MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any
                                                                  Apr 24 2020, 5:41 am
court except for the purpose of establishing
the defense of res judicata, collateral                               CLERK
                                                                  Indiana Supreme Court
estoppel, or the law of the case.                                    Court of Appeals
                                                                       and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Frank Jones                                               Curtis T. Hill, Jr.
Michigan City, Indiana                                    Attorney General of Indiana

                                                          Jesse R. Drum
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Frank Jones,                                              April 24, 2020
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          19A-PC-357
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable Jane Woodward
Appellee-Respondent                                       Miller, Judge
                                                          Trial Court Cause No.
                                                          71D01-1709-PC-36



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-357 | April 24, 2020             Page 1 of 12
[1]   Frank Jones appeals the post-conviction court’s denial of his successive petition

      for post-conviction relief. As Jones’ arguments presented before the post-

      conviction court were barred by laches, we affirm.



                            Facts and Procedural History
[2]   The facts of Jones’ underlying crimes and convictions were set forth in the

      opinion deciding his direct appeal:


              In July of 1990, Jimmy Poindexter lived with Charles Benion
              and his father, Sam Benion. Sam, who lived in an apartment in
              the rear of the house, was the victim of a stabbing on July 8, and
              was hospitalized for treatment. On the evening of July 10,
              Poindexter came home from work, bathed, ate, and fell asleep on
              the living room couch watching television. Charles and Dalton
              Hinton were also in the house on July 10. Charles went to his
              bedroom to watch television while Hinton watched television in
              the living room.


              Later that evening, Charles’ brother (the defendant Jones) and a
              companion knocked on the door looking for Charles. Hinton
              answered the door, let them in and said Charles was in his
              bedroom. Jones walked over, knocked on Charles’ door, and
              entered the room. Jones and Charles then went into the kitchen
              to talk. Jones was very upset about the news of his father’s
              stabbing and was angry with Poindexter for not preventing the
              stabbing. After they talked a while in the kitchen, they returned
              to Charles’ bedroom. Jones told Charles he was going to the
              hospital to see their father. Charles closed his bedroom door and
              lay back down.


              Jones and his companion started out the door, but then Jones
              returned while his companion remained outside. Jones

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-357 | April 24, 2020   Page 2 of 12
        proceeded to awaken Poindexter by shaking him. Jones called
        Poindexter a few names and asked him, “Why would you let my
        father get hurt?” Poindexter denied knowing anything about the
        stabbing until after it happened, but Jones continued to push
        Poindexter and call him names. Jones pulled out a gun and shot
        Poindexter.


        Charles heard the shots and opened the bedroom door. As he
        opened the door, Poindexter fell into the bedroom. Jones walked
        over to Poindexter, placed his foot on Poindexter’s shoulder to
        hold him down, said, “I stole your wife” and shot Poindexter
        again.


        Jones then walked to the chair where Hinton was seated and shot
        him in the back of the head. Hinton was shot a total of four
        times. Jones then ran away.


        Poindexter’s mother, Catherine Poindexter, who lived across the
        street, heard the shots fired. After hearing the first shots, she
        stepped on her porch and saw Jones shoot Hinton. She watched
        Jones run down the street and called 911.


        Poindexter spent three months in the hospital. He lost the
        hearing in one ear and is paralyzed on one side of his mouth.
        Two bullets remain in his skull. Hinton sustained bullet wounds
        to his head and arms, but never lost consciousness. He spent two
        to three weeks in the hospital, and bullets remain in him as well.


        On July 12, 1990, Jones was charged by information with two
        counts of attempted murder. On October 15, 1990, the State
        charged Jones with being a habitual offender and amended this
        information on January 10, 1991. Jones was arrested in
        Davenport, Iowa, in October of 1990, while using the name of
        his brother, William Benion.


Court of Appeals of Indiana | Memorandum Decision 19A-PC-357 | April 24, 2020   Page 3 of 12
      Jones v. State, 600 N.E.2d 544, 546 (Ind. 1992), superseded by statute unrelated to

      this appeal as stated by Pedraza v. State, 887 N.E.2d 77, 80 (Ind. 2008). After a

      jury trial, the trial court entered convictions against Jones for two counts of

      Class A felony attempted murder1 and adjudicated Jones an habitual offender. 2

      On April 29, 1990, the trial court sentenced Jones to fifty years each for the

      attempted murder convictions, to be served concurrently. Jones’ sentence was

      enhanced by thirty years for his habitual offender adjudication, for an aggregate

      sentence of eighty years.


