Landis v. State
| Decision Date | 04 April 2000 |
| Docket Number | No. 64A05-9906-PC-267.,64A05-9906-PC-267. |
| Citation | 726 N.E.2d 801 |
| Parties | Dillard Lee LANDIS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Dillard Lee Landis, Valparaiso, Indiana Appellant Pro Se.
Jeffrey A. Modisett, Attorney General of Indiana, Liisi Brien, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
Petitioner-Appellant Dillard L. Landis (Landis) appeals the denial of his pro se petition for post-conviction relief.
We affirm.
Landis raises five issues for our review, which we consolidate and restate as follows:
1. Whether the State is barred from raising the affirmative defense of waiver or res judicata because of its failure to properly adhere to the pleading requirements for post-conviction proceedings.
2. Whether the post-conviction court's denial of Landis' petition constitutes fundamental error.
3. Whether Landis received ineffective assistance of trial and appellate counsel.
On October 4, 1996, this court affirmed the trial court's decision convicting Landis of stalking his ex-girlfriend, Gerry Watcher (Watcher), a Class B misdemeanor, Ind. Code § 35-45-10-5.
On June 17, 1998, Landis filed a pro se petition for post-conviction relief. After a hearing where oral arguments were heard, the post-conviction court denied Landis' petition for post-conviction relief on February 17, 1999, including findings of facts and conclusions of law. Landis now brings this pro se appeal from the denial of his petition.
The purpose of a petition for post-conviction relief is to provide a means for raising issues unknown or unavailable to a defendant at the time of the original trial and appeal. Carrington v. State, 678 N.E.2d 1143, 1146 (Ind.Ct.App.1997), trans. denied. Post-conviction procedures are reserved for subsequent collateral challenges and may not provide a "super appeal" for the convicted. Weatherford v. State, 619 N.E.2d 915, 916 (Ind.1993), reh'g denied. When the petitioner has already been afforded the benefit of a direct appeal, post-conviction relief contemplates a rather small window for further review. Montano v. State, 649 N.E.2d 1053, 1056 (Ind.Ct.App.1995), trans. denied. Thus, in general, if an issue was available on direct appeal but not litigated, it is deemed waived. Madden v. State, 656 N.E.2d 524, 526 (Ind.Ct.App.1995), trans. denied. But see Woods v. State, 701 N.E.2d 1208, 1220 (Ind.1998)
(), reh'g denied, cert. denied.
A post-conviction petition under Ind. Post-Conviction Rule 1 is a quasi-civil remedy, and, as such, the petitioner bears the burden to prove by a preponderance of the evidence that he or she is entitled to relief. Mato v. State, 478 N.E.2d 57, 60 (Ind.1985); Ind. Post-Conviction Rule 1(5). On appeal from the denial of a petition for post-conviction relief, we neither reweigh the evidence nor judge the credibility of the witnesses. Montano, 649 N.E.2d at 1056. To prevail on appeal from the denial of a petition for post-conviction relief, the petitioner must show that the evidence is without conflict and leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995), reh'g denied. It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that the decision will be disturbed as being contrary to law. Id. at 1120.
Landis argues that the State is prohibited from asserting the affirmative defense of res judicata in this appeal or at the post-conviction hearing because the State failed to timely file its responsive pleading as required by P-C.R.1 § 4(a).
P-C.R.1 § 4(a) states in relevant part:
Within thirty (30) days after the filing of the petition, or within any further reasonable time the court may fix, the state, by the Attorney General in capital cases, or by the prosecuting attorney in noncapital cases, shall respond by answer stating the reasons, if any, why the relief prayed for should not be granted.
Landis filed his petition for post-conviction relief on June 17, 1998. On July 21, 1998, the post-conviction court set Landis' post-conviction hearing, and the State filed its Answer to Landis' petition for post-conviction relief on July 22, 1998. Thus, because the State failed to file its responsive pleading, asserting the affirmative defense of res judicata, within thirty days after Landis filed his petition, Landis claims that the trial court erred in allowing the State to raise the defense of res judicata. We disagree.
