*1 NORRIS, Appellant- E. Shawn
Respondent, Indiana, Appellee-Petitioner.
STATE
No. 43A03-0708-CR-396. of Indiana. Appeals
Court
Feb. 2008. 2, May Denied
Rehearing
Facts and Procedural History According to testimony Norris’s at his guilty plea hearing, sometime between victim, 1999 and 2002 Norris touched the C.R., who was a child age under the fourteen, with the intent to arouse either his own or the victim’s sexual desires. It appears mother, that C.R.’s Colleen Norris, who is also step-sister, Norris’s informed of this molestation in April C.R., 2004. Officers interviewed Colleen, Norris, who admitted to touching 22, 2004, C.R. On June the State petition filed a alleging that Norris was a delinquent child for performing an act that would be the offense of child molesting, felony, Class if performed by C an adult. day, That same the State filed a Motion to Waive Juvenile Jurisdiction.1 August On 18, 2004, juvenile jurisdic- court waived tion. August On the State charged Norris with child molesting, a McCaslin, Nancy A. felony. 4, 2004, Class C McCaslin & McCas- On December lin, Elkhart, IN, Attorney pled guilty Norris Appellant. to child molesting pur- suant plea agreement to a under which the Carter, Steve Attorney General of executed sentence could not exceed two Indiana, Arthur Thaddeus Perry, Deputy years and the agreed State to not file Attorney General, IN, Indianapolis, Attor- additional charges. 27, 2005, On January neys Appellee. the trial court sentenced Norris to two
years executed. OPINION 21, 2006, On December Norris filed a Petition for Post-Conviction Relief alleg- ROBB, J. ing newly discovered evidence. Along Summary Case and Issue petition, with this Norris included an affi- Colleen, davit of in which she stated: Shawn appeals Norris from the trial 2. April That in of 2004 Affiant initi- summary court’s disposition of ated a brother, false case against her for post-conviction relief. Norris raises Norris, Shawn alleging that he commit- the sole issue of whether the trial court ted acts of so-called against molestation improperly granted summary disposition. my child. Concluding that issues of material fact 3. preclude That the summary allegations are disposition, wholly we reverse completely and remand with false. instructions that the trial court conduct a hearing on peti- my That motive for initiating these tion. against false claims him was regain time, 1. At eighteen years was at least old. (Ind.2002), cert. my three children who N.E.2d custody father my step-
were
the care
540 U.S.
L.Ed.2d 56
in their home.
mother.
lived
Shawn
(2003). Therefore,
prevail, petitioners
time I initiated these
5. That at the
must establish
a prepon
their claims
*3
fully
I
aware that
false claims
was
derance
the evidence.
Ind. Post-Con
mentally
was
retarded
Shawn Norris
Stevens,
1(5);
Rule
viction
770 N.E.2d at
him
say
I
I
force
to
knew could
petition
745. When
a denial of a
appealing
him.
whatever I told
relief,
post-conviction
petitioner ap
for
a
fact and that he
knowing
6. That
this
from a
peals
negative judgment. Burn
I
family
his
try
protect
would
to
started
(Ind.Ct.
State,
232,
side v.
N.E.2d
237
858
police investigation encouraging
a
them
Therefore,
App.2006).
petitioners must
him,
to
mindful that he would
evidence,
convince
court that the
tak
if he
he
anything
thought
confess to
whole,
unmistakably
a
en as
leads
a
to
go
could
when the
were
home
conclusion
that reached
opposite
the
him.
talking
done
Stevens,
post-conviction court.
