Wine v. State

• Decision Date: 28 July 1994
• Docket Number: No. 85A04-9311-PC-415,85A04-9311-PC-415
• Citation: 637 N.E.2d 1369
• Parties: Bobby Dean WINE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 1369

637 N.E.2d 1369

Bobby Dean WINE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 85A04-9311-PC-415.

Court of Appeals of Indiana Fourth District.

July 28, 1994.

Transfer Denied Sept. 28, 1994.

Susan K. Carpenter, Public Defender, Richard Denning, Deputy Public Defender, Indianapolis, for appellant.

Pamela Carter, Atty. Gen., Suzann Weber Lupton, Deputy Atty. Gen., Indianapolis, for appellee.

RILEY, Judge.

STATEMENT OF THE CASE

Defendant-Appellant Bobby Dean Wine (Wine) appeals from the denial of his petition for post-conviction relief.

We affirm the post-conviction court.

ISSUES

Wine presents seven issues for our review which we re-state as follows:

1. Whether fundamental error occurred when Wine was convicted of conspiracy to commit burglary despite alleged defects in the charging information.

2. Whether fundamental error occurred when Wine was convicted of theft despite alleged defects in the charging information.

3. Whether fundamental error occurred due to the prosecutor's comments during closing argument.

4. Whether fundamental error occurred when the trial court failed to instruct the jury as to the weight to be given to the polygraph examination.

5. Whether fundamental error occurred due to prosecutorial misconduct.

6. Whether Wine was denied effective assistance of trial and appellate counsel.

7. Whether the post-conviction court abused its discretion when it denied Wine's motion for continuance.

FACTS AND PROCEDURAL HISTORY

The testimony at trial revealed that in December, 1986, Wine and Freddie Nelson (Nelson) conspired to burglarize a coin shop. After breaking into the coin shop and inadvertently sounding the alarm, Nelson and Wine terminated their plan. During a conversation after their initial aborted plan, Wine mentioned the Swifty Oil Station where Nelson's sister's boyfriend was the manager. Wine wanted to obtain the keys to the store so he and Nelson went to Nelson's sister's home. Nelson entered the home and took the keys from the boyfriend's pockets. Nelson used the keys to get into the gas station and into the safe while Wine kept watch. They then returned to Wine's home where they divided the money and cigarettes they stole. Nelson then returned to his sister's home and replaced the keys in the pants pocket.

In April, 1987, Wine was convicted by a jury of conspiracy to commit burglary, a class C felony and theft, a class D felony. He was further found to be an habitual offender. Wine was sentenced to eight years on the class C felony, and the sentence was enhanced by twenty years due to the habitual offender finding. He was sentenced to four years on the class D felony, which sentence was to be served concurrent with the sentence imposed on the class C felony. On direct appeal, our supreme court affirmed his conviction and sentence. Wine v. State (1989), Ind., 539 N.E.2d 932. Wine sought post-conviction relief. ¹

Wine raised several allegations of error in his petition for post-conviction relief, including ineffective assistance of trial and appellate counsel. On December 30, 1992, the post-conviction court entered its preliminary ruling. Specifically, the court concluded that all of the issues raised by Wine, with the exception of ineffective assistance of appellate counsel, could have been raised at the direct appeal and that those issues were therefore waived. Further, the court found that there was no fundamental error.

The post-conviction court later conducted a hearing on the petition at which it heard testimony of trial and appellate counsel. On July 13, 1993, the post-conviction court issued its ruling denying relief. Specifically, the court found as follows:

Mr. Zimmerman represented [Wine] on appeal. His testimony essentially indicated that he could not recall whether he had considered the alleged errors raised by the Defendant in his Post Conviction Relief Petition. The Court previously found in its earlier ruling that all of the alleged errors of trial counsel, Richard Swartz, were insufficient to show that they may have resulted in prejudice or that it was reasonably probable that but for the alleged errors, the proceeding would have resulted differently.

... [Wine] must show that his counsel's performance was deficient. This would require a showing that his counsel made errors so serious that counsel was not functioning as that counsel guaranteed the Defendant by the 6th [A]mendment.

In the event that [Wine] could meet that requirement, he must further show that the deficient performance of counsel prejudiced the defense. This would require a showing that his counsel's errors were so serious as to deprive [Wine] of a fair trial.

... [Wine] has failed on both counts to show that counsel's performance was deficient and that even if counsel was in error, [Wine] was deprived of a fair trial or in this case a fair appeal....

(R. 91-92). Wine seeks relief from this decision.

