The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 17 2017, 8:43 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Kathleen Cleary Ellen H. Meilaender
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony Delarosa, July 17, 2017
Appellant-Petitioner, Court of Appeals Case No.
29A02-1612-PC-2852
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable Steven R. Nation,
Appellee-Respondent. Judge
Trial Court Cause No.
29D01-1110-PC-15029
Najam, Judge.
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Statement of the Case
[1] Anthony Delarosa appeals from the post-conviction court’s denial of his
petition for post-conviction relief. Delarosa raises the following two issues for
our review:
1. Whether he received ineffective assistance from his trial
counsel.
2. Whether he received ineffective assistance from his
appellate counsel.
[2] We affirm.
Facts and Procedural History
[3] The facts underlying Delarosa’s convictions were stated by the Indiana
Supreme Court in Delarosa’s direct appeal:
The bodies of Rebecca Payne and her boyfriend, George Benner,
were discovered in her bedroom at her house in Home Place,
Indiana, around noon of April 5, 2007. Police investigation
quickly focused on Toby Payne, Rebecca’s estranged husband
against whom she had obtained a protective order a month
earlier. Rebecca, who was in the final stages of divorcing Payne,
had been living apart from him with their six-year-old son.
Phone records led the police to arrest Juan Lucio, Kyle
Duckworth, and Anthony Delarosa within two weeks of the
murders. Lucio and Duckworth lived in Frankfort, and Delarosa
lived in Zionsville. A search of Delarosa’s bedroom uncovered
dark-colored clothing, dark gloves, a letter purportedly from
Payne, a rag that smelled of a solvent often used to clean guns,
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and two keys. A search of Lucio’s person and vehicle uncovered
two keys. All four keys locked and unlocked Rebecca’s front
door. Delarosa was charged with two counts of murder and one
count of conspiracy to commit murder, all Class A felonies. The
State requested life sentences without parole for the two murder
charges.
Duckworth testified at Delarosa’s trial pursuant to a plea
agreement. Tara Cassada, Lucio’s girlfriend, and Erica Tamayo,
Duckworth’s girlfriend, also testified. Lucio, Duckworth,
Cassada, and Tamayo socialized together frequently, and the two
boyfriends often confided in their girlfriends. Cassada was
granted “use immunity” to testify.
Cassada testified that sometime[] in the fall of 2006, Payne began
making plans with Lucio to kill Rebecca to get full custody of
their son, and he gave Lucio a key and a map to Rebecca’s
house. Lucio originally planned to do the shooting himself, but
hired Delarosa because “he would go in and be out quick.”
Lucio and Delarosa would then split Rebecca’s $100,000 life
insurance policy.
Duckworth testified that in late March or early April of 2007,
Lucio asked him to help with the shooting. They were not to
harm Payne’s son, but would kill George if he was there.
Duckworth would be the driver, and he would receive $200 or a
quarter pound of weed for his involvement.
On the evening of April 2, 2007, Duckworth picked up Lucio and
Delarosa, and the trio drove to a parking lot behind Rebecca’s
house. Lucio gave a gun to Delarosa and instructed him where
to go. Delarosa left the car, returned about 20 minutes later, said
nobody was home, and gave the gun back to Lucio.
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Two days later, on April 4, the trio tried again. Duckworth
picked up Lucio from his home in Frankfort and Delarosa from
his home in Zionsville. Duckworth drove to the same parking
lot, and Lucio again gave the gun to Delarosa, who left the car
around 9:00 PM. Duckworth moved his car to a different spot,
prompting a cell phone call from Delarosa about 20 minutes later
asking where they were. When Delarosa returned to the car, he
said, “they’re done,” and recounted how he walked in on George
performing oral sex on Rebecca in her bedroom. Delarosa said
he emptied his clip, shot them both, and left her body on the bed
and his body on the floor. Cassada and Tamayo both testified as
to what their respective boyfriends said Delarosa said that
evening. On the way home, at 9:41 PM, Duckworth was pulled
over because his license plate light was out. The officer knew
and recognized Delarosa, who was sitting in the back seat of the
car, and testified that Delarosa was wearing dark-colored
clothing.