770 N.E.2d
at 64. Norris also
Appellant’s Appendix
at 745. We
will review
stating
included
evaluation
psychological
court’s
findings
clearly
of fact under
part:
relevant
standard,
erroneous
but will review its
support
The
of the evaluation
the
results
Burnside,
conclusions of law de novo.
functioning
is
be-
notion that the client
extremely
tween
low and borderline
the
This
range
functioning.
of intellectual
This case
is before us
sum-
functioning
level of intellectual
meets mary disposition. Under Posh-Conviction
the
mental retardation
criteria for mild
1,
Rule
section 4(g)
but
to have the neces-
appears
Shawn
court may grant
The
a motion
either
sary
functioning necessary to
adaptive
party
summary disposition
the
be successful.
plead-
from the
appears
when it
Id. at 71.
ings, depositions,
interroga-
answers to
15, 2007,
January
On
the State filed its
tories, admissions,
fact,
stipulations of
response
Summary
Dis-
and Motion
submitted,
any
affidavits
there
19, 2007, the trial
position. On June
court
genuine
no
material fact and
issue of
motion, stating
granted the State’s
judgment
moving
is entitled to
party
That it
in this
appears from
record
matter
as a
of law.
cause,
the record of
including
the Defen-
admission,
hearing, his
dant’s
“Thus,
necessity of an
eviden-
and the affidavit submitted
the State
tiary hearing
plead
is avoided when
Indiana,
genuine
there is no
issue
present
of law.” Diaz v.
ings
only issues
fact,
that the
did
material
Petitioner
(Ind.Ct.App.
753 N.E.2d
admitted,
in fact
he
do
which
2001),
moving
The
party
trans. denied.
judgment
State is entitled
demonstrating
its
bears
burden of
matter of law.
by introducing
claim
admissible evidence
appeals.
Id. at 76.
now
genuine
lack of
in order to
establish
and Decision
Discussion
its
issues of material fact and
entitlement
I.
of Review
Standard
judgment
matter of law. True
as a
(Ind.1999),
blood v.
proceedings are
Post-conviction
denied,
rt.
531 U.S.
civil
nature.
Stevens
ce
(2000).
including
right
Under
plea
addressing
without
whether such a
Any
of,
State,
person
cognizable.
who
convicted
claim
v.
has been
See Stewart
for,
1230,
by
(Ind.1988);
a
Reyn
or sentenced
a crime
court of 517 N.E.2d
1233
state,
1239,
and
422
this
who claims ...
there
olds v.
1243-44
facts,
(Ind.1981);
323,
exists evidence of material
Laird v.
Ind.
270
heard,
presented
326,
452,
previously
(1979);
and
that re-
Gillespie
385
455
quires
770,
vacation of
736
(Ind.Ct.App.
the conviction
sen- v.
774
2000),
denied;
justice
may
tence
...
Ray
interest of
trans.
v.
at any time a
proceeding
(Ind.Ct.App.1986),
institute
under N.E.2d
trans.
Rule
abrogated
to secure relief.
grounds,
on other
Hall
(Ind.2006).
Conviction Rule section states that denied. stated The court “[a]ny ground finally adjudicated on the “that a its belief postconviction defendant’s or not knowingly, merits so and actual raised claim of innocence cannot be voluntarily intelligently and deprive process waived deemed to him of due proceeding resulted in the conviction rights in the face of the fact may ... previously sentence not be the basis for a defendant confessed to the com subsequent petition.” aAs defendant who mission of the crime in plea.” Id. The guilty pleads rights, waives a plethora court noted that disposed also cases 2. New York also post-conviction does not allow those who based on the York is statute’s guilty pled post-conviction specification to obtain relief that the new “has been People based on entry judgment discovered evidence. discovered since the of a Latella, upon A.D.2d 491 N.Y.S.2d a verdict based after trial.” (1985). However, § rule in New 440.10(l)(g). N.Y.Crim. Proc. Law against him and prosecution’s case provide[] a scant guilty pleas “generally support, In apparent securing Id. likelihood of lenien appeal.” record on following statement from a court offered cy guilty plea cited should be and Lo- Judge States, written concurring opinion accepted.” Brady v. United Circuit: Eighth ken 742, 756, 1463, 25 L.Ed.2d (1970). view, an inherent my paradox In there is As commentators scholars in the that someone who has out, notion pointed have an innocent “[e]ven de declared, “I am open stood in court may rationally