Chupp v. State Of Ind.

• Decision Date: 07 September 2010
• Docket Number: No. 49A05-0912-PC-683,Cause No. CR 82-81A,49A05-0912-PC-683
• Parties: JOHN CHUPP, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
• Court: Indiana Appellate Court

JOHN CHUPP, Appellant-Defendant,

v.STATE OF INDIANA, Appellee-Plaintiff.

No. 49A05-0912-PC-683

Cause No. CR 82-81A

Court Of Appeals Of Indiana

Date: September 7, 2010

APPELLANT PRO SE: JOHN CHUPP

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, MONIKA PREKOPA TALBOT

MEMORANDUM DECISION-NOT FOR PUBLICATION

FRIEDLANDER, J.

John Chupp appeals from the post-conviction court's order denying his petition for post-conviction relief. Chupp raises the following consolidated and restated issue for our review: Did the post-conviction court err by denying Chupp's petition for post-conviction relief?

We affirm in part, vacate in part, and remand.

The facts supporting Chupp's conviction were previously recited in the opinion affirming his convictions on direct appeal and are as follows:

At trial the evidence showed that L.M., a 72-year-old widow, was awakened around 11:30 p.m. on July 10, 1982 by three men who crashed through her bedroom door. They demanded to know where her money was kept, and she told them it was downstairs. One of the men found her purse but it contained only thirty-one dollars. To force her to reveal the location of the rest of her money, one of the men burned her hand with [a] cigarette lighter. L.M. tried to explain that she had just returned from vacation and that thirty[-]one dollars was all she had. One of the men directed the other two to ransack the house. The remaining man raped L.M. and then one of the men sodomized her.

The men bound and gagged L.M. and finished searching the house. The victim was not found until noon the following day when her son-in-law discovered her. An ambulance transported her to a hospital where a medical examination revealed that L.M. had suffered bruises, lacerations, blisters, and swelling. She lost her purse with thirty-one dollars, her lock box containing personal papers and silver coins, and her maroon car.

Robert Graham testified that on the night of the crimes he was at Michael Arnold's house. He saw Arnold, David King and Chupp with two guns, gloves and jackets. The three men left in Chupp's car saying they were going out to do "something." When they returned later in the evening, Chupp was driving his own car and King was driving a maroon car. Graham saw Chupp, Arnold and King take a metal box into the house and pry it open. The three went through the envelopes in the box and found some silver coins.

The police received a tip about possible suspects in the case and sent Detective Joie Davis to investigate. He went to a residence looking for Chupp and Arnold. Robert Murray, who rented the house, answered the door. Inaddition to Murray, Detective Davis met two young men who introduced themselves as Robert Wells and Joe Brown. Detective Davis asked Murray if he would go outside to talk with him. Once outside, Davis asked Murray if he knew where to find Chupp. Davis said he wanted to talk to Chupp about a robbery and rape. Chupp was passed out in the bedroom, Murray said. He also said that the two men inside the house had given aliases. The men's names, Murray said, were David King and Michael Arnold. Murray told the officer he overheard the three men planning to leave the state.

Davis consulted with headquarters and arrested the three men soon thereafter. After the arrest, Murray requested that the police remove a green duffle bag belonging to Arnold and two suitcases belonging to Chupp and King. Detective Davis seized the luggage, obtained a search warrant, and searched it. Inside the duffle bag the police found a pillowcase that matched the linen in L.M.'s house.

At trial Arnold testified against appellant. Four months later Arnold wrote a letter to the trial judge recanting his testimony. He lied, Arnold wrote, because he blamed Chupp for his arrest and because appellant misinformed him about the amount of money the victim would have in her home. Arnold would not identify the third person involved in the crime; he only said it was not Chupp.

Chupp v. State, 509 N.E.2d 835, 836-37 (Ind. 1987).

