Bunch v. State

• Decision Date: 26 November 2002
• Docket Number: No. 79S02-0205-PC-293.,79S02-0205-PC-293.
• Parties: Alan BUNCH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

778 N.E.2d 1285

Alan BUNCH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 79S02-0205-PC-293.

Supreme Court of Indiana.

November 26, 2002.

Earl McCoy, Lafayette, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

ON PETITION TO TRANSFER

BOEHM, Justice.

We hold that in order to establish the affirmative defense of waiver the State must raise it in its pleading in a post-conviction relief proceeding and carry the burden of proof on the issue in the trial court. However, a court on appeal may nevertheless find, sua sponte or at the suggestion of a party, that the issue presented in a post-conviction petition was waived by procedural default if the matter could have been presented on direct appeal but was not.

Factual and Procedural Background

Alan Bunch was found guilty by a jury of two counts of Dealing in Cocaine as Class A felonies and four counts of Dealing in Cocaine as Class B felonies. For each Class A felony, Bunch was sentenced to fifty years in prison, with four years suspended for supervised probation. He received a twenty-year sentence on each count of Dealing in Cocaine as a Class B felony. All time was ordered to be served concurrently.

On direct appeal, the Court of Appeals overturned one of Bunch's Class A felony convictions in an unpublished memorandum decision but his sentence remained at fifty years. Bunch v. State, 594 N.E.2d 847, No. 79A02-9112-CR-539 (Ind. Ct. App. June 18, 1992). Bunch did not raise any sentencing issues in his direct appeal.¹

Bunch then filed a petition for post-conviction relief which was denied by the trial court. The Court of Appeals affirmed the denial of post-conviction relief by unpublished memorandum decision. Bunch v. State, 659 N.E.2d 262, No. 79A04-9501-PC-14 (Ind.Ct.App. Dec. 14, 1995). Bunch raised no challenge to the trial court's handling of mitigating or aggravating circumstances.² This Court denied transfer.

Bunch then filed a successful request for permission to file a successive petition for post-conviction relief. In the successive petition, Bunch argued that in sentencing him, the trial court improperly weighed the aggravating and mitigating circumstances.³ The State filed a response asserting the affirmative defenses of waiver, res judicata, and laches.⁴

At the successive post-conviction hearing, Bunch challenged four aggravating factors cited by the trial court.⁵ The State responded to Bunch's arguments on the merits contending that one aggravating circumstance was sufficient to enhance a sentence above the presumptive sentence. The post-conviction court denied Bunch relief without ruling on the State's pleaded defense of waiver.

On appeal, the Court of Appeals affirmed the trial court's denial of post-conviction relief on the merits, but noted that "because the State failed to argue the affirmative defense of waiver at the post-conviction hearing, it cannot now raise waiver on appeal." Bunch v. State, 760 N.E.2d 1163, 1168 (Ind.Ct.App.2002).⁶ We granted transfer in a separate order dated May 23, 2002 to address this last issue.

I. "Waiver" and Procedural Default

On appeal, relying on Rouster v. State, 705 N.E.2d 999, 1003 (Ind.1999), the State argued that Bunch had waived the sentencing issue because he did not raise it on direct appeal.⁷ The Court of Appeals interpreted Langley v. State, 256 Ind. 199, 267 N.E.2d 538 (1971), to require the State to raise the defense of waiver at the hearing. The court concluded that, because the defense was not raised at the hearing, the State did not preserve the defense in the post-conviction court, and the court could not entertain it.

We agree that the State was not entitled to affirmance on the basis of waiver, but conclude that the Court of Appeals was not barred from finding that Bunch had waived his sentencing issues. The term "waiver" has been applied to several different concepts. Here, we need to distinguish between waiver as an affirmative defense and a discretionary judicial doctrine that forecloses an issue on appeal. We think the latter is more properly described as "procedural default" or "forfeiture," but we acknowledge that it is often referred to as "waiver." Indiana Trial Rule 8(C) requires parties to plead some affirmative defenses, including "waiver," or forfeit them.⁸ It also places the burden of proof at trial on the party required to plead the matter as an affirmative defense. In contrast to the "waiver" governed by Rule 8(C), there is also a doctrine of judicial administration whereby appellate courts may sua sponte find an issue foreclosed under a variety of circumstances in which a party has failed to take the necessary steps to preserve the issue. See e.g., West v. State, 755 N.E.2d 173, 184 (Ind. 2001)

