Langston v. State

1

Johnny Lynn Langston, Appellant-Petitioner v. State of Indiana, Appellee-Respondent

No. 23A-PC-269

Court of Appeals of Indiana

May 22, 2024

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Wells Circuit Court The Honorable Kenton W Kiracofe, Judge Trial Court Cause No. 90C01-2008-PC-1

Appellant Pro se Johnny L. Langston Bunker Hill, Indiana

Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana

Sierra A. Murray Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

RILEY JUDGE

STATEMENT OF THE CASE

[¶1] Appellant-Petitioner, Johnny Langston (Langston), appeals the post-conviction court's denial of his petition for post-conviction relief.

[¶2] We affirm.

ISSUES

[¶3] Langston presents this court with two issues, which we restate as:

(1) Whether several of his claims are procedurally defaulted; and

(2) Whether he received ineffective assistance of Trial Counsel relative to plea agreements proffered by the State.

FACTS AND PROCEDURAL HISTORY

[¶4] The facts of Langston's underlying convictions as found by this court on direct appeal are as follows:

Langston is step-grandfather to K.P., born in December 1996 and F.S., born in August 2001; the girls are sisters. K.P. lived in Bluffton with Langston and his wife, the girls' grandmother, for most of her life and thought of Langston as a father. When K.P. was in the third grade, around eight or nine years of age, Langston kissed her with his tongue and took her hand and used it to rub his penis. When she was eleven or twelve years of age, Langston rubbed her stomach and vagina, got on top of her, asked her if she had had sex before, and then engaged in sexual intercourse with her.

F.S. was at Langston's Bluffton home in December 2015. F.S. was asleep on a sofa when Langston carried her into a bedroom, took her pajamas off, inserted his finger into her vagina, and engaged in sexual intercourse with her. Langston repeatedly told F.S. that what was happening was a secret between the two of them. In February 2016, while F.S. was cooking for her grandmother, Langston came home from work, kissed her with his tongue, and touched F.S.'s vagina inside of her clothing. He reminded F.S. that what he was doing to her was a secret and warned her that she would get in trouble if she told anyone.

In February 2016, F.S. reported Langston's sexual abuse during an interview with the Department of Child Services. Shortly thereafter, K.P. reported Langston's abuse of her to the Bluffton police.

On March 31, 2016, the State charged Langston with Class A felony child molesting, three [C]ounts of Class C felony child molesting, two [C]ounts of Level 4 felony sexual misconduct with a minor, and two [C]ounts of Level 5 felony sexual misconduct with a minor. The State also sought an habitual offender enhancement.

Langston v. State, No. 90A02-1703-CR-663, slip op. at 1 (Ind.Ct.App. August 18, 2017). Langston retained Trial Counsel to represent him. On June 24, 2016, the State offered Langston a plea agreement which called for Langston to plead guilty to one Count of Class C felony child molesting as to K.P. and to one Count of Level 4 felony sexual misconduct with a minor as to F.S. Langston was to admit to being an habitual offender, with the enhancement attached to the Class C felony conviction. Langston rejected the State's offer. On the morning of trial, the State offered Langston a second plea agreement that provided he would serve a twenty-year sentence, an offer which Langston also rejected. Langston moved to have the charges pertaining to his separate victims severed, a motion that the trial court denied.

[¶5] On February 6, 2017, the trial court convened Langston's three-day jury trial, at the conclusion of which the jury found Langston guilty as charged. Langston then admitted to being an habitual offender. On March 15, 2017, the trial court sentenced Langston to forty years for his Class A felony conviction, enhanced by thirty years for being an habitual offender. The trial court sentenced Langston to nine years for one of his Level 4 felony convictions, to be served consecutively. The trial court sentenced Langston on all his other convictions but ordered those sentences to be served concurrently, for an aggregate sentence of seventy-nine years.

[¶6] Langston pursued a direct appeal, and Appellate Counsel was appointed to represent him. On appeal, Langston presented two issues: (1) whether the trial court abused its discretion when it denied his motion to sever the charges; and (2) whether his sentence was inappropriate. On August 18, 2017, we affirmed his convictions and sentence. On October 24, 2017, our supreme court denied transfer.

