Clark v. State

Decision Date27 March 1995
Docket NumberNo. 20A03-9309-PC-317,20A03-9309-PC-317
Citation648 N.E.2d 1187
PartiesMichael L. CLARK, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
CourtIndiana Appellate Court


Appellant-petitioner Michael L. Clark appeals the denial of his petition for post-conviction relief. The facts relevant to the appeal appear below.

Clark's conviction was affirmed by the supreme court on direct appeal in October 1986. Clark v. State (1986), Ind., 498 N.E.2d 918, 923. In his direct appeal, Clark alleged that the identification evidence was insufficient; that evidence of a deadly weapon was insufficient; that the refusal of an instruction was error; that the refusal of his request for a pretrial lineup was error; that the failure to suppress evidence of the BB pistol seized by police pursuant to a search warrant was error; that the refusal to grant his pro se motion for release on his own recognizance was error; that the failure to grant his pro se motion to dismiss trial counsel was error; that the failure to grant his pro se motion for a continuance was error; that the denial of his motion for appointment of a private investigator and an expert witness was error; that the admission into evidence of two State's exhibits during the habitual offender phase of the proceedings was error; and that allowing the exhibits to be sent to the jury room was error.

On review of the post-conviction proceeding, Clark raises the following restated issues:

1) whether the search of the residence at which Clark was staying was pretextual and conducted without probable cause;

2) whether the identification process was inherently unreliable giving rise to a substantial likelihood of misidentification;

3) whether Clark was denied his right to a fair trial when an officer testified regarding statements by an anonymous telephone caller revealing that Clark had a criminal history, and the existence of outstanding warrants for Clark's arrest;

4) whether the prosecutor engaged in misconduct which denied Clark a fair trial;

5) whether Clark was denied his right to a fair trial because a juror slept during a portion of his trial;

6) whether sufficient evidence supports the finding that Clark is an habitual offender; and

7) whether Clark was denied effective assistance of trial and appellate counsel.

A petitioner bears the burden of establishing grounds for post-conviction relief by a preponderance of the evidence. Weatherford v. State (1993), Ind., 619 N.E.2d 915, 916. A court on review will consider only the evidence and reasonable inferences supporting the judgment of the post-conviction court. Id. The post-conviction court acts as the sole judge of the evidence and the credibility of the witnesses. Id. Accordingly, to prevail on appeal from the denial of post-conviction relief, a petitioner must demonstrate that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id.

As consistently noted, post-conviction procedures do not afford the convicted an opportunity for a "super appeal." Id. Instead, post-conviction remedies are reserved for subsequent collateral challenges to convictions based upon grounds enumerated in the post-conviction rules. Id. at 916-917. "Issues which were or could have been raised on direct appeal are not available for review in post-conviction." Id. at 917. Thus, concepts of waiver, for failure to raise issues available, and res judicata, barring relitigation of issues previously adjudicated, are fully applicable to post-conviction proceedings. Maxey v. State (1992), Ind.App., 596 N.E.2d 908, 910-911.

In June 1989, Clark filed his petition for post-conviction relief. The petition was amended in April 1992. The State does not argue nor does the record reveal the filing of an answer. In its decision, the post-conviction court addressed the merits of each issue presented. On appeal, Clark contends that this Court cannot apply the doctrines of waiver or res judicata because they were not properly advanced by the State and because the trial court addressed the merits of the issues presented.

Both waiver and res judicata are listed in the trial rules as affirmative defenses. See Ind.Trial Rule 8(C). As a general rule, affirmative defenses must be pleaded specifically or they will be lost. See City of Gary v. Belovich (1993), Ind.App., 623 N.E.2d 1084, 1087 (res judicata must be pleaded affirmatively by way of answer). In the post-conviction setting, the concepts of res judicata and waiver were thoroughly discussed in Mickens v. State (1991), Ind.App., 579 N.E.2d 615, 617-619, trans. granted (1992), Ind., 596 N.E.2d 1379, 1381 (opinion affirmed in all respects except State need not cross-appeal to raise waiver in appellate brief if pleaded by State in answer, even if post-conviction court looks to other grounds), DeBruler, J. dissenting in which Krahulik, J. concurred.

Moreover, as directly applicable to the present action, the Mickens court reviewed the development of case law relative to the State's failure to plead res judicata and/or waiver or to raise the post-conviction court's failure to find res judicata and/or waiver in a cross-appeal. Id. at 617-619 n. 8. As our case law has developed, the State's failure to "preserve" the issues results in a requirement that the action be reviewed on the merits which effectively allows a post-conviction litigant the "super appeal" repeatedly spurned beginning with the seminal case of Langley v. State (1971), 256 Ind. 199, 267 N.E.2d 538. See Mickens, 579 N.E.2d at 619, n. 8.

The Court of Appeals in Mickens noted that the State's failure to properly preserve the issues places this Court "in the judicially uncomfortable and inappropriate position of having to rule on questions already decided." Id. However by distilling the concept of res judicata to its essence, it is clear that review of actions finally determined is barred. This is especially true when the Court of Appeals is asked to re-review questions finally determined by our supreme court. Our supreme court in Mickens, 596 N.E.2d at 1381, determined that the State may persist in alleging waiver and presumably res judicata even if the post-conviction court does not base its decision on those concepts. The State's failure to somehow preserve the issues cannot allow this Court to engage in the legal fiction that the issues have not been previously determined.