Forensics experts confirmed that Rebecca died from a gunshot
wound to the head and that George died from a gunshot wound
to the chest. They opined that the smearing and pooling of blood
on the bed and on the floor, as well as the characteristics of the
entry and exit wounds, were consistent with George performing
oral sex on Rebecca when they were shot.
Phone records confirmed a large amount of communication
between Payne, Lucio, Duckworth, and Delarosa leading up to
and following the murder, and allowed the officers to track the
movements of the cell phones. The three days before the
protective order was served on Payne, February 26-28, 2007,
Lucio placed one call to Payne and two calls to Delarosa. On
March 1, Lucio placed four phone calls to Payne and one to
Delarosa. The following day, Lucio placed three calls to Payne
and six to Delarosa. Records from April 2, the day of the first
attempt, showed eleven calls between the four. On April 4,
Lucio’s cell phone “hit on”—i.e., utilized—a tower in Frankfort
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from 11:39 AM to 8:12 PM. From 8:27 PM to 8:29 PM, Lucio’s
cell phone hit on a tower in Thorntown. At 9:27 PM, both Lucio
and Delarosa’s cell phones hit on a tower in Home Place located
about half-a-mile from Rebecca’s home. This hit corresponded
with a call Delarosa placed to Lucio at 9:27 PM. Lucio’s cell
phone then hit on towers in Brownsburg, from 9:50 PM to 9:53
PM, and in Frankfort, at 10:14 PM. Phone records for April 5,
the day the bodies were discovered, showed twenty calls between
the four. On April 11, during the officers’ interviews of Cassada
and her mother, Lucio and Delarosa exchanged six text messages
and one phone call.
A cellmate who was with Payne and Delarosa at the Hamilton
County Jail testified that when Delarosa arrived at the cell block,
Payne was already there. Delarosa said to Payne, “You got me
hit on my cell phone.” A few days later, the cellmate overheard
Delarosa asking Payne, “Where is the money?”
The jury found Delarosa guilty on all three counts. At the
sentencing hearing, Delarosa waived his right to a jury. The trial
court found that Delarosa qualified for sentences of life without
parole (LWOP) for the murder counts, and imposed consecutive
LWOP sentences. The trial court imposed a sentence of fifty
years for the conspiracy count, and ordered that to be served
consecutively to the LWOP sentences.
Delarosa v. State, 938 N.E.2d 690, 692-94 (Ind. 2010) (footnotes omitted)
(“Delarosa I”).
[4] In Delarosa I, Delarosa raised the following arguments for our Supreme Court’s
review:
1) Lucio’s statement to Cassada and Duckworth’s statement to
Tamayo about the shooting after it occurred were hearsay
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because these statements were not in furtherance of the
conspiracy and admitting these statements constituted
fundamental error; 2) during closing arguments, the prosecutor
committed misconduct by inappropriately commenting on
Delarosa’s failure to testify at trial; and 3) the evidence was
insufficient to convict Delarosa of the murder charges.
Id. at 694. Our Supreme Court rejected Delarosa’s arguments and affirmed his
convictions.
[5] Thereafter, Delarosa filed his petition for post-conviction relief, which he later
amended. The post-conviction court held an evidentiary hearing on Delarosa’s
amended petition. The court then entered findings of fact and conclusions of
law in which it denied the petition. This appeal ensued.
Discussion and Decision
Standard of Review
[6] Delarosa appeals the post-conviction court’s denial of his petition for post-
conviction relief. Our standard of review in such appeals is clear:
“The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
“When appealing the denial of post-conviction relief, the
petitioner stands in the position of one appealing from a negative
judgment.” Id. at 274. In order to prevail on an appeal from the
denial of post-conviction relief, a petitioner must show that the
evidence leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Weatherford v.
