MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                               FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                        Aug 07 2020, 8:34 am

court except for the purpose of establishing                                         CLERK
                                                                                 Indiana Supreme Court
the defense of res judicata, collateral                                             Court of Appeals
                                                                                      and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Larry Tabb                                               Curtis T. Hill, Jr.
Westville, Indiana                                       Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Larry Tabb,                                              August 7, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-PC-1364
        v.                                               Appeal from the Porter Superior
                                                         Court
State of Indiana,                                        The Honorable Roger V. Bradford,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         64D01-0911-PC-11393



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-1364 | August 7, 2020                           Page 1 of 8
[1]   Larry Tabb 1 appeals the denial of his petition for post-conviction relief.

      Because Tabb has not demonstrated the court erred in denying his petition, we

      affirm.



                              Facts and Procedural History
[2]   We take the facts underlying Tabb’s convictions from our opinion on direct

      appeal:


               During the early evening of April 16, 2003, Porter County Drug
               Task Force officers were conducting surveillance of room 119 at
               the Dollar Inn Motel on Highway 20 in Portage, Indiana.
               Officers saw Kevin Easton (“Easton”) enter the room and leave
               minutes later. Easton was stopped, searched, and found to have
               cocaine on his person. He told officers that he had obtained the
               cocaine from Tabb.


               The officers saw Tabb looking out the window of Room 119.
               They drew their weapons, entered Room 119, and arrested Tabb
               and William Melton (“Melton”). Officer Brian McDonald saw a
               plastic bag on the floor between the two beds in the room. The
               bag contained four plastic baggies, each having a white powdery
               substance inside. The substance was tested and found to consist
               of four and a quarter grams of cocaine.


               On April 17, 2003, the State charged Tabb with Dealing in
               Cocaine. His jury trial commenced on September 6, 2005. On the
               morning of the trial, the State charged Tabb with Possession of



      1
        Tabb contends his name is actually Larry Jones and claims Jones is the “real party of interest” because the
      charging information had an incorrect social security number. (Tr. Vol. II at 21.) As his conviction and
      sentencing orders refer to him as Tabb, we will do so as well.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1364 | August 7, 2020                     Page 2 of 8
              Cocaine, with reference to the same transaction as that of the
              Dealing in Cocaine count. The jury found Tabb guilty as
              charged. On January 3, 2006, the trial court entered judgments of
              conviction on each count and sentenced Tabb to thirty years for
              Dealing in Cocaine and four years for Possession of Cocaine, to
              be served concurrently.


      Tabb v. State, 64A03-0707-CR-308, slip op. at *1 (Ind. Ct. App. 2008). On

      appeal, Tabb, pro se, argued that the State did not present sufficient evidence to

      support his convictions and that his convictions of Class A felony dealing in

      cocaine and Class C felony possession of cocaine violated double jeopardy. We

      concluded the State presented sufficient evidence Tabb committed the crimes.

      However, because the Class C felony was a lesser included offense of the Class

      A felony, and because the evidence presented indicated both convictions were

      based on a single transaction, we vacated Tabb’s conviction of and sentence for

      Class C felony possession of cocaine. Id. at *3.


[3]   On November 5, 2009, Tabb filed a petition for post-conviction relief. On

      March 8, 2010, the post-conviction court issued a summary ruling, without

      having held a hearing, that denied Tabb’s petition for post-conviction relief.

      Tabb appealed, and the State moved for remand on October 27, 2010. In its

      motion, the State noted Tabb had filed a motion to dismiss in the post-

      conviction court on October 21, 2010, and the State asked our court to transfer

      jurisdiction back to the post-conviction court for a decision on that motion. In

      the alternative, the State argued “that a remand to the post-conviction court for

      presentation of evidence, either by way of an evidentiary hearing or by affidavit,


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1364 | August 7, 2020   Page 3 of 8
      and for Findings of Fact and Conclusions of Law, is required in this case.”

      (App. Vol. II at 82.) Our court agreed, dismissed Tabb’s appeal without

      prejudice, and remanded the petition for post-conviction relief back to the trial

      court for either dismissal or the presentation of evidence in accordance with the

      Indiana Post-Conviction Rules.


[4]   On February 7, 2013, the post-conviction court granted Tabb’s request to issue

      subpoenas for his trial counsel and two other witnesses Tabb alleged had

      exculpatory evidence. Tabb filed a number of motions between 2013 and 2018,

      including a motion for summary judgment, “Motion to Dismiss on double

      jeopardy grounds[,]” “Motion to Dismiss based on confrontation of witnesses,”

      “Motion to Dismiss regarding what [Tabb] refers to as a binding over

      agreement[,]” and “Motion to Dismiss based on ratification[.]” (Id. at 119)

      (errors in original). On February 5, 2018, the post-conviction court held a

      hearing on all pending motions. During that hearing, Tabb told the court that

      he had not been able to subpoena his trial counsel because the subpoena “came

      back unserved.” (Tr. Vol. II at 15.) The post-conviction court ordered Tabb to

      send the returned envelope of the subpoena Tabb sent to his trial counsel to the

      trial court so the court could “see why it was returned” and “then the Court can

      step in and order him to be here” if trial counsel had refused delivery of the

      subpoena. (Id. at 24.) Tabb did not present any other evidence regarding his

      petition at this hearing, and the post-conviction court took the matter under

      advisement pending receipt of the returned envelope from Tabb.