[¶7] On August 17, 2020, Langston filed a verified petition for post-conviction relief (original petition) alleging ineffective assistance of Trial Counsel based on the following purported errors: (1) Trial Counsel had abandoned the representation during the habitual offender stage by (a) failing to make closing and opening arguments, (b) failing to object to the admission of the State's evidence, and (c) failing to challenge the use of two out-of-state felonies to prove the enhancement; (2) Trial Counsel should have raised double jeopardy challenges to Counts V through VIII; and (3) Trial Counsel should have challenged the three Class C felony charges as being outside the applicable statute of limitations. After the Indiana State Public Defender's Office filed a notice of non-representation and the post-conviction court had ordered that the cause be submitted upon affidavit, Langston requested to amend his petition. The postconviction court denied the motion to amend and, on February 24, 2021, denied Langston's petition for post-conviction relief. Langston filed an appeal. On May 27, 2022, we granted a motion by Langston to dismiss his appeal without prejudice and remanded so that Langston could file an amended petition.

[¶8] On July 5, 2022, Langston filed his amended petition for post-conviction relief (amended petition). Langston raised two claims of Trial Counsel ineffectiveness, namely, that (1) Trial Counsel failed to adequately explain the June 24, 2016, plea agreement offer to him and/or failed to persuade him to accept the State's offer as being in his best interest; and (2) Trial Counsel should have challenged the State's habitual offender evidence which relied on two out-of-state felonies that were "dated way beyond [ten years] clear of the underlying felony" in "violation of evidence rule 404(b)." (Appellant's App. Vol. II, p. 36).

[¶9] On December 5, 2022, the post-conviction court held an evidentiary hearing on Langston's petition.^[1] At the beginning of the hearing, Langston affirmed that he was pursuing the claims presented in his amended petition. Langston acknowledged that Trial Counsel had mailed him a copy of the June 24, 2016, plea agreement providing that Langston would plead guilty to the Class C felony child molesting (K.P.) and to Level 4 sexual misconduct with a minor (S.F.). The plea agreement itself explained that it

reduces [Langston's] exposure to a range of 8 years to 32 years, (actual 4 ¹/₂ to 19 years). Substantial reductions given to the habitual attaching to the C felony making it qualify under the old 2 for 1 credit system and the Class A felony being dismissed. Offer withdrawn if depositions taken. The habitual is solid as [the deputy prosecutor has] matched the fingerprints from [Langston's] prior convictions. The oldest child is also very solid in her recounting of the crime. The State will [d]ismiss: remaining counts[.]

(Exh. Vol. p. 21). According to Langston, he and Trial Counsel never discussed the June 24, 2016, plea agreement. Langston never asked Trial Counsel any questions about the plea agreement because "it was probably the furthest thing from [his] mind[.]" (Transcript p. 31). Regarding the plea agreement offered by the State on February 6, 2017, the morning of the commencement of Langston's jury trial, both he and Trial Counsel agreed that Trial Counsel had asked Langston, "You don't want [twenty] years?" and that Langston had replied, "No. I don't want no time." (Tr. p. 25). During crossexamination, the deputy prosecutor asked Langston if he was guilty of the offenses that were the subject of the plea agreement. Langston maintained that he was not guilty of the charges, any touching of K.P was accidental, and that any touching of K.P. and F.S. was not done to satisfy his or their sexual desires.

[¶10] Trial Counsel testified at the hearing that he visited Langston several times prior to the June 24, 2016, plea agreement offer being withdrawn and that they discussed the plea proffer "in detail[,]" including the importance of the provision relating to credit time. (Tr. p. 24). A letter sent by Trial Counsel to Langston on July 20, 2016, was admitted into evidence. In the letter, Trial Counsel set out the sentencing ranges for the various charges and the habitual offender enhancement and explained that, if Langston was convicted of the Class A felony and one of the Class C felony charges, he faced up to ninety-two years in prison. Trial Counsel stated the following in the July 20, 2016, letter:

Part of my duty as your attorney is to advise you of the law. I am not encouraging you to take a deal, but wanted to make sure that you fully understand what you are up against. I am working hard to present this case in the best possible light.

(Exh. Vol. p. 24). Trial Counsel explained at the post-conviction hearing that he had told Langston in his July 20, 2016, letter that h...