Holt v. State, 49A05-9403-PC-119

• Decision Date: 16 October 1995
• Docket Number: No. 49A05-9403-PC-119,49A05-9403-PC-119
• Parties: Curtis Lee HOLT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 495

656 N.E.2d 495

Curtis Lee HOLT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-9403-PC-119.

Court of Appeals of Indiana.

Oct. 16, 1995.

Transfer Denied Jan. 9, 1996.

Susan K. Carpenter, Public Defender of Indiana, Hope Fey, Deputy Public Defender, Indianapolis, for Appellant.

Pamela Carter, Attorney General of Indiana, Lisa M. Paunicka, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

RUCKER, Judge.

Defendant/appellant Curtis Lee Holt appeals the denial of his petition for post-conviction relief raising several issues for our review. We affirm.

After a trial by jury conducted on June 28, 1982, Holt was convicted of two counts of robbery, one count of rape, and one count of battery. He was also found to be an habitual offender. The trial court sentenced Holt to a total of one hundred twenty (120) years imprisonment. His convictions and sentence were affirmed on direct appeal to our supreme court. Holt v. State (1984), Ind., 463 N.E.2d 466. Holt subsequently filed a pro se petition for post-conviction relief which was later amended by court appointed counsel. Essentially the petition alleged: (1) Holt's conviction for one of the robbery counts is unsupported by sufficient evidence; (2) Holt's conviction for two separate counts of robbery violates the prohibition against double jeopardy; (3) Holt's sentence of 120 years is erroneous, manifestly unreasonable, and disproportionate; (4) Holt was denied the equal protection of the law because his habitual offender conviction was based on a 1973 theft conviction which equalled a misdemeanor conviction as defined in the 1977 habitual statute under which he was prosecuted; (5) trial counsel was ineffective for his failure to raise all issues of merit in the motion to correct errors; and (6) appellate counsel was ineffective for his failure to brief all issues of merit in the direct appeal. After conducting a hearing, the post-conviction court denied the petition and Holt now appeals raising the same issues. In addition, Holt complains the post-conviction court erred by finding that Holt's issues had been waived for his failure to present them in the direct appeal.

We first address whether any of Holt's claimed errors are available for review. Post-conviction relief is not a substitute for direct appeal. Lowery v. State (1994), Ind., 640 N.E.2d 1031, 1036, reh'g denied. Rather, the post-conviction relief process is open to the raising of issues not known at the time of the original trial and appeal or for some reason not available to the defendant at that time. Howey v. State (1990), Ind., 557 N.E.2d 1326. Absent a showing by the post-conviction petitioner that issues were unascertainable at the time of trial and direct appeal, allegations of error arising therefrom may not be raised in a post-conviction proceeding. They are waived. Cummings v. State (1986), Ind., 495 N.E.2d 181. Further, issues which have been raised and determined on direct appeal are res judicata and not subject to consideration for post-conviction relief. French v. State (1989), Ind., 547 N.E.2d 1084.

Holt's claims concerning sufficiency of the evidence and a defective habitual offender determination, were issues raised and determined on direct appeal. Thus, they are res judicata and not subject to consideration for post-conviction relief. As for Holt's claims of a double jeopardy violation, erroneous sentence, and ineffective assistance of trial counsel, those issues were available to Holt on direct appeal. He did not raise them then, nor does he argue now that the issues were unascertainable or unavailable at the time of trial and direct appeal. They...