Jackson v. State
| Decision Date | 16 April 2003 |
| Docket Number | No. 19A05-0211-PC-555.,19A05-0211-PC-555. |
| Citation | 786 N.E.2d 748 |
| Parties | Jeremy JACKSON, Appellant-Defendant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Bruce A. Brightwell, Louisville, KY, Bart M. Betteau, New Albany, IN, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, Andrew A. Kobe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant, Jeremy Jackson, challenges the post-conviction court's denial of his petition for post-conviction relief. Upon appeal, Jackson presents two issues for our review:
(1) whether the post-conviction court erred in concluding that Jackson failed to prove that he did not waive his right to a jury trial; and
(2) whether the post-conviction court's order that a conviction for a Class A misdemeanor be entered against Jackson was error in that it would subject Jackson to conviction of a crime with which he was never charged.
We affirm.
The record reveals that on June 5, 2000, Jackson was charged with Auto Theft involving a component part of an automobile, a Class D felony.1 On August 1, 2000, Jackson appeared with counsel at a preliminary hearing and advised the trial court that the State had agreed to reduce the charge to a Class A misdemeanor "in exchange for assigning the case as a court trial rather than a jury trial." Appellant's Appendix at 78. The trial court accepted the agreement. On September 27, 2000, the trial court found Jackson guilty, ordered him to pay a $200 fine, and sentenced him to one year, with all but ten days suspended. Jackson filed no direct appeal.
On July 15, 2002, Jackson filed a verified petition for post-conviction relief. A hearing on Jackson's petition was held on September 18, 2002. On October 14, 2002, the post-conviction court entered findings of fact and conclusions of law which concluded as follows:
"IT IS THEREFORE, ORDERED, ADJUDGED and DECREED that the Defendant's Petition for Post Conviction Relief is granted in part in that a Judgment of conviction for diversion [sic], a Class A Misdemeanor shall be entered in this cause and all other issues are hereby denied." Id. at 8.
Jackson appeals from this order denying his petition for post-conviction relief.
trans. denied.
As a general rule, issues that were or could have been raised upon direct appeal are not available in post-conviction proceedings, as post-conviction is not a "super appeal." Woods v. State, 701 N.E.2d 1208, 1213 (Ind.1998), cert. denied 528 U.S. 861, 120 S.Ct. 150, 145 L.Ed.2d 128 (1999). A post-conviction proceeding is not a substitute for a direct appeal. Ford v. State, 755 N.E.2d 1138, 1141 (Ind. Ct.App.2001), trans. denied; Ind. Post-Conviction Rule 1(1)(b). Instead, post-conviction procedures create a narrow remedy for a substantial collateral challenge to convictions, which must be based upon grounds enumerated in the post-conviction rules. Ford, 755 N.E.2d at 1141.
In the present case, Jackson did not file a direct appeal, nor does he claim this claim would somehow have been unavailable to him had he filed a direct appeal. Neither does Jackson couch his argument in terms of ineffective assistance of counsel. See Sanders v. State, 765 N.E.2d 591, 592 (Ind.2002)
. Therefore, we must conclude that the issue of Jackson's waiver of his right to a jury trial is unavailable upon his current petition for post-conviction relief.
Jackson states his second issue as "Because Jackson was never charged with a misdemeanor, the trial court's subsequent finding that he was only convicted of a misdemeanor cannot cure the lack of waiver [of his right to a jury trial]." Appellant's Brief at 6. The post-conviction court concluded that Jackson was aware of and given notice that the charge against him had been reduced from a Class D felony to a Class A misdemeanor. The post-conviction court also concluded that Jackson was convicted of a Class A misdemeanor, and that his waiver of his right to a jury trial was knowingly and voluntarily made.
Upon appeal, Jackson claims that it was fundamental error for the trial court to have convicted him of a crime for which he claims he was never charged. See id. Again, however, we are compelled to conclude that this issue is currently not available to Jackson. Jackson failed to file a direct appeal or seek to file a belated appeal pursuant to Post-Conviction Rule 2. As noted above, issues that were or could have been raised upon direct appeal are not available in post-conviction proceedings. Woods, 701 N.E.2d at 1213.
Jackson's claim that this error is fundamental does not affect our conclusion. Even claims of fundamental error are generally not cognizable in post-conviction proceedings. In Sanders, 765 N.E.2d at 592, our Supreme Court held that it was "wrong" for this court to have reviewed a claim of fundamental error in a post-conviction proceeding. In doing so, the Sanders court stated that the fundamental error exception to the contemporaneous objection rule apples to direct appeals, and that, in post-conviction...
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Bingham v. State
...that arguments concerning waiver of a right to a jury trial are unavailable in post-conviction proceedings. See Jackson v. State, 786 N.E.2d 748, 750 (Ind. Ct. App. 2003), trans. denied. The post-conviction court properly found that Bingham's freestanding claim was unavailable in post-convi......
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