Attorneys for Appellant
Attorneys for Appellee
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
Joanna McFadden Stephen R. Creason
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
Joseph E. Corcoran filed a Petition for Rehearing on February 10, 2005, asking us to reconsider our decision of January 11, 2005. See footnote In that decision, we had affirmed the post-conviction courts determination that Corcoran was competent to waive collateral review of co nvictions for four murders and sentence of death. Corcoran v. State, 820 N.E.2d 655, 662 (Ind. 2005).
Some background is helpful in understanding the present posture of this unusual case.
A person whose Indiana death sentence is affirmed on direct appeal is
entitled to seek collateral reviewcalled post-conviction reliefunder rules (including time deadlines) promulgated by
this Court. See Ind. Crim. Rule 24(H); Post-Conviction Rule 1. When
the time came for Corcoran to seek post-conviction relief, he declined the opportunity,
indicating that he believed he should be put to death for his crimes.
He waived any further legal review of his convictions and sentence.
When that happened, the State Public Defender took the position that Corcoran was
not competent to make that decision. The post-conviction court considered that proposition but
found Corcoran to be competent. The State Public Defender appealed that determination.
While the Public Defenders appeal was pending before us, Corcoran recanted his
waiver of further review and sought dismissal of the appeal so that he
could seek collateral review after all. We denied Corcorans request for dismissal
of the appeal, Corcoran, 820 N.E.2d at 658, and we affirmed the post-conviction
courts ruling that Corcoran was competent. Id. at 662.
In the Petition for Rehearing, Corcoran makes two broad claims. First, he
contends that in denying his request that his appeal be dismissed so that
he could seek collateral relief in the post-conviction court, we violated his federal
and state constitutional rights to due process, to equal protection, to open access
to courts, and to be free from cruel and unusual punishment. Second,
he argues that we were incorrect to affirm the post-conviction courts finding that
he was competent.
As to the second of these claims, Corcoran asks that we revisit territory
that we covered with care in our original decision. We have given
due consideration to his request but find no basis to alter our original
analysis or conclusion.
We do find, however, grounds to address his first claim concerning our denial
of his request that his appeal be dismissed so that he could seek
collateral relief in the post-conviction court. We grant rehearing for that purpose.
In our opinion rejecting Corcorans request to dismiss his appeal and remand the
case to the post-conviction court for further proceedings, we said that petitions for
post-conviction relief in capital cases must be filed within 30 days following completion
of rehearing. Corcoran, 820 N.E.2d at 658 (footnote omitted). Corcoran accurately
points out that this statement misstates the requirements of Indiana Criminal Rule 24(H).
Rather than directing that petitions for post-conviction relief in capital cases must
be filed within 30 days following completion of rehearing as we said in
the opinion, Indiana Criminal Rule 24(H) (which was correctly quoted elsewhere in our
opinion) requires counsel for a petitioner for post-conviction relief in a capital case
to file an appearance within 30 days following the completion of rehearing (Corcorans
lawyers met this requirement) and then requires the petitioner to file the petition
itself by the date set forth in a case management schedule submitted to
the trial court and approved by this Court.
This mistake does not affect our analysis or conclusion, however. In Corcorans
case, the post-conviction court established a case management schedule requiring Corcoran to file
a petition for post-conviction relief on or before September 9, 2003. We
approved this schedule by Order dated May 30, 2003. As discussed in
our prior opinion, Corcoran refused to sign a petition; the State Public Defender
filed a petition for post-conviction relief on September 9, 2003, unsigned by Corcoran;
and the post-conviction court properly refused to allow the petition because it was
unsigned. Our opinion correctly stated the fact that Corcoran had failed to
file a petition for post-conviction relief by the deadline set by rule; we
were incorrect only in describing the deadline.
As we noted in our original opinion, it is a matter first for
the post-conviction court to rule on whether any particular petition for post-conviction relief
is timely, i.e., filed within the deadline set by the case management order
and any appropriate extension. We did notand do notdirect the post-conviction court
here to dismiss any petition that Corcoran may have already filed or file
in the future. But we do think that that is the likely
result, a result likely to be affirmed on appeal.
If a new petition for post-conviction relief is time-barred, the ability of Corcoran
to obtain post-conviction review of his convictions or sentence was dependent upon the
resolution of the competency issue. We continue to believe that it was
in the best interest of the orderly processing of this litigation for this
Court to complete review of that issue and that we were correct to
deny Corcorans motion to dismiss the appeal.
If Corcorans new petition for post-conviction relief is held to be time-barred, he
will not be denied his constitutional rights to due process, to equal protection,
to open access to courts, or to be free from cruel and unusual
Corcorans due process argument is that by requiring a petition for post-conviction relief
to be filed by the date set forth in the case management schedule,
we applied a new rule to him in contravention of constitutionally-mandated due process
and due course of law requirements. He maintains that it was unclear
that failing to file a signed post-conviction petition by September 9, 2003 would
mean Corcorans certain execution. Pet. for Rehg. at 4. He also
says that historically Indiana has not treated similarly situated death row inmates in
this manner. Id.
We do not believe this contention requires extended treatment. There is nothing
new about our holding that a person who seeks post-conviction relief in a
capital case must file a signed petition by the date set forth in
the case management schedule. This has been the rule in our state
for approximately 15 years. Ind. Crim. Rule 24(H) (1990). Counsels action
in this casefiling the unsigned petition on the date set forth in the
case management scheduleindicates that they were well aware of the requirement. And
it goes without saying that the failure to file did not mean Corcorans
certain execution; he continues to have federal and certain state collateral review opportunities.