State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
conviction court in this case entered findings of fact and
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conclusions of law in accordance with Indiana Post-Conviction
Rule 1(6). Although we do not defer to the post-conviction
court’s legal conclusions, “[a] post-conviction court’s findings
and judgment will be reversed only upon a showing of clear
error—that which leaves us with a definite and firm conviction
that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
102, 106 (Ind. 2000) (internal quotation omitted).
Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017).
[7] In this appeal, Delarosa contends that he received ineffective assistance of
counsel.
When evaluating an ineffective assistance of counsel claim, we
apply the two-part test articulated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
prong, “the 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.”
McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
second prong, “the 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. (citing Strickland, 466
U.S. at 694, 104 S. Ct. 2052).
Id. at 682. Delarosa asserts that he received ineffective assistance from both his
trial counsel and his appellate counsel. We consider each issue in turn.
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Issue One: Trial Counsel
[8] We first consider Delarosa’s claim that he received ineffective assistance from
his trial counsel. In particular, Delarosa asserts that his trial counsel’s
assistance was ineffective for two reasons: (1) his counsel did not adequately
prepare for the penalty phase of Delarosa’s trial1 and (2) his counsel failed to
have a polygraph examination of Duckworth admitted into the record. We
cannot agree that Delarosa received ineffective assistance from his trial counsel.
[9] Delarosa’s first argument—that his trial counsel did not adequately prepare for
the penalty phase—is not supported by the record. During the evidentiary
hearing before the post-conviction court, Delarosa’s trial counsel, John
Tompkins, testified that he met with Delarosa’s prior counsel, Steven Brock, on
several occasions, and that Brock continued to assist Tompkins as a “mitigation
specialist/expert.” P-C Tr. at 31. Brock informed Tompkins that Brock had
investigated several potential mitigating factors; namely, Brock had interviewed
Delarosa and Delarosa’s family members, and he had reviewed Delarosa’s
criminal history and other records. Tompkins, who has experience with major
felony cases, testified that he was familiar with potential mitigating
1
Delarosa also asserts that he did not knowingly, intelligently, and voluntarily waive his right to a jury
during the penalty phase, but Delarosa’s argument on this issue is premised on his argument that his trial
counsel had failed to adequately prepare for that phase of the trial. As we hold that Delarosa has not shown
that his counsel failed to adequately prepare for the penalty phase, we need not consider Delarosa’s further
argument with respect to his waiver of his jury right.
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circumstances in such cases and that he “would meet with [Brock] regularly” to
discuss any potential mitigating circumstances in Delarosa’s case. Id.
[10] In light of his and Brock’s investigations, Tompkins concluded that it was
“clear” that there were no “substantial mitigator[s]” to present during the
penalty phase. Id. at 37. Rather, Tompkins advised Delarosa that “his best
option” was to make only “legal arguments.” Id. Tompkins further testified
before the post-conviction court that he felt prepared for the penalty phase and
that, had he not felt prepared, he would have moved to continue, which he did
not do.
[11] The post-conviction court relied on Tompkins’ testimony and found that
Tompkins effectively prepared for the penalty phase of Delarosa’s trial. As the
court found:
9. Mr. Tompkins testified he was certified by the Indiana
Public Defender Counsel for Death Penalty cases and had been
involved with and tried several death penalty and Life Without
Parole cases prior to his involvement in this case. Further, he
testified he would have gone through his checklist of factors to
look for regarding mitigating circumstances recommended by the
Public Defender Council. He had personally gone to Boone
County and reviewed [Delarosa’s] voluminous juvenile history
and reviewed all of the documents provided by previous
counsel[,] which included the Boone County Presentence
Investigation and its attachments[,] which had been secured by
the previous investigator, Charles Keenan. Although Steve
Brock, a mitigation expert, did not complete his report[, that]
does not change that [Tompkins] was well apprised of
[Delarosa’s] social background, which includes the medical,
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family[,] and educational history as well as [Delarosa’s]
substance abuse issues.
