ATTORNEY FOR APPELLANT
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
SUPREME COURT OF INDIANA
ALAN BUNCH, )
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 79S02-0205-PC-293
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 79A02-0105-PC-338
Appellee (Plaintiff Below). )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Donald Johnson, Judge
Cause No. 79D01-9009-CF-116
ON PETITION TO TRANSFER
November 26, 2002
We hold that in order to establish the affirmative defense of waiver the
State must raise it in its pleading in a post-conviction relief proceeding and
carry the burden of proof on the issue in the trial court.
However, a court on appeal may nevertheless find, sua sponte or at the
suggestion of a party, that the issue presented in a post-conviction petition was
waived by procedural default if the matter could have been presented on direct
appeal but was not.
Factual and Procedural Background
Alan Bunch was found guilty by a jury of two counts of Dealing
in Cocaine as Class A felonies and four counts of Dealing in Cocaine
as Class B felonies. For each Class A felony, Bunch was sentenced
to fifty years in prison, with four years suspended for supervised probation.
He received a twenty-year sentence on each count of Dealing in Cocaine as
a Class B felony. All time was ordered to be served concurrently.
On direct appeal, the Court of Appeals overturned one of Bunchs Class A
felony convictions in an unpublished memorandum decision but his sentence remained at fifty
years. Bunch v. State, 594 N.E.2d 847, No. 79A02-9112-CR-539 (Ind. Ct. App.
June 18, 1992). Bunch did not raise any sentencing issues in his
Bunch then filed a petition for post-conviction relief which was denied by the
trial court. The Court of Appeals affirmed the denial of post-conviction relief
by unpublished memorandum decision.
Bunch v. State, 659 N.E.2d 262, No. 79A04-9501-PC-14
(Ind. Ct. App. Dec. 14, 1995). Bunch raised no challenge to the
trial courts handling of mitigating or aggravating circumstances.
See footnote This Court denied transfer.
Bunch then filed a successful request for permission to file a successive petition
for post-conviction relief. In the successive petition, Bunch argued that in sentencing
him, the trial court improperly weighed the aggravating and mitigating circumstances.See footnote The
State filed a response asserting the affirmative defenses of waiver, res judicata, and
At the successive post-conviction hearing, Bunch challenged four aggravating factors cited by the
trial court.See footnote The State responded to Bunchs arguments on the merits contending
that one aggravating circumstance was sufficient to enhance a sentence above the presumptive
sentence. The post-conviction court denied Bunch relief without ruling on the States
pleaded defense of waiver.
On appeal, the Court of Appeals affirmed the trial courts denial of post-conviction
relief on the merits, but noted that because the State failed to argue
the affirmative defense of waiver at the post-conviction hearing, it cannot now raise
waiver on appeal.
Bunch v. State, 760 N.E.2d 1163, 1168 (Ind. Ct.
See footnote We granted transfer in a separate order dated May 23,
2002 to address this last issue.
I. Waiver and Procedural Default
On appeal, relying on Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999),
the State argued that Bunch had waived the sentencing issue because he did
not raise it on direct appeal.
See footnote The Court of Appeals interpreted
v. State, 256 Ind. 199, 267 N.E.2d 538 (1971), to require the State
to raise the defense of waiver at the hearing. The court concluded
that, because the defense was not raised at the hearing, the State did
not preserve the defense in the post-conviction court, and the court could not
We agree that the State was not entitled to affirmance on the basis
of waiver, but conclude that the Court of Appeals was not barred from
finding that Bunch had waived his sentencing issues. The term waiver has
been applied to several different concepts. Here, we need to distinguish between
waiver as an affirmative defense and a discretionary judicial doctrine that forecloses an
issue on appeal. We think the latter is more properly described as
procedural default or forfeiture, but we acknowledge that it is often referred to
as waiver. Indiana Trial Rule 8(C) requires parties to plead some affirmative
defenses, including waiver, or forfeit them.
See footnote It also places the burden of
proof at trial on the party required to plead the matter as an
affirmative defense. In contrast to the waiver governed by Rule 8(C), there
is also a doctrine of judicial administration whereby appellate courts may sua sponte
find an issue foreclosed under a variety of circumstances in which a party
has failed to take the necessary steps to preserve the issue.
e.g., West v. State, 755 N.E.2d 173, 184 (Ind. 2001) (where the defendant
fails to make an offer to prove); Flowers v. State, 738 N.E.2d 1051,
1061 (Ind. 2000) (where defendant fails to object to trial judges comments); Trueblood
v. State, 715 N.E.2d 1242, 1248 (Ind. 1999) (in post-conviction proceedings where claims
are available on direct appeal but are not presented to the court); Kindred
v. State, 540 N.E.2d 1161, 1176 (Ind. 1989) (where defendant rejected the trial
courts offer to admonish the jury). This case deals with the procedural
default variety of waiver, which arises solely by reason of failure to raise
the issue on direct appeal. There is no claim of consensual action,
stipulation that eliminated the issue, or some other form of waiver that requires
proof of the actions taken by a party that operate to bar it
from asserting a claim.