prefer specified fendant years guilty,” may turn around later lenient sentence to the risk of much pass through claim that he deserves resulting from a wrong harsher sentence gateway. the actual innocence Because Gazal-Ayal, ful conviction at trial.” Oren the defendant’s waives Bargains, Partial Ban on Plea 27 Cardozo right his actual innocence prove (2006).3 Therefore, L.Rev. argument can made strong trial ... a reasoned, an the Colorado court era “[i]n absolutely that a fore- guilty plea should techniques analyzing which scientific close claim of actual advancing rapid pace, evidence are at a peti- Unless habeas innocence.... *5 plea the of a on precluding withdrawal newly-discovered tioner evidence basis of later-discovered evidence could a false guilty plea that was declara- Schneider, significant injustice.” work a pass through of not guilt, tion he should at 760. 25 P.3d gateway. the actual innocence Bowersox, 1342, v. 119 F.3d 1356 Weeks reasoning of the We find the Colo (8th Cir.1997) (Loken, J., concurring), cert. courts supreme rado court and the other 1093, 887, 522 118 139 persuasive. also note that our accord We (1998). L.Ed.2d 874 rule, although addressing hand, section, On other several courts have in a separate expressly waiver may concluded that defendant obtain that who has “any person” states been newly discovered relief based on evidence may for a crime convicted sentenced following People v. guilty plea. Schneid newly bring petition alleging discovered er, 755, (Colo.2001); 25 Brad P.3d Schneider, P.3d at evidence. 25 760 Cf. 28, v. 29 (Fla.Ct.App. 869 So.2d “grants rule (recognizing that Colorado’s ford 2004); 251, Chancy v. 938 So.2d 253 postcon- ‘every person’ right to seek (Miss.2006); 734 Moore N.W.2d Fontaine, relief’); A.2d at viction 559 625 Fontaine, 336, (N.D.2007); State evidentiary hearing an (holding was neces (R.I.1989); 559 A.2d Ex Parte newly sary petitioner’s on a claim of dis (Tex. Brown, n. 205 S.W.3d guilty plea following covered evidence Crim.App.2006). post- that Rhode Island’s recognizing and depend upon rule conviction “does not analysis,
In a thoughtful Colorado ques or the by applicant entered plea supreme “that do court noted defendants applicant of has been whether pleas choose guilty to enter reasons trial”). Schneider, also note convicted after We that other than P.3d guilt.” clear precautions Indeed, traditionally great courts “take heavily at 760. such a decision “is results, and appraisal against unsound we should influenced the defendant’s III, 5,000 and year, each Thomas "Truth Machines” 3. One estimates that scholar Confes- 10,000 guilty plead sions Law the Year defendants to felonies J. 5 Ohio St. Crim (2007). George 220 n. they not commit. See C. L. did (8) it; so, produced upon continue to do whether conviction is it can a retrial (9) plea Brady, case; probably trial.” 397 U.S. at it will produce on S.Ct. 1463. Based these consider- a different result at retrial. ations, we hold that a who previ- (Ind. Taylor v. 840 N.E.2d ously pled guilty precluded not from 2006) (quoting Carter bringing a claim of discovered evi- (Ind.2000)). 665, 671 dence. recognize We this nine-factor
However, emphasize peti neatly we that a test does not apply to situations seeking Still, tioner based on pleads guilty. relief dis where the defendant guilty clearly covered evidence plea newly-discovered evidence merely relevant, must do more than show some sort competent, privileged, not tending exculpate him. In appears and it there no would be deed, we do not problem believe defendant would producing any this evidence at “merely be entitled to obtain relief Also, because subsequent proceedings. the recan plea he discovers long after has been clearly subsequent tation was discovered accepted that misapprehended his calculus to the could not been have quality likely of the case or the State’s prior to the plea. See penalties attached to alternative courses McCraney, State v. Brady,
action.”
U.S. at
(Ind.1999) (“The proffered newly discover
The
must also show that
evidence,
ed
[a witness’s] statement
injustice
some sort
place.
has taken
See he lied at trial and that [the defendant]
1(1);
Schneider,
P-C.R.
