*1 GARNER, Appellant, Merle Indiana, Appellee.
STATE of No. 49A02-8810-PC-383. Indiana, Appeals Court of Second District.
Feb. 1990. Carpenter, Defender,
Susan K. Public Pinnow, Defender, John Deputy Public In- dianapolis, appellant. for Pearson, Linley Atty. Gen., E. John D. Shuman, Deputy Gen., Atty. Atty. Office of Gen., Indianapolis, appellee. for SHIELDS, Presiding Judge. appeals Merle Garner the denial of his amended relief. We reverse.
ISSUE presents several issues for our
review, dispositive: one of which is Wheth- er error occurred when Garner was found guilty and sentenced for aas where the amended information charged him with as a class B where, addition, felony and the record is devoid of injury. serious FACTS charged
The information that Garner did knowingly, deadly while armed with a weapon person pres- ... take from the property ence of DAVID BURNETT ... putting DAVID BURNETT in fear or *2 threatening the use of force by using or (Indiana correct error Rules of Proce- to BURNETT which resulted on DAVID dure, Relief Rule ad- Post-Conviction YOUNG, bodily injury EARL to wit: to to the denial of dressed IN THE RIGHT GUNSHOT WOUND motion, among allega- In the other lief. ARM.... tions, unsuccessfully argued he Garner charged an convicted of offense not was Trial Record at 6. Garner was convicted the record was devoid of evidence robbery, felony, a class A after a bench en- bodily injury." "serious This pre- He sentenced to serve the trial. sued. thirty years. ap-He sumptive sentence of
pealed. DECISION relating underlying the con-
The facts viction, supreme court as set forth our argues the are: Garner's erred when it determined waived 15, appel- evening
On the
of November
convicting
trial court's error in
him of the
felony robbery.
argues
A
The
private
class
state
a
social club.
lant entered
small
particularly
The
was not
exclusive
club
any
waived
error because he did
gain
if
he could
one were known
appeal.
it on his direct
raise
persons attending the
admittance.
The
is fundamental and can be
asserts
games
engage
illegal
could
club
any
raised at
time.
chance.
(1985), Ind.,
Bailey v. State
beer,
drinking
appellant
After
fired a
1260,
supreme
N.E.2d
court addressed
warning
his inten-
shot and announced
singular
propriety
""the
an issue
tion to rob the club and
"members"
ly characterized as fundamental error
present. Although the
who were
evi-
petition."
at 1262.
Id.
many
dence is in conflict as to how
shots
Bailey
as a
had been convicted
fired,
he fired
appellant
it is clear that
felony
A
and his conviction had
class
been
once,
weapon
at least
since
bar-
appeal. Bailey
affirmed on direct
bullet,
grazed by
appel-
tender was
(1980),
He
274 Ind.
N.E.2d 56.
lant admitted
redirect examination
on
subsequently petitioned
weapon
that he fired his
once.
claiming,
part,
relief
that "insufficient
(1980),
Garner v.
274 Ind.
State
evidence was adduced at trial to
N.E.2d
584-5.
felony,
A
the conviction of a Class
result
supreme
The
court affirmed Garner's
ing
Bailey,
in fundamental error...."
concluding
there was sufficient
responding
Bailey's
at 1262. In
evidence from which the fact finder "could argument,
remedy
court held
beyond
find
doubt that
reasonable
[Gar post-conviction relief is not a substitute for
committed armed
and that
ner]
Any
a direct
issue set forth
injury
during
was inflicted
the commission
post-conviction petition
raised
"must be
Garner,
of the crime."
Based
the date of Garner's convie-
IC
tion,
supreme
it is obvious our
court's deci-
supreme
interpreted
court
the
in
Clay
sions
and Hill were
available
language
robbery
statute in Clay v.
time
his trial and his
(1981), Ind.,
State
N.E.2d 842:
Therefore,
Garner has
Legislature
The
intended to make rob-
purview
post-con-
raised "within the
bery
felony
a class A
in two situations:
demonstrably
an
un-
viction rules ...
