Lane v. State, 1185-S-480-PS
| Citation | 521 N.E.2d 947 |
| Decision Date | 22 April 1988 |
| Docket Number | No. 1185-S-480-PS,1185-S-480-PS |
| Parties | John R. LANE, Jr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Supreme Court of Indiana |
Susan K. Carpenter, Public Defender, Stephen T. Owens, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant John R. Lane, Jr. petitioned the trial court for post-conviction relief pursuant to Rule PC 1, section 1(a)(6), Ind.Rules of Procedure for Post Conviction Remedies. The trial court denied Lane's petition.
Lane now appeals, raising two issues:
1) Whether the post-conviction court erred in ruling that the issues raised in Lane's petition were waived for purposes of post-conviction relief; and
2) Whether Lane was denied his right to effective assistance of post-conviction counsel.
A jury convicted Lane of two counts of robbery, a class B felony, Ind.Code Sec. 35-42-5-1 (Burns 1979 Repl.). The trial court sentenced him to concurrent terms of fifteen years imprisonment for each count. On direct appeal, Lane challenged the sufficiency of the identification evidence. This Court found the evidence sufficient to establish Lane's identity as the robber. We affirmed the conviction and sentence on one count and reversed the conviction and sentence on the second count, based on an unrelated error. Lane v. State (1981), Ind., 428 N.E.2d 28.
In his petition for post-conviction relief, Lane alleged that failure of an alibi witness to testify on his behalf and the trial judge's denial of the jury's request to reread the identification testimony of the State's witnesses constituted fundamental error. The trial court found summarily that all issues raised in Lane's petition were resolved or available on direct appeal. The court denied Lane's petition on the ground of waiver.
Issues which were considered or available on appeal are waived in a post-conviction relief proceeding unless the issues may be framed within the context of the post-conviction relief rules. Tope v. State (1985), Ind., 477 N.E.2d 873. Rule PC 1, section 8 provides:
All grounds for relief available to a petitioner under this rule must be raised in his original petition. Any ground finally adjudicated on the merits or not so raised and knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the petitioner has taken to secure relief, may not be the basis for a subsequent petition, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original petition.
Lane does little to provide "sufficient reason" for failing to raise on direct appeal the two errors he now cites. Neither allegation qualifies as fundamental error under in Terry v. State (1984), Ind., 465 N.E.2d 1085, and neither can be raised as a "free-standing" claim. Bailey v. State (1985), Ind., 472 N.E.2d 1260.
First, Lane alleges fundamental error in the failure of his alibi witness to testify at trial. Lane had attempted to call one Doris Hogan to provide him with an alibi. Hogan was a defendant in a jury trial at the time, and her attorney advised her that her testimony in Lane's trial could prejudice her case. Hogan decided not to testify for Lane. Lane contends that Hogan would have testified that she talked to him on the telephone while he was in Atlantic City, New Jersey, between the dates of August 31, 1979 and September 9, 1979. The robbery occurred on September 6, 1979. Lane does not contend that Hogan would have testified that she placed the calls to Atlantic City, only that she would testify that she received calls from her son, daughter and Lane, whom she believed to be in Atlantic City. Putting to one side the modest probative value of such testimony, Hogan's Fifth Amendment right not to...
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