MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Sep 23 2016, 9:18 am
regarded as precedent or cited before any                              CLERK
court except for the purpose of establishing                       Indiana Supreme Court
                                                                      Court of Appeals
the defense of res judicata, collateral                                 and Tax Court


estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Calvin Lyons                                             Gregory F. Zoeller
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Calvin Lyons,                                            September 23, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1511-PC-2076
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Samuel L. Cappas,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Natalie Bokota,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         45G04-1308-PC-11



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2076 | September 23, 2016   Page 1 of 6
                                Case Summary and Issue
[1]   A post-conviction court denied Calvin Lyons’ request to withdraw his petition

      for post-conviction relief without prejudice. Lyons, pro se, contends the trial

      court abused its discretion in denying his request. Concluding the trial court

      did not abuse its discretion, we affirm.



                            Facts and Procedural History
[2]   We summarized the facts of this case in Lyons’ direct appeal.

              On April 18, 2003, Lyons and three other men visited the
              residence of Emmanuel and Michael Williams to discuss an
              earlier fight. A skirmish erupted between Lyons and the
              Williams brothers. Lyons fired a handgun, killing Michael and
              seriously injuring Emmanuel.


              On September 11, 2004, Lyons and Althirty Hunter, Jr., went to
              the residence of Jawuan Baker and Dino Moore looking for $100
              as payment for a prior drug transaction. When Hunter
              demanded payment, Moore grabbed him from behind. Lyons
              retrieved an AK–47 assault rifle and fired it at Moore, Baker, and
              Jeffery Morgan. Lyons killed Moore and seriously injured Baker
              and Morgan.


              On September 16, 2004, the State charged Lyons with the murder
              of Moore and attempted murder and battery of Baker and
              Morgan. On December 30, 2004, a grand jury indicted Lyons for
              the murder of Williams. On February 24, 2006, Lyons and the
              State entered into a plea agreement. Lyons would plead guilty to
              voluntary manslaughter, aggravated battery, and criminal
              recklessness in connection with the shooting of Moore, Baker
              and Morgan and would plead guilty to three counts of criminal
      Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2076 | September 23, 2016   Page 2 of 6
              recklessness in connection with the death of Williams. In
              exchange, the State would dismiss the murder, attempted
              murder, and battery counts related to the shooting of Moore,
              Baker, and Morgan and the voluntary manslaughter count based
              on the death of Williams. The parties would argue sentencing to
              the trial court, but sentences relating to Moore, Baker, and
              Morgan would run consecutively. All sentences relating to
              Williams would run concurrently, but consecutive to the other
              counts. On April 28, 2006, the trial court sentenced Lyons to a
              total of fifty years.


      Lyons v. State, No. 45A05-0606-CR-290, slip op. at *1 (Ind. Ct. App. May 10,

      2007). We affirmed Lyons’ sentence, his sole issue on appeal. Id. at *3.


[3]   On August 13, 2013, Lyons filed a petition for post-conviction relief and was

      appointed a public defender. On November 20, 2013, Lyons moved for a

      continuance, which the post-conviction court granted. On January 13, 2014,

      Lyons’ counsel withdrew his appearance because he concluded, after

      appropriate investigation and consultation with Lyons, his claims were without

      merit. Now pro se, Lyons moved for a second continuance at an evidentiary

      hearing on March 19, 2014, claiming he needed time to hire private counsel.

      The post-conviction court granted the motion, but because the State had been

      prepared to present evidence on the petition at the hearing, the court advised

      Lyon it would not grant any additional continuances unless the request was

      made at least ten days prior to a scheduled hearing. On July 21, 2014, and

      October 8, 2014, Lyons moved for a third and fourth continuance, both of

      which the post-conviction court granted. However, upon granting the fourth



      Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2076 | September 23, 2016   Page 3 of 6
      continuance, the post-conviction advised Lyons it would not grant any

      additional continuances barring extraordinary circumstances.


[4]   On February 19, 2015, the post-conviction court held an evidentiary hearing.

      At the hearing, Lyons moved to withdraw his petition without prejudice so he

      could attain private counsel, which the post-conviction court denied.