(1)
bodily injury
when
resulted to the
at the time of his
available to
robbed,
being
(2)
person
when seri-
appeal." Bailey
trial and direct
bodily injury
ous
resulted to
upon Bailey
Based
determine
we
person. Bodily injury
robbery
to the
vic-
has set forth errors which are fundamental
tim need not rise to the serious level to
Therefore,
in dimension.
we turn to the
impose
felony liability
class A
on the
argument.
merits of Garner's
robber.
claims the trial court erred
when
Id. at 844.
felony robbery
it convicted him of a class A
(1981),
In Hill v. State
charged only
whereas the information
a
999, the defendant was convicted of rob-
and,
addition,
B
felony robbery
bery
felony.
as a class A
On
he
bystander
there is no evidence the
suffered
argued
robbery
"the
on the
count
bodily injury.
serious
only
robbery...."
showed
a class C
Id.
by describing
The state claims that
court,
supreme
The
re-
Clay,
based
injury
gunshot
bystander
as a
wound
A felony
versed Hill's conviction for a class
injury
the information
an
sufficient-
because
evidence did not show serious
ly grievous
bodily injury.
to be serious
It
bodily injury
bystander
to a
and remanded
further asserts there is evidence to show
resentencing
felony.
for
as
class C
bodily injury.
serious
under
1979 stat
The reversal of Garner's
ute,
bystander
must suffer "serious bodi
grounds:
mandated on two
he was convict
ly injury"
support
a class A
order
ed of an offense with
which
Furthermore,
felony robbery conviction.
charged
evidence is insufficient to
contrary
argument,
to the state's
it is error
support
felony.
his conviction of the class A
causing "bodily
charge
a defendant with
argument
The
substance Garner's
injury" and
him of a crime for
convict
robbery
volves around the
statute as it
causing
bodily injury"
"serious
is a
supreme
existed
1979 and the
court's
required
Yarbrough
element.
v. State
legislature's
1981 discussion of the
intent.
(1986), Ind.,
206, Hayward
1979, robbery
was defined as follows:
(1988),
15;
Ind.App., 524 N.E.2d
Peek
person
knowingly
A
who
or intention-
(1983), Ind.App.,
(1) By using threatening or use "by using or put victim fear any person; force on or threatening the use of foree on rob [the fear; bery which resulted in By putting any person victim] bystander], to-wit: GUNSHOT to [the robbery, felony. commits a class C How- ever, B ARM Trial the offense is a class if it WOUND IN THE RIGHT ..." ness, permanent protracted (Repealed pain, or 1. IC 35-41-1-2 defines extreme bodily "bodily injury bodily serious as that cre impairment of a loss or function ates a risk of death or that causes substantial organ." member or disfigurement, serious unconscious permanent at 95. Lt. Norton was felony." a A Id. charged with at 6. Garner was Record "bodily injury" is for a causing Larry was sentenced bystander. crime for which felony. supreme After the court's class A convicted of required element and was Larry petitioned Clay and Hill decisions bodily causing "serious crime for which claiming the factu post-convictionrelief required element. The dead- injury" is the plea did not a class al for his basis ly weapon allegation elevated supreme felony charge. A The felony; allegation a class B and, applying Clay and Hill retro agreed bystander was insufficient injury to a post- decision of the actively, reversed the felony. it to a class further elevate denying Larry relief and conviction court gunshot wound argument that the state's *4 permit Larry to to with ordered that court sufficiently injury "an allegation plea. draw bodily injury' within grievous to 'serious be (Ap- term" defining the latter the statute uncharged an was convicted of Garner By is without merit. pellee's Brief Also, offense, felony robbery. the class A gunshot wound constituted alleging the the evidence is insufficient to sustain "bodily injury" the state cannot now con- Therefore, for that offense. we alleged. other than it injury tend the was judgment reverse the erroneously was convict- con- court and order it to vacate Garner's he was not an offense with which ed of felony robbery. How- viction of class charged. ever, supreme the court's de- based appeal termination Garner's addition, record is devoid of In the for a reasonable the evidence is sufficient a reasonable fact find evidence from which finder to