MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 30 2016, 11:31 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
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
Robert Payton Gregory F. Zoeller
Michigan City, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Payton, November 30, 2016
Appellant-Defendant, Court of Appeals Case No.
20A03-1602-PC-433
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Terry C.
Appellee-Plaintiff. Shewmaker, Judge
Trial Court Cause No.
20C01-1405-PC-16
Najam, Judge.
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Statement of the Case
[1] Robert Payton appeals the post-conviction court’s denial of his petition for post-
conviction relief. Payton raises four issues for our review, which we restate as
the following three issues:1
1. Whether Payton received ineffective assistance of trial
counsel.
2. Whether the post-conviction court erred when it denied
Payton’s request to appoint post-conviction counsel.
3. Whether the post-conviction court abused its discretion
when it denied Payton’s request to subpoena his co-defendant.
[2] We affirm.
Facts and Procedural History
[3] This court stated the facts underlying Payton’s convictions and sentence in his
direct appeal as follows:
Payton pled guilty and admitted the following factual allegations
that supported his convictions: Payton admitted that he and a
companion went to a high crime area to solicit sex in exchange
1
In addition to the three issues we address, Payton also asks that we “excuse any procedural default that
may exist by him submitting the testimony of the victims as evidence to support his ineffective assistance
claim.” Appellant’s Br. at 16. While Payton asserts that this is an issue potentially dispositive of his appeal,
we disagree and consider it part-and-parcel with his argument that he had received ineffective assistance from
his trial counsel. The State, on the other hand, interprets Payton’s statement to be a request for this court to
declare the availability of federal habeas corpus relief. We do not interpret Payton’s statements that way but,
to be sure, we express no opinion on whether he might be entitled to any kind of relief from a federal court.
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for drugs. After arriving, Payton and his companion forced S.K.
to perform fellatio by physically overpowering her. Later,
Payton and his companion forced C.W. to submit to anal
intercourse by physically overpowering her. Both woman
suffered extreme pain as a result of Payton’s assaults.
Pursuant to a plea agreement, Payton agreed to a sentencing cap
of seventy-five years executed. Payton was sentenced to forty
years for each offense with ten years suspended from each to run
consecutively for an aggregate sentence of sixty years.
Payton v. State, No. 20A03-0803-CR-100, 2008 WL 2915717 at *1 (Ind. Ct.
App. July 30, 2008), trans. denied.
[4] Thereafter, Payton filed numerous petitions for post-conviction relief. In
relevant part, Payton alleged that his trial counsel had rendered ineffective
assistance when he did not investigate whether the State’s charges had been
based on the same evidence, especially with respect to whether the State had
elevated the charges based on the same aggravating facts. Payton requested the
post-conviction court to issue a subpoena to Payton’s co-defendant, which the
post-conviction court denied, and Payton requested the court to appoint him
post-conviction counsel, which the court also denied. Following a hearing, the
post-conviction court denied Payton’s petition for relief. This appeal ensued.
Discussion and Decision
Standard of Review
[5] Payton appeals the post-conviction court’s denial of his petition for post-
conviction relief. Our standard of review in such appeals is clear:
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[The petitioner] bore the burden of establishing the grounds for
post[-]conviction relief by a preponderance of the evidence. See
Ind. Post-Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d
591, 597 (Ind. 2001). Post-conviction procedures do not afford a
petitioner with a super-appeal, and not all issues are available.
Timberlake, 753 N.E.2d at 597. Rather, subsequent collateral
challenges to convictions must be based on grounds enumerated
in the post-conviction rules. Id. If an issue was known and
available, but not raised on direct appeal, it is waived. Id. If it
was raised on appeal, but decided adversely, it is res judicata. Id.
In reviewing the judgment of a post-conviction court, appellate
courts consider only the evidence and reasonable inferences
supporting the post-conviction court’s judgment. Hall v. State,
849 N.E.2d 466, 468 (Ind. 2006). The post-conviction court is
the sole judge of the evidence and the credibility of the witnesses.
Id. at 468-69. Because he is now appealing from a negative
judgment, to the extent his appeal turns on factual issues [the
petitioner] must convince this court that the evidence as a whole
leads unerringly and unmistakably to a decision opposite that
reached by the post-conviction court. See Timberlake, 753 N.E.2d
at 597. We will disturb the decision only if the evidence is
without conflict and leads only to a conclusion contrary to the
result of the post-conviction court. Id.
Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.
