LEWIS v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] Jamar Lamont Lewis committed murder in 2005 at the age of seventeen. At the beginning of his 2007 jury trial for murder and felony murder, Lewis entered into a plea agreement, in which he pled guilty to murder with sentencing left open. The trial court later sentenced Lewis to sixty-three years, which sentence was upheld on direct appeal.

[2] Lewis, pro se, now appeals the denial of his petition for post-conviction relief (PCR). He contends that trial counsel was ineffective for failing to object to the direct filing of the murder charges in criminal court, for allowing Lewis to plead guilty to an illusory plea, and for failing to communicate an earlier plea offer. Lewis also argues that given the fact that he was a juvenile at the time of the offense, his sixty-three-year sentence is inappropriate and should be revised pursuant to Ind. Appellate Rule 7(B).

[3] We affirm.

Facts & Procedural History

[4] The following facts were set out by this court on direct appeal:

On April 20, 2005, Lewis and Robert Shorter went to the apartment of Franklin Stotts, Jr., intending to rob Stotts of money and illegal drugs. Lewis was armed with a handgun and under the influence of alcohol and marijuana. Lewis and Shorter kicked in the front door of Stotts's apartment and found Stotts in the living room where his two-year-old daughter was lying on the sofa. Stotts begged that no violence occur in the child's presence and began running out of the living room into the common area of the apartment building. As Stotts was doing this, Lewis fired his handgun at Stotts, and Stotts later died from multiple gunshot wounds.

On June 7, 2006, the State charged Lewis with murder and felony murder.[1] On June 25, 2007, the first day of trial, following a recess in jury selection, Lewis pled guilty to murder. The transcript reflects Lewis's guilty plea was pursuant to a plea agreement whereby the State dismissed the felony murder charge and sentencing was left to the trial court's discretion.

The trial court held a sentencing hearing on July 26, 2007. The trial court found the following aggravating circumstances: (1) at the time of the murder, Lewis used marijuana and consumed alcohol despite being under legal age; (2) Lewis had a juvenile criminal history; (3) Lewis admitted using marijuana since age eight; (4) Lewis committed the murder to take money and illegal drugs from Stotts; (5) during the murder, Lewis carried an unlicensed handgun; (6) Lewis shot Stotts after he begged not to be shot in the presence of his child and while Stotts was attempting to flee; (7) the shooting endangered other persons present in the apartment; and (8) “as an extreme aggravator,” Lewis committed the murder in the presence of a toddler. The trial court found these aggravators outweighed the mitigating circumstances of (1) Lewis's guilty plea on the first day of trial; (2) Lewis's “potential” addiction issues; (3) Lewis's apology to Stotts's family; and (4) Lewis's age of seventeen when he committed the murder. The trial court sentenced Lewis to sixty-three years with the Department of Correction.

Lewis v. State, No. 20C01-0606-MR-6, at *1 (Ind. Ct. App. March 24, 2010) (mem.) (footnotes and record citations omitted), trans. denied.

[5] In his belated direct appeal, Lewis challenged his sentence as inappropriate. After considering the nature of the offense and Lewis's character, including his youthful age, this court affirmed Lewis's sentence. The Supreme Court denied transfer on May 28, 2010.

[6] In June 2011, Lewis filed a pro se petition for PCR, and the post-conviction court appointed a public defender. In May 2012, after consulting with Lewis, speaking with trial counsel, and investigating grounds for PCR, the public defender withdrew his appearance pursuant to Ind. Post-Conviction Rule 1(9)(c). Lewis continued pro se and filed an amended PCR petition on February 25, 2022.

[7] In his amended petition, Lewis alleged that his public defender, Jeffrey Majerek (Attorney Majerek), provided ineffective assistance of trial counsel. Lewis raised two grounds: (1) Attorney Majerek “failed to challenge the direct filing from juvenile court into criminal court” and (2) Attorney Majerek “allowed Lewis to plead guilty to an illusory plea” because Lewis could not be convicted and sentenced for both murder and felony murder. Appendix at 56.