conclude Garner was armed fact injury bystander's conclude the er could deadly weapon, the with a statutory the definition serious within was judg- further ordered to enter court is bodily injury. The serious bullet went felony B for the class ment of conviction arm, through bystander's upper the unbe accordingly. and to sentence Garner him, "[glot in the of knownst to until he running down felt the blood fice. ... [aind MILLER, J., concurs. my arm." Trial Record at 187. He went SULLIVAN, J., dissents, with hospital; the the wound was treated to immediately opinion. separate there he released was bystander testified he had thereafter. SULLIVAN, Judge, dissenting. any subsequent problems with the not had desirability the of a This case dramatizes Thus, arm. the record is devoid of to drawn between bright line distinction be "death, dis permanent serious evidence finality in criminal convictions the value of unconsciousness, pain, figurement, extreme convictions recognition that some impair permanent protracted or loss or or tainted "fun- no matter how old be bodily organ" as ment of the function of a error. damental" required by statutory definition of "ser conviction, a Motion Following Garner's bodily injury." ious IC 35-41-1-2 Errors was filed his trial to Correct 1988). (Repealed The evidence further Errors The Motion to Correct counsel. any sub injury to show the created fails alleged following errors: A reasonable fact stantial risk of death. prosecutor improperly tried to 1. The this evidence finder could conclude from alleged pri- impeach the defendant of bystander bodily in only that suffered felonies; jury. insufficient to sus- 2. The evidence was Larry A similar situation existed tain conviction. (1985), Ind., Larry support memorandum in of the Mo- an information In his pled guilty the defendant tion, adding phrase, trial counsel stated "by amended which was "First, robbery 'and said resulted for two reasons. insufficient was injury no evidence of an sufficient charge to a Class there is to Lt. Norton' to raise the alleged raise the armed herein Garner thru the Indiana Public Defender requested permission then from a 'B' to a Class 'A' to file Belated Class felony." Record at 2. The second reason (P.C.2) Motion to Correct Errors addressed to the denial of his first challenged credibility of the Petition Post- witnesses hearing, Conviction Relief. After a against The Motion who testified Garner. court allowed Garner to file a Belated Mo- denied, Errors was and the court Correct Apparently tion to Correct Errors. appointed attorney appellate a different as waiver, argued avoid ineffective as- appeal, appellate counsel. In the direct counsel, counsel, sistance of trial general counsel raised the same issues that counsel. The court presented in his Motion to trial counsel had overruled Belated Motion to Correct However, appellate Correct Errors. coun- perfected. Errors and this argue specifically sel did not that there was insufficient evidence of presents six issues for our review felony. conviction for as a class A which would restate as follows: Instead focused conflict 1. Whether testimony by the State's witnesses. Our denying erred in Garner's Petition on the Supreme Court affirmed the conviction *5 basis of waiver and whether fundamental finding support sufficient evidence to error occurred when Garner was found conviction. guilty Robbery and convicted of Class A charged where the Amended Information 10, 1984, September On filed a Garner Robbery; him B with Class pro se Petition for Post-Conviction Relief. pleadings other filed 2. Whether Garner was denied due Various were and con- granted tinuances until an Peti- amended process presumption of law and the tion for Relief filed on Post-Conviction innocence in violation of the Sixth and January petition, 1987. The amended Fourteenth Amendments of the United se, pro presented following allega- One, also States Constitution and Article See- error:; tions and Twelve Thirteen of Indiana tions of Constitution, when the conviction for Counsel, Ineffective Assistance of Robbery, felony, A a Class was not sus Misconduct, Prosecutorial evidence;1 tained sufficient Conviction is Violation of ef- 3. Whether Garner was denied the Laws of Indiana." Record at 103. trial, appellate fective assistance