Kindred v. State

• Decision Date: 12 December 1996
• Docket Number: No. 67A01-9607-PC-217,67A01-9607-PC-217
• Citation: 674 N.E.2d 570
• Parties: James H. KINDRED, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 570

674 N.E.2d 570

James H. KINDRED, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 67A01-9607-PC-217.

Court of Appeals of Indiana.

Dec. 12, 1996.

Rehearing Denied April 22, 1997.

James H. Kindred, Pendleton, pro se.

Pamela Carter, Attorney General of Indiana, Randi F. Elfenbaum, Deputy Attorney General, Indianapolis, for appellee-respondent.

BAKER, Judge.

Once again, we consider the availability of the post-conviction relief process as a tool for continued attacks on a criminal conviction. Eleven years ago, appellant-defendant James H. Kindred was convicted of Theft,¹ a Class D felony, and Forgery,² a Class C felony. After unsuccessfully raising numerous issues for review on direct appeal and in his first petition for post-conviction relief, Kindred now challenges the post-conviction court's summary denial of his successive petition. In particular, Kindred argues that the post-conviction court erred by: (1) permitting the State to be represented by a prosecuting attorney from a judicial circuit other than the circuit in which the post-conviction court is located; (2) summarily denying his successive petition for post-conviction relief; and (3) denying his motion for partial summary disposition on his allegedly erroneous sentence.

FACTS

On January 7, 1985, Kindred was convicted of forgery, a class C felony, and theft, a class D felony, and adjudicated an Habitual Offender.³ On direct appeal, our supreme court affirmed Kindred's convictions, stating the facts as follows:

In February 1984, the defendant was employed to perform legal research in the Martinsville office of attorney Joseph Barker. The defendant stole bank checks from Barker's office. The defendant made one of the checks payable to "Hooser Para Legal Firm/Gary D. Hooser" and forged Barker's signature on the check.

Kindred v. State, 540 N.E.2d 1161, 1166 (Ind.1989).

On October 21, 1994, Kindred filed his first petition for post-conviction relief with the Putnam County court, claiming numerous instances of fundamental error, sentencing error and ineffective assistance of appellate counsel. The post-conviction court summarily On November 2, 1995, Kindred filed the successive petition with the Putnam County court, alleging the same grounds for relief as in his first petition. Additionally, Kindred moved for partial summary disposition of the petition on the issue of his erroneous sentence. Shortly thereafter, the Morgan County prosecutor filed a response on behalf of the State. On May 3, 1996, the post-conviction court summarily denied Kindred's successive petition for post-conviction relief. This appeal followed.

denied his petition on December 30, 1994. Thereafter, on April 17, 1995, Kindred filed a belated praecipe for appeal. However, he did not file his appellate brief in a timely manner and his petition for an extension of time to file his brief was denied by this court on September 27, 1995. On October 8, 1995, Kindred sought permission from this court to file a successive petition for post-conviction relief based on the post-conviction court's failure to conduct an evidentiary hearing and failure to provide notice of his right to appeal following the summary denial of his first petition. This court subsequently granted Kindred permission to file a successive petition for post-conviction relief.

DISCUSSION AND DECISION

I. Prosecuting Attorney

Kindred claims the post-conviction court erred in allowing a prosecutor from Morgan County to represent the State in the post-conviction proceedings in Putnam County. Specifically, Kindred argues that while a Morgan County prosecutor may try a criminal case in Putnam County, the post-conviction rules require a Putnam County prosecutor to represent the State in post-conviction proceedings.

In 1984, Kindred's trial was venued from Morgan County to Putnam County. Pursuant to IND.CODE § 35-36-6-9, which provides that the prosecuting attorney from the original county should continue the prosecution in the county to which the case is venued, the Morgan County prosecutor tried the case in Putnam County. When Kindred filed both of his petitions for post-conviction relief, the Morgan County prosecutor continued to represent the State. However, during the second post-conviction proceedings, Kindred objected to the Morgan County prosecutor's representation of the State and moved to strike the State's response to the successive petition on that basis.