Appellant’s App. Vol. 2 at 178-79. The post-conviction court’s findings and
conclusions are supported by the record, and Delarosa’s argument to the
contrary is merely a request for this court to reweigh the evidence, which we
will not do. We also agree with the State that Delarosa failed to demonstrate to
the post-conviction court any significant mitigating evidence that might have
been presented during the penalty phase of his trial.
[12] We likewise reject Delarosa’s second argument. On this issue, Delarosa asserts
that Tompkins rendered ineffective assistance because he did not seek to have a
polygraph examination entered into evidence either to impeach Duckworth or
as a mitigating circumstance. But it is well-established that the results of
polygraph examinations are not reliable and, as such, not admissible absent a
stipulation by the parties. Hubbard v. State, 742 N.E.2d 919, 924 (Ind. 2001).
We reject this purported basis for impugning Tompkins’ assistance. As the
post-conviction court found, “there is no Indiana case [that] supports”
Delarosa’s position on this issue. Appellant’s App. Vol. 2 at 181. We affirm
the post-conviction court’s judgment that Delarosa did not receive ineffective
assistance from his trial counsel.
Issue Two: Appellate Counsel
[13] We thus turn to Delarosa’s challenge of his appellate counsel’s assistance.
Here, Delarosa avers that his appellate counsel, Jack Crawford, rendered
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ineffective assistance because he did not challenge the purported use of
nonstatutory aggravating circumstances when the court imposed the sentence of
life without parole. We cannot agree with Delarosa’s reading of the record on
this issue.
[14] In deciding whether to impose a sentence of life without parole, a trial court
must limit its consideration of aggravating factors to only those enumerated in
Indiana Code Section 35-50-2-9(b). See Corcoran v. State, 739 N.E.2d 649, 655
(Ind. 2000). A written sentencing statement “guard[s] against the influence of
improper factors at the trial level . . . .” Schiro v. State, 451 N.E.2d 1047, 1053
(Ind. 1983). Further:
It is usual practice for a trial judge to comment when the
sentence is announced in open court. When a trial judge’s oral
comments refer to factors not included in the court’s separate
written findings, the issue may arise as to whether such remarks
demonstrate impermissible use of a nonstatutory aggravating
factor. Bellmore v. State, 602 N.E.2d 111, 129 (Ind. 1992).
Corcoran, 739 N.E.2d at 656. In such circumstances, “the issue whether such
[oral] remarks demonstrate impermissible use of a nonstatutory aggravating
factor depends upon a determination under state law as to whether the judge
relied upon the nonstatutory factor.” Bellmore, 602 N.E.2d at 128 n.6 (emphasis
in original).
[15] Here, in its oral pronouncement of Delarosa’s sentence, the court stated:
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The Court having incorporated the evidence from Phase 1 of the
trial and evidence presented in this phase and the arguments of
the counsel, the Court does now find that the State has proved
beyond a reasonable doubt the aggravating circumstances of on
or about April 4, 2007, in Hamilton County, Anthony D.
Delarosa committed the murder of Rebecca Payne after having
been hired to kill Rebecca Payne in violation of I.C. 35-50-2-9(a)
and subpart (b)(4) as shown in Count 1 of the aggravating
circumstances. . . .
As to aggravating circumstance number 2, the Court finds that on
or about April 4, 2007, in Hamilton County, Indiana, Anthony
D. Delarosa[] committed another murder, to-wit: did kill George
Benner in violation of I.C. 35-50-2-9(a) and subpart (b)(8). . . .
As to aggravating circumstances 3, the Court does not find that
the State of Indiana has proved beyond a reasonable doubt that
on or about April 4, 2007, in Hamilton County, Indiana,
Anthony D. Delarosa was on parole at the time the murder was
committed in violation of I.C. 35-50-2-9(a) and subpart (b)(9)(d).