[8] An evidentiary hearing was held on September 28, 2022, at which only Lewis testified. Attorney Majerek did not attend, as Lewis did not subpoena him.² The court denied Lewis's oral request at the hearing for a continuance. Lewis then provided brief testimony. He claimed that Attorney Majerek provided “bad legal advice” that caused Lewis to plead guilty. Transcript at 17. Specifically, Lewis testified that Attorney Majerek advised him and his mother that Lewis faced 130 years in prison if he went to trial and was convicted of murder and felony murder. At Lewis's request, the post-conviction court took judicial notice of the records from the criminal proceedings.

[9] On December 5, 2022, the post-conviction court issued an order denying Lewis's amended petition for PCR. The court noted that the murder charges were statutorily required to be filed in criminal court. Further, the court did not find Lewis's testimony about Attorney Majerek's advice to be credible and noted Lewis's failure to procure the testimony of Attorney Majerek.

[10] Lewis appealed the December 2022 order but then filed a motion to stay the appeal and remand for a new hearing pertaining to alleged newly discovered evidence – a plea offer not previously revealed to Lewis. On April 24, 2023, this court dismissed the appeal without prejudice and remanded the cause so that Lewis could amend his PCR petition based on this new evidence.

[11] On June 12, 2023, Lewis filed an amended PCR petition in which he added an allegation that Attorney Majerek failed to inform him of an earlier, more favorable plea offer made by the State. The post-conviction court set an evidentiary hearing for December 13, 2023.

[12] After several failed attempts, Lewis finally filed a proper subpoena for Attorney Majerek to attend the December 2023 hearing. After the subpoena was served on October 31, Attorney Majerek filed a notice with the court advising that he would be out of state and unavailable for the scheduled hearing.

[13] At a pretrial hearing on November 2, the court addressed and ruled upon many pending motions filed by Lewis. Lewis and the court also discussed Attorney Majerek's unavailability and agreed that the evidentiary hearing would be reset for the first available date in February 2024. About a week later, the court set the evidentiary hearing for February 14, 2024, and notified Lewis and the State of this date.

[14] The evidentiary hearing commenced as scheduled in February. Lewis attempted to call Attorney Majerek as a witness, but Attorney Majerek was not present. Upon questioning by the court, Lewis acknowledged that he did not subpoena Attorney Majerek to appear at this hearing. Lewis explained that he did not realize a new subpoena needed to be issued, as Attorney Majerek had already been served with one for the December date. Lewis then proceeded to present evidence via his own testimony.³ Lewis testified that after the last evidentiary hearing he discovered a plea offer with a sentence of forty-five years that Attorney Majerek never presented to him. Lewis testified that he would have taken this deal if he had been aware of it.

[15] In support of his claim that such a plea offer had been made, Lewis attempted to place into evidence Exhibit F, which was an unsigned, undated, and partially filled out plea offer. The State objected to Exhibit F based on lack of foundation and relevance. In discussing the matter, Lewis agreed with the trial court that the sole handwriting on the document appeared to be that of Attorney Majerek. The trial court then explained to Lewis:

[Y]ou're missing the point, I believe, Mr. Lewis. If Mr. Majerek prepared this, then there's no evidence to support that it was offered by the State of Indiana. Let me put it another way to you. It seems to me this is just as likely to show that Mr. Majerek was trying to convince the State of Indiana to allow you to plead guilty to felony murder with a stipulated sentence of 45 years.

Transcript at 73. The court sustained the State's objections to Exhibit F.

[16] On July 17, 2024, the post-conviction court entered an order denying Lewis relief. The court affirmed in all respects its order from December 5, 2022, and it concluded that Lewis failed to establish the new ground for relief raised thereafter. Regarding the latter, the court found that Lewis presented no evidence establishing that the State made a formal plea offer that Attorney Majerek failed to present to Lewis.

[17] Lewis now appeals the denial of post-conviction relief. Additional information will be provided below as needed.

Standard of Review

[18] In post-conviction proceedings, the petitioner bears the burden of establishing grounds for relief by a preponderance of the evidence. P-C.R. 1(5); Humphrey v. State, 73 N.E.3d 677, 681 (Ind. 2017). Thus, Lewis is appealing from a negative judgment and “must show that the evidence leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.” Humphrey, 73 N.E.3d at 681. The post-conviction court's findings and judgment will be reversed only upon a showing of clear error, which is error that leaves us with a definite and firm conviction that a mistake has been made. Id. at 682. On review for clear error, we will neither reweigh the evidence nor judge witness credibility. State v. Greene, 16 N.E.3d 416, 418 (Ind. 2014).