Although Indiana Post-Conviction Rule 1(9)(d) provides that the prosecutor of the circuit in which the court of conviction is situated shall represent the State, the record here reveals that Kindred did not object to the Morgan County prosecutor's representation of the State during the first post-conviction proceedings. Our supreme court has held that when a defendant does not object to an irregularity in the appointment of a court officer, he accepts the appointment and waives the irregularity. See Bivins v. State, 485 N.E.2d 89, 92 (Ind.1985) (failure to object to appointment of special judge waived issue on appeal). As a result, by not objecting to the Morgan County prosecutor's representation of the State during the first post-conviction relief proceedings, Kindred has waived this issue on appeal.⁴

Notwithstanding waiver, the trial court did not err by allowing the Morgan County prosecutor to respond to Kindred's petitions. P-C.R.1(9)(d) was enacted to insure that the prosecutor who represented the State during the original criminal proceedings would continue to represent the State during the post-conviction relief process. By employing this procedural mechanism, the rule enables the prosecutor who is the most familiar with the circumstances of the conviction and best able to respond to a post-conviction attack to continue to represent the State. Here, the Morgan County prosecutor was properly permitted to continue Kindred's original criminal prosecution after it was transferred to Putnam County. To now interpret P-C.R. 1(9)(d) to prohibit the Morgan County prosecutor from representing the State in subsequent post-conviction proceedings, as Kindred requests, would defeat the purpose of the rule. Further, although the rule provides that the prosecutor of the circuit in which the court of conviction is situated shall represent the State, the rule does not prevent another prosecutor from participating in the post-conviction relief proceedings.⁵ Under these circumstances, we cannot say the trial court erred by permitting the Morgan County prosecutor to respond to Kindred's petition for post-conviction relief.⁶

II. Summary Denial of Successive Petition for Post-Conviction Relief

Next, Kindred contends the post-conviction court erred by summarily denying his petition for post-conviction relief. Specifically, Kindred argues that material issues of fact existed regarding the claims alleged in his successive petition which required the postconviction court to hold a hearing on the petition. Generally, the post-conviction rules require a post-conviction court to hold a hearing on a petition. Ind.Post-Conviction Rule 1(5). However, if the pleadings conclusively show that the petitioner is not entitled to relief, the court may deny the petition without further proceedings. Ind.Post-Conviction Rule 4(f).

Here, the record reveals that Kindred is not entitled to relief because he is precluded from raising his claims in a successive petition for post-conviction relief. The postconviction relief process is designed to permit petitioners to raise issues unknown or unavailable at the time of trial or direct appeal. Holt v. State, 656 N.E.2d 495, 496 (Ind.Ct.App.1995), trans. denied. Under the rules of post-conviction relief, a petitioner must raise all available grounds for relief in his original petition and is foreclosed from raising issues on a successive petition which have been finally adjudicated in another proceeding. Ind.Post-Conviction Rule 1(8); Morlan v. State, 574 N.E.2d 944, 945-46 (Ind.Ct.App.1991), trans. denied.

In the present case, the record reveals that Kindred's first petition for post-conviction relief was summarily denied. Although Kindred subsequently attempted to contest this denial, he failed to properly appeal the post-conviction court's decision. He then filed a successive petition for post-conviction relief, alleging the same grounds for relief as contained in his first petition. However, since these issues were finally adjudicated and determined adversely to Kindred in a prior proceeding, he is precluded from raising the same grounds in a successive petition for post-conviction relief. See Lockert v. State, 627 N.E.2d 1350, 1353 (Ind.Ct.App.1994) (defendant barred from re-litigating issues which were determined adversely to him on first petition for post-conviction relief).⁷ Thus, regardless of whether his petition raised material issues of fact, Kindred was not entitled to relief. The post-conviction court did not err in summarily denying his petition.⁸

We also note that, with the exception of a claim of newly discovered evidence, Kindred can no longer challenge his convictions for forgery and theft. As previously mentioned, post-conviction rule 1(8) requires a petitioner to raise all available grounds for relief in his original petition. As a result, all claims of error arising from the trial should be asserted either on direct appeal or in the original petition for post-conviction relief.

Here, Kindred claimed numerous instances of fundamental error and ineffective assistance of appellate counsel as grounds for relief in his direct appeal and in his postconviction petitions, all of which were denied. Further, since Kindred represented himself during the original trial,⁹ he is precluded from claiming that his trial counsel was ineffective. Although post-conviction rule 1(8) allows this court to consider grounds for relief in a successive petition which, for sufficient reason, have not been asserted or...