Attorneys for Appellee

Karen Freeman-Wilson
Attorney General of Indiana

Andrew L. Hedges
Deputy Attorney General
Indianapolis, IN

Appellant (Defendant below),

                       v.
                        

                       STATE OF INDIANA,
         Appellee (Plaintiff below  ).

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)    Supreme Court No.
)    45S03-0011-PC-708
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)    Court of Appeals No.
)    45A03-9908-PC-304
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In January, 1993, Tapia filed a petition for post-conviction relief, alleging that he received ineffective assistance of trial counsel. The post-conviction case appears to have sat dormant for another three years, as the record does not reflect any activity between early 1993 and early 1996. Frustrated by the slow pace of his case, Tapia sought leave to proceed pro se, which was granted by the post-conviction court in April, 1996.

Acting pro se, Tapia asked for an evidentiary hearing on his claims and the post-conviction court scheduled a hearing for May 20, 1997. On May 1, Tapia filed a motion to continue the hearing and a motion to amend his petition for post-conviction relief. The court denied these motions. Subsequently, Tapia filed a motion to withdraw his petition for post-conviction relief without prejudice. The court received this motion on May 19 – the day before the hearing – although Tapia’s certificate of service stated that he mailed it on May 14. The post-conviction court orally denied Tapia’s motion during the hearing.
    
On June 24, 1999, the post-conviction court denied Tapia’s petition for relief by adopting the State’s proposed findings of fact and conclusions of law. Tapia appealed and the Court of Appeals reversed, concluding that the post-conviction court was required to allow Tapia to withdraw his petition for post-conviction relief without prejudice unless the State could show that it would be harmed by the delay. See Tapia v. State, 734 N.E.2d 307, 310 (Ind. Ct. App. 2000). We granted transfer, Tapia v. State, 734 N.E.2d 307 (Ind. 2000) (table), and now affirm the judgment of the post-conviction court.     

Relying on cases determined under Indiana Trial Rule 41(A), the Court of Appeals concluded that a petitioner was entitled to withdraw a petition for post-conviction relief unless the State could make a “showing of prejudice.” Tapia, 734 N.E.2d at 310. See footnote However, as discussed supra, the Post-Conviction Rule grants the post-conviction court discretion to determine whether to allow a petitioner to withdraw a petition. Id. While prejudice to the non-moving party is one indicia of an abuse of discretion, See footnote it is not a proxy for the post-conviction court’s discretion in the face of plain language in the Rule to the contrary.

    Applying the abuse of discretion standard, we conclude that the post-conviction court’s refusal to allow Tapia to withdraw his petition was not “clearly against the logic and effect of the facts and circumstances before the court.” Stroud, supra. Paramount among the “facts and circumstances” surrounding Tapia’s motion to withdraw is that fact that Tapia made little effort to explain what he would gain by delaying the proceedings. Tapia asserted that he “recently discovered substantial errors which he verily believes warrant relief.” Tapia did not explain what these errors were or why he could not develop evidence to support them in the four years since he filed his petition for post-conviction relief. See footnote The post-conviction court could balance what speculative benefit Tapia would derive from a delay against the costs to the court in wasted time, and conclude that Tapia was not entitled to withdraw his petition. See footnote Without any valid explanation as to what would be gained from further delay, we cannot say that the post-conviction court abused its discretion by rejecting Tapia’s motion.

    Because the Court of Appeals determined that the post-conviction court erred by denying Tapia’s motion to withdraw, it did not address his motion for a continuance or his motion to amend his petition. Again we analyze the post-conviction court’s actions for abuse of discretion. First, it is well-established that we review the grant or denial of a continuance for abuse of discretion. See Troutman v. State, 730 N.E.2d 149, 151 (Ind. 2000), Wine v. State, 637 N.E.2d 1369, 1379 (Ind. Ct. App. 1994) (“[A post-conviction court’s] decision whether to grant or deny a motion for a continuance is left to the sound discretion of the trial court.”), transfer denied. Second, we review the post-conviction court’s refusal to amend a petition for abuse of discretion because the Post-Conviction Rules state that any motion to amend made within 60 days of an evidentiary hearing may be granted only “by leave of the court.” Ind. Post-Conviction Rule 1(4)(c). See footnote Moreover, motions to amend civil complaints are also reviewed for abuse of discretion. See Templin v. Fobes, 617 N.E.2d 541, 543 (Ind. 1993) (“The trial court has broad discretion when deciding whether to permit amendments to pleadings.”).

We conclude that the post-conviction court did not abuse its discretion by denying these motions. Again Tapia failed to show what he would gain by forestalling the evidentiary hearing. Tapia’s motion for a continuance asserted that he “recently discovered new issues” but never sets out what they were or how they could affect his post-conviction claims. He further failed to document why these issues could not have been developed in the four years leading up to the evidentiary hearing or at least prior to the 60-day period. He did assert that he was having difficulty developing these claims because of his inexperience in legal matters (id.), but we have consistently held that a “defendant who chooses to exercise his right to proceed pro se must accept the burden and hazards incidental to his position.” Kindred v. State, 540 N.E.2d 1161, 1185 (Ind. 1989). As for his motion to amend, Tapia asserted only that he “recently discovered new grounds for relief” and that “in the interests of justice [he] should be allowed to present all issues know[n] to him … .” Tapia failed to take the minimal step of setting out what new claims he would add to the petition. Tapia’s motions did not present persuasive reasons to delay a hearing in a four-year-old case and the post-conviction court could reasonably decide not to grant them. See footnote

The post-conviction court rejected these claims, concluding in part that Tapia failed to carry the burden of proof. See Ind. Post-Conviction Rule 1(5) (“The petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence.”). See footnote

Despite the fact that he bore the burden of proof, Tapia presented no evidence to su pport his post-conviction claims. He called no witness during the hearing on his petition. See footnote This failure was due in part because of Tapia sought to continue the hearing, as discussed supra. However, the ineffective assistance of counsel claims were raised in Tapia’s initial petition for post-conviction relief and did not relate to any new claims he sought to add to the petition. He had months to prepare his presentation of evidence on these claims, as the post-conviction court granted his request for a hearing on December, 9, 1996, but did not actually hear the case until May 20, 1997. Moreover, at the close of the evidentiary hearing, the post-conviction court gave Tapia the opportunity to present documentary evidence for up to 90 days after the hearing. Despite this offer, Tapia failed to put any documentary evidence into the record. See footnote He also cited no evidence in his proposed findings of fact and conclusions of law. The total absence of evidence on any of Tapia’s claims of ineffective assistance of counsel supports the post-conviction court’s conclusion that Tapia did not meet his burden of proof.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.