[3]   Jones appealed his convictions and sentence to our Indiana Supreme Court. He

      argued that the trial court “abused its discretion in controlling the scope of re-

      direct examination” of one of the victims and of a homicide investigator and

      that his “sentence is manifestly unreasonable.” Id. On October 14, 1992, our

      Indiana Supreme Court affirmed Jones’ convictions and sentence. Id. at 549.


[4]   On June 16, 1994, Jones filed a petition for post-conviction relief. The Indiana

      State Public Defender entered an appearance in the matter, but it withdrew its

      representation in 1997. On June 30, 2000, the post-conviction court denied

      Jones’ petition for post-conviction relief. Jones appealed the denial of his

      petition for post-conviction relief but did not request the court’s records to be




      1
          Ind. Code § 35-42-1-1 (1989) (murder); Ind. Code § 35-41-5-1 (1977) (attempt).
      2
          Ind. Code § 35-50-2-8 (1990).


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-357 | April 24, 2020        Page 4 of 12
      sent to the Court of Appeals. Our court dismissed Jones’ appeal of the denial of

      his petition for post-conviction relief on November 30, 2000.


[5]   In 2013, Jones filed a motion to correct erroneous sentence, alleging the trial

      court improperly attached the habitual offender enhancement to both of his

      Class A felony attempted murder convictions. The post-conviction court

      agreed, though it noted that the “sentencing court explicitly stated that the total

      sentence was to be eighty years[.]” (App. Vol. II at 58.) On October 3, 2013,

      the post-conviction court amended the original sentencing order to attach the

      habitual enhancement to Jones’ first conviction of Class A felony attempted

      murder.


[6]   On September 11, 2017, our court granted Jones leave to file a successive

      petition for post-conviction relief. Our order limited Jones’ claims for relief “to

      the issue of ineffective assistance of trial counsel separate from the issues of

      failure to consult or failure to investigate.” (Id. at 59.) Jones filed his successive

      petition for post-conviction relief on September 13, 2017, and amended his

      petition on March 20, 2018. On August 24, 2018, the post-conviction court

      held an evidentiary hearing. Jones argued his trial counsel was ineffective

      because he did not challenge the trial court’s ruling on a motion in limine filed

      by the State to limit Charles Benion’s proposed testimony that he thought Jones

      was in Iowa on the day of the crime. The trial court had granted the State’s

      motion in limine because Benion’s testimony amounted to an alibi, and Jones

      had not filed an intention to produce an alibi with the trial court.



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-357 | April 24, 2020   Page 5 of 12
[7]   Jones presented no evidence and called no witnesses at the successive post-

      conviction evidentiary hearing on August 24, 2018. He testified regarding the

      State’s affirmative defense of laches. The State presented multiple exhibits

      related to its affirmative defense of laches, including death certificates for one

      victim and one witness, an affidavit regarding the scarcity of available evidence

      in police records, and an affidavit indicating the other victim could not be

      located. The post-conviction court also took judicial notice of all records from

      Jones’ original trial. On October 24, 2018, the post-conviction court denied

      Jones’ successive petition for post-conviction relief, finding Jones’ trial counsel

      was not ineffective and that Jones’ claim was barred by laches. On November

      11, 2018, Jones filed a motion to correct error, which was deemed denied on

      January 7, 2019.



                                 Discussion and Decision
                                       1. Standards of Review
                                              A. Pro se Litigant

[8]   At the onset, we note Jones appeared before the trial court and in this appeal as

      a pro se litigant. It is well settled that pro se litigants are held to the same

      standards as licensed attorneys, and thus they are required to follow procedural

      rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 19A-PC-357 | April 24, 2020   Page 6 of 12
                          B. Successive Post-Conviction Proceedings Review

[9]    Post-conviction proceedings afford petitioners a limited opportunity to raise

       issues unavailable or unknown at trial and on direct appeal. Davidson v. State,

       763 N.E.2d 441, 443 (Ind. 2002). As post-conviction proceedings are civil in

       nature, the petitioner must prove his grounds for relief by a preponderance of

       the evidence. Id. A party appealing a negative post-conviction judgment must

       establish that the evidence is without conflict and, as a whole, unmistakably and

       unerringly points to a conclusion contrary to that reached by the post-

       conviction court. Id. Where, as here, the post-conviction court makes findings

       of fact and conclusions of law in accordance with Indiana Post-Conviction Rule

       1(6), we do not defer to the court’s legal conclusions, but “the 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.” Ben-

       Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (quoting State v. Moore, 678

       N.E.2d 1258, 1261 (Ind. 1997), cert. denied, 523 U.S. 109 (1998)), cert. denied, 530

       U.S. 830 (2001).