Discussion & Decision

1. The post-conviction court did not clearly err when it determined that Lewis did not receive ineffective assistance of trial counsel.

[19] To establish ineffective assistance of counsel, a petitioner must make two showings: (1) counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Greene, 16 N.E.3d at 418. “In order to succeed, a petitioner must overcome the ‘strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.’ ” Id. (quoting Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002)). Further, “[w]hen counsel is not called as a witness to testify in support of a petitioner's arguments, the post-conviction court may infer that counsel would not have corroborated the petitioner's allegations.” Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010), trans. denied. The post-conviction court made such an inference here.

[20] Lewis claims that Attorney Majerek was ineffective in three ways: Attorney Majerek did not object to the direct filing of the murder charges in criminal court; he allowed Lewis to enter into an illusory plea agreement; and Attorney Majerek failed to communicate a favorable plea offer to Lewis. We will address each of these arguments in turn.

[21] First, there is no merit to Lewis's argument that Attorney Majerek should have challenged the criminal court's jurisdiction. The law is unambiguous in this regard. “The juvenile court does not have jurisdiction over an individual [charged with murder] if the individual was at least sixteen (16) years of age but less than eighteen (18) years of age at the time of the alleged violation.” Ind. Code § 31-30-1-4(a). It is undisputed that Lewis was seventeen years old at the time of the murder for which he was charged. Accordingly, the juvenile court had no jurisdiction to hold a waiver hearing or otherwise preside over the matter.⁴ Cf. Carter v. State, 711 N.E.2d 835, 842-43 (Ind. 1999) (“The legislature has [ ] determined that juvenile courts do not have jurisdiction when an individual is at least sixteen years of age and is alleged to have committed murder, kidnaping, rape, carjacking or a number of other serious offenses.”) (citing I.C. § 31-30-1-4).⁵

[22] We next turn to Lewis's claim that Attorney Majerek allowed him to “plead guilty to an illusory plea.” Appellant's Brief at 20. His argument is based on the premise that Attorney Majerek erroneously advised him to take the open plea to murder because if he proceeded with the jury trial, Lewis could face up to 130 years – 65 years each for murder and felony murder. See Ind. Code § 35-50-2-3(a) (providing sentencing range for murder of 45-65 years). If Lewis was advised in this manner, it would have indeed amounted to ineffective assistance.⁶ But the post-conviction court did not credit Lewis's testimony that he was so advised.⁷ Further, the post-conviction court inferred from Attorney Majerek's failure to testify that he would not have corroborated Lewis's allegations regarding the advice given. This was the trial court's prerogative, and we will not reweigh the evidence or judge Lewis's credibility.

[23] Lewis's final claim of ineffective assistance is that Attorney Majerek failed to communicate a plea offer to him. Relying on Exhibit F, which was not admitted into evidence by the post-conviction court, Lewis argues that a forty-five-year plea offer existed that he would have accepted if he had known about it. However, Exhibit F, even if it had been admitted into evidence, does not establish that the State ever presented Attorney Majerek with such an offer.⁸ This document is a preprinted form that was partially completed with, as Lewis concedes, only Attorney Majerek's handwriting on it. The document is unsigned and undated. At most, this document shows that Attorney Majerek presented the State with an offer to resolve the matter. But there is no evidence that the State accepted this offer or made any other formal plea offer until the day of trial, which was the plea agreement Lewis ultimately accepted.

[24] In sum, Lewis failed to establish that Attorney Majerek provided him with ineffective assistance. Accordingly, the post-conviction court properly denied Lewis relief.

2. Lewis's challenge to the appropriateness of his sentence is waived.

[25] Lewis argues that his sentence should be revised due solely to the fact that he was a juvenile at the time of the murder. He did not raise this issue in his initial PCR petition or in any of the amended petitions. Accordingly, the issue is waived on appeal. See Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001) (“Issues not raised in the petition for postconviction relief may not be raised for the first time on post-conviction appeal.”) (citing P-C.R. 1(8) (“All grounds for relief available to a petitioner under this rule must be raised in his original petition.”)).

