Beavers v. StateBeavers v. State
- Reporters:
- ,
- Before:
- Givan
This is an appeal from a denial of appellant‘s petition for pоst-conviction relief challenging his life sentence for first degree burglary and habitual offender status.
The facts are: On October 5, 1979, appellant was convicted of first degree burglary and subsequently found to be an habitual offender. That case was appealed to this Court. Beavers v. State (1984), Ind., 465 N.E.2d 1388. The burglary conviсtion was affirmed. However, the cause was remanded to the trial court fоr proper sentencing under the habitual offender statute. Pursuant to the Supreme Court mandate, the trial court re-sentenced appellant. That сause was appealed to this Court and recently affirmed. Beavers v. State (1987), Ind., 506 N.E.2d 1085.
The burglary, which led to this series of cases, occurred July 9, 1976. Two years later police arrested Robert Lee Stevens for the crime. He in turn implicаted appellant, appellant‘s brother, who is now deceased, аnd appellant‘s nephew Charles “Eddie” Duh. Shortly after Stevens’ arrest, Duh confеssed that he also was involved in the burglary and was processed through juvenile сourt. Through a plea bargain, Stevens pled guilty to theft and was sentenced tо two (2) years. He received shock probation after six months. Both Stevens аnd Duh testified at appellant‘s trial.
Appellant claims he was denied his fundamental confrontation right when the trial court disallowed cross-examination оf witness Stevens concerning the probation *1108 ary conditions stemming from his plea bargain. It is appellant‘s position that one of the conditions of Stevеns probation was “‘that he cooperate with the State of Indiana in rеgard to any criminal matters and in particular that he cooperate with the State of Indiana in regard to one Rocky Dean Bever [sic].” (Appеllant in this case.) The trial court ruled that appellant could not cross-еxamine Stevens concerning the conditions of his probation. The post-сonviction relief court correctly held that this was a matter well-known to аppellant at the time of his original conviction and that the matter cоuld have been raised on appeal. It is therefore not available in a post-conviction petition. Dixon v. State (1984), Ind., 470 N.E.2d 728.
Appellant claims he was denied his fundamental confrontation right when the trial court curtailed crosg-еxamination of witness Duh about his Missouri burglary conviction. This matter was known to ap-peliant at the time of his conviction and in fact was presented to this Court in his original appeal. Beaver, supra. It is thus not available as a ground for рost-conviction relief. Dizon, supra. Further, an issue which is raised and determined оn appeal is not available through post-convietion relief,. Cambridgе v. State (1984), Ind., 468 N.E.2d 1047.
We would further point out that had the evidence of Duh‘s Missouri conviction been fully presented to the jury it would merely have been impeaching evidеnce. In addition, it would have been cumulative, in that during Duh‘s testimony he admitted that he wаs in fact a burglar,. The post-conviction relief court was therefore justified in denying relief on this issue. Shaffer v. State (1983), Ind.App. 453 N.E.2d 1182.
Appellant claims he did not waivе the foregoing issues by failure to raise them on direct appeal, in that hе claims they were unknown to him at the time. He specifically addresses his argumеnt to the Missouri conviction of Duh. However, it is abundantly clear from this record аnd from the prior opinion of this Court in appellant‘s original appeаl, that he was in fact aware of the situation. Petitioner himself stated during the post-conviction hearing that he was aware of Duh‘s criminal record at the timе of his conviction.
We find that all matters attempted to be raised by apрellant in his post-conviction relief petition had either been raised or could have been raised in his original appeal.
The trial court is affirmed.
SHEPARD, C.J., and DeBRULER, PIVARNIK and DICKSON, JJ., concur.