Jackson v. State
| Decision Date | 16 January 1997 |
| Docket Number | No. 45A03-9605-PC-157,45A03-9605-PC-157 |
| Citation | 676 N.E.2d 745 |
| Parties | Marshall JACKSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Marshall Jackson ("Jackson") appeals the denial of his post-conviction relief petition. We affirm.
In October 1974, Jackson was charged with robbery 1 and auto banditry 2 in connection with an armed attack on a bar owner on October 18, 1974. On March 3, 1975, Jackson plead guilty to the offense of theft over $100, 3 a lesser included offense of robbery. At the guilty plea hearing, Jackson's attorney stated that the plea agreement included a waiver of the right to trial by jury, a guilty plea to the lesser included offense, and that Jackson would be required to testify as a state witness against a co-defendant. The state agreed that Jackson would be pleading to "the crime of Theft from a Person, one (1) to ten (10) years" and added that the auto banditry charge would be "nolle prossed" at the time of sentencing. In addition to accepting the plea, ordering a pre-sentence report and setting the matter for sentencing on March 27, 1975, the trial judge asked Jackson, "You understand fully by entering this plea that you will be sentenced to one (1) to ten (10) years?" Jackson responded, "Yes." (R.38).
At the sentencing hearing on March 27, 1975, Jackson's attorney made a statement on Jackson's behalf and Jackson spoke on his own behalf. The trial court, after indicating that it had reviewed the pre-sentence report, sentenced Jackson to not less than one (1) year nor more than ten (10) years and ordered him committed to the Department of Correction for assignment to a proper institution. The trial court withheld execution of the sentence until April 25, 1975 and subsequently rescheduled the matter for May 30, 1975.
The written order of the trial court indicated that on May 30, 1975, Jackson appeared in court without counsel for the reason that his attorney was "no longer in the practice of law." (R.28A). Further, the order stated that the trial court (R.28).
Jackson filed a pro se petition for post-conviction relief on May 10, 1988 (hereinafter "original petition"). His grounds for relief were stated as "[a]ll of my rights were not provided under I.C. 35-34-1-1-3 which is now I.C. 35-35-1-2." (R.55). On April 16, 1993, Jackson filed pro se 4 a handwritten motion to amend his petition for post-conviction relief (hereinafter "first amendment"), alleging several grounds for relief, including: that his guilty plea was not knowing, voluntary and intelligent; ineffective assistance of counsel due to a conflict of interest; that he was unaware that he was waiving his rights; that the court violated the plea agreement by placing him on probation; insufficient factual basis for his plea; and that he was deprived of counsel at his sentencing hearing.
On July 2, 1993, Jackson filed a motion for leave to amend his petition for postconviction relief (hereinafter "second amendment"). Although phrased three different ways in the petition, the only ground for relief was that the trial court had accepted Jackson's plea agreement without ordering, receiving and considering the pre-sentence report.
On August 10, 1993, Jackson filed another amended petition for post-conviction relief (hereinafter "third petition"). 5 The third amendment indicated that the original postconviction relief petition was filed in May 1988 and the first amendment was filed on April 16, 1993. It also indicated that in July 1993, the second amendment was tendered to the court and that Jackson did not want the court to delete anything from the second amended petition and that the grounds for relief in the second amendment should be incorporated with the ground for relief in the first amendment. 6
On the trial court's own motion, the hearing on the petition for post-conviction relief was continued until November 3, 1993. On November 3, 1993, the state appeared and Jackson appeared pro se. The only evidence Jackson offered was transcripts of the guilty plea and sentencing hearings and a case chronological summary. On January 25, 1996, the post-conviction court entered findings of fact and conclusions of law and denied Jackson's petition. However, the post-conviction court addressed only the issue of whether Jackson was properly informed of his rights at the guilty plea hearing (as raised in the original petition) and whether the trial court had jurisdiction to accept Jackson's guilty plea pursuant to a plea agreement without having received and reviewed the pre-sentence report (as raised in the second amendment). Although the post-conviction court acknowledged that Jackson's first amendment raised nine specific claims of error, 7 it indicated that as finally amended, by the second amendment, the petition raised only one ground. Jackson appeals the denial of his post-conviction relief petition. Additional facts will be supplied as needed.
In appealing the denial of his petition for post-conviction relief, Jackson raises three issues:
I. Whether the post-conviction court erroneously failed to make findings of fact and conclusions of law as required by the Ind.Post-Conviction Rules.
II. Whether the post-conviction court erred in failing to find that Jackson's guilty plea was entered into unknowingly, involuntarily and unintelligently.
III. Whether the post-conviction court erred in failing to find that Jackson received ineffective assistance of counsel.
On an appeal of the post-conviction court's decision, Jackson bears the burden of proving his claims by a preponderance of the evidence. Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993), reh'g denied. We will consider only the probative evidence and reasonable inferences supporting the judgment and will not weigh the evidence or assess witness credibility. Wickliffe v. State, 523 N.E.2d 1385, 1386 (Ind.1988). To prevail on appeal from the denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Weatherford, 619 N.E.2d at 917.
Jackson argues that the post-conviction court failed to make specific findings of fact and conclusions of law on all issues presented as required by Ind.Post-Conviction Rule 1(6). He contends that he raised eleven grounds for relief but that the post-conviction court reached only one because the court did not consider his third amendment. Jackson's third amendment did not offer additional grounds for post-conviction relief, but Jackson contends that it communicated his intent that his initial petition and all subsequent amendments be treated collectively, thereby preserving all grounds for relief. Our review of the trial court's findings of fact and conclusions of law reveals that the trial court reviewed the grounds raised in Jackson's original petition and in the second amendment. The court failed to acknowledge or address in any fashion the third amendment, nor did the court address any grounds for relief set forth in Jackson's first amendment. Although the trial court did not refer to the various amendments by date, it is contextually clear that the court considered the second amendment to be the final amendment.
Thirteen years after the sentencing hearing, the petitioner filed a petition for postconviction relief in which he claimed that the trial court judge had not informed the petitioner of all of his rights at the guilty plea hearing as required by statute. Five years after the petition was filed, the petitioner amended his petition [the first amendment] with nine specific claims of error, including a claim that he was denied the effective assistance of counsel in the trial court. Three months after that, however, the petitioner amended his petition again [the second amendment]. As finally amended, the petition raises only one ground.
(R.129) (emphasis added).
All three of Jackson's amendments were filed in 1993, at which time Ind.Post-Conviction Rule 1, § 4(c) 8 provided that "[a]t any time prior to entry of judgment the court may grant leave to withdraw the petition, and the petitioner shall be given leave to amend the petition as a matter of right." (Emphasis added). See also Lewis v. State, 595 N.E.2d 753 (Ind.Ct.App.1992). Jackson could amend the petition at any time prior to entry of judgment as a matter of right. The third amendment filed in August 1993 was the last amendment and clearly was filed prior to the entry of judgment. Therefore, the trial court erred in finding the second amendment filed in July 1993 to be the final amendment and in failing to address the content of the third amendment.
Having determined that the trial court erred in failing to consider the third amendment, we are confronted with the question of whether consideration of the third amendment would have required the trial court to address all grounds for relief presented collectively in the original petition and subsequent amendments. Jackson argues that the third amendment "made it perfectly clear that there were to be no deletions" and that it therefore simulated interlineation. Jackson cites Neeley v. State, 269 Ind. 588, 382 N.E.2d 714 (1978), to support his contention that amendments by interlineation must be considered in postconviction relief petitions. The state argues, without citation, that if Jackson wanted the court to consider...
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