Davis v. State, 975S208

• Citation: 267 Ind. 152,368 N.E.2d 1149
• Decision Date: 01 November 1977
• Docket Number: No. 975S208,975S208
• Parties: Margie DAVIS, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 1149

368 N.E.2d 1149

267 Ind. 152

Margie DAVIS, Appellant, v. STATE of Indiana, Appellee.

No. 975S208.

Supreme Court of Indiana.

Nov. 1, 1977.

Keith A. Dilworth, Public Defender, Richmond, for appellant.

Theodore L. Sendak, Atty. Gen., James N. Shumacker, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

On January 10, 1975, appellant was charged by indictment with the offenses of first degree (felony) murder (in the commission of a robbery), Ind.Code § 35-13-4-1, and second degree murder, Ind.Code § 35-1-54-1 (Burns 1975), repealed October 1, 1977. Both counts charged appellant as an accessory before the fact, alleging that she had aided and abetted Carrie Lee Gentry, also known as Carole Lee Smith, and Gladys Hobbs, in beating to death one Adrian Miller in the course of an attempted robbery. Appellant was tried separately from the principals and convicted of first degree murder as an accessory.

Subsequently Gladys Hobbs was allowed to plead guilty to the offense of voluntary manslaughter, Ind.Code § 35-13-4-2 (Burns 1975), repealed October 1, 1977, for her part in this crime. Carrie Gentry was tried by jury and convicted only of assault and battery, Ind.Code § 35-1-54-4 (Burns 1975), repealed October 1, 1977. Hobbs is now on parole and Gentry has served her sentence.

Appellant filed a motion to correct errors and perfected an appeal prior to disposition of Hobbs' and Gentry's cases. Thereafter appellant filed with the trial court under Ind. R.P.C. 1 a petition for post-conviction relief seeking vacation of her conviction and sentence because of the variance between her conviction and Gentry's. The trial court denied the petition pursuant to Bright v. State, (1972) 259 Ind. 495, 289 N.E.2d 128, holding that it lacked jurisdiction to hear appellant's petition while her appeal was pending. Appellant seeks to raise the issue contained in her post-conviction relief petition by filing a "supplemental brief" and "supplemental record." The State argues that appellant may not "supplement" her appeal, and moves to strike the supplemental materials.

I.

Appellant argues that Bright does not apply to her petition because it seeks correction of an erroneous sentence, which can be made "at any time." She relies on the language of Post-Conviction Rule 1, § 1(a):

"(a) Any person who has been convicted of, or sentenced for, a crime by a court of this state, and who claims:

(1) that the conviction or the sentence was in violation of the Constitution of the United States or the constitution or laws of this state;

(2) that the court was without jurisdiction to impose sentence;

(3) that the sentence exceeds the maximum authorized by law, or is otherwise erroneous;

(4) that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;

(5) that his sentence has expired, his probation, parole or conditional release unlawfully revoked, or he is otherwise unlawfully held in custody or other restraint;

(6) that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy;

may institute at any time a proceeding under this Rule to secure relief."

Two factors prevent us from accepting appellant's argument. First, as is apparent from the text of section 1(a), the phrase "at any time" refers to all of the grounds for post-conviction relief enumerated in that section. Therefore it offers no basis for distinguishing Bright. Moreover, appellant does not seek to correct an erroneous sentence. Appellant was convicted of first degree murder and sentenced to life imprisonment. Her argument is that the conviction for murder cannot stand in view of the inconsistent conviction of her principal. We find no merit to appellant's argument that this case constitutes an exception to Bright.

II.

In Logal v. Cruse, 368 N.E. 235 (1977, 1077 S 746), this Court provided a procedure for consideration of motions for relief from civil judgments under Ind. R.Tr.P. 60(B). This procedure requires an appellant seeking relief from the judgment being appealed to obtain permission from the appellate court for the trial court to entertain his motion. The appellate court preliminarily screens the motions and remands to the trial court those cases in which an arguably meritorious motion is sought to be made.

Two considerations underlie our decision in Logal. One is the unfairness of requiring a litigant to elect either an appeal or motion for relief as remedy for an improper judgment against him. The other is the economy of judicial resources which can be effected by the avoidance of considering appeals made unnecessary by the granting of Rule 60 relief. We turn now to consider the applicability of these factors to petitions for post-conviction relief made pending appeal.

The petition for post-conviction relief is largely the functional equivalent of the Rule 60(B) motion. Both are procedural vehicles for collateral attack on an adverse judgment, directed to the court rendering the judgment. ¹ There are, however, significant differences. Granting a motion for relief from a judgment ordinarily involves vacating the judgment, thereby mooting the appeal. The relief granted in a post-conviction relief proceeding is more variable, see Ind. R.P.C. 1, § 6, and may or may not moot the issues raised on appeal. Moreover, the one-year maximum time limit imposed on many grounds for Rule 60 relief, Ind. R.Tr.P. 60(B)(1) to (4), is not present in the post-conviction rules, and the potential for forfeiture of one remedy by exercise of the other is correspondingly less.

However, this case illustrates the existence of cases in which both the interests of fairness and judicial economy militate in favor of applying the Logal procedure to post-conviction relief petitions made pending appeal. Appellant Davis has raised an issue which, if meritorious, would require reduction of her conviction to assault and battery, the maximum penalty for which is six months imprisonment. Appellant has already been in prison for more than two years. Under such circumstances requiring her to await resolution of her appeal to raise this issue in her post-conviction relief petition is hardly less oppressive than forfeiting the 60(B) remedy of a civil litigant. By the same token appellant's post-conviction relief, if granted, is quite likely to moot the issues raised in her direct appeal, since her interest in prosecuting an appeal to invalidate a misdemeanor conviction under which she will no longer be incarcerated is likely to be small.

We hold that where an appellant from a criminal conviction seeks to bring a petition for post-conviction relief pending resolution of his appeal, he may obtain leave from the appellate court under the procedure outlines in Logal when the appellate court can find:

(1) that the grounds for relief advanced in appellant's petition have a substantial likelihood of securing appellant relief in the trial court;

(2) that such relief has a substantial likelihood of rendering moot the issues raised on direct appeal and would effect a net savings of judicial time and effort;

(3) that the circumstances of the case are such that undue hardship would result to appellant were he required to await completion of his appeal to petition for post-conviction relief. ²

To the extent that these criteria are more stringent than those imposed on civil litigants in Logal, they are imposed because of the differences between Rule 60(B) and Post-Conviction Rule 1 discussed above. As in Logal, we will proceed to consider appellant's post-conviction relief issue pursuant to Logal's procedure, to illustrate the working of...