*1 8§73 judgment set aside will This Court TTB. JOSEPH, Appellant- if the evidence B. only Richard law contrary to as Petitioner, conclusion to a leads and conflict trial court. reached opposite insufficient A claim 778-774. Id. Indiana, Appellee- STATE of a review no issue presents evidence Respondent. Id. at judgment. negative No. 77A01-9207-PC-229. re Horns' denying the order In its Indiana, Appeals Court dis court the trial injunction, for an
quest District. First affidavits, depo in the conflicts cussed 23, 1992. Nov. Florence testimony of sitions, trial testi considered also The Nedra. mucky that, due to Klotzes
mony of end lake at of the weedy conditions easement, not swim they could enabling them pier dock or
fish without further deeper water. reach merely wanted Klotzes
noted used it had been easement
use the not dock "would pier or that a
past use the Horns' with interfere
significantly property." mentioned, Supreme previously
As "hear trial court to the remanded
Court the intent to determine then the easement created who
parties title present interests of
balance es- and servient dominant
holders clearly at 1100. Klotz
tates." the Klotzes interests
balanced in- regarding
Horns, the evidence and as conflict, the court's not without was
tent law. contrary not
judgment is affirmed. the trial judgment
Affirmed. JJ., CHEZEM, concur.
STATON, and *2 Defender, Carpenter, K. Public
Susan Defender, Ribble, Deputy T. Public John Indianapolis, appellant-petitioner. for Gen., Pearson, Atty. Julie Linley E. Gen., Frazee, Atty. Deputy Office Zandstra Gen., Indianapolis, appellee- for Atty. respondent.
BAKER, Judge. Joseph B. Defendant-appellant Richard sum- post-conviction court's appeals the his relief mary denial of Joseph claims the summary erroneous for denial was 1) post-convic- three reasons: because defender court did not allow tion investigate possibly adequate time to 2) post- petition; amend the because a show court did not first issue conviction Rule Ind.Trial pursuant cause order 3) petition raised 41(E); because denial making the disputed factual matters inappropriate without also contends laches the doctrine erred when it found holding a first his claim without barred the issue.
FACTS guilty Joseph pled In kidnapping,1 charges of benefit of counsel He received ery,2 theft.3 robb 30-year sentence. IND.CODE 35-43-4-2. IND.CODE 35-42-3-2. 35-42-5-1(2). IND.CODE error. Rus- and, accordingly, constitutes pro se filed a March On N.E.2d 1889 claiming, sell for summarily (error to dismiss "I entered things, that among other receipt days after attor- I lacked blindly, for bargain Bailey v. State office) See also fender's that waved my rights ofme advise ney to *3 (error deny to 1088 bargain." (1983), 447 N.E.2d the accepted -when [sic public defender summarily when petition a re- included petition His at 22. Record peti- to evaluate month" "less than a had affidavit and an public defender for a quest (1987), Ind.App., 512 tion); v. State post-conviction Jordan The indigency. of summari- (error deny petition to public defend- to the petition the forwarded received day public defender ly the same on day. next the office er's it). defend- 1992, public 8, the state April On peti- pro his se case, Joseph filed In this be- on appearance an entered er public defend- 22, The 1992. on March tion time credit. jail for motion filed a and half 28, 1992, March on petition the er received post-conviction the April On April appearance an and entered motion but credit jail time the granted 9, 1992, post-convic- the April day, The next a Joseph's petition nied petition. the summarily denied tion intelligently knowingly and Joseph found It has supreme court Joseph "Our This was error. and to counsel right his waived pro se of a summary denial recognized that obtaining relief from prohibited was inappro- relief is post-conviction petition for appeals. Joseph laches. of doctrine re- been petition the ... priate when is denied but public AND DECISION defender to the ferred DISCUSSION filing[.]" Jor- after one month than less pro- specifically rules post-conviction The supra). Bailey, (citing dan, supra, at participation and appointment for the
vide
petitioners
indigent
on behalf
counsel
di
even constitutional
Error of
Post-Con-
Ind.
actions.
post-conviction
in
require rever
necessarily
not
mension does
post-convie-
requires the
1 2
Rule
viection
§
error,
party
to
however;
sal,
in addition
to
petition
copy of the
to refer
tion
showing
injury
make some
must also
finding
upon a
office
public defender's
the
error. See
the
resulting from
prejudice
This rule
indigency.
petitioner's
the
893;
Ind., 497 N.E.2d
v. State
White
indigent peti-
representation
helps insure
Ind., 452 N.E.2d
McKrill
economy by
judicial
promotes
and
tioners
allegation
such
no
Joseph made
in
of error
allegations
known
all
presenting
broadly asserts
Although he
here.
harm
form, so
proper
in
petition
original
the
ample
given
not
was
public defender
his
humanly possi-
reasonably and
is
far "as
petition,
amend
investigate and
time to
Holliness
ble."
concerning what
suggestion
no
offers
he
1281, 1282.
had
found
have
would
public defender
the
investigation
complete
for
opportunity
the
the
than
require more
rules
The
de
public
or whether
afforded
de been
public
to
referral
mere
fact,
have,
amended
in
defender
would
fender
fender, however.
