Pursuant to Ind. Appellate Rule 65(D),
this 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:

KEVIN D. WEBSTER                                 GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 MICHAEL GENE WORDEN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana
                                                                               FILED
                                                                           Sep 28 2012, 9:20 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                    CLERK
                                                                                 of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




KEVIN D. WEBSTER,                                )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )    No. 49A02-1201-PC-86
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE MARION CIRCUIT COURT
                          The Honorable Sheila Carlisle, Judge
                           Cause No. 49G03-9604-PC-56543




                                     September 28, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                          Case Summary and Issues

         Kevin Webster was found guilty of murder and carrying a handgun without a

license as a Class A misdemeanor, and in the enhancement phase, he pleaded guilty to

carrying a handgun without a license as a Class C felony and to being an habitual

offender. After Webster’s convictions were upheld on direct appeal, he filed a petition

for post-conviction relief, which was denied. Webster raises three issues for our review,

which we consolidate and restate as: 1) whether the post-conviction court erred by

concluding his ineffective assistance of trial counsel claim was barred by the doctrine of

laches;1 and 2) whether he received ineffective assistance of trial or appellate counsel.

Concluding the post-conviction court did not err and Webster has failed to establish he

received ineffective assistance of trial or appellate counsel, we affirm.

                                        Facts and Procedural History

         In 1996, a jury found Webster guilty of murder and carrying a handgun without a

license, and he pleaded guilty to being an habitual offender. Due to his prior felony

conviction, his conviction for carrying a handgun without a license was a Class C felony.

In aggregate, the trial court sentenced Webster to seventy years in prison. 2 After the trial

court denied Webster’s motion to correct error, he appealed, and our supreme court

affirmed his convictions. Webster v. State, 699 N.E.2d 266 (Ind. 1998). The supreme

court stated the following relevant facts:


         1
          While Webster poses the issue as whether the post-conviction court erred by concluding his “claims” were
barred by the doctrine of laches, the post-conviction court only concluded his claim of ineffective assistance of trial
counsel was barred by the doctrine of laches, not his claim of ineffective assistance of appellate counsel. Brief of
Appellant at 1.
         2
            “The trial court sentenced Webster to consecutive terms of fifty-five years for murder and four years for
the [C felony] handgun violation. The sentence was enhanced by eleven years for the habitual offender charge for a
total of seventy years.” Webster v. State, 699 N.E.2d 266, 267 (Ind. 1998).
                                                          2
       Viewed most favorably to the verdict, the facts are that on the day of the
       killing Webster and three friends were driving around smoking marijuana
       on the West side of Indianapolis in a “Suburban” van. The van stopped on
       Udell Street headed east where Webster left the vehicle. The driver, Kermit
       Tinnin, soon heard gunshots from Webster’s direction. Tinnin then saw a
       turquoise car drive past headed eastbound. An eyewitness, Linda
       Norwood, testified that she was cleaning out the trunk of her car also
       parked on the eastbound lane of Udell when she heard gunshots. She
       moved toward the center of the street and saw a man standing with his back
       toward her at the passenger side of a turquoise car, firing a gun into the car.
       The man stood between a parked Suburban van and the turquoise car in
       plain view. Norwood memorized the Suburban’s license plate number and
       walked around to the passenger side of her car to look for a pen to write it
       down. From her position on the sidewalk she again looked toward the
       Suburban and saw the shooter’s face to about chin level. She recognized
       Webster whom she knew from the neighborhood. Webster, six feet one
       inch tall, was standing on the driver’s side of the Suburban. He stared at
       her over the top of the vehicle for forty-five seconds to a minute. Norwood
       testified that only seconds passed between the time the shots were fired and
       the time she stared directly at Webster’s face. She said that there were no
       other people in the area. Norwood went into her house for a few minutes.
       After the Suburban drove away she started back towards a public telephone
       booth to telephone the police. On the way to the booth she heard sirens and
       correctly surmised that the turquoise car, which had been weaving as it
       drove away, had crashed. Norwood went to the accident scene where she
       reported what she had seen to police. Reginald McGraw, the victim, was
       alive in the turquoise car but subsequently died from multiple gunshot
       wounds. The State’s firearm's expert testified that casings found both in the
       turquoise car and on the street at the location of the shooting were fired
       from the same weapon.