A. Waiver as an Affirmative Defense
We agree with the Court of Appeals that the affirmative defense of waiver
must be raised at the post-conviction hearing to be properly preserved for appeal.
The Court of Appeals relied principally on Langley, 256 Ind. at 199,
267 N.E.2d at 538, for its conclusion that waiver must be raised at
the post-conviction hearing to be properly preserved. Langley held that the State
must raise the issue at the hearing: [I]t would seem that the state
is precluded from asserting waiver on appeal where they made no mention concerning
it at the hearing. Id. at 207 n.2, 267 N.E.2d at 543
n.2. Although the State was the appellee, the court considered the issue
precluded on the same basis that an appellant is normally denied the right
to raise an issue for the first time on appeal. Id.
Langley also declared, Where, however, the state, as it did in this case,
chooses to meet a petitioners allegations on their merits at the hearing, we
must do likewise on appeal. Id. at 207, 267 N.E.2d at 542-43.
Relying on Langley, the Court of Appeals in this case concluded that
the key factor in preserving waiver for appeal is that the issue be
argued to the post-conviction court. Bunch, 760 N.E.2d at 1167. Similarly,
Mickens v. State, 596 N.E.2d 1379, 1381 (Ind. 1992), interpreted Langley to require
that the waiver defense be presented by the State to the post-conviction court
before that court can find waiver. See also State v. Eubanks,
729 N.E.2d 201, 205 (Ind. Ct. App. 2000), trans. denied (State must argue
waiver as a defense to the post-conviction court or the defense is waived);
Nelson v. Gurley, 673 N.E.2d 497, 500 n.3 (Ind. Ct. App. 1996) (Waiver
must be specifically pleaded in the answer or specifically raised at trial or
it is waived.).
Langley involved two consolidated cases in which post-conviction relief had been denied.
The rules governing post-conviction relief were adopted in 1969 and the current Trial
Rules became effective in 1970. Langley was decided by this Court in
March 1971. It is not clear whether the Court regarded the Trial
Rules as applicable to the post-conviction proceedings before it. In any event,
it is now clear that the Trial Rules apply to post-conviction relief proceedings.
Ind. Post-Conviction Rule 1(5) (All rules and statutes applicable in civil proceedings
including pre-trial and discovery procedures are available to the parties, except [in cases
involving a change of judge request].); State v. Drysdale, 677 N.E.2d 593, 595
(Ind. Ct. App. 1997), trans. denied (Post-conviction proceedings are governed by the rules
and statutes applicable to civil proceedings and the petitioner has the burden of
proving his claims by a preponderance of the evidence.).
Under current Trial Rule 8(C), the State must raise the issue in its
pleading and carry its burden of proof at trial in order to prevail
on an affirmative defense. See Troxel v. Troxel, 737 N.E.2d 745, 749
(Ind. 2002). Failure to plead the defense waives it. Having pleaded
the defense, as the State did here, it remained the States burden to
establish the necessary facts to support the defense.
Here, at the post-conviction hearing, although the State did not abandon the defense,
it took no steps to call it to the post-conviction courts attention.
More importantly, the State did not present the facts necessary to establish this
defense either by evidence or by requesting judicial notice of the issues presented
in Bunchs direct appeal. These facts were readily available to the State.
Simply offering into evidence Bunchs appellate brief would establish that the sentencing
issue was not raised on direct appeal. As a result of this
omission, the State failed to establish the facts necessary to carry its burden
of proof on this defense. The State therefore is not entitled as
a matter of right to a ruling that Bunch has waived his claim
of sentencing error.
B. Waiver by Procedural Default
Although the State failed to establish an affirmative defense, a court on appeal
may nevertheless find that the sentencing issue presented in a second post-conviction petition
was forfeited by means of procedural default. More generally, although a party
who has failed to plead or prove a Rule 8(C) affirmative defense has
no right to prevail on that basis, the party may nevertheless suggest to
the court that procedural default of an issue is an appropriate basis to
affirm the judgment below. To the extent Langley and its progeny suggest
otherwise, they are overruled. As noted above, an appellate court is not
precluded from determining that an issue is foreclosed under a wide variety of
circumstances. Post-conviction procedures provide defendants the opportunity to raise issues that were
not known at the time of the original trial or were not available
to defendants on direct appeal. Lowery v. State, 640 N.E.2d 1031, 1036
(Ind. 1994). It has long been held that claims available on direct
appeal but not presented are not available for post-conviction review. Trueblood, 715
N.E.2d at 1248; Conner v. State, 711 N.E.2d 1238, 1246 (Ind. 1999); Rouster,
705 N.E.2d at 1003; Lowery, 640 N.E.2d at 1036. These are applications
of the basic principle that post-conviction proceedings do not afford the opportunity for
a super-appeal. Wrinkles v. State, 749 N.E.2d 1179, 1187 (Ind. 2001).