Joseph
Indeed,
appeal
in this
petition.
interview
time
afforded
must be
argu
of counsel
only his waiver
presses
at
appellate
trial and
client,
interview
peti
in his
appeared
originally
it
ment as
records
appropriate
read the
torneys,
unneces
was
tion, suggesting amendment
relevant
all
investigate
proceedings,
forthcoming. With
not be
would
sary Id.
matters.
factual
legal and
prejudice,
necessary definition
out the
post-convic
of a
disposition
summary
relief on
entitled
is not
Joseph
de
to the
prior
petition
relief
tion
de
post-conviction
grounds
having
opportunity
office
fender's
Joseph's public
because
erroneous
nial was
amend
petitioner and
with
consult
ample time
afforded
mis
not
fulfillment of
defender
prevents
amend
investigate
rules
assigned to the
sion
given
investigation,
been
extra time for
next
the trial court
claims
summarily denying
in
and the
court denied-not
dismissed-Joseph's petition;
we conclude
entitled to a show cause
because he was
Joseph was not entitled to the
T.R.
benefit
41(E).
order under TR.
41(E) provides, as he claims.4
Russell, Holliness,
Although
appear
left,
then,
to use the terms
courts
Jordan
with 'the
interchangeably
grounds
originally
"denial" and "dismissal"
he
advanced and contin
relief,
they
in the context of
knowingly,
ues to advance: that he did not
synonymous.
voluntarily,
intelligently
are not
The difference lies
waive his
right
pleaded guilty.
how each arises. A
to counsel when he
petition may
summarily denied when the
be
seeking post-con
conclusively
pleadings
show the
establishing
viction relief has the burden of
*4
4(f).
1
is entitled to no relief.
P-C.R.
§
grounds
by
preponderance
the
for relief
a
petition may
dismissed when the
be
(1989),
of the evidence.
Schiro v. State
petitioner
comply
has failed
with the
to
1201,
588 N.E.2d
cert. denied 498 U.S.
trial rules
he
failed to take
or when
(1989).
110 S.Ct.
In T.R. seph's guilty hearing and ruled that argument, important "Joseph it is knowing intelligent to remember the did make a underlying post-conviction rationale right waiver of his to counsel." at Record We, too, public provided rules: defenders should pleadings be 83. have examined the ample investigate post-conviction transcript time to although say we cannot they may peti incorrect, relief claims so that amend necessarily this conclusion is nei- tions, necessary, possible if to include all say certainly ther can we it is correct. single petition, thereby theories in Joseph knowingly, a ren Whether voluntarily, Here, dering petitions unnecessary. future intelligently right waived counsel there is no real contention that is a factually sensitive issue. Both this post-conviction court and the court current- petition would have amended his had he 4. The Holliness court denied- and its dismissal. A denial does not become a petition. not dismissed-Holliness's Footnote simply dismissal because the opinion one of the Colvin declares that the Hol- disposed petition after the "equated petition's] liness court de- [Holliness's appearance defender entered an but before the a nial to dismissal because the Public Defender Instead, defender amended the appearance had filed an but had not filed an underlying post- one must look to the reason the Colvin, petition sixty days." amended within disposed conviction court supra, Notwithstanding specu- 1149 n. this termine whether the was denied or dis- lation, impor- we hold fast in our belief that an missed. tant difference exists between a denial RATLIFF, J., concurs. resolve knowledge to factual lack the ly Both required. issue; - separate J., SULLIVAN, concurs with case and its rules Indiana's opinion. evidentiary that determined have law fact are issues when required hearing is SULLIVAN, Judge, concurs. unlikely if it is even petition, in a raised major- opinion of in the concur fully I produce will however, empha- so, I towish doing In ity. Jordan, claim. to establish sufficient ma- agreement with complete my size n. 3. at 288 supra, (1986) v. State analysis of Hollimess jority's with- Joseph's claim denying by erred and Colvin Ind., 496 N.E.2d out 501 N.E.2d Ind.App., (1986) Dist. 2d my agreement express particularly, More may be claim a meritorious Even view Judge Shields's adoption of with the defense affirmative defeated concurrence separate in her expressed laches, Wilburn however. Colvin, supra. brings us This Ind.App., 499 trial whether issue: final summarily ruled it when Joseph's petition. laches barred doctrine *5 relief, the to bar laches
For the doctrine of the preponderance by a prove must state unreason has that filing of delayed ably Slay, Indi delay. Lucius Lena M. H. prejudiced SLAY state and as vidually Administrator Ind., N.E.2d Woodford Rodney Estate of Administratrix concerning the knowl the case As is Appellants-Plaintiffs, Slay, Harding which intelligence with edge of coun benefit guilty without pleaded v. laches elements sel, the resolution DE SHERIFF'S COUNTY MARION case. to each peculiar the facts on turns Jones, Depu PARTMENT, H. and John reason, supreme our this For Sheriff, Appellees-Defendants. ty raises state onee the held affirma laches, 41A04-9112-CV-399. No. defense tive upon the evidentiary to an entitled Indiana, Appeals Court Gregory issue. District. Fourth 464; Twyman Joseph's Whether Nov. deter may be by laches be barred should which hearing at only after mined prejudice delay and unreasonable
issues considered.
have been barring summarily laches. on based
claim summary de- We is reversed. Joseph's petition
nial hold an
instruct of Jo- merits hearing on
evidentiary theory of counsel
seph's waiver laches. defense
state's remanded.
Reversed