Norris v. State
| Decision Date | 28 February 2008 |
| Docket Number | No. 43A03-0708-CR-396.,43A03-0708-CR-396. |
| Citation | 881 N.E.2d 691 |
| Parties | Shawn E. NORRIS, Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner. |
| Court | Indiana Appellate Court |
Nancy A. McCaslin, McCaslin & McCaslin, Elkhart, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Shawn Norris appeals from the trial court's summary disposition of his petition for post-conviction relief. Norris raises the sole issue of whether the trial court improperly granted summary disposition. Concluding that issues of material fact preclude summary disposition, we reverse and remand with instructions that the trial court conduct a hearing on Norris's petition.
According to Norris's testimony at his guilty plea hearing, sometime between 1999 and 2002 Norris touched the victim, C.R., who was a child under the age of fourteen, with the intent to arouse either his own or the victim's sexual desires.
It appears that C.R.'s mother, Colleen Norris, who is also Norris's step-sister, informed the police of this molestation in April 2004. Officers interviewed C.R., Colleen, and Norris, who admitted to touching C.R. On June 22, 2004, the State filed a petition alleging that Norris was a delinquent child for performing an act that would be the offense of child molesting, a Class C felony, if performed by an adult. That same day, the State filed a Motion to Waive Juvenile Jurisdiction.1 On August 18, 2004, the juvenile court waived jurisdiction. On August 19, 2004, the State charged Norris with child molesting, a Class C felony. On December 4, 2004, Norris pled guilty to child molesting pursuant to a plea agreement under which the executed sentence could not exceed two years and the State agreed to not file additional charges. On January 27, 2005, the trial court sentenced Norris to two years executed.
On December 21, 2006, Norris filed a Petition for Post—Conviction Relief alleging newly discovered evidence. Along with this petition, Norris included an affidavit of Colleen, in which she stated:
2. That in April of 2004 Affiant initiated a false case against her brother, Shawn Norris, alleging that he committed acts of so-called molestation against my child.
3. That the allegations are wholly and completely false.
4. That my motive for initiating these false claims against him was to regain the custody of my three children who were in the care of my father and stepmother. Shawn lived in their home.
5. That at the time I initiated these false claims I was fully aware that Shawn Norris was mentally retarded and I knew I could force him to say whatever I told him.
6. That knowing this fact and that he would try to protect his family I started a police investigation encouraging them to question him, mindful that he would confess to anything if he thought he could go home when the police were done talking to him.
Appellant's Appendix at 64. Norris also included a psychological evaluation stating in relevant part:
The results of the evaluation support the notion that the client is functioning between the extremely low and borderline range of intellectual functioning. This level of intellectual functioning meets the criteria for mild mental retardation but Shawn appears to have the necessary adaptive functioning necessary to be successful.
On January 15, 2007, the State filed its response and a Motion for Summary Disposition. On June 19, 2007, the trial court granted the State's motion, stating
That it appears from the record in this cause, including the record of the Defendant's guilty plea hearing, his admission, and the affidavit submitted by the State of Indiana, that there is no genuine issue of material fact, that the Petitioner did in fact do that which he admitted, and the State is entitled to judgment as a matter of law.
Id. at 76. Norris now appeals.
Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745 (Ind.2002), cert. denied, 540 U.S. 830, 124 S.Ct. 69, 157 L.Ed.2d 56 (2003). Therefore, to prevail, petitioners must establish their claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745. When appealing a denial of a petition for post-conviction relief, a petitioner appeals from a negative judgment. Burnside v. State, 858 N.E.2d 232, 237 (Ind.Ct. App.2006). Therefore, petitioners must convince this court that the evidence, taken as a whole, leads unmistakably to a conclusion opposite that reached by the post-conviction court. Stevens, 770 N.E .2d at 745. We will review a post-conviction court's findings of, fact under a clearly erroneous standard, but will review its conclusions of law de novo. Burnside, 858 N.E.2d at 237.
