Mickens v. State

Citation579 N.E.2d 615
Decision Date07 October 1991
Docket NumberNo. 70A01-9104-PC-94,70A01-9104-PC-94
PartiesCarl MICKENS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
CourtCourt of Appeals of Indiana

Susan K. Carpenter, Public Defender, Richard Denning, Deputy Public Defender, Indianapolis, for appellant-petitioner.

Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Indianapolis, for appellee-respondent.

BAKER, Judge.

This appeal calls on us to review the pleading requirements the State must adhere to in post-conviction proceedings to raise a successful defense of waiver or res judicata. Specifically, petitioner-appellant Carl Mickens asks us to reverse the post-conviction court's conclusion that a 1981 jury properly determined him to be an habitual offender.

Mickens was convicted in 1981 of burglary, a Class B felony 1, and of being an habitual offender. 2 Both convictions were affirmed on direct appeal to our supreme court. Mickens v. State (1982), Ind., 439 N.E.2d 591 (Mickens I ). In 1983, Mickens filed a petition for post-conviction relief, alleging the amended habitual offender charge, which detailed four prior felony convictions, was improperly verified and that his trial counsel was ineffective for failing to object to the improper verification. Our supreme court affirmed the post-conviction court's denial of relief in Mickens v. State (1985), Ind., 479 N.E.2d 520 (Mickens II ).

In 1988, Mickens filed a second petition for post-conviction relief, alleging several trial court errors, including the giving of an unobjected to final instruction to the jury in the habitual offender portion of his trial. After a hearing, the post-conviction court entered judgment denying relief, specifically determining the habitual offender instructions, taken as a whole, were proper, and that the other issues were waived or had been previously adjudicated. Mickens now appeals, challenging only that portion of the post-conviction court's decision relating to the habitual offender instruction.

Normally, Mickens's claim, raised in a second petition for post-conviction relief after direct appeal and review of a first petition for post-conviction relief, would be barred by either res judicata or waiver unless supported by an allegation such as newly discovered evidence, a proper showing of fundamental error, or other specific ground for relief contained in Ind. Post-Conviction Rule 1 Sec. 1. The State, however, has failed to maintain these possible defenses properly, and we must therefore review Mickens's erroneous jury instruction claim as though he had properly objected to the instruction and we were looking at the case on direct appeal. Before analyzing Mickens's claim, however, we take this opportunity to review the res judicata and waiver defenses as they apply in post-conviction proceedings.


This is the third time Mickens has challenged the determination he is an habitual offender, 3 but it is the first time he has used the final instruction as his vehicle to mount the challenge. Accordingly, the State asks us to hold the issue waived under the rule that issues which were available for review in prior proceedings but not pursued are waived. See Cornelius v. State (1991), Ind.App., 575 N.E.2d 20. The State has forgotten, however, the rule originating in then Judge Hunter's seminal opinion for the court in Langley v. State (1971), 256 Ind. 199, 267 N.E.2d 538.

In Langley, a case decided early in the era of the modern post-conviction rules, the court laid down the rule that waiver is an affirmative defense to a petition for post-conviction relief. It is therefore incumbent upon the State to plead the defense of waiver before the court can find waiver. Three years after Langley, the court crystallized the rule: not only must the State plead waiver, but if the post-conviction court does not find waiver, the court on appeal cannot base its decision on waiver unless the State also files a cross-appeal challenging the post-conviction court's failure to find waiver. Johnson v. State (1974), 262 Ind. 183, 185-86, 313 N.E.2d 542, 544.

Here, the local prosecutor pleaded and argued waiver throughout the course of the proceedings before the post-conviction court. The court did not find waiver, however, and the Attorney General's failure to file a cross-appeal therefore precludes us from examining the question of waiver. 4

Res Judcicata

Res judicata, the defense of prior adjudication, consists of two separate branches, claim preclusion and issue preclusion. In re Moser (1984), Ind.App., 469 N.E.2d 762, 765. "Claim preclusion applies where there has been a final judgment on the merits, which acts as a complete bar to a subsequent action on the same claim between the same parties or those in privity with them." Id. (emphasis in original). The bar the critical question is whether the present claim was within the issues of the first; whether the claim represents an attempt to split a cause of action (or defense). It has generally been said that the test for making this determination is whether identical evidence will support the issues involved in both actions.

                prevents the relitigation of all questions which were within the issues of the prior case and which were or could have been litigated.  Id. at 766;  Biggs v. Marsh (1983), Ind.App., 446 N.E.2d 977, 981-82. 5  When claim preclusion is applicable

Id. at 982 (citations omitted).