and setting in support forth the facts post-conviction counsel in violation of Ar- assertion of ineffective assistance trial One, and Thirteen ticle Sections Twelve counsel, alleged "counsel also the Indiana and the Constitution Sixth argue recognizes failed to Indiana and Fourteenth Amendments of the Unit- 'bodily injury' distinction between and 'seri- ed States Constitution. bodily injury' during ous the court's assess- 4. denied his Whether Garner was ment of the conviction as a class A Bor right by jury in to trial violation of the felony." Record at 108. Garner did not Sixth and Fourteenth Amendments allege ineffective assistance of States Constitution and Arti- United counsel. One, cle Thirteen of the Indiana Section Constitution, where his waiver of trial represented by
Garner was a new attor- jury knowing, intelligent ney hearing petition. at the to consider the was not petition May voluntary; The court denied Garner's on pro 1987. Garner se then filed a second Garner was denied his Whether right for to a fair trial violation of the summarily denied based its ear- and Fourteenth Amendments Sixth Findings
lier of Fact and Conclusions of the United States Constitution and Arti- One, Law. cle Sections Twelve and Thirteen of regard, disagree majority's In this with the record is devoid of evidence of serious framing injury." (Opinion, p. of the issue which states that "the sinus, deep fered a to his a nose- prosecutorial the Indiana Constitution bruise misconduct; days bleed which lasted three and a head- lasting three weeks. ache On post-conviction court
6. Whether the inju- the issue that the defendant grounds finding erred in that Garner's ry he inflicted on the vietim "was not seri- relief were waived process enough violation of his to due ous to warrant conviction of a class guaranteed by the Fourteenth law felony." prompt A Id. at 848. This issue Amendment of United States Consti- ed the Court of Indiana to inter- pret language robbery statute. tution, One, and Article Section Twelve of the Indiana Constitution. The Court held: Legislature "'The intended to make rob- discussion, I purposes For address bery a class A situations: two together. urges 2 and 8 Issues bodily injury when resulted to the error us to conclude that fundamental oc- robbed, person being when seri- curred at trial because he was convicted of ous resulted to robbery the amended infor- when Bodily person. robbery vie- only presented mation facts to tim need not rise to the serious level to robbery. conviction for class B impose felony liability class A on the raises this issue as fundamental robber." Id. at 844. order to avoid determination issue was waived. decision, Because of the Clay argument alleges fundamental error in his conviction
The substance of Garner's of a class A the information when volves around the statute as it only charged inflicting "bodily him with existed 1979 and the Court's *6 bystander. injury" on a non-victim He con- interpretation discussing in 1981 the intent 1979, Clay retroactively ap- tends that legislature. In should be was plied defined as follows: and his sentence reduced to that for a felony. class B Robbery-A person I.C. 85-42-5-1. - knowingly intentionally who or takes the (1985) Bailey In v. State property person from another or from 1260, Supreme our Court addressed "the presence person: the of another propriety singularly an issue (1) By using threatening or the use of characterized as fundamental any person; force on post-conviction petition." Id. at 1262. As (2) By putting here, fear; majority any person in noted the the court held robbery, felony. commits a class C How- remedy that the relief is ever, felony the is a B appeal. Any offense class if it not a substitute for a direct deadly is committed while armed awith post-conviction petition issue set forth in a weapon, felony A and a class if it results purview "must be raised within the in either or serious rules, (sic) e.g., deprivation injury person. right of the Sixth Amendment to effective counsel, assistance of or be an issue de ap- Garner was convicted in 1979 and his monstrably unavailable to the peal in was decided December 1980. In appeal." the time of his trial and direct Id. 1981, February, Supreme our Court decided (1981) 256, Clay v. State 275 Ind.