Here it is clear that Bunch seeks to raise an issue that was
available on direct appeal. The parties briefs on direct appeal and in
the first post-conviction relief appeal are matters of public record subject to judicial
notice. See, e.g., Willner v. State, 602 N.E.2d 507, 509 (Ind. 1992);
Roeschlein v. Thomas, 258 Ind. 16, 20, 280 N.E.2d 581, 584 (1972).
Our review of Bunchs brief reveals that Bunch did not raise the aggravating
and mitigating sentencing issue on direct appeal. Because the waiver the State
asserts is of the procedural default variety, it may be raised by an
appellate court sua sponte. We conclude that Bunch, by failing to present
this claim on direct appeal, is foreclosed from raising it in the post-conviction
For the first time in his second post-conviction relief appeal, Bunch contends in
his appellate reply brief that the errors committed by the trial court as
a result of the consideration of improper aggravating factors constituted fundamental error, and
therefore, can not be waived.
is a doctrine that prevents
review of an issue on appeal despite failure to raise it in the
trial court. It does not permit relitigation of issues that were available
on direct appeal. Rather,
as we held in Sanders v. State, 765
N.E.2d 591, 592 (Ind. 2002): In post-conviction proceedings, complaints that something went awry
at trial are generally cognizable only when they show deprivation of the right
to effective counsel or issues demonstrably unavailable at the time of trial or
Finally, Bunch contends for the first time in his reply brief on appeal
in this second post-conviction proceeding that his failure to raise the trial courts
sentencing errors was the result of ineffective assistance of counsel. Among the
claims Bunch seeks to assert, this is the only one that is available
in post-conviction proceedings. However, it was waived in this appeal by Bunchs
failure to present it in his appellate brief.
We affirm the Court of Appeals conclusion that the State failed to preserve
the defense of waiver by not establishing the facts relevant to the defense
at the post-conviction relief hearing. We conclude, however, that an appellate court
is free to find the issue foreclosed for failure to present it on
direct appeal. We find the issue foreclosed and therefore affirm the trial
courts denial of post-conviction relief. Pursuant to Indiana Appellate Rule 58(A)(2), we
summarily affirm all other issues.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
On direct appeal, Bunch argued: (1) a statement given by Bunch was
pursuant to a custodial interrogation that required he be advised of his Miranda
rights; (2) the trial court erred by permitting the State to question Bunch
about his use and possession of marijuana although he had never been charged
or convicted of those activities; and (3) the trial court erred by permitting
the State to prepare four bags of a white powdery substance as demonstrative
In his first post-conviction relief appeal, Bunch contended: (1) he was
not sufficiently advised of the accusations against him because the charging information failed
to name the person to whom he intended to deliver the cocaine; and
(2) his Fifth Amendment rights were violated when he was sentenced twice for
the same set of facts.
Bunch also raised the issue of ineffective assistance of trial, appellate, and
post-conviction counsel in his petition to the trial court. He raised this
issue for the first time in his reply appellate brief. Relying on
Ross v. State, 429 N.E.2d 942, 945 (Ind. 1982), the Court of Appeals
found Bunch had waived this issue by not raising it in his principal
brief. Bunch v. State, 760 N.E.2d 1163, 1167 n.3 (Ind. Ct. App.
2002). We summarily affirm this issue. Ind. Appellate Rule 58(A)(2).
The State did not raise either res judicata or laches on appeal,
and we do not address these issues.
Bunch had been charged with reckless homicide based on a death from
overdosing on Bunchs drugs, but he was acquitted of that count. Bunch
challenged the trial courts consideration of the victims death (a charge of which
he was acquitted), his prior criminal history, his need of correctional rehabilitation, and
the depreciation of the seriousness of the crime by imposing a lesser sentence.
The Court of Appeals ultimately held that although the sentencing court improperly
considered two aggravators when it enhanced Bunchs sentence, it properly considered three aggravators
and did not err in failing to find Bunchs proffered mitigators. Bunch,
760 N.E.2d at 1170-71.
Without giving citations to the record, the State contends that the sentencing
issues were known at the time of Bunchs direct appeal and original post-conviction
proceeding because they were based on the face of the record of proceedings.
Trial Rule 8(C) provides in pertinent part, A responsive pleading shall set
forth affirmatively and carry the burden of proving: . . . waiver .
. . . A party required to affirmatively plead any matters, including
matters formerly required to be pleaded affirmatively by reply, shall have the burden
of proving such matters.