[10]   A petitioner is entitled to only one post-conviction opportunity to raise the issue

       of ineffective assistance of counsel. Daniels v. State, 741 N.E.2d 1177, 1185

       (Ind. 2001). Claims of ineffective assistance already decided adversely to the

       petitioner are barred in successive post-conviction proceedings as res judicata,

       which prevents the re-litigation of issues. Matheney v. State, 834 N.E.2d 658, 662

       (Ind. 2005). The doctrine of res judicata does not bar an action if “the initial

       decision was clearly erroneous and would work manifest injustice,” Wallace v.
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-357 | April 24, 2020   Page 7 of 12
       State, 820 N.E.2d 1261, 1263 (Ind. 2005), or if there is newly-discovered

       evidence. Daniels, 741 N.E.2d at 1185.


                                                   2. Laches
[11]   The equitable doctrine of laches “operates to bar consideration of the merits of

       a claim or right of one who has neglected for an unreasonable time, under

       circumstances permitting due diligence, to do what in law should have been

       done.” Kirby v. State, 822 N.E.2d 1097, 1100 (Ind. Ct. App. 2005), trans. denied.

       The State is required to prove the defense of laches by a preponderance of the

       evidence. McCollum v. State, 671 N.E.2d 168, 170 (Ind. Ct. App. 1996), affirmed

       on reh’g, 676 N.E.2d 356 (Ind. Ct. App. 1997), trans. denied. To prove laches,

       the State must show both: (1) the petitioner unreasonably delayed in seeking

       relief, and (2) the State has been prejudiced by the delay. Id.


                                            A. Unreasonable Delay

[12]   It is well-settled that


               [a] petitioner can seldom be found to have unreasonably delayed
               unless he has knowledge of a defect in his conviction. Facts from
               which a reasonable finder of fact could infer petitioner’s
               knowledge may support a finding of laches. Repeated contacts
               with the criminal justice system, consultation with attorneys and
               incarceration in a penal institution with legal facilities are all facts
               from which the fact finder may infer knowledge.


       Id. at 170-71 (internal citations omitted). Jones argues laches does not apply

       because the post-conviction court made a clerical error in its 2000 denial of

       Jones’ petition for post-conviction relief, which Jones alleges resulted in this
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-357 | April 24, 2020   Page 8 of 12
       court’s dismissal of his appeal of that order. Thus, Jones maintains, the State is

       to blame for the seventeen-year delay between his petition for post-conviction

       relief and his successive petition for post-conviction relief.


[13]   The order acknowledging the clerical error was entered in 2016, in response to

       Jones’ attempt to file a belated appeal of the denial of the post-conviction

       court’s 2000 denial of his petition for post-conviction relief. The 2016 order

       noted the post-conviction court’s order was entered on June 30, 2000, not June

       20, 2000. (App. Vol. II at 109.) Jones testified before the post-conviction court

       that he did not know the process to get the court records at the time of his 2000

       appeal, and allegedly the trial court did not respond to his request, but that he

       did not follow up on his request because he “didn’t know anything about the

       law at the time.” (Tr. Vol. II at 15.)


[14]   When this court dismissed Jones’ appeal on November 30, 2000, it did so

       because Jones had not filed the record of the proceeding or a motion for

       extension of time to do so. Jones did not respond to that dismissal until 2016,

       when he filed a motion to file a belated appeal with the post-conviction court.

