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Elkhart man moves to withdraw wrongful conviction petition

August 7, 2018

A mentally disabled man challenging his conviction in a 2002 Elkhart murder has moved to withdraw his petition to vacate judgment in favor of filing a successive petition for post-conviction relief.

Andrew Royer moved to dismiss his Trial Rule 60(B)(8) motion without prejudice on Monday, nearly two months after he filed a petition to overturn his 2005 murder conviction. An Elkhart County jury convicted Royer of killing Helen Sailor, a 94-year-old woman found dead in her apartment one day after Thanksgiving in 2002.

The Elkhart County Prosecutor’s Office, which was then being led by now-Attorney General Curtis Hill, built its case around Royer’s taped confession and statements from witnesses who claimed to have seen Royer at the Waterfall Highrise Apartments in Elkhart on the night in question. Witnesses also claimed Royer’s co-defendant, Lana Canen, had total control over him and convinced him to carry out the crime.

Canen, however, was exonerated in 2012 after the latent fingerprint found at the scene and used to tie her to the crime was found to have actually excluded her as a suspect. Hill played a leading role in advocating for Canen’s conviction.

Six years later, Royer petitioned to vacate his conviction based upon claims of newly discovered evidence. That evidence included allegations that law enforcement exploited Royer’s mental disabilities to coerce a false confession from him and claims that the state’s two key witnesses, Nina Porter and Jerome Johnson, had recanted their statements, which were also allegedly coerced.

Royer also claimed two law enforcement officials had gone on the record as saying the techniques used in his interrogation were improper. He also said the state withheld exculpatory evidence from his defense team.

But Royer moved to withdraw his petition in a Monday filing in Elkhart Superior Court III, writing instead that he would seek leave from the Indiana Court of Appeals to file a successive PCR petition with the Elkhart Circuit Court.

“In light of the jurisdictional objection made by the State, coupled with this court’s prior ruling, it is in Mr. Royer’s best interests to withdraw the pending Petition before this Court without prejudice,” his counsel, Elliot Slosar of the University of Chicago Law School Exoneration Project, wrote.

That “jurisdictional objection” came up in the state’s response to Royer’s petition to vacate judgment. In the response, Elkhart County Prosecutor Vicki Becker — the deputy prosecutor who originally tried Royer for Hill’s office — claimed Royer could use only PCR rules, not trial rules, to challenge his conviction.

She pointed to the holding in Van Meter v. State, 650 N.E.2d 1138 (Ind. 1995), which held that Indiana Trial Rules generally govern civil cases. The court explicitly held that defendants may not “collaterally attack (their) convictions through a Trial Rule 60(B) motion,” as Royer attempted to do.

“In other words, by using TR 60(B) as the basis for his motion, not only is the Petitioner transgressing statutory procedures set forth in the Indiana Post-Conviction Rules, but he also contradicts established Indiana Surpeme Court precedent in Van Meter,” Becker wrote. “As such, the Petitioner is ‘required’ to raise any collateral challenges to his conviction through post-conviction procedures.

“Petitioner has not done so here, and his requested relief should not be granted on this basis,” she wrote.

Aside from the jurisdictional challenge to Royer’s petition, the state also claimed his case should not be heard on the merits because the petition “fails to identify a claim upon which relief would be justifiable under law.”

Looking specifically to the allegations that Porter and Johnson recanted their testimony, Becker said the state has not been given the opportunity to cross-examine the witnesses or their changed testimonies, so the affidavits purportedly signed by them are not sufficient to justify relief. The prosecutor also challenged the validity of Porter’s recantation, noting she had written a letter to the Elkhart Circuit Court in 2007 that purportedly supported her trial testimony.

“I do not regret helping in the trial,” Porter wrote in a letter asking the court not to send her to the same prison as Canen for a probation violation. She also wrote that she “didn’t have any choice in testifying.”

Becker also challenged Royer’s assertion that two investigators “‘revealed’ their beliefs that (he) is innocent,” writing that police testimony related to innocence or guilty is prohibited. She also said Royer’s claims about the investigators are taken out of context and are false, with one investigator, Peggy Snider, allegedly agreeing to testify that the affidavit about Royer’s innocence that was allegedly signed by her is false.

Finally, the state disputed each allegation of having withheld exculpatory evidence while also claiming the issues Royer raised in his petition are barred by res judicata. Prior to his petition to vacate judgment, Royer had already unsuccessfully filed appeals and a PCR petition with the Indiana Court of Appeals and Supreme Court. Royer also moved to file a successive PCR petition in 2016, but was not given leave to do so.

“Petitioner has already engaged in multiple unsuccessful attempts to attack his valid conviction and should not be afforded further opportunities as his arguments fail both procedurally, and substantively,” Becker wrote.

A hearing on Royer’s petition to vacate judgment had been scheduled for 1:30 p.m. on Thursday, but Slosar moved to strike that hearing in light of the motion to withdraw the petition. He also wrote Royer would be seeking “guidance from the Court of Appeals regarding the contours of an evidentiary hearing on the merits.”

In addition to Slosar, the Notre Dame Exoneration Project and the Indiana University Robert H. McKinney School of Law have been assisting in Royer’s representation. The judge, Teresa Cataldo, previously entered a gag order against Slosar, prohibiting him from making “extrajudicial comments” about the case.

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