Moreover, basing the type of review to which a postconviction petitioner is entitled upon the action or inaction of the opposing party in its answer to the petition is nothing short of arbitrary. Standards of review may be altered by a party's failure to plead or object at proceedings; however, standards of review should not be determined by the opposing party's conduct.

Black's Law Dictionary 6th Ed. (1990) defines res judicata as:

"A matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. Rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. [Citation omitted]. And to be applicable, requires identity in thing sued for as well as identity of cause of action, of persons and parties to action, and of quality in persons for or against whom claim is made. The sum and substance of the whole rule is that a matter once judicially decided is finally decided. Allen v. McCurry, 449 U.S. 90 [94-96], 101 S.Ct. 411, 415, 66 L.Ed.2d 308."

See also Galloway v. State (1985), Ind.App., 485 N.E.2d 637, 639 (twin doctrines of res judicata and law of the case preclude relitigation of issues decided in a previous appellate decision).

In Schiro v. State (1989), Ind., 533 N.E.2d 1201, cert. den., 493 U.S. 910, 110 S.Ct. 268, 107 L.Ed.2d 218, our supreme court reiterated the purpose of postconviction relief and relied upon res judicata:

"The purpose of the post-conviction relief process is to raise issues not known at the time of the original trial and appeal or for some reason not available to the defendant at that time. Where an item was available to the defendant on direct appeal but not pursued, it is waived for post-conviction review. Sims v. State (1988), Ind., 521 N.E.2d 336, 337. An issue which is raised and determined adverse to petitioner's position is res judicata. Ingram v. State (1987), Ind., 508 N.E.2d 805, 807."

Id. at 1204-1205.

The Schiro court went on to hold that post-conviction relief procedures are not available in perpetuity. Id. at 1205. The court approvingly cited Court of Appeals cases:

"The court of appeals recently stated in Alston v. State (1988), Ind.App., 521 N.E.2d 1331, 1335, that they would not 'take a step backward and create a new vehicle by which a defendant could use a PCR to attack a previous PCR on the grounds of incompetency of counsel in that PCR hearing, and then use yet a third PCR to attack the competency of counsel of the second PCR and so on in perpetuity.' In Lane v. State (1988), Ind., 521 N.E.2d 947, this Court noted that ineffective assistance of trial counsel would have been an issue available in the post-conviction petition. 'Lane's allegation of ineffective assistance is clearly an attempt to circumvent Rule PC 1, section 8, in order to present evidence on issues that had been waived.' We stated further, 'Lane cannot evade PC Rule 1, section 8, just by typing the words "ineffective assistance of counsel." ' " Id. 521 N.E.2d at 949.


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8 cases
  • State v. Lopez
    • United States
    • Court of Appeals of Indiana
    • January 28, 1997
    ...... In essence, when the State can plead res judicata on an issue but fails to sufficiently do so, is a postconviction court afforded the latitude of overruling the prior holding of our supreme court on the issue? We faced this issue once before in Clark v. State, 648 N.E.2d 1187 (Ind.Ct.App.1995), trans. denied. In that case, unlike Lopez's, the State failed altogether to file an answer to the petitioner's petition for postconviction relief. Nonetheless, postconviction relief was denied and petitioner appealed, arguing that the State was barred ......
  • Price v. State
    • United States
    • Court of Appeals of Indiana
    • October 24, 1995
    ...... A claim of prosecutorial misconduct requires a two-part inquiry: (1) whether the prosecutor engaged in misconduct and (2) whether the misconduct placed the defendant in a position of grave peril or evinced a deliberate attempt to improperly prejudice the defendant. Clark v. State (1995), Ind.App., 648 N.E.2d 1187, 1192, reh'g denied, trans. denied (citing Bellmore v. State (1992), Ind., 602 N.E.2d 111, 120, reh'g denied ).         At trial, Price interposed the defense that an unidentified intruder committed the crimes. Price conceded that he was outside ......
  • Turner v. State
    • United States
    • Court of Appeals of Indiana
    • June 18, 2001
    .......          Atchley v. State, 730 N.E.2d 758, 762 (Ind. Ct.App.2000) (citations omitted) (emphasis added), trans. denied. We have stated that issues that were raised on direct appeal are not available for review post-conviction. Clark v. State, 648 N.E.2d 1187, 1190 (Ind.Ct.App.1995), trans. denied. That is, res judicata, which bars relitigation of issues previously adjudicated, applies to post-conviction proceedings. Id. .         In an attempt to circumvent the oft-stated rule of res judicata in post-conviction ......
  • Fuqua v. State
    • United States
    • Court of Appeals of Indiana
    • November 30, 2021
    ...... II. Post-Conviction Relief. . . A. Manifest Injustice. . . [¶8]. Pursuant to the doctrine of res judicata, issues. that were raised on direct appeal are not available for. post-conviction review. Clark v. State, 648 N.E.2d. 1187, 1190 (Ind.Ct.App. 1995), trans. denied. Although we should be reluctant to revisit prior decisions of. this court, we can do so under "extraordinary. circumstances such as where the initial decision was clearly. erroneous and would work ......
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