Capps v. State, No. 49A02-9110-PC-451

Docket NºNo. 49A02-9110-PC-451
Citation598 N.E.2d 574
Case DateAugust 31, 1992
CourtCourt of Appeals of Indiana

Page 574

598 N.E.2d 574
Dennis R. CAPPS, Appellant-Petitioner,
v.
STATE of Indiana, Appellee-Respondent.
No. 49A02-9110-PC-451.
Court of Appeals of Indiana,
Second District.
Aug. 31, 1992.
Transfer Denied Oct. 21, 1992.

Page 575

Susan K. Carpenter, Public Defender, Addie D. Hailstorks, Deputy Public Defender, Indianapolis, for appellant-petitioner.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee-respondent.

SHIELDS, Judge.

Dennis R. Capps appeals the adverse judgment on his petition for post-conviction relief.

We affirm in part and reverse in part.

ISSUES

1. Whether the post-conviction court failed to enter findings of fact and conclusions of law as required by Ind. Post-Conviction Rule 1(6).

2. Whether the post-conviction court erred in determining Capps had waived certain issues he raised in his post-conviction relief petition.

3. Whether the post-conviction court erred in determining Capps was not denied effective assistance of appellate counsel.

FACTS

Capps was convicted of second degree murder in a trial to the court and sentenced to life imprisonment. On direct appeal, the Indiana Supreme Court affirmed Capps's conviction and sentence. See Capps v. State (1978), 268 Ind. 614, 377 N.E.2d 1338. In an amended petition, Capps sought post-conviction relief on the bases that his waiver of his right to a jury trial was not knowing, intelligent and voluntary, that his life sentence was unconstitutionally imposed, and that he was denied effective assistance of counsel at trial and on his direct appeal.

Following a hearing, the post-conviction court entered findings of fact and conclusions

Page 576

of law in which it denied Capps relief. In particular, the post-conviction court found that Capps's conviction and sentence were affirmed on direct appeal and that Capps was represented by different counsel at trial and on appeal. In relevant part, the court then concluded:
CONCLUSIONS OF LAW

1. Because the petitioner was convicted at trial and appealed, and because the State of Indiana had interposed a waiver defense herein, this Court cannot address trial-level issues that are subject to said defense unless it determines the existence of a basis for circumvention of the waiver defense. This Court concludes that of the issues sought to be presented by the instant petition, only the issue of the alleged ineffective assistance of appellate counsel is an issue not available to the petitioner on appeal. The Court thus concludes that it can only address those otherwise-waived issues if it first determines that appellate counsel was ineffective for his failure to raise them on appeal. Davis v. State (1975), [164 Ind.App. 331] 328 N.E.2d 768.

2. The petitioner was not denied the effective assistance of counsel on appeal. The evidence before this Court demonstrates that appellate counsel assembled and filed the Record of Proceedings in said appeal. The evidence further demonstrates that counsel researched and briefed the issues presented on appeal; and that counsel was of the belief that presentation of meritless issues might dilute the strength of an appeal. This Court concludes that appellate counsel's representation was competent and effective. Finding no deficiency in counsel's performance, this Court cannot determine that the petitioner was denied effective assistance of counsel. Strickland v. Washington (1984), [466 U.S. 668] 104 S.Ct. 2052 [80 L.Ed.2d 674].

3. Because the Court concludes that the petitioner was not denied the effective assistance of appellate counsel, it cannot address the merits of the remaining issues sought to be presented by the instant petition, all of which were available to the petitioner at the time of his appeal, but were not raised therein.

Record at 147-48.

Capps appeals.

DISCUSSION AND DECISION

I.

Capps claims the post-conviction court erred because it failed to make specific findings of fact and conclusions of law as required by Ind. Post-Conviction Rule 1(6) on his claims that he did not knowingly, voluntarily, and intelligently waive his right to a jury trial and that his sentence constitutes a denial of due process under the state and federal constitutions.

Contrary to Capps's contention, the post-conviction court complied with P-C.R. 1(6). The post-conviction court specially found that the State raised waiver as a defense, that Capps had different counsel on appeal than at trial, and that Capps's conviction and sentence was affirmed on his direct appeal. Based upon these special findings, the post-conviction court determined it could not address any of Capps's grounds for post-conviction relief other than his claim of ineffective appellate counsel because these other claims had been waived, i.e., they were available at the time of his direct appeal. The post-conviction court also made special findings upon Capps's ineffective appellate counsel claim after which it determined his claim was without merit. Thus, the post-conviction court complied with P-C.R. 1, #6 by making special findings of fact and conclusions of law on all issues presented.

