Curt Lowder v. State of Indiana (mem. dec.)
49A04-1606-PC-1518
| Ind. Ct. App. | Apr 6, 2017Background
- In May 2000, a pickup fled from Deputy Herrick after being flagged; the truck sped through a parking lot, U-turned, crashed, and two occupants fled; Lowder was apprehended hiding behind a bush.
- Lowder was charged with class D felony resisting law enforcement (alleging he "operate[d]" a motor vehicle) and a misdemeanor count; he pleaded guilty in March 2001 to class D resisting while the State agreed to dismiss related counts.
- At the plea hearing the prosecutor read the probable-cause affidavit; Lowder admitted the affidavit except he denied driving the truck. The trial court amended the information to allege that Lowder "used" (not necessarily "operated") the vehicle and accepted the plea.
- Lowder later filed a pro se petition for postconviction relief (PCR) claiming there was no factual basis for the guilty plea; an evidentiary PCR hearing occurred in November 2014.
- After the hearing Lowder moved to amend his PCR petition to add claims that police lacked reasonable suspicion/probable cause to stop the vehicle; the postconviction court denied the motion and ultimately denied relief, finding Lowder failed to show no factual basis for the plea.
Issues
| Issue | Plaintiff's Argument (Lowder) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether postconviction court abused discretion by denying Lowder's late motion to amend PCR petition | Claims about lack of reasonable suspicion/probable cause were tried by express or implied consent at the evidentiary hearing, so amendment should be allowed | Trial Rule 15(B) does not apply because the State objected when those topics were pursued and they were not tried by consent; Post-Conviction Rule governs and amendment within 60 days of hearing requires leave | No abuse of discretion; claims were not tried by consent and court properly denied the late amendment |
| Whether Lowder carried burden to show there was no factual basis for his guilty plea to felony resisting while using a vehicle | He never controlled or used the vehicle and never admitted using it to flee, so plea lacked factual basis | The plea colloquy and probable-cause affidavit showed flight in a vehicle and post-crash flight by Lowder; amendment from "operate" to "use" was allowed and factual basis exists | Held: Postconviction court did not clearly err; Lowder failed to meet burden to show plea lacked factual basis |
| Applicability of Trial Rule 15(B) to PCR proceedings | Trial Rule 15(B) should allow amendment where issues were tried by consent | Trial rules generally govern civil cases; Trial Rule 15(B) only applies case-by-case where PCR rules are silent; here it did not save Lowder's amendment | Assumed arguendo possible applicability but concluded Rule 15(B) did not apply factually because issues were not tried by consent |
| Standard of review for challenging denial of PCR relief (negative judgment) | N/A (standard argument implicit) | State: petitioner must show evidence leads unerringly to opposite conclusion | Court applied standard: petitioner must show evidence as a whole leads unerringly and unmistakably to opposite conclusion; Lowder failed to do so |
Key Cases Cited
- Jones v. State, 536 N.E.2d 267 (Ind. 1989) (upheld felony resisting conviction where passenger’s conduct was imputed and passenger discouraged stopping)
- Tapia v. State, 753 N.E.2d 581 (Ind. 2001) (appellate review of denial to amend PCR petition is for abuse of discretion)
- Corcoran v. State, 845 N.E.2d 1019 (Ind. 2006) (Trial Rules generally govern civil cases; court may apply them in PCR proceedings when PCR rules are silent)
- Cooper v. State, 935 N.E.2d 146 (Ind. 2010) (trial court must have an adequate factual basis before accepting guilty plea; presumption of correctness attaches to that determination)
- Wesley v. State, 788 N.E.2d 1247 (Ind. 2003) (standard for overturning negative postconviction judgment: evidence must lead unerringly to opposite result)
- Ritchie v. State, 875 N.E.2d 706 (Ind. 2007) (petitioner bears burden to prove grounds for PCR by preponderance)
- Harrington v. State, 466 N.E.2d 1379 (Ind. Ct. App. 1984) (Trial Rule 15(B) applied in PCR context where issue was tried by consent)