N.E.2d 842. argues allegation that his of fun- Clay,
In
the
defendant was convicted of
freestanding
damental error
is not
and is
robbery. During
A
the course of
on the merits
reviewable
because
robbery,
demonstrably
the defendant hit the
in
him
victim
was
unavailable to
at the
the face. The victim testified that he suf-
appeal.
time
his trial and direct
dis-
light
holding
I must believe that
in
of its
theories to be the exclusive bases for relief and
availability
post-convic-
which restricts
merely representative
group
of a
of unenu-
relief,
tion
the court
meant
ineffective assist-
merated courses for relief.
unavailability
ance of counsel and the issue
allege
post-conviec
ineffective
after
Although Clay was decided
agree.
counsel,
apparently
avoid waiver.3
sue-
the issue which was
Garner's
Clay
However,
exception
in
cessfully presented to the Court
Batley
created in
by showing
not seri
ineffective as
injury
inflicted was
avoid waiver
was that
light
read in
sistance of counsel must be
a class
enough to warrant conviction of
ous
Supreme
in
our
Court's decisions
Baum v.
forth
robbery.
very
This
issue was set
(1989) Ind.,
ring
trial or
Baum
Schiro
at the
be determined
post-con
and the issues would
assistance
of ineffective
though
prior
no
PCR
law as
to Garn
prevailing
not now available
counsel is
viction
filed." Id. at 1885.5
had been
er.6
meaning of
apparent
Boum
specific
my view reflects
I believe
light
of the First District's
taken
Schiro
respect
with
in Baum and Schiro
concern
Alston,
assist-
is that ineffective
decision
1
(either PCR
challenge
post-conviction
to a
counsel cannot be
post-conviction
ance of
pro-
prior post-conviction
a
PCR
post-conviction peti-
subsequent
raised
a
distinction, al-
a
may be
ceeding. There
denial of an earlier
focusing upon the
tenuous, between
though somewhat
petition.
post-conviction
post-conviction
assistance
ineffective
Baum,
and Alston all
Although
Schiro
Er-
timely Motion to Correct
in a
counsel
petition under
a
dealt with
Belated Motion
raising it in a
rors and
(PCR 1)
1
addressed
Rule
Post Conviction
of a
to the denial
Errors addressed
Correct
petition,
1
of an earlier PCR
to the denial
former
petition. The
apply to a
analysis
seem to
would
the same
petition addressed
a
is not
Errors under
Motion to Correct
Belated
proceeding where-
prior post-conviction
to a
(PCR 2)
addressed
Rule
Post Conviction
reason,
timely
this
latter
is. For
as the
Allowing
petition.
to the denial of PCR
raising the issue
Errors
to Correct
Motion
successfully present
inef-
petitioner
of ineffective assistance
coun-
fective assistance
by Baum
proscribed
be
counsel
permit the
petition
would
sel in a PCR
and Schiro.
holdings in Baum
to evade the
petitioner
example, Murphy
For
Although Garner
and Schiro.
assistance of
Court
ineffective
ineffective assistance
the issue of
treated
than in a
petition
rather
counsel in a PCR
petition,
I read Baum
subsequent PCR 1
on the merits
post-conviction counsel
PCR
mean that a successful
Schiro
Errors
through
timely
Motion to Correct
to a
addressed
general
cannot be
petition.
denial of a PCR
addressed
proceeding.
Baum,
former PCR
reconciled with
Murphy
If
is to be
grounds that a
Schiro,
it must be
attempting to avoid waiv
That
the issue of ineffec-
may present
file
that he did
by the fact
er is illustrated
counsel
Relief
tive
Petition for Post Conviction
a second
Errors after
timely Motion to Correct
summarily
the court
1. When
under PCR
petition,
but not
of a PCR
denial
a Belated
he then filed
petition,
denied
*8
Al-
Errors.
to Correct
Belated Motion
PCR
Errors under
to Correct
Motion
may
incongruous,
in
though this
seem
alleging the same
State,
supra,
v.
