      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                        Feb 04 2015, 9:37 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
      Elwin Hart                                                Gregory F. Zoeller
      Michigan City, Indiana                                    Attorney General of Indiana

                                                                Jodi Kathryn Stein
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Elwin Hart,                                               February 4, 2015

      Appellant-Petitioner,                                     Court of Appeals Cause No.
                                                                49A05-1406-PC-273
              v.                                                Appeal from the Marion Superior
                                                                Court
                                                                The Honorable Marc T. Rothenberg
      State of Indiana,                                         Cause No. 49G02-1002-PC-013454
      Appellee-Respondent




      Bailey, Judge.



                                            Case Summary
[1]   Pro-se Petitioner Elwin Hart (“Hart”) appeals the denial of his petition for post-

      conviction relief, which challenged his convictions for two counts of murder.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1406-PC-273 | February 4, 2015    Page 1 of 8
      He presents the sole issue of whether the post-conviction court properly denied

      relief on res judicata grounds. We affirm.



                            Facts and Procedural History
[2]   The relevant facts were recited by a panel of this Court on direct appeal:

              In February 2010, Chad Nickle, his girlfriend Elizabeth Newcomer,
              his mother Linda Nickle, and Linda’s boyfriend Hart all lived together
              in a house on the southwest-side of Indianapolis. Chad and Elizabeth,
              who were engaged to be married, had recently moved in with Linda
              and Hart to help them pay bills. In addition, Linda and Hart had
              recently purchased a white Chevy Silverado truck that Hart drove.

              Chad worked out of state for eleven months of the year doing
              environmental demolition and was in Milwaukee, Wisconsin, on
              February 20, 2010. On that morning, Elizabeth called Chad and told
              him that she had found a baggie of white powder that she suspected to
              be cocaine. Chad instructed Elizabeth and Linda to go to a nearby
              bike shop, Thugs Incorporated Choppers, so that his friend Dennis
              Gibson could test the white powder. Dennis, who had experimented
              with cocaine before, tasted the powder and concluded that it was
              cocaine. Based on this information, Chad told Elizabeth to tell his
              mother that Hart had to move out. Chad directed the women to call
              him right after they told Hart the news. Dennis also told the women
              that if they needed help evicting Hart, they should call him.

              Around 2:00 p.m., Chad still had not heard from his fiancée or
              mother. Because Chad was concerned that he could not reach them
              by phone, he had Dennis and another bike shop employee go to the
              house. They knocked on the door, but no one answered. They
              spotted Elizabeth’s red truck in the driveway but not Hart’s white
              truck. Dennis called Chad to report their findings.

              Around 4:00 p.m., Chad received a concerned call from Elizabeth’s
              mother because Elizabeth did not show up at a family event. Chad
              then contacted a childhood friend, Daniel Sprouse, and asked him to

      Court of Appeals of Indiana | Memorandum Decision 49A05-1406-PC-273 | February 4, 2015   Page 2 of 8
        go to the house. At the time, Daniel and his wife were in Noblesville
        at a swim meet. When Daniel arrived at the house, he observed
        Elizabeth’s red truck in the driveway and Linda’s car in the garage.
        Hart’s white truck was not there. Chad instructed Daniel to ring the
        doorbell, pound on his mother’s bedroom window, and beat on the
        garage door. Chad and Daniel stayed on the phone the entire time.
        When there was no response, a frantic Chad instructed Daniel to break
        in. Daniel broke a window on a door that led to the garage and
        entered the house. Upon entering the living room, Daniel started
        screaming to Chad over the phone that Elizabeth and Linda were
        dead. Both had been shot in the head and were sitting upright with the
        television still on. A dropped coffee cup was at Linda’s feet. Elizabeth
        was shot three times, and Linda was shot once. Daniel rushed out of
        the house and told his wife to call 911. While Daniel and his wife
        were standing in the middle of the street waiting for emergency
        responders, they noticed a white Chevy truck that they believed to be
        Hart’s parked on the wrong side of the street about 200 feet away.
        Daniel and his wife called 911 again. Fearing for their safety, Daniel
        and his wife took shelter in their car. The white truck backed up and
        disappeared.

