Annes v. State, 49A04-0109-PC-410.
| Decision Date | 11 December 2002 |
| Docket Number | No. 49A04-0109-PC-410.,49A04-0109-PC-410. |
| Citation | 783 N.E.2d 264 |
| Parties | Richard ANNES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
John Pinnow, Greenwood, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
The State petitions for rehearing of our memorandum decision in Annes v. State, No. 49A04-0109-PC-410, 767 N.E.2d 1051 (Ind. Ct.App. April 30, 2002), where we reversed the denial of Richard Annes' second petition for post-conviction relief. We grant the rehearing in order to address the State's argument that Annes' claims were res judicata because the same issue he raised in the case before us had been decided in a prior petition for post-conviction relief. We vacate our memorandum decision but reaffirm, in light of the unique factual and legal circumstances of this case, our holding that Annes' second petition for post-conviction relief should have been granted.
On August 9, 1972, Annes sold LSD (lysergic acid diethylamide) to an undercover police officer and was charged with possession and sale of LSD. On September 7, 1972, Annes agreed to plead guilty to possessing LSD in exchange for the dismissal of the selling count, and to undergo treatment in lieu of prosecution. On October 27, 1972, Annes withdrew his request for treatment and requested sentencing. The trial court1 sentenced Annes to one to ten years suspended and ordered two years of probation and drug treatment. On December 20, 1972, the trial court revoked Annes' probation and ordered him to serve his sentence.
In 1983, Annes was convicted of felony murder and found to be an habitual offender. He was sentenced to seventy years. On February 28, 2000, Annes filed a petition for post-conviction relief. He argued that his 1972 guilty plea was not knowingly, intelligently, or voluntarily made because the trial court failed to advise him that he had the right to confront and cross-examine opposing witnesses.2 The first post-conviction court denied Annes' petition.
Annes' counsel filed a praecipe but failed to file an appellate brief, resulting in the dismissal of the appeal on December 21, 2000. On March 12, 2001, we granted Annes permission to file a successive petition for post-conviction relief. The State's Answer alleged res judicata and laches. An evidentiary hearing was held on June 4, 2001, at which time the deputy prosecutor advised the post-conviction court that Annes' hearing was not on his calendar and he did not have a file.
The post-conviction court advised the State that it would leave the case open for one week so that the State could review its file to determine whether there was any evidence the State wished to present.3 During the hearing, Annes presented evidence that the trial court had failed to advise him of his right to confront and cross-examine witnesses. The State cross-examined Annes, but did not present any evidence on the defenses it had asserted in its Answer.
In denying Annes' petition, the first post-conviction court found that Annes' plea of guilty differed from "a typical guilty plea in a criminal case, wherein a defendant anticipates that his plea will result in penal consequences," (App. at 14) because he anticipated that the charge would ultimately be dismissed. As a result, "the required advisements appurtenant to a typical guilty plea were not required...." Id. Further, the first post-conviction court found that if any error existed, it was invited error because "the only reason the instant cause resulted in penal consequences was [Annes'] own withdrawal from the drug treatment program and his request that he be sentenced." Id.
This appeal ensued. Annes raised one issue: whether his 1972 guilty plea to possession of lysergic acid diethylamide (LSD) was knowing, intelligent and voluntary where the trial court did not advise Annes of his right to confront and cross-examine opposing witnesses. There was no evidence that the trial court so advised Annes. We acknowledged the State's contention that the claims Annes raised in his second post-conviction petition were the same as those raised in his first, and because Annes did not pursue the appeal of the denial of his first PCR petition, his second petition was therefore barred by waiver and res judicata. However, we dealt with Annes' allegation of error as one of ineffective assistance of counsel for failure to file an appellant's brief, and accordingly reversed the denial of his second petition for post-conviction relief and remanded to the second post-conviction court with instructions to vacate the 1972 conviction.
We note initially that Annes' allegations of error were properly brought before the post-conviction court and this court by means of a second petition for post-conviction relief. Our rules create procedures by which persons who have been convicted of crimes in Indiana may appeal those convictions. If unsuccessful on appeal, there are procedures in place that allow the convicted person an opportunity to file a petition seeking post-conviction relief. See, e.g., Ind. Post-Conviction Rule 1. If still unsuccessful, one of the avenues potentially open to the convicted person is to again seek post-conviction relief in the state court through a second, or successive, petition. There are rules governing this process as well. See P-C. R. 1 § 12.
We addressed the limitations of what can be in a successive petition in Kirk v. State, 632 N.E.2d 776, 778-79 (Ind.Ct.App. 1994):
The purpose of the post-conviction relief process is to allow a petitioner to raise issues not known at the time of the original trial and appeal or for some reason not available to the petitioner at that time. In seeking post-conviction relief, a petitioner must assert all available grounds for relief in his original post-conviction petition. Failure to do so constitutes waiver unless the court finds a ground for relief which for sufficient reason was not asserted or was inadequately raised in the original petition. Thus, a petitioner may not assert grounds one, two, and three in his original petition and four, five, and six in a successive petition.
(Citations omitted.)
Kirk had argued in his successive post-conviction petition that his guilty plea was not voluntary and intelligent because his counsel at his guilty plea hearing tricked him. We noted that this claim was available and known to Kirk when he filed his first petition for post-conviction relief yet he did not assert it therein. Therefore, Kirk waived that claim. 632 N.E.2d at 779.
In the case before us, by contrast, Annes' claim that his guilty plea was not voluntary and intelligent was asserted in his first petition, and after that petition was denied Annes' counsel did not pursue the appeal Annes had initiated. We therefore decline to find this allegation of error was waived for failure to raise it in the first petition.
Annes contended in both of his petitions for post-conviction relief that his guilty plea was not knowing, intelligent and voluntary because the trial court did not advise him of his right to confront and cross-examine opposing witnesses. He is correct.4 A defendant pleading guilty must be advised of his right against self-incrimination, his right to a jury trial, and his right to confront and cross-examine his accusers. Boykin v. Alabama, 395 U.S. 238, 244-45, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Our own supreme court has acknowledged that "unless the record reveals that the defendant knew or was advised at the time of his plea that he was waiving his right to a jury trial, his right of confrontation and his right against self-incrimination, Boykin will require that his conviction be vacated." White v. State, 497 N.E.2d 893, 905 (Ind.1986). That is the situation in the case before us.
The relevant excerpts from Annes' guilty plea transcript are as follows:
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