533 N.E.2d
(1986)
and Schiro
497 N.E.2d
v. State
In White
void,
decision,
absolutely
it is
PCR
unless the conviction
recent
landmark
Indiana's
pro-
subsequent
contemplated
Supreme
a
which new
Court
conceive of a situation in
difficult to
post
ceeding following
of a denial of
guilty
affirmance
setting
a
aside of a
will achieve
efforts
stated:
The Court
conviction relief.
plea or a trial conviction.
which
appellant
basis
has
"If
voluntary
plea
Dist.
was not
v. State
4th
establish that his
I note that
Patton
petition."
intelligent,
may
a
file
new
Ind.App.,
the Fourth District
N.E.2d at 906.
petitioner
allege
post-conviction
allowed
Schiro,
adopted
also
decision as
The Alston
counsel
ineffective assistance
post-
subsequent
contemplates that a second or
The
Motion to Correct Errors.
in a Belated
might
in relief to
result
conviction
merits and held
the issue on the
court addressed
petitioner's
requires the
petitioner.
It however
post-conviction counsel was in fact ineffec
error in the basic
directed to
efforts" be
"new
Patton did not address whether
tive. Because
Nevertheless,
light
waiver
conviction.
post-convic
of ineffective
the issue
su-
State,
embodied
Bailey
considerations
petitioner
available to
after
counsel was
strin-
even more
1260, as made
pra,
decline
to follow it.
Schiro,
I would
Baum
gent
supra, 533 N.E.2d
in Baum
distinction I discern is that in a criminal
"In
Heyward
preserve
this
failed to
setting a Belated Motion to Correct Errors
appeal
for review on direct
the errors
special
is a
specifically
creature allowed
as
appeal. Thus,
asserted on this
unless
remedy
timely
whereas a
these errors are of
magni
fundamental
post-con-
Motion to Correct Errors is not a
tude,
they are deemed
Hey
waived."
remedy.
timely
viction
Mo-
ward, supra,
fundamental The same result should obtain with per- Garner, however, reviewing appellate counsel's spect ineffec- to fense. counsel. tive assistance opportunity had the formance. Garner distinction, procedural appellate Gar- argue of this ineffective assistance Because hearing. counsel at his error may raise fundamental ner Heyward could. whereas so, is now he did not do the issue Since to him. unavailable stated, that Bawm holds previously As post- right to effective assistance of argues that to Issues 4 and Garner As right guaranteed counsel is not a conviction right by jury to trial he was denied his Further, Schiro by the Sixth Amendment. trial due to his to a fair was denied raise a claim petitioner cannot holds that a However, since prosecutorial misconduct. ineffective assistance alleging from ineffec- precluded is Garner get to an issue which would counsel to counsel, tive assistance of Therefore, the ex otherwise be waived. not, post-conviec- did in his first and Garner is limited ception Bailey created allege ineffective assistance petition, to claims of ineffective Baum and Schiro failing appellate counsel for to raise appellate counsel of trial and/or assistance available to Garner at issues which were guaranteed by the Sixth Amend are I appeal, time of his direct believe we apply exception does not Bailey ment. The liberty them. are not at to now review assistance of to claims of ineffective Issue makes a final Under el.7 couns attempt on all of the fore- to avoid waiver prohib I that is Because conclude by arguing "[alny waiver going issues asserting ineffective assistance ited from finding allegations these ... would be on I in this counsel appellate because the Indiana erroneous issues Garner would hold that the other procedural apply did not bar courts Al to him. presents are now unavailable the time of Gar- post-conviction actions at present ineffective as though Garner did appeal." Brief of Peti- ner's 1980 direct post- at his first sistance of trial counsel tioner-Appellant allege inef hearing, he did not conviction contention, of his Garner cites appellate counsel fective (5th Cir.1986) 793 F.2d Thigpen Wheat challenge performance of tri failing to 107 S.Ct. cert. denied U.S. appellate counsel and al counsel. Since In that L.Ed.2d 759. different, appellate coun trial counsel were defendant, Wheat, feder petitioned had opportunity to raise al sel had the first corpus. The district court for habeas al And, leged inadequacies.8 trial counsel's Mississippi appealed the district State of argue as since did not ineffective closing ruling prosecutor's court's post- appellate counsel at his sistance of Eighth argument sentencing at violated the hearing, issue of ineffective argued that Amendment. The State preserved