Evolga v. State

• Decision Date: 14 January 2000
• Docket Number: No. 45A03-9906-PC-206.,45A03-9906-PC-206.
• Citation: 722 N.E.2d 370
• Parties: Robert A. EVOLGA, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

722 N.E.2d 370

Robert A. EVOLGA, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 45A03-9906-PC-206.

Court of Appeals of Indiana.

January 14, 2000.

Robert A. Evolga, Carlisle, Indiana, Appellant Pro Se.

Jeffrey A. Modisett, Attorney General of Indiana, Thomas D. Perkins, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

BROOK, Judge

Case Summary

This appeal comes to us following our reversal of the trial court's order refusing to allow Robert A. Evolga ("Evolga") to file a petition for post-conviction relief when he had previously waived his right to a direct appeal. See Evolga v. State, 701 N.E.2d 1256 (Ind.Ct.App.1998) ("Evolga I"). On remand, the trial court summarily denied Evolga's petition for post-conviction relief without conducting an evidentiary hearing. Evolga now appeals from the trial court's summary denial of his petition.

We reverse and remand.

Issues

Evolga raises several issues involving fundamental error and ineffective assistance of counsel, of which we address only the following: whether the trial court erred when it summarily denied Evolga's petition for post-conviction relief without an evidentiary hearing.

Facts and Procedural History

The facts are taken from this Court's opinion in Evolga I:

Evolga was convicted of murder. In June of 1979 he was sentenced to a forty-year prison term. Shortly after he was sentenced, he escaped from jail and was a fugitive from the jurisdiction of the court until February of 1984. While he was a fugitive, a motion to correct error was filed on his behalf. The motion was denied, and a praecipe was filed. When Evolga's fugitive status became known to the trial court, the order denying the motion to correct error was expunged, and all further appeal proceedings were stayed until Evolga was apprehended.

After Evolga was returned to this jurisdiction in March of 1984, the State filed, and the trial court granted, motions to permanently stay the appeal and dismiss Evolga's motion to correct error. Evolga's subsequent Motion for Permission to File Belated Motion for a New Trial was denied. In Evolga v. State, 519 N.E.2d 532, 534 (Ind.1988), our supreme court found that Evolga had waived his right to appeal due not just to his act of escape, but also because of his continued absence from this jurisdiction.

Id. at 1257.

In April 1998, Evolga attempted to file a pro se petition for post-conviction relief that alleged claims of fundamental error and ineffective assistance of counsel. The trial court refused to allow the filing of that petition, finding that Evolga had previously forfeited his right to a direct appeal and was prohibited from pursuing a belated appeal through post-conviction remedies. We reversed the trial court's refusal of Evolga's petition in Evolga I, holding that "[a]lthough a trial court can summarily deny a post-conviction relief petition, the only time that [Ind. Post-Conviction Rule 1] provides that filing may be denied is where a second or successive petition is filed and the petitioner is entitled to no relief." Id. at 1258; see also P-C.R. 1, § 4(f).

On remand, the State filed a motion for summary disposition of Evolga's petition for post-conviction relief, contending that it should be denied as a matter of law because Evolga had previously forfeited his right to a direct appeal and consequently waived the issues raised for the first time in post-conviction proceedings. See P-C.R. 1, § 4(g) (absence of genuine issue of material fact supporting summary disposition of petition). On April 26, 1999, the trial court ordered Evolga's petition for post-conviction relief be summarily denied. In so doing, the trial court entered findings of fact and conclusions of law in part as follows:

1. There is no genuine issue of material fact raised in the petition for postconviction relief.

2. The Rules of Procedure for Post-Conviction Relief prohibit the use of a petition for postconviction relief as a substitute for a direct appeal.

3. The petitioner is procedurally defaulted from pursuing postconviction relief.

4. None of the issues raised in the petition for postconviction relief constitute[s] fundamental error.

5. Even if the petitioner were not procedurally barred from pursuing postconviction relief, the issues raised in the petition were waived when the petitioner fled the jurisdiction and failed to return within the time limits set for pursuing a direct appeal.