This case is before us following a summary disposition. Under Post-Conviction Rule 1, section 4(g)
The court may grant a motion by either party for summary disposition of the petition when it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
"Thus, the necessity of an evidentiary hearing is avoided when the pleadings present only issues of law." Diaz v. State, 753 N.E.2d 724, 727 (Ind.Ct.App. 2001), trans. denied. The moving party bears the burden of demonstrating its claim by introducing admissible evidence in order to establish the lack of genuine issues of material fact and its entitlement to judgment as a matter of law. Trueblood v. State, 715 N.E.2d 1242, 1260 (Ind. 1999), cert. denied, 531 U.S. 858, 121 S.Ct 143, 148 L.Ed.2d 94 (2000). We will assume the petitioner's relevant factual allegations are true. Tyson v. State, 626 N.E.2d 482, 484 n. 1 (Ind.Ct.App.1993), cert. denied, 510 U.S. 1176, 114 S.Ct. 1216, 127 L.Ed.2d 562 (1994). "A hearing is mandatory even when the petitioner has only a remote chance of establishing his claim." Evolga v. State, 722 N.E.2d 370, 372 (Ind.Ct.App.2000).
Under Post Conviction Rule 1, section 1, Any person who has been convicted of, or sentenced for, a crime by a court of this state, and who claims.... that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice ... may institute at any time a proceeding under this Rule to secure relief.
We initially note that Norris filed his petition alleging newly discovered evidence following a guilty plea, and not a trial on the merits. The plain language of section 1 seems to allow a petitioner to raise this claim, as it states that "any person who has been convicted of, or sentenced for, a crime ..." may secure relief under the rule (emphasis added). However, Post Conviction Rule 1, section 8 states that "[a]ny 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 . . . may not be the basis for a subsequent petition." As a defendant who pleads guilty waives a plethora of rights, including the right to be tried before a jury or the court, present witnesses in his defense, and cross-examine the witnesses against him, section 8 could be interpreted to bar defendants who plead guilty from securing relief based on newly discovered evidence.
It appears that no Indiana court has explicitly addressed the issue of whether a petitioner may obtain relief based on newly discovered evidence following a guilty plea. However, several Indiana cases have addressed a petitioner's claim of newly discovered evidence following a guilty plea without addressing whether such a claim is cognizable., See Stewart v. State, 517 N.E.2d 1230, 1233 (Ind.1988); Reynolds v. State, 422 N.E.2d 1239, 1243-44 (Ind.1981); Laird v. State, 270 Ind. 323, 326, 385 N.E.2d 452, 455 (1979); Gillespie v. State, 736 N.E.2d 770, 774 (Ind.Ct.App. 2000), trans. denied; Ray v. State, 496 N.E.2d 93, 101 (Ind.Ct.App.1986), trans. denied, abrogated on other grounds, Hall v. State, 849 N.E.2d 466 (Ind.2006).
Several of our sister states have also addressed the issue. The Illinois Court of Appeals recently expressed its doubt that a petitioner may obtain relief based on newly discovered evidence where the petitioner was convicted pursuant to a guilty plea.2 People v. Barnslater, 373 Ill.App.3d 512, 311 Ill.Dec. 619, 869 N.E.2d 293, 306 (2007), appeal denied. The court stated its belief "that a defendant's postconviction claim of actual innocence cannot be deemed to deprive him of due process rights in the face of the fact that the defendant previously confessed to the commission of the crime in his plea." Id. The court also noted that cases disposed of by guilty pleas "generally provide[] a scant record on appeal." Id. In support, the court cited the following statement from a concurring opinion written by Judge Loken of the Eighth Circuit:
In my view, there is an inherent paradox in the notion that someone who has stood in open court and declared, "I am guilty," may turn around years later and claim that he deserves to pass through the actual innocence gateway. Because a guilty plea waives the defendant's right to prove his actual innocence at trial . . . a strong argument can be made that a guilty plea should absolutely foreclose a post-conviction claim of actual innocence.... Unless the habeas petitioner has newly-discovered evidence that his guilty plea was a false declaration of guilt, he should not pass through the actual innocence gateway.
Weeks v. Bowersox, 119 F.3d 1342, 1356 (8th Cir.1997) (Loken, J., concurring), cert. denied, 522 U.S. 1093, 118 S.Ct. 887, 139 L.Ed.2d 874 (1998)....
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