      Thereafter, the parties presented evidence, and at the conclusion of the hearing

      the post-conviction court denied Lyons’ petition for post-conviction relief.

      Lyons now appeals the denial of his motion to withdraw his petition without

      prejudice.



                                 Discussion and Decision
                                     I. Standard of Review
[5]   The authority of a post-conviction court to grant a motion to withdraw a

      petition for post-conviction relief is governed by Indiana Post-Conviction Rule

      1(4)(c), which provides a court may grant leave to withdraw a petition for post-

      conviction relief at any time prior to entry of judgment. We review a denial of

      a motion to withdraw a petition for post-conviction relief for an abuse of

      discretion. Tinker v. State, 805 N.E.2d 1284, 1290 (Ind. Ct. App. 2004), trans.

      denied. A post-conviction court abuses its discretion only when its decision is

      clearly against the logic and effect of the facts and circumstances before the

      court or the reasonable, probable, and actual deductions to be drawn therefrom.

      Tapia v. State, 753 N.E.2d 581, 585 (Ind. 2001).


      Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2076 | September 23, 2016   Page 4 of 6
                                      II. Motion to Withdraw
[6]   Lyons argues the trial court abused its discretion in denying his request to

      withdraw his petition without prejudice so he could hire private counsel.1 In

      denying his request, the trial court stated,

               On March 19th of last year when you appeared before me—and I
               do remember—I’m looking at the order from that date. And it
               shows that you did, in fact, move to continue the hearing because
               you were hiring private counsel. So that was now almost exactly
               a year ago, one month shy; today being February 19th of 2015.
               You moved to continue, and the State objected. I granted your
               request over the State’s objection. I advised you, however—and
               it’s here in black and white in the order—that you were advised
               that there would be no further continuances unless the request
               was made at least ten days before the hearing date. We then
               reset it to a date in July. You moved to continue that; we
               continued it. . . . [W]e’ve incurred the expense of bringing you
               here, sir. . . . Your motion to withdraw without prejudice is
               denied. I’ll let you withdraw it, but it’s with prejudice . . . .


      Transcript at 6-7.


[7]   As noted above, a post-conviction court is not required to grant a request to

      withdraw a petition for post-conviction relief. Ind. Post-Conviction Rule

      1(4)(c). Over a year and one-half period, Lyons requested a continuance four

      times, all of which the trial court granted. Despite having most of this time to



      1
        Specifically, Lyon contends the post-conviction court was required to grant his request because the State
      could not show it would suffer substantial prejudice as a result. “Prejudice to the non-moving party is one
      indicia of an abuse of discretion, but the standard of review remains an abuse of discretion.” Ford v. State,
      755 N.E.2d 1138, 1142 (Ind. Ct. App. 2001), trans. denied. For this reason, Lyons’ argument fails.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2076 | September 23, 2016            Page 5 of 6
      secure counsel, and knowing additional requests for a continuance would be

      denied, Lyons appeared at the final evidentiary hearing at the court’s cost and

      requested to withdraw his petition without prejudice, claiming he needed to

      secure counsel who could then refile his petition. At the hearing, Lyons did not

      explain why he was unable to secure counsel in a little under a year’s time, nor

      did he explain what benefit he would receive from withdrawing his petition. It

      is apparent the post-conviction court grew frustrated with Lyons’ attempt to

      delay the proceedings, see Tapia, 753 N.E.2d at 584 (noting the abuse of

      discretion standard provides post-conviction courts the ability to curtail

      attempts by petitioners to delay final judgments on their petitions), and

      balanced the speculative benefit Lyons would derive from a delay against the

      costs to the court in wasted time, see id. at 586, and concluded Lyons was not

      entitled to withdraw his petition. We conclude the post-conviction court did

      not abuse its discretion.



                                              Conclusion
[8]   The trial court did not abuse its discretion in denying Lyons’ request to

      withdraw his petition for post-conviction relief without prejudice. Accordingly,

      we affirm.


[9]   Affirmed.


      Mathias, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1511-PC-2076 | September 23, 2016   Page 6 of 6
