Allen v. State
| Decision Date | 11 February 2003 |
| Docket Number | No. 51A01-0207-PC-248.,51A01-0207-PC-248. |
| Parties | Michael A. ALLEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Michael A. Allen, Appellant Pro Se.
Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Michael A. Allen appeals the denial of his petition for post-conviction relief. Allen raises three issues for our review. To dispose of Allen's appeal, we need address only one of those issues: whether the post-conviction court erred when it disposed of Allen's petition based upon the pleadings. However, as the issue may recur on remand, we address Allen's second issue: whether the post-conviction court abused its discretion when it denied Allen's requests to subpoena witnesses. We affirm in part, reverse in part, and remand.
On April 17, 1997, Allen was convicted of voluntary manslaughter. We affirmed that conviction in a memorandum opinion. Allen v. State, 701 N.E.2d 937 (Ind.Ct.App. 1998), trans. denied.
On April 13, 1999, Allen filed a pro se petition for post-conviction relief. In his petition he raised three issues: (1) whether evidence not presented at trial requires the vacation of his conviction; (2) whether Allen's trial attorney provided ineffective assistance to Allen; and (3) whether the prosecutor committed misconduct justifying a reversal of Allen's conviction. At separate times, two public defenders entered appearances on Allen's behalf and then withdrew. The record before us does not indicate that either of those attorneys amended Allen's original petition. The State denied the truth of Allen's three claims and raised the defenses of waiver, laches, and res judicata.
In December of 2001, Allen filed a motion to set a hearing date. In January of 2002, Allen filed eight requests for subpoenas, along with affidavits in support of each. On February 12, Allen again filed a motion to set a hearing date. In March, Allen filed a request for appointment of counsel. In April, Allen filed a request for DNA testing and filed a motion to compel the post-conviction court to set a hearing date. On May 17, 2002, the post-conviction court denied Allen's petition for post-conviction relief in an order that also denied Allen's requests for subpoenas, denied Allen's request for pauper counsel, denied Allen's motion for discovery and production of evidence, denied Allen's request for DNA testing and analysis, and denied Allen's motion to compel the court to set a hearing date. Allen appeals.
Post-conviction proceedings afford petitioners a limited opportunity to raise issues that were unavailable or unknown at trial and on direct appeal. Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999), reh'g denied, cert. denied, 531 U.S. 829, 121 S.Ct. 81, 148 L.Ed.2d 43 (2000); see also Ind. Post-Conviction Rule 1(1)(a). Such proceedings are not "super appeals" through which convicted persons can raise issues that they failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d 389, 391 (Ind.2002), reh'g denied. Post-conviction proceedings are civil in nature, and petitioners bear the burden of proving their grounds for relief by a preponderance of the evidence. P-C.R. 1(5).
When a petitioner appeals the denial of post-conviction relief, he appeals from a negative judgment. Curry v. State, 674 N.E.2d 160, 161 (Ind.1996). Consequently, we may not reverse the judgment of the post-conviction court unless the petitioner demonstrates that the evidence "as a whole, leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court." Id. We accept the post-conviction court's findings of fact unless they are clearly erroneous, but we do not give deference to the court's conclusions of law. State v. Van Cleave, 674 N.E.2d 1293, 1295-96 (Ind.1996), reh'g granted on other grounds, 674 N.E.2d 1293, cert. denied, 522 U.S. 1119, 118 S.Ct. 1060, 140 L.Ed.2d 121 (1998).
The post-conviction court found that "summary disposition of the Petition is appropriate." (Appellant's App. at 181.) Before we can determine whether the post-conviction court erred by so finding, we must determine the standard by which we review the post-conviction court's decision.
The State asserts that the appropriate standard of review in this situation is whether "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law" under Ind. Post-Conviction Rule 1, section 4(g). Allen argues that the appropriate standard is whether "the pleadings conclusively show that petitioner is entitled to no relief" under Ind. Post-Conviction Rule 1, section 4(f). We agree with Allen.