Nor is it the case that we have treated persons sentenced to death
differently in the past. Corcorans only example is a citation to an
order this Court entered on the eve of Robert Smiths execution that provided
that any last-minute filings be made in this Court (rather than a trial
court) so as to permit expedited consideration. See Smith v. State, No.
77S00-9508-DP-00950 (Ind. filed Jan. 27, 1998) (order directing the Clerk of the Supreme
Court to transfer and accept certain filings). No inference can reasonably be
drawn from the Smith order that Smith would have been entitled to a
review on the merits had he filed a petition for post-conviction relief.
Corcoran next asks this Court to hold that when a person sentenced to
death first waives the right to appeal and then retracts the waiver, the
retraction be treated as the final word and the proceedings be reinstated.
He suggests that such reinstatement is required by the prohibitions on cruel and
unusual punishment in the federal and state constitutions. U.S. Const. amend. VIII;
Ind. Const. art. I, § 16.
Corcoran directs our attention to three courts that have held that retraction be
treated as the final word. See St. Pierre v. Cowan, 217 F.3d
939 (7th Cir. 2000); Smith v. Armontrout, 888 F.2d 530, 543 (8th Cir.
1989); Commonwealth v. Saranchak, 810 A.2d 1197 (Pa. 2002).
See footnote We respect the
reasoning of these courts but observe that none of them found their holdings
compelled by the Eighth Amendment or a state counterpart. Rather, each court
found policy ju
stifications for permitting the appellants proceedings to be reinstated.
In our earlier opinion, the procedural posture of Corcoran's case prompted us to
conduct essentially the same policy analysis. That is, because Corcoran sought to
file an apparently untimely petition for post-conviction relief, we examined whether we should
extend to individuals sentenced to death automatic post-conviction review (in addition to automatic
review on direct appeal). Corcoran, 820 N.E.2d at 663. For the
reasons set forth at some length in that opinion, we declined to extend
automatic post-conviction review to capital litigants who do not seek such review within
the time limits imposed upon them by the Indiana Rules of Criminal Procedure.
[A]t the post-conviction stage, the interest in achieving finality outweighs the benefits
of mandating further review. Id. at 664. Although couched as compelled
by the constitutional prohibitions on cruel and unusual punishment, we find Corcorans request
for a retraction as the final word rule to constitute a request that
we reverse this conclusion. We adhere to our original position.
Corcorans final constitutional claim is that imposing a filing deadline on persons sentenced
to death when there is no counterpart deadline for persons with lesser sentences
violates the Equal Protection Clause of the United States Constitution and the Equal
Privileges and Immunities Clause of the Indiana Constitution. U.S. Const. amend XIV;
Ind. Const. art I, § 23. As with the due process claims,
this argument does not require extended treatment. Corcoran does not point us
to any authority that the federal or state constitutions require that a state
have identical procedures for the collateral review of the convictions and sentences of
capital and non-capital litigants, and we are aware of none. We believe
that having a separate set of procedural requirements for the collateral review of
the convictions and sentences of capital and non-capital litigants easily meets the rational
basis and reasonableness requirements necessary to pass federal Equal Protection Clause and state
Equal Privileges and Immunities Clause muster. See Jeffers v. Lewis, 38 F.3d
411, 419 (9th Cir. 1994) (applying a rational basis test for Arizona statute
treating capital and non-capital sentencing differently), overruled on other grounds, Ring v. Arizona,
536 U.S. 584 (2002) ; Ben-Yisrayl v. State, 753 N.E.2d 649, 656 (Ind.
2001) (noting that the differential statutory treatment of capital and non-capital jury selection
procedures was reasonably related to inherent characteristics that distinguish the unequally treated class).
In fact, many of the procedures required by Indiana Criminal Rule 24
(which applies only to death penalty cases) inure to the benefit of capital
litigants. See Norman Lefstein, Reform of Defense Representation in Capital Cases: The
Indiana Experience and Its Implications for the Nation, 29 Ind. L. Rev. 495
(1996) (discussing the role of Indiana Criminal Rule 24 in improving the quality
of representation in death penalty cases).
Accordingly, we find that Joseph Corcoran has received the review to which he
is entitled as a matter of right in Indiana state court. Pursuant
to Indiana Criminal Rule 24(H) and Indiana Code § 35-50-2-9, we will set
a date for execution of Corcorans sentence by separate order.
Shepard, C.J., and Dickson and Boehm, JJ., concur. Rucker, J., dissents with
Rucker, Justice, dissenting.
For reasons previously expressed, I respectfully dissent from that portion of the majoritys opinion denying Corcorans petition for rehearing on the question of his competency. See Corcoran v. State, 820 N.E.2d 655, 665 (Ind. 2005) (Rucker, J., dissenting). I also respectfully dissent from the remainder of the majoritys opinion because it essentially forecloses any chance that Corcoran may obtain post-conviction review of his conviction and sentence. The majority correctly characterizes this case as unusual. Slip op. at 2. Precisely for that reason, and because execution is the most irremediable and unfathomable of penalties, Ford v. Wainwright, 477 U.S. 399, 411 (1986), I would allow Corcoran the opportunity to pursue collateral review of his claims.