        Emergency responders arrived at 5:08 p.m. and confirmed that
        Elizabeth and Linda were dead. Their identifications and cell phones
        were missing, but there were no other signs of a robbery, as nothing
        was missing and the house was in a neat and orderly condition. Police
        recovered a baggie of white powder from the kitchen, but it was later
        determined not to be cocaine.

        In the meantime, Hart called his boss, Victor Fleming, and left two
        voicemails saying that he would not be at work on Monday.
        According to Victor, the first voicemail stated:

        Victor, it’s me, Elwin Hart. I’m calling you to thank you for the
        opportunity to work with Laker Medical. You are great people and I
        enjoy to work [sic] with you. I hope everything will be better, but I
        won’t be able to come back to work on Monday because something is
        not – something went wrong.




Court of Appeals of Indiana | Memorandum Decision 49A05-1406-PC-273 | February 4, 2015   Page 3 of 8
         Tr. P. 307, 314. According to Victor, the second voicemail stated:

         Thank you for the opportunity. Thank you for you guys. You guys
         are good people and I appreciate the opportunity to work with your
         company, but I won’t be able to go back to work on Monday since I
         did something very wrong and I’m about to turn myself in to the
         police.

         Id. at 311, 314.1

         Hart then went to Lynhurst Baptist Church, where he had been
         attending services for several years. He called 911 from the church at
         5:17 p.m. and told the dispatcher that he was calling to report a double
         homicide that had occurred at his residence and he would meet the
         police at the front door of the church. While inside the church, Hart
         encountered longtime church member Shirley Clements who was there
         for her granddaughter’s wedding. The wedding was over, and the
         wedding party and family had finished taking pictures and were getting
         ready to go to the reception. Hart asked Shirley if he could see the
         pastor. Shirley said that the pastor had just left. Hart responded that
         he wanted to see the pastor “but that he couldn’t wait any longer”
         because “the police were on their way out there to arrest him.” Id. at
         203. When Shirley asked him “[w]hat in the world … the police
         [were] going to arrest [him] for,” Hart responded that he had “shot
         Linda and her future daughter-in-law” around noon.” Id. Hart added
         that “he wasn’t going to let them frame him the way they were trying
         to do.” Id. When Hart explained that he had come to church to pray
         with the pastor, Shirley said she would pray with him instead. Shirley
         then summoned her nearby husband, and the three of them prayed on




1
 Victor said that both voicemails had been recorded by a detective; however, by the time of trial, that
detective had died and neither the voicemails nor a transcript of the voicemails could be found.

Court of Appeals of Indiana | Memorandum Decision 49A05-1406-PC-273 | February 4, 2015              Page 4 of 8
               the spot. After the prayer, Hart and Shirley hugged, and Hart said that
               he was going to wait for the police outside. Because Shirley had to get
               to the wedding reception, she had a church elder, Bruce Litton, wait
               with Hart. While they were waiting, Hart told Bruce that Linda had
               found some white powder in the kitchen and claimed it was his. Linda
               then had the white powder tested at a motorcycle shop to see if it was
               in fact cocaine. Hart was adamant during his conversation with Bruce
               that he did not use cocaine. Hart explained that he and Linda got into
               an argument over whether the substance was in fact cocaine, at which
               point Linda told him to move out. At this point, police pulled up and
               ordered Hart to show his hands. When the police asked where the
               weapon was, Hart responded that it was in his truck. A search of
               Hart’s truck revealed a pistol, two magazines, and a box containing
               marijuana. The forensic testing from the pistol was “inconclusive,”
               meaning that the pistol could not be identified or eliminated as the
               murder weapon. Id. at 269. Nevertheless, the testing on the bullets
               recovered from the victims showed that all four bullets were fired from
               the same gun.

               Days later, the State charged Hart with two counts of murder, Class A
               misdemeanor carrying a handgun without a license, and Class A
               misdemeanor possession of marijuana. A three-day jury trial was held
               in May 2011. The jury found him guilty as charged, and the trial court
               sentenced him to an aggregate term of 110 years.