(1) the police evidence has been questions are “testimonial when (2) trial; since the it is material objectively circumstances that indicate (3) relevant; (4) cumulative; it is not ongoing it there is no emergency, such (5) is not merely impeaching; purpose is not that the primary for the interro- (6) privileged incompetent; gation due dili- is prove past to establish or events gence was used to discover it in potentially time for to relevant later criminal prose- (7) trial; cution”); worthy the evidence is of cred- Washington, Crawford 53-54, allegations never testified to the un 158 L.Ed.2d C.R. (2004) oath,4 (holding the Constitution bars der in her affi Colleen’s statements of testimonial statements of a “admission subject penalty perju were to the davit at trial un- appear not [does] witness who ry. testify, and the unavailable to
less he [is] prior opportunity had had defendant to the in the regard With indication cross-examination”). appears likely It also report that Norris to offi police admitted report given by that in statements C.R., that cers he had molested C.R., twelve old at the time years who was still required determinations would statement, of the would be inadmissible. to into order introduce such confession 35-37-4-6(f) (indicat- § See Indiana Code evidence and in order to determine wheth person” is ing “protected that where any weight. er the was of See confession trial, testify person’s that unavailable to at Miller v. if only that statement will be admissible (Ind.2002) (recognizing the determina person available for cross examination was given tion of whether a confession was given at the statement was at a the time voluntarily initially question of fact for is it is hearing where determined regard admissibility, the trial court with to testify protected person unavailable jury and then one of fact for the to deter trial). worthy any mine if the confession Moreover, we do the new not view evi weight). Colleen’s affidavit indicates merely impeaching. as Colleen not dence any she knew Norris “would confess to statements, only previous recanted her but if he he when thing thought go could home making also her motivation for explained Ap him.” talking were done previous these statements. This recanta pellant’s psychological at 64. The App. only with Colleen is not inconsistent likely report also indicated police, previous statements C.R.’s interperson ... “substantial difficulties freestanding but also “serves relations, communications, al and oc social innocence, and does mere [Norris’s] cupational functioning depending part ly previous into state call [these complexity on the of the interaction and/or police].” McCraney, ments to *7 at assigned Citing Id. 71. task.” merely at Instead of impeaching 1190. evidence, response to the State’s Norris’s police, previous Colleen’s statement her summary argues disposition motion for of that destroyed recantation was the sort investigation that “this has the earmarks original her statement. See Wilson v. man young very functioning of low [a] State, N.E.2d 588 (Ind.Ct.App. manipulated by police.” the possibly being 1997) (recognizing supreme that “our court that agree allegations Id. at 62. We long ago decided that evidence which de affida petition, supported by the Norris’s testimony obliterates the stroys upon report psychological vits and raise which a conviction was obtained knowing voluntary and questions as to the merely as im appropriately considered Miller, 770 evidence”) of nature this confession. See peaching (citing Dennis v. (1885)). court (holding at that the trial N.E.2d Ind. N.E. testimony that “would although improperly out that Colleen or excluded point We also person, which case it is recognize reporting that is a harms an innocent We false mis- misdemeanor). However, pen- § Class offense. Code 35-44-2- A demeanor Indiana misdemeanor, severe, 2(d) (offense alty perjury more as the offense for is Class B unless § investigation felony. 35-44-2-1. substantially it is a Class D Ind.Code hinders an 2000) jury (recognizing that regarding psy- have assisted the PosWConviction 4(f) chology not, however, of aspects of relevant inter- section “does Rule mentally and the of rogation interrogation dispense evidentiary with the need for an persons”). retarded when hearing hinges, the determination resolved, in part, upon whole or facts not finally We turn to the that requirements though may unlikely it appear even that likely the new evidence be credible and petition will be able to evi produce to a lead different result. determi- Such claim”). dence sufficient establish his “a nation is factual determination to be by the trial judge op- made who Conclusion