STANDARD OF REVIEW

Generally, the petitioner in a post-conviction relief proceeding bears the burden of establishing the grounds for relief by a preponderance of the evidence. Babbs v. State (1993), Ind.App., 621 N.E.2d 326, 329, trans. denied. On appeal, we will not reweigh the evidence or judge the credibility of the witnesses. Joseph v. State (1992), Ind.App., 603 N.E.2d 873, 876. To prevail on appeal from the denial of post-conviction relief, the petitioner must satisfy the reviewing court that the evidence is without conflict and leads inevitably to a conclusion opposite of the trial court. Babbs, 621 N.E.2d at 329.

DISCUSSION AND DECISION

We first note that the post-conviction court correctly stated the law with regard to waiver. With one exception, error available on direct appeal is waived if not raised on direct appeal. Capps v. State (1992), Ind.App., 598 N.E.2d 574, 577, trans. denied. The exception is error that rises to the level of fundamental error. Id. To rise to the level of fundamental error "[it] must constitute a clearly blatant violation of basic and elementary principles, and the harm or potential for harm must be substantial and appear clearly and prospectively." Ried v. State (1993), Ind.App., 610 N.E.2d 275, 281, aff'd Ried v. State (1993), Ind., 615 N.E.2d 893. To fall within this exception error must be such that if not rectified it would deny the defendant fundamental due process. Id.

We recently reiterated our position in this area when we said that

[a] post-conviction proceeding is not a 'super-appeal' which allows the rehashing of the circumstances surrounding them. (citations omitted). Absent a showing by the post-conviction petitioner [that] an issue was unascertainable or unavailable at the time of trial and direct appeal, allegations of error arising therefrom may not be raised in post-conviction proceedings unless they rise to the level of fundamental error.

Babbs, 621 N.E.2d at 329.

I. The Charging Information/Conspiracy

Wine contends that the post-conviction court erred when it denied relief because his conviction of conspiracy constituted fundamental error. Specifically, Wine argues that the charging information was defective because it failed to set out the elements of burglary and failed to describe Wine's role in the conspiracy. Wine further argues that the charging information failed to specify who owned the building which was the object of the burglary. The charging information for the conspiracy charge read as follows:

... [o]n or about the 7th day of December[,] 1986, at the County of Wabash, and State of Indiana, one Bobby Dean Wine did agree with Freddie Nelson for the object and purpose and with the intent to commit a felony, to-wit: burglary and in furtherance of the agreement the said Freddie Nelson did perform an overt act, to-wit:

entered the Swifty Oil Company in Wabash, Indiana....

(TR. 2).

We first consider whether these allegations of fundamental error should be treated as free-standing error or whether they should be treated under the guise and standard of ineffective appellate counsel. Our supreme court in Propes v. State (1990), Ind., 550 N.E.2d 755, cert. denied Propes v. Indiana, 505 U.S. 1226, 112 S.Ct. 3046, 120 L.Ed.2d 913 (1992), held that fundamental error may be raised for the first time on post-conviction relief without a showing of ineffective assistance of counsel. Id. at 759. Thus, the ineffective assistance of counsel issues will be treated separately in this opinion.

Wine raised the inadequacy of the charging information for the first time on post-conviction relief. Generally, any challenge to the sufficiency of the charging document must be made by motion to dismiss prior to arraignment. Otherwise any error in that regard is waived. Marshall v. State (1992), 602 N.E.2d 144, 147, trans. denied. An information or indictment is intended to guarantee certain protections to the criminally accused. First, the charging document must set forth the elements of the offense intended to be punished, thus apprising the defendant with reasonable certainty of the nature of the accusation against him. Second, the offense charged must be described with sufficient particularity to permit a defense of double jeopardy in the event of a subsequent prosecution. Russell v. United States (1961), 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240; See also Taylor v. State (1957), 236 Ind. 415, 418, 140 N.E.2d 104, 106; Little v. State (1986), Ind., 501 N.E.2d 447; Green v. State (1991), Ind.App., 575 N.E.2d 296, trans. denied; Kerlin v. State (1991), Ind.App., 573 N.E.2d 445, trans. denied. Wine seeks to overcome the procedural default of waiver by asserting fundamental error.

In support of his argument Wine cites Bickel v. State (1978), 176 Ind.App. 342, 375 N.E.2d 274. In Bickel, we reversed the trial court's denial of Bickel's motion to dismiss and held that the information was insufficient due to its failure to set out Bickel's role in the conspiracy and describe the robbery with the same degree of...