[26] Waiver notwithstanding, we agree with the State that this issue is res judicata. Lewis already challenged his sentence on direct appeal under App. R. 7(B), as inappropriate in light of the nature of the offense and his character. When a reviewing court decides an issue on direct appeal, the doctrine of res judicata generally applies, thereby precluding review in post-conviction proceedings. State v. Stidham, 157 N.E.3d 1185, 1191 (Ind. 2020). While we have the power to revisit prior decisions of this court, the Supreme Court has cautioned that such power should be exercised only in extraordinary circumstances. Id. This case does not present extraordinary circumstances. Cf. id. at 1191-94 (finding extraordinary circumstances to reconsider juvenile's maximum, 138-year sentence where Court had previously affirmed under App. R. 7(B)’s former manifestly unreasonable standard and before the United States Supreme Court began imposing limits on when juveniles could be sentenced to the harshest punishments).

[27] Judgment affirmed.

FOOTNOTES

1.   Actually, Lewis was initially charged with murder, and a charge of felony murder was added the following month.

2.   In May and June 2022, the post-conviction court responded to filings by Lewis that referenced issuing a subpoena for Attorney Majerek to appear at the hearing. The court indicated that a subpoena would issue once Lewis provided the court with a proper subpoena to issue. Lewis, however, never provided the court with such a subpoena.

3.   On appeal, Lewis asserts that the trial court abused its discretion by not continuing the hearing due to Attorney Majerek's absence. Lewis, however, did not request a continuance. Accordingly, Lewis has waived this issue. Further, Lewis provides no authority to support his suggestion that the trial court should have sua sponte issued an updated subpoena to Attorney Majerek for attendance at this hearing. We remind Lewis that “a pro se litigant is held to the same standards as a trained attorney and is afforded no inherent leniency simply by virtue of being self-represented.” Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014); see also Stark v. State, 204 N.E.3d 957, 963 (Ind. Ct. App. 2023) (observing that pro se litigants must follow established rules of procedure and be prepared to accept the consequences of their failure to do so).

4.   A juvenile court has “exclusive original jurisdiction” under certain circumstances including in proceedings in which a child is “alleged to be a delinquent child under IC 31-37”. I.C. § 31-30-1-1(a)(1). Ind. Code § 31-37-1-1 defines “delinquent child” a child who, before becoming eighteen years of age, “commits a delinquent act described in this chapter.” In turn, I.C. § 31-37-1-2 provides in relevant part: “A child commits a delinquent act if, before becoming eighteen (18) years of age, the child commits a misdemeanor or felony offense, except for an act committed by a person over which the juvenile court lacks jurisdiction under IC 31-30-1.” (Emphasis supplied). As Lewis committed an act – murder at the age of seventeen – for which the juvenile court lacked jurisdiction, see I.C. § 31-30-1-4(a), his act was not a delinquent act, nor was he alleged to be a delinquent child.

5.   Lewis suggests that federal law requires a waiver hearing anytime a child is charged with a crime. The cases he cites do not support this proposition and, instead, address what process is due when an applicable statute provides for a waiver hearing. See generally Summers v. State, 230 N.E.2d 320 (Ind. 1967); Kent v. United States, 383 U.S. 541 (1966).

6.   It has “long been held that a trial court may not convict and sentence a defendant for both murder and felony murder where only one murder occurs.” Kennedy v. State, 674 N.E.2d 966, 967 (Ind. 1996).

7.   Lewis's own testimony at the February 2024 hearing belies his September 2022 testimony regarding counsel's advice. At this subsequent hearing, Lewis testified that Attorney Majerek had told him there was “no deal to be made” and that he should “[j]ust plead out, and plead guilty in open court, and they won't max you out.” Transcript at 62-32. This is wholly inconsistent with any suggestion that Attorney Majerek advised Lewis to plead guilty to reduce his sentencing exposure by half.

8.   We do not address the evidentiary issues raised by Lewis because any error in failing to admit Exhibit F, or the related admission pursuant to Trial Rule 36, would have been harmless. See Ind. Appellate Rule 66(A) (“No error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting relief or reversal on appeal where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.”).

Altice, Judge.

Pyle, J. and DeBoer, J., concur.