Id. at 268.

       After filing and withdrawing three petitions for post-conviction relief, Webster

filed a fourth petition for post-conviction relief, arguing he was denied the effective

assistance of trial and appellate counsel in violation of the Sixth and Fourteenth

Amendments to the United States Constitution. After a hearing, the post-conviction court

denied Webster’s petition, concluding Webster’s claim of ineffective assistance of trial

counsel was barred by the doctrine of laches and he failed to establish his claim of

                                             3
ineffective assistance of appellate counsel. Webster now appeals. Additional facts will

be supplied as appropriate.

                                Discussion and Decision

                                        I. Laches

                                 A. Standard of Review

      “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.” Mansfield v. State,

850 N.E.2d 921, 923 (Ind. Ct. App. 2006) (citing Armstrong v. State, 747 N.E.2d 1119,

1120 (Ind. 2001)), trans. denied. “To prevail on a claim of laches the State has the

burden of proving by a preponderance of the evidence that the petitioner unreasonably

delayed seeking post-conviction relief and that the State has been prejudiced by the

delay.” Id. When reviewing a conclusion that the affirmative defense of laches applies,

the applicable standard of review is that we will affirm unless we determine the judgment

was clearly erroneous. Oliver v. State, 843 N.E.2d 581, 587 (Ind. Ct. App. 2006), trans.

denied (citation omitted). Thus, our review of the application of laches is for sufficiency

of evidence. Id. When assessing the sufficiency of evidence, we do not reweigh the

evidence or the credibility of witnesses, and we consider only the evidence most

favorable to the trial court’s judgment and any reasonable inferences to be drawn

therefrom. Id.




                                            4
               B. Webster’s Ineffective Assistance of Trial Counsel Claim

       The post-conviction court concluded Webster’s claim for relief based upon

ineffective assistance of trial counsel was barred by the doctrine of laches. The      post-

conviction court’s findings of fact relevant to its laches determination include:

       2. . . . Following a trial August 26-27, 1996, a jury convicted Webster of
       murder and the misdemeanor handgun offense.
       ***
       5. On December 18, 1996, the court sentenced Webster . . . .
       6. Webster, by counsel, pursued a direct appeal . . . . The Indiana Supreme
       Court affirmed the trial court.
       7. On January 22, 2002, Webster filed a pro se Petition for Post-Conviction
       Relief and requested representation. The State filed an Answer on January
       29, 2002. On June 16, 2003, the Court granted the Public Defender of
       Indiana’s Withdrawal of Appearance and Certification pursuant to Ind.
       Post-Conviction Rule 1(9)(c). The Court granted Webster’s motion to
       withdraw the Petition without prejudice on March 4, 2004.
       8. On August 10, 2005, Webster re-filed a Petition for Post-Conviction
       Relief. The State filed an Answer on October 12, 2005. The Court granted
       Petitioner’s motion to withdraw the Petition without prejudice on June 29,
       2006.
       9. On September 9, 2010, Webster, with counsel, again re-filed a Petition
       for Post-Conviction Relief . . . .
       10. On May 10, 2011, and June 21, 2011, the Court held Petitioner’s
       evidentiary post-conviction relief hearings. . . .
       11. . . . Hilary Ricks . . . represented Webster for the majority of the
       pretrial period, and throughout the jury trial, hearing on motion to correct
       errors, sentencing, and also for the direct appeal. . . .
       ***
       23. At the post-conviction relief hearing, Kevin Webster testified that he is
       currently serving his sentence for this cause in the Indiana Department of
       Correction (DOC), specifically he is located at the Wabash Valley
       Correctional Facility and has been there since he was sentenced. He
       testified that he is aware that that prison has a law library. . . .
       24. Erin Cronley has been the post-conviction relief paralegal for the
       Marion County Prosecutor’s Office since November of 2007. Ms. Cronley
       was asked by the assigned deputy prosecutor to conduct a laches
       investigation regarding Webster’s case.
               Ms. Cronley testified that State’s witness Linda Norwood is
       deceased. Ms. Cronley obtained a death certificate of Ms. Norwood. . . .
               Ms. Cronley also investigated whether the State’s firearms-related
       evidence from Webster’s trial, exhibits 20, 21, 22, 23, 24, 25, and 26, still
                                             5
       exists or not. She learned from the court reporter that those exhibits are no
       longer in the custody of the court reporter or their storage facility and
       observed that the only remaining evidence under this cause from the court
       reporter’s storage facility is some steno notes and some sort of transcript –
       there were no spent bullets, casings, unfired bullets, or firearm. Ms.
       Cronley also testified that State’s exhibits 20, 21, 22, 23, 24, 25, and 26, are
       no longer located in the IMPD property room – the only remaining
       evidence under this case number in the property room is an audio tape.

