BELLAMY, Lamont, ) Court of Appeals appellant, ) cause no. 45A05-0104-PC-140 v. ) ) Supreme Court STATE OF INDIANA, ) cause no. 45S05-0201-PC-91 appellee. )
Appellant then filed a
pro se petition seeking post-conviction relief. That petition
was denied and the post-conviction court entered findings of fact and conclusions of
law. This appeal ensued.
A notice of completion of the clerks record and transcript was filed. At that point, counsel appeared on behalf of appellant. But rather than file a brief, the appellant filed a Verified Motion To Dismiss Appeal Without Prejudice And Leave To File Amended Petition For Post-Conviction Relief. The motion asserted that additional evidence in support of the post-conviction petition should have been offered. The motion asserted further that there may be new issues that appellant might want to raise in the post-conviction court. As the title of the motion suggests, appellant asked that the appeal be dismissed and the cause remanded to the post-conviction court to pursue these avenues of relief.
The Rules of Appellate Procedure allowed the State ten days within which to file a response to the motion. See Ind. Appellate Rule 34(C). Before that time elapsed, however, the Court of Appeals granted the motion. Having not had an opportunity to object, the State filed a motion seeking rehearing on the order of dismissal. The motion was denied. The State then petitioned to transfer jurisdiction in accordance with Appellate Rules 56(B) and 57(B)(4).
In short, appellant asked to retry his post-conviction petition with the hope of
doing a better job this time. The Court of Appeals order, in
effect, authorizes a retrial of the same issues already litigated. A new
trial is a form of relief available when the trial conducted contains reversible
error. But in this instance, appellant has made no claim of error
in the post-conviction proceeding. He simply wants, among other things, to try
the same issues again with different evidence. Our rules do not permit
such relief absent a showing of reversible error.
But there is a more important point of concern here. This appeal
differs from the appeal in
Davis in a significant manner. Davis was
an appeal from a direct conviction and sentence; this is an appeal from
the denial of post-conviction relief.
Our rules create procedures by which persons who have been convicted of crimes
in Indiana may appeal those convictions.
See Indiana Rules of Appellate Procedure (West
2001). If unsuccessful on appeal, there are procedures in place that allow
the convicted person an opportunity to file a petition seeking post-conviction relief.
See Ind. Post-Conviction Rule 1. If still unsuccessful, one of the avenues
potentially open to the convicted person is to again seek post-conviction relief in
the state court through a second, or successive petition. There are rules
governing this process as well. See P-C. R. 1 § 12.
To the extent appellant seeks to raise new issues on post-conviction that were
not included in his original petition, he has not followed the proper procedure.
The proper procedure is to file a request for leave to file
a successive petition seeking post-conviction relief in the form required by rule.
See P-C. R. 1 § 12.
We would not completely rule out the possibility that, for example, new exculpatory
evidence could be discovered during the pendency of an appeal of the denial
of post-conviction relief. In that circumstance, it might be appropriate for an
appellate court to terminate the appeal of the denial of post-conviction relief and
remand for the purpose of filing a successive post-conviction relief petition. Thus, while
it seems unlikely that a
Davis-like remand would ever be warranted from an
appeal of the denial of post-conviction relief, it is within the realm of
possibility. But even in that instance, the petitioner would not be relieved
of the procedural requirements of Post-Conviction Rule 1, section 12. Among those
requirements is the necessity of tendering a proposed successive petition demonstrating a reasonable
possibility of entitlement to post-conviction relief. Id. In these regards, appellants
motion falls well short.
The Clerk is directed to send a copy of this order to Hon.
Sanford M. Brook, Chief Judge of the Court of Appeals; to Steve Lancaster,
Court of Appeals Administrator; to Janet Roberts Blue, Commissioner of the Court of
Appeals; to Hon. Kathleen Sullivan; to the Attorney General of Indiana; to the
Indiana Public Defender; and to all counsel of record.
Done at Indianapolis, Indiana this 30th day of January, 2002.
______________________________ Randall T. Shepard
Chief Justice of Indiana
All Justices concur except Rucker, J., who votes to deny transfer, stating as follows:
I respectfully dissent. It appears to me that as a matter of judicial economy, the Court of Appeals simply treated appellants motion as a successive petition for post-conviction relief. See Ind. Post-Conviction Rule 1(12). The court then exercised its discretion and granted the motion. I see no problem with the use of this expedited procedure.