. Such deference is appropriate
               because the selection of issues for direct appeal is one of the most
               important strategic decisions of appellate counsel. Appellate
               counsel’s performance, as to the selection and presentation of
               issues, will thus be presumed adequate unless found
               unquestionably unreasonable considering the information
               available in the trial record or otherwise known to appellate
               counsel. In crafting an appeal, counsel must choose those issues
               which appear from the face of the record to be most availing.
               Experienced advocates since time beyond memory have
               emphasized the importance of winnowing out weaker arguments
               on appeal and focusing on one central issue if possible, or at most
               on a few key issues. Thus, to prevail in such claim in post-
               conviction proceedings, it is not enough to show that appellate
               counsel did not raise some potential issue; instead, the defendant
               must show that the issue was one which a reasonable attorney
               would have thought availing.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017   Page 6 of 11
       Hampton v. State, 961 N.E.2d 480, 491-92 (Ind. 2012) (citations and internal

       quotation marks omitted). Applying this standard to the present case, we

       cannot say appellate counsel acted unreasonably.


                                          A. Lahr’s Sentence
[11]   Indiana Appellate Rule 7(B) empowers appellate courts to revise a sentence “if,

       after due consideration of the trial court’s decision, the Court finds that the

       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.”


[12]   Lahr argues his sentence likely would have been reduced if challenged on direct

       appeal. He points to several other cases in which our supreme court exercised

       its authority to revise a sentence downward. In Walker v. State, 747 N.E.2d 536,

       538 (Ind. 2001), the Indiana Supreme Court revised the defendant’s forty-year

       sentences for twice performing oral sex on a child to run concurrently instead of

       consecutively. In Serino v. State, 798 N.E.2d 852, 858 (Ind. 2003), the Indiana

       Supreme Court reduced the defendant’s 385-year sentence for numerous sexual

       acts with a teenage boy to three consecutive thirty-year terms. And in Harris v.

       State, 897 N.E.2d 927, 930 (Ind. 2008), the Indiana Supreme Court revised the

       defendant’s fifty-year sentences for two counts of child molesting to run

       concurrently instead of consecutively. Lahr argues the facts of those cases are

       similar to his case and therefore his sentence also would have been reduced if

       appealed. We disagree.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017   Page 7 of 11
[13]   As the post-conviction court and the State emphasized, Lahr faced a maximum

       sentence of 172 years. Lahr’s sixty-year aggregate sentence accounts for little

       more than one-third of the maximum sentence. In that respect, Lahr’s sentence

       is already comparable to the revised sentences in Walker and Harris. While

       Serino’s revised sentence represented less than one-fifth the maximum he faced,

       the Indiana Supreme Court noted the “substantial uncontested testimony from

       numerous witnesses speaking to Serino’s positive character traits.” Serino, 798

       N.E.2d at 858. In particular, the victim’s mother asked the trial court to impose

       less than a life sentence and added, “If he gets the minimum, that is fine with

       us.” Id. Such testimony is not present here. As a result, Lahr’s comparisons to

       those cases as evidence his sentence would be reduced are unpersuasive.


[14]   We are also not persuaded, considering only the facts of Lahr’s case, that his

       sentence is inappropriate in light of the nature of the offense and his character.

       As to the nature of the offense, Lahr held a position of trust in relation to the

       victim. Lahr dated K.M.’s mother and K.M. lived in Lahr’s home. Lahr took

       advantage of that position of trust by repeatedly molesting K.M. The

       molestations began when K.M. was only seven years old and continued for

       over four years. As detailed by the State, “Lahr kissed K.M., licked K.M’s

       breasts, showed his penis to K.M., penetrated K.M.’s vagina with his fingers,

       anally penetrated her with his penis, had K.M. perform oral sex on him, and

       showed K.M. explicit, pornographic images that included naked pictures of her

       own mother.” Brief of Appellee at 11.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017   Page 8 of 11
[15]   Next, we consider Lahr’s character. In arguing his sentence is inappropriate,

       Lahr points to his lack of criminal history. However, the lack of a criminal

       record is not uncommon in child molestation cases, and Lahr’s actions took

       place over a long period of time. He began molesting K.M. when she was

       seven-years-old and the molestations continued for four years. The long

       duration of Lahr’s actions reflect negatively on his character. In sum, Lahr’s

       sentence is not inappropriate in light of the nature of the offense and his

       character.


[16]   Lastly, the State is correct to note that an appeal seeking a reduction of Lahr’s

       sentence could have resulted in an increased sentence instead. When a

       defendant requests appellate revision of a criminal sentence, the court may

       “affirm, reduce, or increase the sentence.” McCullough v. State, 900 N.E.2d 745,

       750 (Ind. 2009). Lahr’s sentence was barely over one-third of the maximum.

       Appellate counsel could have reasonably chosen not to appeal the sentence

       because of the risk the sentence would be increased.


[17]   Considering Lahr’s sentence was barely over one-third the maximum possible,

       the nature of the offense and his character, and the risk of an increased sentence

       on appeal, Lahr has not shown appellate counsel acted unreasonably by

       omitting this issue. Therefore, the post-conviction court did not err in denying

       Lahr’s petition on this claim.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017   Page 9 of 11
                                    B. Credit Restricted Felon
[18]   Lahr also argues the trial court improperly determined he was a credit restricted

       felon under Indiana Code section 35-41-1-5.5 (2008). The statute took effect on

       July 1, 2008. Therefore, Lahr must have molested K.M. at least once after June

       30, 2008 in order to be considered a credit restricted felon. Lahr argues the

       State provided insufficient evidence he molested K.M. after June 30, 2008, and

       that his appellate counsel was ineffective for omitting that issue on direct

       appeal. We disagree.


[19]   K.M. reported Lahr’s actions in December 2008, five months after the statute

       took effect. K.M. testified that Lahr molested her every time he woke her up

       for school when her mother was away at work. In addition, K.M.’s mother

       testified that she worked in the early mornings during September and October

       of 2008. Therefore, it is reasonable to infer that Lahr molested K.M. at least

       once after June 30, 2008. See Sharp v. State, 970 N.E.2d 647, 648 n.1 (Ind. 2008)

       (noting victim’s testimony that defendant molested him “about every other

       weekend” for the two years preceding October 2008 provided sufficient

       evidence to infer defendant molested him after June 30, 2008). Based on these

       facts, appellate counsel did not act unreasonably by choosing not to appeal this

       issue. Consequently, the post-conviction court did not err in denying Lahr’s

       petition on this claim.



                                               Conclusion

       Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017   Page 10 of 11
[20]   Concluding the post-conviction court did not err in denying Lahr’s petition for

       relief on his claim of ineffective assistance of appellate counsel, we affirm.


[21]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1701-PC-136 | June 28, 2017   Page 11 of 11