No mitigating circumstances have been presented with the
exception that the State has mentioned that the age may be a
mitigator. The Court, because of the cold, calculating murder of
these two innocent victims though finds that such mitigator has
not been shown by a preponderance of the evidence. The Court
finds that the aggravating circumstances as found[,] as shown
beyond a reasonable doubt[,] outweigh any mitigating
circumstances. The Court makes such finding based on the fact
that the defendant knowingly and willingly entered into a
conspiracy to kill Rebecca Payne and George Benner. The
defendant accepted a key to enter Rebecca Payne’s residence and
also accepted a gun on two occasions to carry out these murders.
The defendant’s sole purpose for being brought into this
conspiracy was to commit the actual killings. The defendant on
April 2, 2007[,] first attempted to commit the murder of Rebecca
Payne but she was not home. The defendant entered her
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residence and sat on her bed before leaving. Instead of
abandoning this conspiracy, it was decided that he would try
again. On April 4th the parties drove, again[,] . . . to the
residence. Again, the defendant entered the residence after
receiving the gun. But this time the victims were present. He
coldly executed the two victims by emptying his entire clip into their
bodies and exiting the residence, leaving them to die. The defendant
showed no remorse as to what he had done and even laughed and made
crude comments about the condition of the victims. The defendant after
killing these two innocent victims disposed of the handgun. Instead of
having any remorse, the defendant’s only concern was when he entered
the car and when he entered the Hamilton County Jail was when would
he get paid. The Court finds that because of the coldness and because of
no remorse being shown and the ability to kill two human beings in this
fashion that the Court does find that the defendant as to Count 1 . . . and
also as to Count 2 . . . should be sentenced to life without parole.
Tr. at 1071-74 (emphasis added). In its written sentencing order, the trial court
confirmed its findings as to the three statutory aggravating factors, that there
were no significant mitigating factors, and that the aggravators outweighed any
mitigators. The court further reiterated the facts and circumstances of
Delarosa’s crimes as support for its findings.
[16] At the evidentiary hearing before the post-conviction court, Crawford testified
that he was aware of the prohibition against the court’s consideration of
nonstatutory aggravating factors but did not believe that the court considered
any such factors in its judgment. The post-conviction court agreed with
Crawford’s assessment, finding as follows: “Bellmore and its progeny are not
controlling[] for the reason that the Court merely enunciated the facts
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supporting its findings of the statutory aggravating factors.” Appellant’s App.
Vol. 2 at 184-85. We agree with the post-conviction court.
[17] Delarosa does not actually identify any nonstatutory aggravators that he asserts
were improperly relied on by the trial court. Rather, he simply quotes the
italicized language from above and asserts that that language was an improper
aggravator. But the court’s oral and written statements make clear that the
court was describing the nature and circumstances of Delarosa’s crimes. And
the Indiana Supreme Court has made clear that “the circumstances of the crime
often provides an appropriate context for consideration of the alleged
aggravating and mitigating circumstances,” and that “[i]nclusion of the nature
and circumstances of the offense in a trial court’s sentencing order does not
necessarily compel a conclusion that such matters were improperly considered
and weighed as aggravating circumstances.” Prowell v. State, 687 N.E.2d 563,
567 (Ind. 1997).
[18] That is the case here. The trial court thoroughly described the nature and the
circumstances of Delarosa’s crimes, but nothing in the court’s oral or written
statements demonstrates that the court improperly considered and weighed
those facts as aggravating circumstances. To the contrary, the court’s
assessment of the nature and the circumstances provided appropriate context
for the court’s consideration of the argued aggravating and mitigating
circumstances, which the court clearly delineated in its statements.
Accordingly, Crawford did not render ineffective assistance when he did not
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raise this purported issue on direct appeal, and we affirm the post-conviction
court’s judgment on this issue.
Conclusion
[19] In sum, we hold that Delarosa has not met his burden to show that the post-
conviction court’s judgment is contrary to law. We affirm the post-conviction
court’s denial of his petition for post-conviction relief.
[20] Affirmed.
Riley, J., and Bradford, J., concur.
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