Post-Conviction Rule 1, section 4 contains two subsections indicating that a court may deny a petition without a hearing. First, in subsection f, the rule provides: "If the pleadings conclusively show that petitioner is entitled to no relief, the court may deny the petition without further proceedings." Second, in subsection g, the rule provides:
The court may grant a motion by either party for summary disposition of the petition when it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Disposal of a petition under each of these two subsections leads to a different standard of review on appeal.
When a court disposes of a petition under subsection f, we essentially review the lower court's decision as we would a motion for judgment on the pleadings.1 The court errs in disposing of a petition in this manner unless "the pleadings conclusively show that petitioner is entitled to no relief." P.-C.R. 1 § 4(f). If the petition alleges only errors of law, then the court may determine without a hearing whether the petitioner is entitled to relief on those questions. Clayton v. State, 673 N.E.2d 783, 785 (Ind.Ct.App.1996). However, if the facts pled raise an issue of possible merit, then the petition should not be disposed of under section 4(f). Id. at 786. "This is true even though the petitioner has only a remote chance of establishing his claim." Id. at 785.
On the other hand, when a court disposes of a petition under subsection g, we review the lower court's decision as we would a motion for summary judgment.2 Hough v. State, 690 N.E.2d 267, 269 (Ind.1997), reh'g denied, cert. denied, 525 U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998). We face the same issues that were before the post-conviction court and follow the same process. Poling v. State, 740 N.E.2d 872, 877-878 (Ind.Ct.App. 2000). A grant of summary disposition is erroneous unless "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id. at 878; P-C.R. 1 § 4(g). We must resolve all doubts about facts, and the inferences to be drawn from the facts, in the non-movant's favor. Id. at 878. The appellant has the burden of persuading us that the post-conviction court erred. Id.
The differences in the manner in which we review decisions made under the two subsections lead us to conclude that these two subsections of the post-conviction rule were intended to create two independent means by which a court could summarily dispose of a post-conviction petition. Consequently, to determine the appropriate standard of review for the court's disposal of Allen's petition, we must determine whether the court disposed of Allen's petition under subsection f or subsection g of Post-Conviction Rule 1, section 4.
Under the plain language of subsection g, a court may grant summary disposition after "a motion by either party" and after considering the pleadings and other evidence submitted. P.-C.R. 1 § 4(g). The language of subsection f, on the other hand, permits a court to deny a petition based upon only the pleadings and apparently without a motion by either party. Here, the chronological case summary indicates that neither party moved for summary disposition of Allen's petition. In addition, the court made its decision based upon only the pleadings. Therefore, the post-conviction court's decision must have been made pursuant to section 4(f).
Under section 4(f), Allen had a burden only to plead facts that raised an issue of possible merit. See Clayton, 673 N.E.2d at 786
. At this stage of the proceedings, Allen did not, as the State argues, have a burden to prove the existence of a genuine issue of material fact. We turn now to whether the post-conviction court properly disposed of Allen's petition under the standard of review for subsection f.
To review, a post-conviction court may dispose of a petition under section 4(f) if "the pleadings conclusively show that petitioner is entitled to no relief." If the petition alleges only errors of law, then the court may determine without a hearing whether the petitioner is entitled to relief on those questions. Id. at 785. However, if the facts pled raise an issue of possible merit, then the petition should not be disposed of under section 4(f). Id. at 786. This is the case even if the petitioner has little chance of establishing his claims. Id. at 785. Allen alleged three errors in his petition for post-conviction relief, and we address each independently.
(1.) Previously Unpresented Evidence
First, Allen claimed that there is evidence not previously presented that requires vacation of his sentence. To support this statement, Allen claimed that the coroner's report and the pathologist's report indicate three witnesses gave false testimony at his trial. We construe his allegation to be one of newly discovered...
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