Evolga now appeals.

Discussion and Decision

A trial court is not permitted to summarily deny a petition for post-conviction relief unless "it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and [the State] is entitled to judgment as a matter of law." P-C.R. 1, § 4(g). If an issue of material fact is raised by the allegations of the petition, "the court shall hold an evidentiary hearing as soon as reasonably possible." Id. (emphasis added). A hearing is mandatory even when the petitioner has only a remote chance of establishing his claim. Gann v. State, 550 N.E.2d 803, 804 (Ind.Ct.App.1990). An evidentiary hearing is not required, however, in the absence of "specific factual allegations in support of the claim[s]" alleged by the petitioner. Sherwood v. State, 453 N.E.2d 187, 189 (Ind.1983) (citing Ferrier v. State, 270 Ind. 279, 280, 385 N.E.2d 422, 423 (1979)).

The trial court summarily disposed of Evolga's petition for post-conviction relief without conducting an evidentiary hearing. Accordingly, the determinant question before us is whether there was any genuine issue of material fact presented by Evolga's petition. If so, an evidentiary hearing was mandatory under P-C.R. 1, § 4(g), and the trial court erred in denying the petition without the benefit of such hearing.

Evolga's petition for post-conviction relief asserts three claims: (1) that his unknowing, unintelligent, and involuntary waiver of his right to a jury trial constituted fundamental error; (2) that the trial court's verdict of guilty rather than not guilty by reason of insanity was not supported by the evidence and constituted fundamental error; and (3) that he received ineffective assistance of trial counsel. Initially, we note that errors available but not raised on direct appeal are considered waived for purposes of post-conviction relief unless the error is such that it rises to the level of fundamental error. Lee v. State, 550 N.E.2d 304, 304 (Ind. 1990). We have applied this exception to the post-conviction waiver rule in both of Evolga's enumerated allegations of fundamental error. See Capps v. State, 598 N.E.2d 574, 577 (Ind.Ct.App.1992) (claim that waiver of right to jury trial was not knowing, intelligent, and voluntary rises to level of fundamental error and may be raised in post-conviction proceedings despite availability on direct appeal), trans. denied; see also Green v. State, 525 N.E.2d 1260, 1262 (Ind.Ct.App.1988) (fundamental error of conviction without sufficient evidence comes within purview of post-conviction remedies despite failure to argue issue on direct appeal; discussing insufficiency of evidence underlying murder conviction due to theory of "sudden heat"), trans. denied. In addition, our supreme court has held that a claim of ineffective assistance of trial counsel may be presented in post-conviction proceedings even if not raised on direct appeal. Woods v. State, 701 N.E.2d 1208, 1220 (Ind.1998),cert. denied, ___ U.S. ___, 120 S.Ct. 150, 145 L.Ed.2d 128 (1999).

Thus, the trial court's assessment that none of the issues raised by Evolga in the instant petition for post-conviction relief constituted fundamental error and that he was procedurally barred from asserting those issues is incorrect. So, too, is the trial court's determination that Evolga had waived the issues raised in his petition simply because of his previous absence from this jurisdiction and consequent waiver of the right to a direct appeal, where forfeiture of the right to bring a direct appeal does not necessarily or automatically constitute forfeiture of the issues raised in post-conviction proceedings. See Evolga 1, 701 N.E.2d at 1258 ("If the trial court determines that Evolga has not raised any issues which were not available at the time of the direct appeal, then it must follow the procedures set forth in the post-conviction rules in denying Evolga's petition") (emphasis added); see also Lee, 550 N.E.2d at 304 (fundamental error exception to waiver rule in post-conviction proceedings).

With respect to Evolga's ineffective assistance of counsel claim, the proper inquiry is not whether Evolga's counsel was in fact effective or adequate; rather, the question is whether there existed a genuine issue of material fact as to the effectiveness or adequacy of...