Larry Tabb v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Aug 07 2020, 8:34 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Larry Tabb Curtis T. Hill, Jr.
Westville, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Larry Tabb, August 7, 2020
Appellant-Defendant, Court of Appeals Case No.
18A-PC-1364
v. Appeal from the Porter Superior
Court
State of Indiana, The Honorable Roger V. Bradford,
Appellee-Plaintiff Judge
Trial Court Cause No.
64D01-0911-PC-11393
May, Judge.
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[1] Larry Tabb 1 appeals the denial of his petition for post-conviction relief.
Because Tabb has not demonstrated the court erred in denying his petition, we
affirm.
Facts and Procedural History
[2] We take the facts underlying Tabb’s convictions from our opinion on direct
appeal:
During the early evening of April 16, 2003, Porter County Drug
Task Force officers were conducting surveillance of room 119 at
the Dollar Inn Motel on Highway 20 in Portage, Indiana.
Officers saw Kevin Easton (“Easton”) enter the room and leave
minutes later. Easton was stopped, searched, and found to have
cocaine on his person. He told officers that he had obtained the
cocaine from Tabb.
The officers saw Tabb looking out the window of Room 119.
They drew their weapons, entered Room 119, and arrested Tabb
and William Melton (“Melton”). Officer Brian McDonald saw a
plastic bag on the floor between the two beds in the room. The
bag contained four plastic baggies, each having a white powdery
substance inside. The substance was tested and found to consist
of four and a quarter grams of cocaine.
On April 17, 2003, the State charged Tabb with Dealing in
Cocaine. His jury trial commenced on September 6, 2005. On the
morning of the trial, the State charged Tabb with Possession of
1
Tabb contends his name is actually Larry Jones and claims Jones is the “real party of interest” because the
charging information had an incorrect social security number. (Tr. Vol. II at 21.) As his conviction and
sentencing orders refer to him as Tabb, we will do so as well.
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Cocaine, with reference to the same transaction as that of the
Dealing in Cocaine count. The jury found Tabb guilty as
charged. On January 3, 2006, the trial court entered judgments of
conviction on each count and sentenced Tabb to thirty years for
Dealing in Cocaine and four years for Possession of Cocaine, to
be served concurrently.
Tabb v. State, 64A03-0707-CR-308, slip op. at *1 (Ind. Ct. App. 2008). On
appeal, Tabb, pro se, argued that the State did not present sufficient evidence to
support his convictions and that his convictions of Class A felony dealing in
cocaine and Class C felony possession of cocaine violated double jeopardy. We
concluded the State presented sufficient evidence Tabb committed the crimes.
However, because the Class C felony was a lesser included offense of the Class
A felony, and because the evidence presented indicated both convictions were
based on a single transaction, we vacated Tabb’s conviction of and sentence for
Class C felony possession of cocaine. Id. at *3.
[3] On November 5, 2009, Tabb filed a petition for post-conviction relief. On
March 8, 2010, the post-conviction court issued a summary ruling, without
having held a hearing, that denied Tabb’s petition for post-conviction relief.
Tabb appealed, and the State moved for remand on October 27, 2010. In its
motion, the State noted Tabb had filed a motion to dismiss in the post-
conviction court on October 21, 2010, and the State asked our court to transfer
jurisdiction back to the post-conviction court for a decision on that motion. In
the alternative, the State argued “that a remand to the post-conviction court for
presentation of evidence, either by way of an evidentiary hearing or by affidavit,
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and for Findings of Fact and Conclusions of Law, is required in this case.”
(App. Vol. II at 82.) Our court agreed, dismissed Tabb’s appeal without
prejudice, and remanded the petition for post-conviction relief back to the trial
court for either dismissal or the presentation of evidence in accordance with the
Indiana Post-Conviction Rules.
[4] On February 7, 2013, the post-conviction court granted Tabb’s request to issue
subpoenas for his trial counsel and two other witnesses Tabb alleged had
exculpatory evidence. Tabb filed a number of motions between 2013 and 2018,
including a motion for summary judgment, “Motion to Dismiss on double
jeopardy grounds[,]” “Motion to Dismiss based on confrontation of witnesses,”
“Motion to Dismiss regarding what [Tabb] refers to as a binding over
agreement[,]” and “Motion to Dismiss based on ratification[.]” (Id. at 119)
(errors in original). On February 5, 2018, the post-conviction court held a
hearing on all pending motions. During that hearing, Tabb told the court that
he had not been able to subpoena his trial counsel because the subpoena “came
back unserved.” (Tr. Vol. II at 15.) The post-conviction court ordered Tabb to
send the returned envelope of the subpoena Tabb sent to his trial counsel to the
trial court so the court could “see why it was returned” and “then the Court can
step in and order him to be here” if trial counsel had refused delivery of the
subpoena. (Id. at 24.) Tabb did not present any other evidence regarding his
petition at this hearing, and the post-conviction court took the matter under
advisement pending receipt of the returned envelope from Tabb.
[5] On April 23, 2018, the trial court denied Tabb’s petition, stating in its order:
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The Court granted Petitioner time to provide the Court with
documentation of Petitioner’s efforts to subpoena his trial
counsel, Peter Boyles, for that hearing or to serve interrogatories
on trial counsel. The information Petitioner has filed is not
sufficient to show that there was an attempt to subpoena Mr.