      Hart v. State, No. 49A02-1107-CR-583, slip op. at 2-6 (Ind. Ct. App. Mar. 13,

      2012).


[3]   On direct appeal, Hart challenged the sufficiency of the evidence to support his

      conviction. His conviction was affirmed. Id. at 2.


[4]   On April 12, 2012, Hart filed a petition for post-conviction relief, challenging

      Shirley Clement’s testimony, Victor Fleming’s testimony, and Daniel Sprouse’s

      “braking [sic] into the primises [sic].” (App. 3.) On March 19, 2014, the post-



      Court of Appeals of Indiana | Memorandum Decision 49A05-1406-PC-273 | February 4, 2015   Page 5 of 8
      conviction court held an evidentiary hearing at which Hart presented argument

      but no evidence or exhibits.


[5]   On June 3, 2014, the post-conviction court issued its findings of fact,

      conclusions of law, and order denying Hart post-conviction relief. This appeal

      ensued.



                                 Discussion and Decision
                                        Standard of Review
[6]   The petitioner in a post-conviction proceeding bears the burden of establishing

      the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5); Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing

      from the denial of post-conviction relief, the petitioner stands in the position of

      one appealing from a negative judgment. Id. On review, we will not reverse

      the judgment of the post-conviction court unless the evidence as a whole

      unerringly and unmistakably leads to a conclusion opposite that reached by the

      post-conviction court. Id. A post-conviction court’s findings and judgment will

      be reversed only upon a showing of clear error, that which leaves us with a

      definite and firm conviction that a mistake has been made. Id. In this review,

      findings of fact are accepted unless they are clearly erroneous and no deference

      is accorded to conclusions of law. Id. The post-conviction court is the sole

      judge of the weight of the evidence and the credibility of witnesses. Id.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1406-PC-273 | February 4, 2015   Page 6 of 8
                                                  Analysis
[7]   In relevant part, the post-conviction order denying Hart relief stated:

              While it is not completely clear, the only reasonable interpretation is
              that by his Post Conviction Relief Petition, Hart is raising free-standing
              issues challenging the evidence used to convict him. Specifically, Hart
              appears to claim that certain details of testimony from trial witnesses
              are incorrect and therefore the evidence does not support his
              conviction. Sufficiency of the evidence supporting his convictions was
              the only issue raised in his appeal, and the Court of Appeals reviewed
              the evidence at length and determined that there was sufficient
              evidence. It is by now beyond dispute that issues previously
              adjudicated in the appellate process are unavailable to a petitioner
              seeking Post-Conviction Relief, under the doctrine of res judicata.


      (App. 38.)


[8]   Post-conviction procedures do not afford petitioners with a “super-appeal”;

      rather, the post-conviction rules contemplate a narrow remedy for subsequent

      collateral challenges to convictions. Reed v. State, 856 N.E.2d 1189, 1194 (Ind.

      2006). The purpose of a petition for post-conviction relief is to provide

      petitioners the opportunity to raise issues not known or available at the time of

      the original trial or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028

      (Ind. 2007). If an issue was known and available but not raised on direct

      appeal, the issue is procedurally foreclosed. Id. If an issue was raised and

      decided on direct appeal, it is res judicata. Id. Moreover, collateral challenges

      to convictions must be based upon grounds enumerated in the post-conviction

      rule. Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App. 2006), trans.

      denied; see also Post-Conviction Rule 1(1).

      Court of Appeals of Indiana | Memorandum Decision 49A05-1406-PC-273 | February 4, 2015   Page 7 of 8
[9]    To the extent that Hart attempted to challenge the admission of certain trial

       testimony, this was available to him on direct appeal. The issue is now

       procedurally foreclosed. To the extent that Hart attempted to challenge his

       convictions by claiming insufficiency of the evidence, this issue was raised on

       direct appeal and is res judicata. The post-conviction court properly declined to

       address the merits of Hart’s free-standing issues and properly denied him post-

       conviction relief.


[10]   Affirmed.


       Robb, J., and Brown, J., concur.




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