Appellant’s Appendix at 89-100.

       “A petitioner can seldom be found to have unreasonably delayed unless he or she

has knowledge of a defect in the conviction. A finding of knowledge and acquiescence is

therefore implicit in a finding of unreasonable delay.” Kirby v. State, 822 N.E.2d 1097,

1100 (Ind. Ct. App. 2005) (citation omitted), trans. denied. Knowledge can be inferred

from facts such as repeated contact with the criminal justice system, receiving counsel

from attorneys, and being incarcerated in institutions with legal facilities. Id. (citing

Perry v. State, 512 N.E.2d 841, 845 (Ind. 1987)).

       Webster’s direct appeal concluded in 1998, and his petition for post-conviction

relief was not filed until September 2010. On three separate occasions between 1998 and

2010, Webster initiated the post-conviction review process, only to withdraw his petitions

each time. Webster thus argues his filing for post-conviction relief was not unreasonably

delayed because his first attempt to file was within two years of the conclusion of his

direct appeal. However, as he points out, he received counsel from attorneys throughout

the twelve-year gap between his direct appeal and petition for post-conviction relief. He

was at a prison with a law library, and he has had numerous contacts with the criminal

justice system. In total, after his conviction until the filing of his most recent petition for

post-conviction relief, fourteen years went by. We therefore conclude the evidence

                                              6
sufficiently demonstrates that Webster had knowledge of any defect in his conviction and

acquiesced to an unreasonable passage of time.

       In the twelve years between Webster’s direct appeal and filing for post-conviction

relief, the State’s evidence against Webster vanished.      The sole eyewitness to the

shooting passed away. The physical firearms evidence is no longer available. As a result

of this passage of time, the State’s evidence would be dramatically reduced if a new trial

occurred. Thus, the State has been prejudiced by Webster’s unreasonable delay. The

post-conviction court did not err in concluding Webster’s ineffective assistance of trial

counsel claim was barred by the doctrine of laches.

       Nevertheless, even if we were to conclude Webster’s claim is not barred by the

doctrine of laches, he has failed to meet his burden of establishing that he received

ineffective assistance of trial counsel. To establish ineffective assistance of counsel,

Webster must show 1) his counsel’s performance fell below an objective standard of

reasonableness, and 2) that but for his counsel’s deficient performance, there is a

reasonable probability the result of his proceeding would have been different. Benefield

v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011) (quoting Perry v. State, 904 N.E.2d

302, 308 (Ind. Ct. App. 2009), trans. denied).

       Webster has failed to meet this burden.        Webster argues Ms. Ricks’s trial

performance fell below prevailing professional norms, and that his trial would have

resulted differently if she had met professional norms. Specifically, Webster contends

Ms. Ricks’s investigation prior to trial was insufficient because she did not “canvass the

neighborhood or have anybody else canvass the neighborhood.” Brief of Appellant at 23.

In support of his contention, he points out that two individuals, Lorenzo and Lenora
                                             7
Campbell, came forward after trial to confirm Webster’s alibi that he was at a barbeque at

the time of the shooting, and to provide information about another possible suspect, Mark

Burroughs.

      While Webster is correct that effective representation includes adequate pretrial

investigation, it is important to not let hindsight direct our review of his counsel’s

investigative performance. Badelle v. State, 754 N.E.2d 510, 538 (Ind. Ct. App. 2001),

trans. denied. That we now know Ricks could have taken a particular action during her

investigation that may have uncovered exculpatory evidence does not, in and of itself,

make her investigation unreasonable.      The evidence reveals Ricks did conduct an

investigation and interviewed individuals she believed could offer exculpatory evidence.

