Lockert v. State
| Decision Date | 31 January 1994 |
| Docket Number | No. 25A03-9304-PC-113,25A03-9304-PC-113 |
| Citation | 627 N.E.2d 1350 |
| Parties | Charles LOCKERT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Darnail Lyles, King & Meyer, P.C., Gary, for appellant-defendant.
Pamela Carter, Atty. Gen., Mary Dryer, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.
Appellant-petitioner Charles Lockert appeals from the denial of his successive petition for post-conviction relief following his conviction for murder, a felony. The facts relevant to this appeal disclose that on August 29, 1974, Lockert was charged with one count of murder in the first degree, felony murder, and accessory after the fact of first-degree murder. Lockert submitted a plea of guilty to the felony murder charge on February 18, 1975, pursuant to a written plea agreement which was filed on February 21, 1975.
At the guilty plea hearing, the court asked Lockert if he was satisfied with his trial counsel's representation. Lockert answered affirmatively. The court also advised Lockert of his constitutional rights and obtained an acknowledgement that Lockert had received and read a copy of the indictment. Lockert told the court that he had not taken any drugs within the last 48 hours, his mind was free and clear, and he had completed high school. Lockert then acknowledged entering into the plea of his own free will; that it was made voluntarily and with full understanding; and that he understood the terms of the agreement. Both the indictment for the felony murder charge, which stated that Lockert participated in the killing of the victim, Connie Jo Fivecoate, during the course of a robbery on July 18, 1974, and the statute under which Lockert was charged, which stated that the penalty was life imprisonment, were read aloud at the hearing. Lockert acknowledged that he understood the charge and the penalty he faced. He again acknowledged that his trial counsel was competent.
The prosecutor and defense counsel both indicated that there was a plea agreement. Defense counsel stated that it was understood that Lockert was an accessory to the felony murder count and not the principal. At Lockert's first post-conviction hearing, Lockert's trial counsel stated that he had explained to Lockert that there was no difference between being an accessory or a principal in the charging affidavit; however, counsel wanted the evidence that eventually would go before the Parole Commission Board to reflect that it was not Lockert who actually shot Connie Jo Fivecoate. At trial, counsel also stated that as understood, the terms of the plea agreement included a sentence recommendation of life imprisonment. Lockert stated that he heard and understood the terms of the agreement. Lockert was again advised that he was waiving his constitutional rights by pleading guilty. At the sentencing hearing, held on February 21, 1975, the written plea agreement was submitted to the court. Lockert acknowledged signing the agreement and was sentenced to life imprisonment.
Lockert filed his first post-conviction petition on April 1, 1977. The petition was denied. On appeal, the Indiana Supreme Court affirmed the denial of Lockert's petition. See Lockert v. State (1979), 271 Ind. 226, 391 N.E.2d 613. The supreme court held that: 1) Lockert was adequately advised of his constitutional rights prior to entering his guilty plea; 2) the record showed that the guilty plea was voluntarily entered; and 3) Lockert failed to show that he was not provided with adequate legal representation by his trial counsel. Id. 391 N.E.2d at 613-618.
Lockert sought relief in the federal courts through a habeas corpus petition, which was denied; the United States Court of Appeals for the Seventh Circuit upheld the denial of relief. On April 4, 1991, Lockert filed a successive petition for post-conviction relief. Lockert claimed that he was raising new grounds not raised before and that there was newly discovered evidence.
The State filed a response to the successive petition and its amendments, asserting that the issues in the petition were frivolous, and raised the defenses of prior adjudication, abuse of the post-conviction process, laches, and that the ends of justice would not be served by reaching the merits of the issues. After a hearing, the post-conviction court denied relief on October 29, 1992. It is from this order that Lockert now appeals.
Lockert raises five issues for review. However, the following two issues are dispositive of his appeal:
(1) whether the trial court erred in denying Lockert's successive post-conviction petition under Ind. Post-Conviction Rule 1 Sec. 12 (); and
(2) whether Lockert received effective assistance of post-conviction/appellate counsel.
Under the rules of post-conviction relief, the petitioner must establish the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1 Sec. 5; St. John v. State (1988), Ind.App., 529 N.E.2d 371, 374, trans. denied. Thus, to succeed on appeal from the denial of his petition, Lockert must show that the evidence is without conflict and leads only to a conclusion opposite to that of the trial court. See id. "The purpose of the post-conviction relief process is to raise issues not known at the time of the original trial and appeal or for some reason not available to the defendant at that time." Schiro v. State (1989), Ind., 533 N.E.2d 1201, 1204, cert. denied, 493 U.S. 910, 110 S.Ct. 268, 107 L.Ed.2d 218. The rules of post-conviction relief require all grounds for relief available to petitioner to be raised in his original petition. Maxey v. State (1992), Ind.App., 596 N.E.2d 908, 910. When an issue is available to the defendant on direct appeal but not pursued, it is waived for post-conviction review. An issue which is raised and determined adverse to the petitioner's position is res judicata. Schiro, 533 N.E.2d at 1204-05.
In his successive post-conviction petition and in this appeal, Lockert argues: 1) the factual basis is insufficient to support his guilty plea to felony murder; 2) he did not enter into the plea knowingly, intelligently, and voluntarily; and 3) he did not receive effective assistance of counsel.
The issue of the sufficiency of the factual basis to support Lockert's guilty plea was raised at Lockert's first post-conviction relief hearing, although the issue was not directly raised upon appeal to the supreme court. Lockert, however, contends that he is raising new grounds not raised before and that there is newly discovered evidence. Lockert asserts that it is the first time he has argued that part of a written statement he gave to police on August 21, 1974, "State's Exhibit No. 2," was not properly admitted into evidence during his guilty plea hearing. Although Lockert is alleging different grounds for his claim of insufficient factual basis, these grounds could have been raised in his first petition. See Tillman v. State (1987), Ind., 511 N.E.2d 447, 448; Morlan v. State (1991), Ind.App., 574 N.E.2d 944, 945, trans. denied (petitioner had previously raised the issue of trial counsel's ineffectiveness, the fact that he was alleging new grounds of ineffectiveness did not alter the fact that the question of effectiveness of counsel was foreclosed). Moreover, there is testimony in the record that State's Exhibit No. 2 was admitted into evidence at Lockert's guilty plea hearing. At the post-conviction hearing, the prosecuting attorney, David Wallsmith, recalled that State's Exhibit No. 2 was admitted, in part, into evidence at the hearing. Wallsmith further testified that he believed the record of the guilty plea hearing was incomplete. However, even if the exhibit had not been admitted, there was other evidence from which a sufficient factual basis could have been established.
Additionally, Murphy's statement made before the Indiana Parole Board on October 3, 1993, does not amount to newly discovered evidence. Murphy stated that he shot the victim, Mrs. Fivecoate. At the plea hearing, Lockert's trial counsel stated...
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