Although we agree that the affirmative defense of res judicata must be timely raised by the State in its responsive pleadings, we find that Landis was sufficiently apprised of the State's reliance on this defense, and the post-conviction court properly relied on the doctrine of res judicata in denying Landis' post-conviction relief petition. Landis filed his motion for post-conviction relief on June 17, 1998. On July 21, 1998, the court set a hearing on Landis' petition. On July 22, 1998, the State filed its Answer to Landis' petition for post-conviction relief, asserting that it intended to rely on the affirmative defenses of waiver and res judicata. Further, at the post-conviction hearing on January 21, 1999, oral arguments were heard, and the State argued the issue of res judicata and asked the court to deny Landis' petition on res judicata grounds. In addition, on February 17, 1999, the post-conviction relief court specifically found that Landis waived several of his arguments contained within his petition for his failure to raise these issues in his direct appeal. On February 19, 1999, Landis filed a motion to partially strike the State's answer to his petition, asserting that the State failed to raise the affirmative defenses within a timely responsive pleading and therefore waived the ability to raise them as a bar to his petition for post-conviction relief. The court denied Landis' motion on March 3, 1999. Based upon these facts, we conclude the purpose of requiring a timely answer, to advise the petitioner of the State's position regarding his claims, was satisfied in this case. See Harrington v. State, 466 N.E.2d 1379 (Ind.Ct.App.1984)
. In this case, Landis was adequately alerted prior to the hearing and during the hearing that the State intended to assert the defenses of res judicata and waiver. However, Landis did not address the State's affirmative defenses at the hearing, and did not move to strike the State's answer until after the post-conviction court had denied his petition. Thus, Landis may not rely on the State's failure to timely file its answer affirmatively raising the defenses of waiver and res judicata.
In his post-conviction petition for relief, Landis alleged, for the first time, several errors that he contends rise to the level of fundamental error, entitling him to relief. Specifically, Landis contends that: (1) the post-conviction court committed fundamental error by admitting evidence of Landis' prior bad acts without evaluating the admissibility of the evidence under Ind.Evidence Rule 404(b) and without determining the relevance of the evidence as required by Evid.R. 104(b); (2) he was prejudiced by prosecutorial misconduct when the State introduced evidence to the jury of Landis' expired "no contact" order, and then amended the charging information during trial; and (3) the post-conviction court committed fundamental error by failing to exclude as hearsay Watcher's testimony at trial that her neighbor told her that she observed and identified Landis behind Watcher's trailer.1
Landis did not address these alleged errors in his direct appeal. While claims that were available, but not presented, on direct appeal are generally forfeited in post-conviction proceedings, forfeiture may not apply when the claimed error is fundamental. Conner v. State, 711 N.E.2d 1238, 1246 (Ind.1999), reh'g denied. As set forth previously, the purpose of post-conviction relief is not to provide a substitute for direct appeal, but to provide a means for raising issues not known or available to the defendant at the time of the original appeal. Haynes v. State, 695 N.E.2d 148, 151 (Ind.Ct.App.1998), trans denied. If an issue was available on direct appeal, but not litigated, it is waived. Id. However, there exists an exception to the waiver rule in circumstances where the post-conviction court committed "fundamental error." Id. at 152. This exception is viewed as an extremely narrow one, available only when the record reveals clearly blatant violations of basic and elementary principles of due process, and the harm or potential for harm cannot be denied. Id. The doctrine of fundamental error has been described as a failure to meet the requirements of due process of law; however, it is clear that fundamental error is not equated with constitutional error. State v. Daniels, 680 N.E.2d 829, 835 (Ind.1997). To qualify as fundamental error, an error must be so prejudicial to the rights of the defendants to make a fair trial impossible. Conner, 711 N.E.2d at 1246. However, the fundamental error doctrine is not to be used as a safe harbor for defendants who fail to raise proper and timely objections at trial. Haynes, 695 N.E.2d at 152. Rather, the post-conviction fundamental error standard requires the defendant to persuade the court, by a preponderance of the evidence, that a violation of basic principles of law caused the defendant's conviction or sentence to be invalid. Conner, 711 N.E.2d at 1246.
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