The State charged Chupp with class A felony burglary, class A felony rape, two counts of class A felony criminal deviate conduct, class A felony robbery, and class B felony criminal confinement. At the conclusion of Chupp's jury trial he was found guilty of class A felony burglary, ¹ class A felony robbery, ² and class B felony criminal confinement. ³ The trial court imposed concurrent sentences of fifty years on the burglary and robbery convictions and a consecutive sentence of twenty years on the criminal confinement conviction, for an aggregate sentence of seventy years. Chupp pursued a direct appeal of hisconvictions and sentence, which were affirmed. See Chupp v. State, 509 N.E.2d 835. In that appeal, Chupp raised the following issues: 1) The denial of his motion for a new trial; 2) the sufficiency of identification testimony; 3) error in the admission of evidence; 4) whether he received effective assistance of counsel; 5) the reasonableness of his sentence; and 6) whether he was required to be present when the trial court granted a continuance.

Chupp filed a pro se petition for post-conviction relief that, after counsel's subsequent amendments, alleged Chupp received ineffective assistance of appellate counsel and fundamental error occurred because the same injury was used to enhance both the robbery and burglary convictions. That petition was voluntarily withdrawn. Chupp filed another pro se petition for post-conviction relief in which he claimed his sentence was erroneous because the robbery and burglary convictions were enhanced by the same injuries. The Public Defender of Indiana appeared in Chupp's case, investigated it, and eventually withdrew. Chupp was allowed to withdraw this petition without prejudice.

On April 24, 2007, Chupp, pro se, filed another petition for post-conviction relief claiming that there was newly discovered evidence, i.e., he had been kidnapped from his original family, placed with another family, and a form of hypnosis was used on him to commit the crimes. Chupp also amended this petition to include a claim that his sentence was erroneous because the robbery and burglary convictions were enhanced based on the same injuries. Chupp also filed several motions including a motion for DNA testing and a motion to compel evidence from the Marion County Sheriff's Department. The motions were denied by the post-conviction court.

Chupp further amended his petition adding claims regarding the charging information, jury instructions, and ineffective assistance of appellate counsel. On February 26, 2008, Chupp again amended his petition to add issues regarding DNA testing, denial of investigation by the trial court, and newly discovered evidence. The post-conviction court held an evidentiary hearing and later issued findings of fact and conclusions thereon denying Chupp post-conviction relief. Chupp now appeals.

Post-conviction proceedings do not afford the petitioner an opportunity for a super appeal, but rather, provide the opportunity to raise issues that were unknown or unavailable at the time of the original trial or the direct appeal. Ben-Yisrayl v. State, 738 N.E.2d 253 (Ind. 2000), cert. denied(2002); Wieland v. State, 848 N.E.2d 679 (Ind. Ct App. 2006), trans. denied, cert. denied. The proceedings do not substitute for a direct appeal and provide only a narrow remedy for subsequent collateral challenges to convictions. Ben-Yisrayl v. State, 738 N.E.2d 253. The petitioner for post-conviction relief bears the burden of proving the grounds by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).

When a petitioner appeals a denial of post-conviction relief, he appeals from a negative judgment. Fisher v. State, 878 N.E.2d 457 (Ind. Ct. App. 2007), trans. denied. The petitioner must establish that the evidence as a whole unmistakably and unerringly leads to a conclusion contrary to that of the post-conviction court. Id. We will disturb a postconviction court's decision as being contrary to law only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion. Wright v. State, 881 N.E.2d 1018 (Ind. Ct. App. 2008), trans. denied. The post-conviction court is the sole judge of the weight of the evidence and the credibilityof witnesses. Lindsey v. State, 888 N.E.2d 319 (Ind. Ct. App. 2008), trans. denied. We accept the post-conviction court's findings of fact unless they are clearly erroneous, and no deference is given to its conclusions of law. Fisher v. State, 878 N.E.2d 457.

The State raised the affirmative defense of laches. 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 (Ind. Ct. App. 2006). Laches is an affirmative defense which the State must plead in its responsive pleading. Id. 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.

Laches indicates a conscious indifference or procrastination. Perry v. State, 512 N.E.2d 841 (Ind. 1987). Circumstantial evidence is sufficient to show state of mind. Id. Facts from which a reasonable finder of fact could infer petitioner's knowledge may support a finding of laches. Id. 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. Here, the post-conviction court found that Chupp had been continuously incarcerated in the Indiana Department of Correction since his sentencing in 1982. Chupp had filed two petitions for post-conviction relief, one in 1989, and another in 1995, both of...