Rоbert ARTHUR, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
No. 49S04-9601-PC-00082
Supreme Court of Indiana
March 22, 1996
663 N.E.2d 529
The doctrine of riparian rights attained its maximum authority on non-navigable streams.... In such surroundings аnd as between such owners equality of benefits from flowing waters was sought in the rule that each was entitled to their natural flow, subject only to a reasonable riparian use which must not substantially diminish their quantity or impair their quality.
United States v. Willow River Power Co., 324 U.S. 499, 505, 65 S.Ct. 761, 765, 89 L.Ed. 1101 (1945).
It appears to us, however, that however strong the historical precedents may have been for court intervention to protect downstream landowners,9 those common law doctrines have been abrogated—at least with respect to public sewage treatment projects—by the enactment of the statutory scheme governing the construction and operation of such projects. As discussed supra, the legislature has, with the express purpose of protecting the state‘s waters, prohibited the construction and operation оf sewage treatment projects without requisite permits and created procedures for persons such as the landowners to participate in the permitting process. And this regulatory schemе makes no distinction, as landowners ask us to make here, between navigable and nonnavigable waters.10
Conclusion
Having previously granted transfer and vacated the trial court‘s preliminary injunction, we now remand this matter to the LaGrange Circuit Court with instructions to dismiss landowners’ complaint with prejudice.
SHEPARD, C.J., DeBRULER, AND DICKSON, JJ., concur.
SELBY, J., not participating.
Pamela Carter, Attorney General, Cynthia L. Ploughe, Deputy Attorney General, Office of the Attorney General, Indianapolis, for appellee.
ON PETITION TO TRANSFER
SELBY, Justice.
On July 27, 1984, Robert Arthur was convicted of attempted murder and of being an habitual offender. He was sentenced to a total of eighty (80) years. This case comes to us on a successive Petition for Post-Conviction Relief. The sole issue before us is whether рrinciples of res judicata bar subsequent review of an issue presented on a prior appeal. We find that res judicata does prevent review, and we affirm the trial court‘s denial of the petition.
PROCEDURAL HISTORY
Robert Arthur (“defendant“) was convicted of attempted murder in 1984. On direct appeal, this Court affirmed the conviction, finding, inter alia, that there was sufficient evidence to establish that the defendant had
In 1992, defendant filed his first Petition for Post-Conviction Relief. Along with several other issues, defendant raised the issue of the adequacy of the jury instructions for attempted murder. In a memorandum decision, the Court of Appeals affirmed the trial court‘s denial of the petition. Although Spradlin v. State, 569 N.E.2d 948 (Ind.1991), had been decided prior to this petition, the Court оf Appeals held that the instruction did not constitute fundamental error because “the pertinent portion of the instruction given here is essentially identical to that approved by the supreme court in Worley and Santana.”1 We denied transfer.
In 1994, defendant renewed his attack on the adequacy of his attempted murder jury instructions by filing this successive Petition for Post-Conviction Relief. This time, the Court of Appeals reversed the trial court‘s denial of the petition and remanded for a new trial, finding that res judicata did not prohibit review and holding that its previous decision had been erroneous. Arthur v. State, 657 N.E.2d 435 (Ind.Ct.App.1995). We grant the State‘s petition for transfer.
DISCUSSION
The sole issue before us is whether defendant‘s successive Petition for Post-Conviction Relief is barred by res judicata. An issue which previously has been raised and determined adverse to the appellant‘s position is res judicata. See, e.g., Grey v. State, 553 N.E.2d 1196 (Ind.1990). Additionally,
Defendant argues that res judicata is not always a bar to relief, and should not be a bar where the prior decision was erroneous. Indeed, this court has held that despite claims of res judicata, a court may correct an error in its prior holding. State v. Huffman, 643 N.E.2d 899 (Ind.1994). However, finality is an important goal of thе judicial system. Id. at 901. Although a court may revisit a prior decision, it “should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was ‘clearly erroneоus and would work manifest injustice.‘” State v. Lewis, 543 N.E.2d 1116 (Ind.1989) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811, 831 (1988)).
At the time of the first Court of Appeals decision, this court had decided Spradlin but had not expressly overruled Worley and Santana. Thus, some confusion remained on the standard for attempted murder jury instructions. Although we have since clarified the case law regarding such instructions, Taylor v. State, 616 N.E.2d 748 (Ind.1993), new rules of criminal procedure are generally not available on collateral review, Daniels v. State, 561 N.E.2d 487 (1990). Therefore, we do not find the mеmorandum decision to be clearly erroneous. Furthermore, in the direct appeal, this court found that there was sufficient evidence to find intent to kill.2 In this case, by choosing finality we are in no way saсrificing fairness.
The Court of Appeals also looked to
CONCLUSION
The trial court‘s denial of defendant‘s successive Petition for Post-Conviction Relief is affirmed.
SHEPARD, C.J., and DICKSON and SULLIVAN, JJ. concur.
DeBRULER, J. dissents with separate opinion.
DeBRULER, Justice, dissenting.
The trial court held a hearing on the petition for post-conviction relief and entered judgment for the State. The court judged that the attempted murder instruction correctly stated the law and did not consider the State‘s defenses of res judiсata, or finality, and laches. The trial court based its judgment on the fact that the attempted murder instruction was essentially the same as instructions approved in Santana v. State and Worley v. State. See Santana v. State, Ind., 486 N.E.2d 1010 (1986); Worley v. State, Ind., 501 N.E.2d 406 (1986). As the trial court concluded, the instructions in Santana, Worley, and the case at bar are essentiаlly the same: they all required the State to prove the defendant knowingly or intentionally took a substantial step toward a knowing or intentional killing.
The instruction in Spradlin v. State was distinctly different, however. Unlike the Santana and Worley instructions, it was of the “murder” genre. It said that the State was required to prove that a knowing or intentional step was taken toward “murder” rather than a “killing.” Spradlin v. State, Ind., 569 N.E.2d 948 (1991). Indeed, this Court expressly noted that distinction in Spradlin. Id. at 951. In my view, Spradlin should mainly be recognized for its expression of this Court‘s firm resolve to require instructions to employ plain “intent to kill” statements, and not for directly confronting the language in Santana and Worley.
It should now be noted that Santana and Worley were first directly condemned in Taylor v. State, Ind., 616 N.E.2d 748 (1993). Like Santana, Worley, and Spradlin, Taylor was a direct appeal. Taylor was not decided until a year after appellant‘s appeal from the denial of his first post-conviction petition was concluded and the trial сourt‘s judgment denying him post-conviction relief upon his second post-conviction petition had been rendered. Additionally, it was even later in 1994 that Spradlin was applied in a post-conviction proceeding. See Simmons v. State, Ind., 642 N.E.2d 511 (1994). In conclusion, I would say that Taylor and Simmons mark a change in the law after the denial of appellant‘s original post-conviction petition, one favorable to appellant‘s ground for relief urged in his original petition. He has heretofore diligently presented that claim in the courts. In consideration of the due administration of justice and in light of the new direction of Taylor and Simmons, I cannot say that representment of the same claim should now be barred by the prior post-conviction judgment.