counsel has not for our trial been reaching review. federal district court erred petitioner demonstrably recognize interpretation Batley, unavailable that this puzzling appeal. creates a situation Baum and Schiro the time petitioner's post-conviction petitioners. If competent enough counsel frequently -Itis the case that a criminal defen- of trial raise the issues of ineffective assistance represented by different counsel at dant is (as Hey- appellate counsel occurred in appellate at trial. It is also common level than ward), fundamental be addressed prepared the Motion to for trial counsel to have However, petitioner merits. if is not recently was the Correct Errors which until competent enough to raise ineffective assistance expect predicate to an We should (as occurred in of trial counsel and/or attorney allege his own ineffectiveness trial case), precluded present many, if not in such a motion. Baum, Bailey, and Schiro from funda- instances, opportunity the earliest most such mental error unless the claim of ineffective *10 present a claim of ineffective trial counsel pre- counsel appellant's filed would be at the time the brief is timely served in a filed Motion to Correct Er- upon appeal. timely appeal or a of the denial of the rors (2) post-conviction petition, or the issue was hand, Eighth question Amendment because Mis- requests On one ap us to sissippi procedure ply barred the analysis his conviction the robbery statute Cloy enunciated in after proceeding claims appeal. hand, his direct theOn previously which were not raised appeal. impliedly Id. at 624. federal preclude Since seeks to the application forego courts the exercise of their habeas grounds Schiro-Baum rationale on that those decisions were rendered after he corpus power "independent an when and had been denied relief.9 In adequate ground" supporting state exists decision, argued the State's the State that essence he claims post-convic that had the procedural its bar rule should be treated as correctly courts applied tion then in law adequate "independent they an state effect would not have held his asser ground" precluding federal review. Id. In tions of ineffective assistance waived and determining procedural whether the bar therefore, upon review, should we not "independent adequate rule was an approach so. retroactivity do His in this ground," state the Fifth Circuit cited the sense seems to be somewhat inconsistent. by rule established the United States Su- any event I deem the matter to be preme procedure Court "that a state rule is controlled the rationale of White respect adequate entitled as an and State, supra, progeny. and its par More independent ground proce- state unless the (1987) ticularly, in Patton v. State 2d Dist. 'strictly regularly dural rule is or fol- Ind.App., denied, 507 N.E.2d trans. lowed'". Id. The court then held that we observed that White had altered the Mississippi strictly regularly had not applicable law post-convie to a review of procedural followed its rule at time of proceedings and had been and towas Wheat's direct and therefore the applied retroactively. be I see no distine procedural bar did not constitute an "inde- applicabili tion to be made as concerns the pendent adequate ground" pre- state ty of those decisions which hold issues cluding federal review. sought post-con to be at various argues
Based
this
stages
legit
viction
to be waived. There is
appeal,
at the time of his direct
the Indiana
imate confusion as to when our courts will
recognize
courts could
apply
change
fundamen-
a rule
retroactively and when
tal
apply proce-
error at
time and not
(1985) Ind.,
it will not.
In Martin v. State
dural bar to
actions. There- 480 N.E.2d
Court made
fore,
argues,
the trial court erred in clear that German v. State
(1981) Ind.,
applying procedural
petition
bar to his
for enunciating
a rule more favor
post-conviction relief.
persons seeking
guilty
able to
to set aside
pleas,
applied prospectively only,
was to be
strong
Garner's
reliance on
is not
Wheat
i.e.,
pleas
guilty
entered after the date of
persuasive.
to me
The instant case is not
German. The decision
White
in federal court nor does it involve the
(1986) Ind.,
abrogat
prudential
limits
federal court review.
effectively
ed the German
rule and
re
Although
procedural
involving
bar
inef
stringent
turned
Neeley
to the more
rule of
fective assistance of
coun
(1978)
269 Ind.
sel set forth Baum and
were not
Schiro
714, has, however,
uniformly applied
been
in effect at the time of Garner's direct
retroactively.
supra.