In Gross v. State (1974), 162 Ind.App. 649, 320 N.E.2d 817, this court held the defense of res judicata was subject to the same pleading requirements that Langley, supra, and Johnson, supra, established for the defense of waiver. Here, in addition to waiver, the prosecutor also pleaded and argued res judicata, albeit in less than textbook form. Record at 107, 326-28. The post-conviction court, though, found against Mickens on the merits of his jury instruction claim, thereby requiring a cross appeal. As with waiver, however, the Attorney General failed to bring the necessary cross appeal, and we are precluded from deciding the case on res judicata grounds. 6 Nonetheless, because the pleading rules of Langley, Johnson, and Gross have reached an age at which their applicability should be assumed, we include the following discussion to resolve any remaining confusion on the distinction between res judicata and waiver.

In ruling on post-conviction petitions, Indiana courts universally draw a distinction between issues that are waived and those that are res judicata. See, e.g., Hendrix v. State, Ind., (1990), 557 N.E.2d 1012 (discussing waiver of some of trial counsel's alleged errors and the res judicata status of some other alleged trial counsel errors); Schiro v. State (1989), Ind., 533 N.E.2d 1201, 1204-05, cert. denied (1989), 493 U.S. 910, 110 S.Ct. 268, 107 L.Ed.2d 218 (issues available for review on direct appeal, if not pursued, are waived for post-conviction review, and issues previously decided adversely to a petitioner's position are res judicata ); Morlan v. State (1991), Ind.App., 574 N.E.2d 944 (petitioner had previously raised the issue of trial counsel's ineffectiveness; fact that he was alleging new grounds of ineffectiveness did not alter the fact that question of effective assistance of counsel was foreclosed); Golden, supra, note 4, at 1221-22, n. 5 (discussing res judicata status of some questions and waiver of others).

Because the claim preclusion branch of res judicata bars the relitigation of both those issues raised and those which should have been raised in a normal civil action, the distinction may appear somewhat artificial. A post-conviction action, however, is not a normal civil action. Instead, it is a special quasi-civil remedy designed for the presentation of errors unknown or unavailable at the time of trial or direct appeal. Smith v. State (1987), Ind., 516 N.E.2d 1055, cert. denied, (1988), 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 347. Therefore, when the distinction is viewed in light of the post-conviction action's hybrid status somewhere between criminal actions and civil actions, the reason for the distinction becomes clear: the concept of waiver, so well embedded in our post-conviction decisions, stems from the contemporaneous objection rule (a failure to raise a timely objection waives any non-fundamental error) and the criminal law concepts that a criminal defendant may waive the right to appeal a conviction, the right to a jury trial Thus, issues subject to bar by claim preclusion, as opposed to those subject to bar by waiver, are fewer in number in a post-conviction action than in a normal civil action. Nonetheless, a petitioner for post-conviction relief cannot escape the effect of claim preclusion merely by using different language to phrase an issue and define an alleged error. See Morris v. State (1984), Ind., 466 N.E.2d 13, 14 ("Notwithstanding the fact that petitioner gave several additional examples of his counsel's alleged ineffectiveness during the post-conviction hearing, a consideration of the ineffectiveness issue would constitute review of an issue already decided on direct appeal"); Harding v. State (1989), Ind.App., 545 N.E.2d 14, 17, trans. denied (issue designated differently than in prior appeal may nonetheless be subject to res judicata ) (citing Cambridge v. State (1984), Ind., 468 N.E.2d 1047, 1049, and Gross v. State (1974), 162 Ind.App. 649, 320 N.E.2d 817).

or other constitutional rights. See Langley, supra, at 205-07, 267 N.E.2d at 542.

In the present case, it is tempting to find Mickens's claim is barred by res judicata, 7 but because of the State's failure to cross appeal, 8 we proceed to the merits of the claim.


As discussed in note 7, supra, the trial court's final habitual offender instruction failed to make clear the "unrelatedness" requirement of the prior felonies used to support Mickens's habitual offender determination.

The error, however, does not necessitate...

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  • Payne v. State, 49A02-9405-CR-00288
    • United States
    • Court of Appeals of Indiana
    • December 8, 1995
    ...relief, (1985), 479 N.E.2d 520. Mickens appealed the denial of a second PCR petition, which the Court of Appeals affirmed, (1991), 579 N.E.2d 615. Our Supreme Court subsequently granted transfer and vacated a portion of the Court of Appeals opinion which addressed procedural matters. See Mi......
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