There is no merit to Capps's argument the post-conviction court failed to comply with P-C.R. 1(6).

II.

Capps argues the post-conviction court erred in determining that, with the exception of his claim of ineffective appellate counsel, he had waived the issues he asserted in his post-conviction petition.

Page 577

With one exception, error available on direct appeal is waived if not raised on direct appeal. The exception is error that rises to the level of fundamental error. 1 See Lee v. State (1990), Ind., 550 N.E.2d 304, 304 (fundamental error may be raised in post-conviction proceeding although it was available, but not raised, on direct appeal); Perkins v. State (1989), Ind., 541 N.E.2d 927, 929 (waiver on appeal rule inapplicable to fundamental error); and Lane v. State (1988), Ind., 521 N.E.2d 947, 948 (available error that does not qualify as fundamental in nature is waived if not raised on direct appeal). Therefore, the post-conviction court's determination is erroneous only if the error asserted, if proven, would constitute fundamental error.

Capps claims the following asserted errors...

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10 practice notes
  • Wethington v. State, No. 49A02-9501-PC-13
    • United States
    • Indiana Court of Appeals of Indiana
    • August 31, 1995
    ...575 N.E.2d 20, 21, trans. denied. An exception to this rule arises when the error is fundamental. Capps v. State (1992), Ind.App., 598 N.E.2d 574, 577, trans. denied. Fundamental error is error that, if uncorrected, would deny a defendant fundamental due process. Babbs v. State (1993), Ind.......
  • Wine v. State, No. 85A04-9311-PC-415
    • United States
    • Indiana Court of Appeals of Indiana
    • July 28, 1994
    ...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......
  • Eldridge v. State, No. 49A02-9302-CR-87
    • United States
    • Indiana Court of Appeals of Indiana
    • January 27, 1994
    ...unless there is evidence of the defendant's knowing, voluntary, and intelligent waiver of the right. See Capps v. State (1992), Ind.App., 598 N.E.2d 574, 577, trans. denied; Vukadinovich v. State (1988), Ind.App., 529 N.E.2d 837, 839; Casselman v. State (1985), Ind.App., 472 N.E.2d 1310, 13......
  • Montano v. State, No. 45A04-9408-PC-335
    • United States
    • Indiana Court of Appeals of Indiana
    • April 27, 1995
    ...review. Id. Error available on direct appeal is usually waived for purposes of post-conviction relief, Capps v. State (1992), Ind.App., 598 N.E.2d 574, 577, trans. denied.; however, a small exception to this rule exists. An error cannot be waived by a previous appeal if the error is fundame......
  • Request a trial to view additional results
10 cases
  • Wethington v. State, No. 49A02-9501-PC-13
    • United States
    • Indiana Court of Appeals of Indiana
    • August 31, 1995
    ...575 N.E.2d 20, 21, trans. denied. An exception to this rule arises when the error is fundamental. Capps v. State (1992), Ind.App., 598 N.E.2d 574, 577, trans. denied. Fundamental error is error that, if uncorrected, would deny a defendant fundamental due process. Babbs v. State (1993), Ind.......
  • Wine v. State, No. 85A04-9311-PC-415
    • United States
    • Indiana Court of Appeals of Indiana
    • July 28, 1994
    ...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......
  • Eldridge v. State, No. 49A02-9302-CR-87
    • United States
    • Indiana Court of Appeals of Indiana
    • January 27, 1994
    ...unless there is evidence of the defendant's knowing, voluntary, and intelligent waiver of the right. See Capps v. State (1992), Ind.App., 598 N.E.2d 574, 577, trans. denied; Vukadinovich v. State (1988), Ind.App., 529 N.E.2d 837, 839; Casselman v. State (1985), Ind.App., 472 N.E.2d 1310, 13......
  • Montano v. State, No. 45A04-9408-PC-335
    • United States
    • Indiana Court of Appeals of Indiana
    • April 27, 1995
    ...review. Id. Error available on direct appeal is usually waived for purposes of post-conviction relief, Capps v. State (1992), Ind.App., 598 N.E.2d 574, 577, trans. denied.; however, a small exception to this rule exists. An error cannot be waived by a previous appeal if the error is fundame......
  • Request a trial to view additional results

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