Boyles at any current address and nothing has been filed to
otherwise support the allegations in Petitioner’s Petition for Post-
Conviction Relief. Therefore, the Court denies the Petition for
Post-Conviction Relief in its entirety. The Court is not issuing
any specific findings of fact and conclusions of law as there was
no evidence presented from which the Court could find any facts
and additionally many portions of Petitioner’s Petition are
incomprehensible.
(App. Vol. II at 120.)
Discussion and Decision
[6] As an initial matter, we note that Tabb proceeded before the post-conviction
court, and proceeds before this court, pro se. It is well settled that
one who proceeds pro se is held to the same established rules of
procedure that a trained legal counsel is bound to follow and,
therefore, must be prepared to accept the consequences of his or
her action. While we prefer to decide cases on the merits, we
will deem alleged errors waived where an appellant’s
noncompliance with the rules of appellate procedure is so
substantial it impedes our appellate consideration of the errors.
The purpose of our appellate rules, Ind[iana] Appellate Rule 46
in particular, is to aid and expedite review and to relieve the
appellate court of the burden of searching the record and briefing
the case. We will not become an advocate for a party, nor will
we address arguments which are either inappropriate, too poorly
developed or improperly expressed to be understood.
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Ramsey v. Review Bd. of Indiana Dept. of Workforce Dev., 789 N.E.2d 486, 487 (Ind.
Ct. App. 2003) (internal quotation marks and citations omitted).
[7] Here, Tabb presents fifteen issues for our review, including the following:
I. Whether trial Counsel was ineffective, by way of failure to
object or motion the court to dismiss an insufficient charging
affiant, affidavit and information, that constituted “Perjury’ on
an affidavit (predecessor to information) and not seek a hearing
pursuant to Franks v. Delaware (1978).
*****
VII. Whether trial Court erred by denying appellant’s motion to
compel arbitration filing of 5/6/2018, ‘Order’ denying 6/8/2018,
Relevant to Breach of the Preliminary ‘binding’ agreement, an
adhesion contract.
*****
XVI. Whether trial Counsel was ineffective, by way of failure to
object or motion the court to dismiss, the count 1 information
because of violations relevant to Extrinsic Fraud On The Court
Duress Dismissal’ Count1, Conviction under TR, 12(b) (1),
and 17 (A), ‘dismiss’ for failure to State the real party in interest.
(Appellant’s Br. at 5-6) (errors and emphasis in original). While Tabb cites the
record and an abundance of case law, his arguments are confusing and
incoherent. Unfortunately, we are unable to address most of his presented
issues for this reason. See Hollowell v. State, 707 N.E.2d 1014, 1025 (Ind. Ct.
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Ohio App. 1999) (failure to present a cogent argument waives the issues presented on
appeal).
[8] Even though they are relatively muddled, we are able to address Tabb’s claims
regarding alleged double jeopardy violations. In Tabb’s direct appeal, we held
he was subject to double jeopardy when he was convicted of both Class A
felony dealing in cocaine and Class C felony possession of cocaine. Tabb, slip
op. at *3. Thus, any argument he raises regarding double jeopardy 2 is precluded
from our review based on res judicata. See State v. Holmes, 728 N.E.2d 164, 171
2
Tabb’s arguments that reference double jeopardy are:
II. Whether the Court abuse its discretion, by allowing the State to violate petitioner’s
double jeopardy protection, to amended an insufficient charging affiant, affidavit and
information, the morning of trial. Constituted, MANIFEST, FUNDAMENTAL,
PLAIN, and REVERSBILE ERRORS:
III. Whether the Court abuse its discretion, by allowing the State to violate petitioner’s
double jeopardy protection, in order to obscure the Original double jeopardy violation,
that exit in the original court 1 information charged under I.C. 35-48-4-1-(2), prior to the
additional information Charging. Where two are more offenses, are the ‘same offense’.
*****
V. Whether trial Counsel was ineffective by way of failure to object or motion the court
to dismiss the count 1 information, because of violation relevant to petitioner’s double
jeopardy protections, ‘evoked’ the morning of trial.
VI. Whether trial Counsel was ineffective, by way of failure to object or motion the court
to dismiss the court II additional information because of violation relevant to petitioner’s
double jeopardy protections.
*****
IX. Whether trial Counsel was ineffective, by way of failure to object or motion the court
to dismiss the count 1 information, because of violation of Wong sun, fruit of the
poisonous tree, doctrine. Whether, evidence derived from the violation or petitioner’s
double jeopardy protection.
(Br. of Appellant at 5-6) (errors and emphasis in original).
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(Ind. 2000) (holding res judicata barred Holmes’ claim of prosecutorial
misconduct because the issue had been “thoroughly considered and decided”
on direct appeal even though Holmes’ arguments about prosecutorial
misconduct in his post-conviction petition recharacterized some of the issues).
Conclusion
[9] A majority of Tabb’s issues are waived because he did not make cogent
arguments on appeal. His five issues regarding double jeopardy are barred by
res judicata because the appellate court in Tabb’s direct appeal decided that
issue. Because Tabb has not demonstrated the court erred by denying his
petition for post-conviction relief, we affirm.
[10] Affirmed.
Robb, J., and Vaidik, J., concur.
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