[5]   On April 23, 2018, the trial court denied Tabb’s petition, stating in its order:

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1364 | August 7, 2020   Page 4 of 8
              The Court granted Petitioner time to provide the Court with
              documentation of Petitioner’s efforts to subpoena his trial
              counsel, Peter Boyles, for that hearing or to serve interrogatories
              on trial counsel. The information Petitioner has filed is not
              sufficient to show that there was an attempt to subpoena Mr.
              Boyles at any current address and nothing has been filed to
              otherwise support the allegations in Petitioner’s Petition for Post-
              Conviction Relief. Therefore, the Court denies the Petition for
              Post-Conviction Relief in its entirety. The Court is not issuing
              any specific findings of fact and conclusions of law as there was
              no evidence presented from which the Court could find any facts
              and additionally many portions of Petitioner’s Petition are
              incomprehensible.


      (App. Vol. II at 120.)



                                 Discussion and Decision
[6]   As an initial matter, we note that Tabb proceeded before the post-conviction

      court, and proceeds before this court, pro se. It is well settled that


              one who proceeds pro se is held to the same established rules of
              procedure that a trained legal counsel is bound to follow and,
              therefore, must be prepared to accept the consequences of his or
              her action. While we prefer to decide cases on the merits, we
              will deem alleged errors waived where an appellant’s
              noncompliance with the rules of appellate procedure is so
              substantial it impedes our appellate consideration of the errors.
              The purpose of our appellate rules, Ind[iana] Appellate Rule 46
              in particular, is to aid and expedite review and to relieve the
              appellate court of the burden of searching the record and briefing
              the case. We will not become an advocate for a party, nor will
              we address arguments which are either inappropriate, too poorly
              developed or improperly expressed to be understood.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1364 | August 7, 2020   Page 5 of 8
      Ramsey v. Review Bd. of Indiana Dept. of Workforce Dev., 789 N.E.2d 486, 487 (Ind.

      Ct. App. 2003) (internal quotation marks and citations omitted).


[7]   Here, Tabb presents fifteen issues for our review, including the following:


              I. Whether trial Counsel was ineffective, by way of failure to
              object or motion the court to dismiss an insufficient charging
              affiant, affidavit and information, that constituted “Perjury’ on
              an affidavit (predecessor to information) and not seek a hearing
              pursuant to Franks v. Delaware (1978).


                                                    *****


              VII. Whether trial Court erred by denying appellant’s motion to
              compel arbitration filing of 5/6/2018, ‘Order’ denying 6/8/2018,
              Relevant to Breach of the Preliminary ‘binding’ agreement, an
              adhesion contract.


                                                    *****


              XVI. Whether trial Counsel was ineffective, by way of failure to
              object or motion the court to dismiss, the count 1 information
              because of violations relevant to Extrinsic Fraud On The Court
              Duress Dismissal’ Count1, Conviction under TR, 12(b) (1),
              and 17 (A), ‘dismiss’ for failure to State the real party in interest.


      (Appellant’s Br. at 5-6) (errors and emphasis in original). While Tabb cites the

      record and an abundance of case law, his arguments are confusing and

      incoherent. Unfortunately, we are unable to address most of his presented

      issues for this reason. See Hollowell v. State, 707 N.E.2d 1014, 1025 (Ind. Ct.



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1364 | August 7, 2020   Page 6 of 8
      App. 1999) (failure to present a cogent argument waives the issues presented on

      appeal).


[8]   Even though they are relatively muddled, we are able to address Tabb’s claims

      regarding alleged double jeopardy violations. In Tabb’s direct appeal, we held

      he was subject to double jeopardy when he was convicted of both Class A

      felony dealing in cocaine and Class C felony possession of cocaine. Tabb, slip

      op. at *3. Thus, any argument he raises regarding double jeopardy 2 is precluded

      from our review based on res judicata. See State v. Holmes, 728 N.E.2d 164, 171




      2
          Tabb’s arguments that reference double jeopardy are:

                 II. Whether the Court abuse its discretion, by allowing the State to violate petitioner’s
                 double jeopardy protection, to amended an insufficient charging affiant, affidavit and
                 information, the morning of trial. Constituted, MANIFEST, FUNDAMENTAL,
                 PLAIN, and REVERSBILE ERRORS:
                 III. Whether the Court abuse its discretion, by allowing the State to violate petitioner’s
                 double jeopardy protection, in order to obscure the Original double jeopardy violation,
                 that exit in the original court 1 information charged under I.C. 35-48-4-1-(2), prior to the
                 additional information Charging. Where two are more offenses, are the ‘same offense’.
                                                           *****
                 V. Whether trial Counsel was ineffective by way of failure to object or motion the court
                 to dismiss the count 1 information, because of violation relevant to petitioner’s double
                 jeopardy protections, ‘evoked’ the morning of trial.
                 VI. Whether trial Counsel was ineffective, by way of failure to object or motion the court
                 to dismiss the court II additional information because of violation relevant to petitioner’s
                 double jeopardy protections.
                                                           *****
                 IX. Whether trial Counsel was ineffective, by way of failure to object or motion the court
                 to dismiss the count 1 information, because of violation of Wong sun, fruit of the
                 poisonous tree, doctrine. Whether, evidence derived from the violation or petitioner’s
                 double jeopardy protection.
      (Br. of Appellant at 5-6) (errors and emphasis in original).




      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1364 | August 7, 2020                            Page 7 of 8
       (Ind. 2000) (holding res judicata barred Holmes’ claim of prosecutorial

       misconduct because the issue had been “thoroughly considered and decided”

       on direct appeal even though Holmes’ arguments about prosecutorial

       misconduct in his post-conviction petition recharacterized some of the issues).


                                               Conclusion
[9]    A majority of Tabb’s issues are waived because he did not make cogent

       arguments on appeal. His five issues regarding double jeopardy are barred by

       res judicata because the appellate court in Tabb’s direct appeal decided that

       issue. Because Tabb has not demonstrated the court erred by denying his

       petition for post-conviction relief, we affirm.


[10]   Affirmed.


       Robb, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1364 | August 7, 2020   Page 8 of 8