portunity to see and hear the witness testi- fy.” McVey 863 N.E.2d improperly the trial We conclude court (Ind.Ct.App.2007) McCraney, (quoting 719 granted summary the State’s motion for denied; 1190), trans. see also disposition post- Azania v. Therefore, relief. conviction we reverse (Ind.2002) (recognizing the issue in- and remand with the trial instructions that volving testimony recanted “turns on cred- an evidentiary hearing. court hold witnesses”). ibility Indeed, rul- “when Reversed remanded. on a ing motion for a trial based new on newly discovered the trial court MATHIAS, J., credibility any prof-
must assess the concurs. fered new evidence.” Webster FRIEDLANDER, J., dissents with (Ind.1998). Here, opinion. trial court neither observed Colleen nor any findings credibility made to the FRIEDLANDER, Judge, dissenting. new evidence. Lott Cf. I prop- believe the court (Ind.1997) (recognizing erly granted the State’s Motion for Sum- that the trial court made “careful and ex- mary Disposition respectful- and therefore findings tensive about re- [the witness’s] ly reversing ruling. dissent from cantation”). point We filing out affidavit, her Colleen exposed herself to to clarify I wish from the that I outset prosecution informing. for false See Ind. majority’s agree with that a conclusion 35-44-2-2; Wilson, § Code cf. petitioner may a guilty obtain relief from N.E.2d at 589 (recognizing the wit- plea on the basis of discovered evi- ness’s recantation was credible as ex- part however, with majority, dence. I posed prosecution perju- witness to on peti- whether Norris’s ry). *8 tion for post-conviction relief is based on a light In of the factual nature of cognizable newly these claim of discovered evi- we inquiries, conclude that issues mate dence sufficient to warrant fact-finding fact precluded summary disposition is, rial in hearing. majority The it concludes that case. We make no statement as to enough or at least that he has done the ultimate disposition, conclude that but create a of fact a hear- requiring case, required in this a hearing ing, summary is to re in turn dispo- which renders solve issues peti inappropriate. raised Norris’s sition I do not believe that and the designated hearing required; evidence. See is the affidavits Evolga, 372; 722 N.E.2d at Hamner v. Norris’s sister and father qualify do not cf. (Ind.Ct.App. newly discovered evidence. such, it cannot meet this nine lested C.R. As enunciated Supreme Court Our See, newly cf., McVey v. determining whether criteria. criteria (the appellate a new trial. at court conclud warrants discovered evidence in a differ- criteria arose not con Admittedly, recanting those ed that the affidavit did us, it but than the one before ent context discovered evidence because stitute evaluate me that we should clear to merely seems it to cast doubt on “would serve evidence a claim of discovered such, testimony. trial As it [the affiant’s] the same criteria. utilizing either context destroy earlier would not or obliterate her Norris’s claim Thus, whether to determine credibility testimony, place but rather her and can survive viable in this context is issue”) (internal authority citation to measure summary judgment, we should omitted). affidavits suffer the same The criteria estab- the aforementioned against (7). As respect fatal flaw with to element Thus, to Supreme our Court. lished re McVey, any value the we observed plea on the basis set aside a might have is “serious cantation affidavits evidence, Norris must newly discovered original statements that ly limited” (1) has been demonstrate such they contradict. Id. at 446. hearing; since the that Norris’s al- Upon my conclusion (3) (2) relevant; is not material and does not leged newly discovered evidence (4) cumulative; merely impeaching; is not criteria, I satisfy on its face the Carter (5) incompetent; and privileged or is not summary dispo- grant would affirm the (6) to discover diligence due was used sition favor of State. (7) trial; the evidence it in time for (8) credit; produced upon can worthy of (9) case; probably and will
a retrial of See result at retrial.
produce
different
(Ind.2000).
Carter newly discov- claims of
We should receive great “with caution”
ered evidence newly dis- carefully alleged scrutinize the TRIGG, Appellant- D. Charles McVey v. covered evidence. Respondent, trans. (Ind.Ct.App.2007), Finally, importantly, “[t]he denied. showing require- AL-KHAZALI, that all nine Leigh burden of Erin ments are met rests with Appellee-Petitioner. Taylor v.
post-conviction relief.” No. 02A03-0705-JV-263. (Ind.2006) (emphasis supplied). Appeals of Indiana. Court view, necessary hearing is not my In 29, 2008. Feb. “newly that the dis in order to determine 7,May Rehearing Denied upon which covered evidence” (4) satisfy elements claim is based cannot (7) of Norris’s The affidavits above. *9 merely impeaching. and father are
sister sig on the far more
Focusing specifically affidavit, two, i.e., of the Colleen’s
nificant nothing more than a recanta represents that Norris mo previous of her claim