       He claims his lack of knowledge of the law caused the delay. However, it is

       well-settled that a pro se litigant is held to the same standard as a licensed

       attorney. See Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct. App. 2016) (pro se

       litigants held to same legal standards are licensed attorneys), reh’g denied, trans.

       denied. Thus, Jones’ argument fails.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-357 | April 24, 2020   Page 9 of 12
[15]   Further, Jones’ claim, that his trial counsel was ineffective for failing to

       challenge the trial court’s grant of the State’s motion in limine excluding

       Benion’s testimony that he believed Jones was in Iowa at the time of the crime,

       has been available since Jones’ trial. Thus, at the least, Jones has delayed

       making the claim for seventeen years and, at the most, has delayed doing so for

       twenty-six years. Such a delay is unreasonable by any standard. See Jent v.

       State, 120 N.E.3d 290, 293 (Ind. Ct. App. 2019) (fifteen-year delay in filing post-

       conviction petition unreasonable based on case law holding ten-year and

       sixteen-year delays unreasonable), trans. denied.


                                           B. Prejudice to the State

[16]   “To prove prejudice, the State must establish a reasonable likelihood that a

       successful reprosecution has been materially diminished by the petitioner’s

       delay.” Lile v. State, 671 N.E.2d 1190, 1195 (Ind. Ct. App. 1996). “The amount

       of prejudice is directly correlated to the length of the delay.” Id. at 1196.

       “Prejudice may result in litigation by the mere passage of time because

       witnesses are dispersed, memories fade, and records are lost.” Id. Jones argues

       the State did not prove it was prejudiced by any delay in Jones’ filing of the

       current successive petition for post-conviction relief because “the [S]tate failed

       to present evidence that established any change in the witnesses [sic]

       testimony[.]” (Br. of Appellant at 15.)


[17]   In support of his argument, Jones relies on our Indiana Supreme Court’s

       holding in Armstrong v. State, 747 N.E.2d 1119 (Ind. 2001). In Armstrong, the

       trial court convicted Armstrong of murder in 1996. Armstrong filed a petition
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-357 | April 24, 2020   Page 10 of 12
       for post-conviction relief in 1999. The State argued Armstrong’s petition was

       barred by the doctrine of laches because one of the State’s main witnesses was

       in another jurisdiction and unlikely to return to testify again against Armstrong,

       and two other witnesses did not have incentive in the form of plea bargains to

       testify on the State’s behalf. Id. at 1120-1. The trial court denied Armstrong’s

       petition for post-conviction relief based on the doctrine of laches, and our court

       affirmed. Id. at 1120.


[18]   In its opinion, our Indiana Supreme Court rejected the State’s arguments

       regarding the unavailability of its main witness, noting that the State had not

       exhausted all avenues of procuring his testimony, such as asking the witness if

       he would voluntarily submit to Indiana’s jurisdiction and testify in a possible

       retrial. Further, the Court noted that the State had not presented evidence that

       the other two witnesses would have changed their testimony at a retrial. Id. at

       1121. Based thereon, our Indiana Supreme Court held, “the alleged prejudice

       claimed by the State to support its defense of laches is neither attributable to nor

       materially enhanced by Armstrong’s three-year delay in filing his petition for

       post-conviction relief.” Id. at 1122.


[19]   The holding in Armstrong is inapposite. Here, Jones delayed at least seventeen,

       if not twenty-six, years before raising a post-conviction claim regarding his trial

       counsel’s failure to challenge a motion in limine which occurred during his

       trial. Additionally, the State presented evidence that retrial would be very

       difficult – one victim and one witness were dead, the other victim could not be

       located despite several efforts, and all physical evidence of the crime was

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-357 | April 24, 2020   Page 11 of 12
       destroyed long ago. Based thereon, we conclude the State was substantially

       prejudiced by Jones’ delay and thus the doctrine of laches applies. See Oliver v.

       State, 843 N.E.2d 581, 587 (Ind. Ct. App. 2006) (State prejudiced by ten-year

       delay because certain witnesses could not be located), trans. denied; and see

       Balderas v. State, 116 N.E.3d 1141, 1144 (Ind. Ct. App. 2018) (State prejudiced

       by twelve-year delay because the physical evidence of the crime had been

       destroyed or returned).



                                                Conclusion
[20]   Jones has not demonstrated the court erred by determining his successive

       petition for post-conviction relief was barred by the doctrine of laches.

       Accordingly, we affirm the post-conviction court’s denial of his successive

       petition for post-conviction relief.


[21]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-357 | April 24, 2020   Page 12 of 12