(where the defendant fails to make an offer to prove); Flowers v. State, 738 N.E.2d 1051, 1061 (Ind.2000) (where defendant fails to object to trial judge's comments); Trueblood v. State, 715 N.E.2d 1242, 1248 (Ind.1999) (in post-conviction proceedings where claims are available on direct appeal but are not presented to the court); Kindred v. State, 540 N.E.2d 1161, 1176 (Ind.1989) (where defendant rejected the trial court's offer to admonish the jury). This case deals with the procedural default variety of waiver, which arises solely by reason of failure to raise the issue on direct appeal. There is no claim of consensual action, stipulation that eliminated the issue, or some other form of "waiver" that requires proof of the actions taken by a party that operate to bar it from asserting a claim.

A. Waiver as an Affirmative Defense

We agree with the Court of Appeals that the affirmative defense of waiver must be raised at the post-conviction hearing to be properly preserved for appeal. The Court of Appeals relied principally on Langley, 256 Ind. at 199, 267 N.E.2d at 538, for its conclusion that waiver must be raised at the post-conviction hearing to be properly preserved. Langley held that the State must raise the issue at the hearing: "[I]t would seem that the state is precluded from asserting waiver on appeal where they made no mention concerning it at the hearing." Id. at 207 n. 2, 267 N.E.2d at 543 n. 2. Although the State was the appellee, the court considered the issue precluded "on the same basis that an appellant is normally denied the right to raise an issue for the first time on appeal." Id. Langley also declared, "Where, however, the state, as it did in this case, chooses to meet a petitioner's allegations on their merits at the hearing, we must do likewise on appeal." Id. at 207, 267 N.E.2d at 542-43. Relying on Langley, the Court of Appeals in this case concluded that the "key factor in preserving waiver for appeal is that the issue be argued to the post-conviction court." Bunch, 760 N.E.2d at 1167. Similarly, Mickens v. State, 596 N.E.2d 1379, 1381 (Ind.1992), interpreted Langley to require that the waiver defense be "presented" by the State to the post-conviction court before that court can find waiver. See also State v. Eubanks, 729 N.E.2d 201, 205 (Ind.Ct.App.2000),

trans. denied (State must "argue" waiver as a defense to the post-conviction court or the defense is waived); Nelson v. Gurley, 673 N.E.2d 497, 500 n. 3 (Ind.Ct.App.1996) (Waiver "must be specifically pleaded in the answer or specifically raised at trial or it is waived.").

Langley involved two consolidated cases in which post-conviction relief had been denied. The rules governing post-conviction relief were adopted in 1969 and the current Trial Rules became effective in 1970. Langley was decided by this Court in March 1971. It is not clear whether the Court regarded the Trial Rules as applicable to the post-conviction proceedings before it. In any event, it is now clear that the Trial Rules apply to post-conviction relief proceedings. Ind. Post Conviction Rule 1(5) ("All rules and statutes applicable in civil proceedings including pre-trial and discovery procedures are available to the parties, except [in cases involving a change of judge request]."); State v. Drysdale, 677 N.E.2d 593, 595 (Ind.Ct.App. 1997), trans. denied ("Post-conviction proceedings are governed by the rules and statutes applicable to civil proceedings and the petitioner has the burden of proving his claims by a preponderance of the evidence.").

Under current Trial Rule 8(C), the State must raise the issue in its pleading and carry its burden of proof at trial in order to prevail on an affirmative defense. See Troxel v. Troxel, 737 N.E.2d 745, 749 (Ind. 2000)

. Failure to plead the defense waives it. Having pleaded the defense, as the State did here, it remained the State's burden to establish the necessary facts to support the defense.

Here, at the post-conviction hearing, although the State did not abandon the defense, it took no steps to call it to the post-conviction court's attention. More importantly, the State did not present the facts necessary to establish this defense either by evidence or by requesting judicial notice of the issues presented in Bunch's direct appeal. These facts were readily available to the State. Simply offering into evidence Bunch's appellate brief would establish that the sentencing issue was not raised on direct appeal. As a result of this omission, the State failed to establish the facts necessary to carry its burden of proof on this defense. The State therefore is not entitled as a matter of right to a ruling that Bunch has waived his claim of sentencing error.

B. Waiver by Procedural Default

Although the State failed to establish an affirmative defense, a court on appeal may nevertheless find that the sentencing issue presented in a second post-conviction petition was forfeited by means of procedural default. More generally, although a party who has failed to plead or prove a Rule 8(C) affirmative defense has no right to prevail on...