Frazier v. State, 774S136
| Decision Date | 20 October 1975 |
| Docket Number | No. 774S136,774S136 |
| Citation | 263 Ind. 614,335 N.E.2d 623 |
| Parties | Oscar FRAZIER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Harriette Bailey Conn, Public Defender, Darrell F. Ellis, Deputy Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Alden, Deputy Atty. Gen., Indianapolis, for appellee.
Petitioner (Appellant) pleaded guilty to a reduced charge of Second Degree Murder on November 12, 1934. No process of review of that plea and his conviction thereon was undertaken until the present time. On July 31, 1972, the petitioner filed in the Circuit Court of LaPorte County what was denominated a verified petition for writ of habeas corpus, which was ultimately transferred to the Criminal Court of Marion County, Division One, where petitioner had been convicted and sentenced, and amended on March 6, 1973, and treated as a petition for post conviction relief under PC Rule 1. In response, the State filed a motion for summary disposition under PC Rule 1, § 4(f), assigning the lapse of thirty-nine years between the judgment and the petition for relief as a waiver of error, if any, in the judgment.
Arguments were heard upon the State's motion, during which the petitioner asserted that there was no requirement of diligence under PC Rule 1, as there is under PC Rule 2, and alternatively requested an evidentiary hearing upon the issue of waiver, charging that a waiver is present only when there is a voluntary relinquishment of a known right. The trial court denied the request for an evidentiary hearing and sustained the State's motion to dismiss.
The answers to the questions posed by this case are found in Langley; Richardson v. State (1971), 256 Ind. 199, 267 N.E.2d 538. In that case, it was acknowledged that a showing of diligence is not a prerequisite to relief under PC Rule 1 and that a petitioner could successfully seek post conviction relief in a particular case under PC Rule 1, notwithstanding that he would fail to qualify for consideration on the merits under PC Rule 2. (p. 211, 267 N.E.2d 538). Taken out of context, this statement might be very misleading. However, elsewhere in the opinion, Justice Hunter noted that the mere filing for relief at a later time under the provisions of PC Rule 1 does not insulate a petitioner from a State sponsored inquiry into the matter of waiver on the issues raised by the petition (p. 206, 267 N.E.2d 538) and that where the defense of waiver is raised, a petitioner must then present some substantial basis or circumstance which would satisfactorily mitigate his failure to pursue or perfect a remedy through the normal channels. (p. 211, 267 N.E.2d 538).
Strictly speaking, a waiver is the intentional relinquishment of a known right, claim or privilege. Ballentine's Law Dictionary, Third Edition, and authorities there cited. In such restricted use, the petitioner's position that waiver is present only when the existence of the right is known and is voluntarily relinquished is quite correct. However, when used with reference to the availability or non-availability of legal review, the term 'waiver' has been loosely used. Procedural rules, imperfect though they may be, have been developed to the best of our abilities with a two-fold purpose. The first is to provide a method of litigating disputes most likely to bring forth the truth, and the second is to lay the dispute at rest. Although no reasonable effort should be spared in accomplishing the first purpose, once we are satisfied that such effort has been expended, we must accept the result as the best we can do. At that point, if we are to survive, the goal of finality must take precedence. In accomplishing finality of judicial determinations, we have erected barriers against re-opening issues previously determined and against the opening of related issues that were previously subject to litigation but not presented at the logical time. When we cut off the right to litigate an issue because it was not presented at a time compatible with established procedures, we refer to the extinguishment as a waiver, although we know that in reality the forebearance may not have been intentional or the existence of the right even known. Perhaps we have fictionalized by indulging in presumptions. In any event there is, of necessity, considerable arbitrariness in our rules of procedure designed to finalize litigation.
Waiver, as the term is employed...
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