Attorneys for Appellee
Attorney General of Indiana
Andrew L. Hedges
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
) Court of Appeals No.
August 20, 2001
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 Tapias certificate of service stated that he mailed
it on May 14. The post-conviction court orally denied Tapias motion during
On June 24, 1999, the post-conviction court denied Tapias petition for relief by adopting the States 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
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
courts discretion in the face of plain language in the Rule to the
Applying the abuse of discretion standard, we conclude that the post-conviction courts 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,
Paramount among the facts and circumstances surrounding Tapias 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.
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.
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 Tapias motion.
Because the Court of Appeals determined that the post-conviction court erred by denying Tapias 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 courts 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 courts] 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 courts 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. Tapias 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. Tapias 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
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 Tapias 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 Tapias claims of ineffective assistance of counsel supports the post-conviction
courts conclusion that Tapia did not meet his burden of proof.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
Footnote: The Court of Appeals relied on language from our opinion in Neeley v. State:
A proper interpretation of [Indiana Post-Conviction Rule 1(4)(c)] is that the petitioner has a conditional right to withdraw a previously filed petition for post-conviction r elief, but it is not an absolute right and may be granted by the trial court absent any overriding prejudice which may result to the state by allowing the petitioner to withdraw his petition.
269 Ind. 588, 591, 382 N.E.2d 714, 716 (1978), overruled on other grounds by German v. State, 428 N.E.2d 234, 237 (Ind. 1981). Nothing we say today contradicts with Neeley, as that case was silent as to the proper standard of review to apply to claims arising under Rule 1(4)(c)s withdraw language. Like Neeley, we consider prejudice to the State, but emphasize that it is simply one factor to consider in an abuse of discretion analysis.
Footnote: Tapia did assert that he was pursuing DNA testing of certain evidence, but did not offer a valid explanation of what he hoped the testing would show or why this testing could not have been conducted and completed over the previous four years.
Footnote: Also weighing in this balance is that fact that Tapia had already attempted to delay the hearing through motions to continue and to amend his petition. Viewing the facts as a whole, it is clear that Tapias motion to withdraw was nothing more than a reassertion of these earlier motions.
Footnote: This Rule was amended in 1995. Prior to that time, the Rule stated that the petitioner shall be given leave to amend the petition as a matter of right. See Ind. Post-Conviction Rule 1(4)(c) (1994) (emphasis added). The Rule now provides that the petitioner shall be given leave to amend the petition as a matter of right no later than sixty  days prior to the date the petition has been set for trial. Any later amendment of the petition shall be by leave of the court. (emphasis added). This change in Rule 1(4)(c) demonstrates our intent to grant the post-conviction court discretion when ruling on amendments within the 60-day period.
Footnote: Cf. Nyby v. Waste Management, Inc., 725 N.E.2d 905, 915 (Ind. Ct. App. 2000) (The Plaintiffs waited twelve years to assert a claim that could have been raised in their initial complaint. The Plaintiffs do not identify new evidence that was discovered during the course of the litigation that led them to seek this amendment. This court has refused to find an abuse of discretion where the trial court denied a motion to amend filed four years after the complaint and where there was no newly discovered evidence that justified the delay. Similarly, we conclude that the trial court could have reasonably found that the delay here was undue. The Plaintiffs have not shown that the trial court abused its discretion.), transfer denied.
Footnote: Because a petitioner bears the burden of proving post-conviction claims, a petitioner whose claims are rejected appeals from a negative judgment. On appeal from a negative judgment, to the extent this appeal turns on factual issues, the defendant must convince this Court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the postconviction court. Latta v. State, 743 N.E.2d 1121, 1125 (Ind. 2001).
Footnote: Even the transcript of Tapias trial is absent from the post-conviction record. It is practically impossible to gauge the performance of trial counsel without the trial record, as we have no way of knowing what questions counsel asked, what objections he leveled, or what arguments he presented.
Footnote: The only documents Tapia presented at all are attachments to an unverified memorandum in support of his petition for post-conviction relief. These documents which purport to be an affidavit from his sister and transcripts of statements to the police were not admitted as evidence and Tapia laid no foundation for their authenticity. See Ind. Evidence Rule 901. Although Tapia filed the memorandum with his petition for post-conviction relief in 1993, he failed to introduce properly the documents into evidence at his 1997 hearing or at any time before or after the hearing. Tapia cannot rely on these documents as evidence.
Tapia also claims that the wrong judge signed the order that denied his motion for a continuance and his motion to amend his petition. Appellants Br. at 19. However, the record clearly shows that this order was signed by the special judge who presided over Tapias case.
Footnote: Tapia argues that he objected to the magistrates authority by asking her if he could appeal her rulings. Appellants Reply Br. at 11. However, an objection must be sufficiently specific to alert the trial judge fully of the legal issue. Moore v. State, 669 N.E.2d 733, 742 (Ind.1996), rehg denied. Tapias broad question as to whether he could appeal his case did not alert the magistrate to any challenge to her authority.
Now Ind. Appellate Rule 58.