Issue One: Trial Counsel
[6] On appeal, Payton first asserts that his trial counsel rendered ineffective
assistance when he did not attempt to have various charges against Payton
reduced or dismissed. In particular, Payton argues that, had the State obtained
verdicts against Payton on each of its original five charges, it would have
violated Payton’s double jeopardy rights to have convictions entered against
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him as alleged in each of those charges. As such, he continues, his trial counsel
should have attempted to have the State’s charges reduced or dismissed. And,
because his trial counsel did not seek to have the charges reduced or dismissed,
Payton further asserts that he did not enter into his guilty plea fully informed.
[7] Generally, a claim of ineffective assistance of counsel must satisfy two
components. Strickland v. Washington, 466 U.S. 668 (1984). First, the criminal
defendant must show deficient performance: representation that fell below an
objective standard of reasonableness, committing errors so serious that the
defendant did not have the “counsel” guaranteed by the Sixth Amendment. Id.
at 687-88. Second, the criminal defendant must show prejudice: a reasonable
probability (i.e., a probability sufficient to undermine confidence in the
outcome) that, but for counsel’s errors, the result of the proceeding would have
been different. Id. at 694.
[8] Payton cannot demonstrate that he received ineffective assistance of trial
counsel. Regarding Payton’s assertion that his counsel should have sought to
have the State’s charges reduced or dismissed based on the likely evidence to
support the charges at trial, we agree with the State that double jeopardy had
not yet attached to Payton’s case. Normally, double jeopardy attaches when
there is “an actual risk of trial and conviction,” namely, “‘when a jury has been
impaneled and sworn.’” Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App.
2001) (quoting Bryant v. State, 660 N.E.2d 290, 299 (Ind. 1995)). There is no
evidence that the State’s charges against Payton advanced that far; to the
contrary, the parties agree that the only relevant procedural history for our
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review is the State charging Payton in April of 2001 and his ensuing plea
agreement in May of 2002. Accordingly, we cannot say that the post-
conviction court’s rejection of Payton’s argument that his trial counsel failed to
apply double jeopardy law to the charging information is clearly erroneous.
[9] Likewise, we affirm the post-conviction court’s rejection of Payton’s assertion
that he would not have pleaded guilty had he been properly informed of the
potential application of double jeopardy law to the State’s charges. Presumably
Payton’s argument here is that, had he not pleaded guilty and instead been
found guilty, the trial court could not have entered all the charges against him
in accordance with double jeopardy law. That is, Payton seems to argue that,
had his counsel properly informed him of those consequences, Payton would
not have pleaded guilty.2 But Payton presented no evidence to the post-
conviction court other than his own assertion that he would not have pleaded
guilty had he been more well informed, and Indiana’s courts have long held
that more than a defendant’s own conclusory statement in that regard is
required to state such a claim. E.g., Segura v. State, 749 N.E.2d 496, 507 (Ind.
2001). Accordingly, we cannot say that the post-conviction court’s rejection of
this issue is clearly erroneous.
2
We acknowledge that the State interprets Payton’s argument to be that his counsel failed to inform him of a
defense he might have had at trial. We read Payton’s argument to go to the viability of the enhancements of
the charges against him, and, therefore, to the sentence he would have received rather than the convictions
themselves. Nonetheless, we agree with the State that, at least with respect to the two convictions to which
he pleaded guilty, the State’s evidence was plainly based on different victims and therefore presented no
double jeopardy issues.
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Issue Two: Post-Conviction Counsel
[10] Payton next asserts that the post-conviction court erred when it denied his
request to appoint post-conviction counsel. In particular, Payton argues that
the post-conviction court’s denial of his request for post-conviction counsel
denied him his state and federal constitutional rights to counsel. Payton is
incorrect. The Indiana Supreme Court has long recognized that there is no
right to counsel in post-conviction proceedings. Baum v. State, 533 N.E.2d
1200, 1201 (Ind. 1989). Accordingly, we affirm the post-conviction court’s
denial of Payton’s request.
Issue Three: Subpoena
[11] Finally, Payton asserts that the post-conviction court abused its discretion when
it denied his request to subpoena his co-defendant. An abuse of discretion
occurs when the court’s judgment is clearly against the logic and effect of the
facts and circumstances before it. E.g., Speybroeck v. State, 875 N.E.2d 813, 818
(Ind. Ct. App. 2007).
[12] We cannot say that the post-conviction court’s judgment was against the logic
and effect of the facts and circumstances before it. Payton sought the subpoena
in an attempt to establish that his victims’ injuries did not occur. But in
pleading guilty Payton had already admitted to the factual basis for the injuries.
The post-conviction court did not abuse its discretion when it denied Payton the
opportunity to impeach his own admission. We affirm the post-conviction
court’s judgment.
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[13] Affirmed.
Vaidik, C.J., and Baker, J, concur.
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Robert Payton v. State of Indiana (mem. dec.)
Combined Opinion