More importantly, Webster has not established that canvassing the neighborhood would

have produced a different result in Ricks’s investigation, and consequently, in Webster’s

trial. The evidence indicates the Campbells did not live in the neighborhood where the

shooting took place, that Lenora Campbell was interviewed by a police officer either the

day of or the day after the shooting, and that she stated she did not see or hear anything

when the shooting occurred. In addition, Linda Norwood indicated she was the only

witness to the incident. Even if Ricks had taken the steps Webster now claims she should

have, we cannot conclude there is a reasonable probability she would have uncovered any

additional evidence to support Webster’s case, and thus, such actions would not have

been likely to change the outcome of Webster’s trial.




                                            8
                    II. Ineffective Assistance of Appellate Counsel

                                A. Standard of Review

              Post-conviction proceedings are civil proceedings in which the
      defendant must establish his claims by a preponderance of the evidence.
      Post-conviction proceedings do not offer a super-appeal, rather, subsequent
      collateral challenges to convictions must be based on grounds enumerated
      in the post-conviction rules. A claim of ineffective assistance of appellate
      counsel is a proper ground for post-conviction proceedings. Claims of
      ineffective assistance of appellate counsel are evaluated using the
      Strickland standard articulated by the Supreme Court. To establish a claim
      of ineffective assistance of counsel, a defendant must demonstrate to the
      post-conviction court that counsel performed deficiently and the deficiency
      resulted in prejudice. This standard asks whether, considering all the
      circumstances, counsel’s actions were reasonable under prevailing
      professional norms. . . . And even if appellate counsel’s performance is
      deficient, to prevail, petitioner must demonstrate a reasonable probability
      that the outcome of the direct appeal would have been different.

Hampton v. State, 961 N.E.2d 480, 491 (Ind. 2012) (quotations and citations omitted).

                                  B. Webster’s Claim

      Webster argues Ricks’s performance during his appeal was ineffective because she

did not contest his sentence. Specifically, Webster claims being sentenced to consecutive

sentences was improper, and if Ricks had challenged his sentence, his aggregate sentence

would have been reduced by fifteen years. We disagree. Even if we were to conclude

Webster’s sentence was improper and consequently that Ricks performed deficiently by

not challenging it, the outcome would not have been any different if she had. A jury

found Webster guilty of murder and carrying a handgun without a license as a Class A

misdemeanor, but he pleaded guilty to carrying a handgun without a license as a Class C

felony and to being an habitual offender. In doing so, he limited his overall sentence to




                                           9
seventy years, when he could have received a sentence as high as ninety-five years.3 “A

defendant ‘may not enter a plea agreement calling for an illegal sentence, benefit from

that sentence, and then later complain that it was an illegal sentence.’” Lee v. State, 816

N.E.2d 35, 40 (Ind. 2004) (quoting Collins v. State, 509 N.E.2d 827, 833 (Ind. 1987)).

Thus, even if Ricks had challenged Webster’s sentence, such challenge would not have

been successful. Webster has therefore failed to meet his burden of establishing he

received ineffective assistance of appellate counsel.

                                                  Conclusion

        We conclude the evidence sufficiently demonstrated Webster’s ineffective

assistance of trial counsel claim was barred by the doctrine of laches, and he has not

established that he received ineffective assistance of appellate counsel. We therefore

affirm the denial of his petition for post-conviction relief.

        Affirmed.

BAKER, J., and BRADFORD, J., concur.




        3
           The sentencing range agreed to in the plea agreement was forty to seventy-five years. Webster’s sentence
for murder could have been as high as sixty years in prison, see Ind. Code § 35-50-2-3 (1998), his habitual offender
enhancement, if attached to his murder conviction, could have been as high as thirty years, see Ind. Code § 35-50-2-
8 (1998), and his sentence for C felony carrying a handgun without a license could have been as high as eight years
in prison, see Ind. Code § 35-50-2-6 (1998). Even if Webster is correct that his conviction for carrying a handgun
without a license should have been concurrent to the rest of his sentence, he still could have been sentenced to an
aggregate of ninety years in prison.
                                                        10