Patton v.
we should nevertheless be bound
Ind.,
those
in reviewing
decisions
Garner's deni
In Rowley v. State
al of
relief
this
time. To N.E.2d
the court reviewed denial of a
argument
impli
the extent that Garner's
second
follow
edly challenges
applica
the "retroactive"
ing
of a conviction in a direct
affirmance
tion of
reasoning,
Baum-Schiro
The trial court had
the issue
found
reject
admissibility
would
it.
induced
arguably
negated
guilty plea
9. This
contention
time of
law at
time of PCR
(1985) Ind.,
Williams v. State
through hypnosis to have Court, claim Garner's Re- despite a waiver Petition for Post-Conviction Supreme Our Er- Belated Motion to Correct lief or his retroactively a deci- by applied rors. the first rendered after sion so proceeding. It did because reason, this dissent. For factfinding process to the heart of went Rowley's guilt or of to the matter and noted, however, that It must be innocence. nor Bawm decisions
neither the Schiro place at the time. were (1989) 3d Ramos v. State Another 300, although Ind.App., 541 N.E.2d Indiana, Dist. DEPART- Indiana STATE Baum, did not REVENUE, and Appellant decided after Schiro MENT OF (Plaintiff), rejecting State's discuss those cases of deni respect to review claim with waiver v. had relief. Ramos al of Horn, HOGO, Jerry R. INC. The conviction was in 1980. been convicted (Defendants). Appellees and the 1982 affirmed on direct petition had been denied Jerry & E. Horn HORN Catherine held that Third District Inc., 1987. Our Jerry Hogo, Appellants Horn & after his conviec change applicable (Defendants), law post-ar concerning defendant's use of v. retroactively applied rest silence should be Indiana, Indiana DEPART STATE such evidence the admission of because REVENUE, MENT OF had not been error and was fundamental (Plaintiff). Appellee deter The court nevertheless waived. Jerry & E. Horn and Catherine judicial HORN the new application mined Inc., Hogo, Appellants Jerry Horn & denial render erroneous the decision did not (Defendants), post-conviction relief. Supreme Court such time as our Until v. in the matter guidance gives us additional Indiana, Indiana DEPART STATE procedural gov rules should hold that
we REVENUE, MENT OF pro post-conviction relief (Plaintiff). erning review of Appellee effect ceedings given retroactive are be No. 27A04-8903-CV-00101. is to finalize if the result of such rules Indiana, Appeals Court of discourage collateral criminal convictions District. Fourth (1989)2d Clay att acks.10 Dist.Ind.App., See 28, 1990. Feb. trans. de 2 53 nied. presented on that the issues
I would hold to Garner appeal are not now available this finality, deprived of much of criminal law is this to be in accord with I believe result paren finalizing il criminal convictions Id. The court also trend toward its deterrent effect." only by Supreme our own Court lustrated not thetically quoted Justice Harlan's concur from States Court. States, but also the United Mackey U.S. ring opinion United -- --, Teague S.Ct. Lane U.S. 667, 691, 28 L.Ed.2d 91 S.Ct. --, denied, U.S. L.Ed.2d reh. (1971): 206 the S.Ct. 104 L.Ed.2d defendants, criminal not one, "No rule cre held that a new constitutional Court society judicial system, is bene- as a whole defendant the Court which favors a ated judgment providing that a man fited retroactively, generally applied be should »oft today, tentatively go jail but tomor- shall setting, in a collateral review because least everyday thereafter his continued row and finality principal which is essential "the litiga- subject to fresh incarceration shall be system." justice operation of our criminal Teague, supra at [109 S.Ct.] tion." noted, 1d. S.Ct. at 1074. The court "without