Pinkston v. State

• Decision Date: 12 June 1985
• Docket Number: No. 2-683A194,2-683A194
• Parties: Carolyn S. PINKSTON, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Appellate Court

Page 79

479 N.E.2d 79

Carolyn S. PINKSTON, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 2-683A194.

Court of Appeals of Indiana,

Third District.

June 12, 1985.

Susan K. Carpenter, Public Defender, Vickie Yaser, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Judge.

Petitioner, Carolyn S. Pinkston, entered a guilty plea to the crime of theft on November 4, 1977, resulting from an arrest for shoplifting. Following an additional felony conviction in 1980, Pinkston was determined to be an habitual offender. On November 23, 1982, Pinkston filed her petition for post-conviction relief challenging the guilty plea entered in 1977.

After a hearing upon Pinkston's petition, the trial court found her guilty of laches in bringing the action and denied her petition for post-conviction relief. On January 17, 1984, this Court issued its memorandum decision affirming the trial court's denial of the petition. 458 N.E.2d 700. Pinkston petitioned the Court for rehearing following the decision rendered by our Supreme Court in Twyman v. State (1984), Ind., 459 N.E.2d 705. The Court therein clarified the State's burden of proof relative to the issue of laches. This Court granted Pinkston's petition for rehearing and remanded the action for an evidentiary hearing on the issue of laches. 461 N.E.2d 1172.

Subsequent to the Court's order on rehearing, Pinkston filed a petition to reconsider and limit remand. She sought to preclude the State from presenting evidence on remand which was available but not submitted at the initial evidentiary hearing. That petition was denied by this Court on April 17, 1984.

Prior to the evidentiary hearing on remand, Pinkston was denied permission to amend her petition for post-conviction relief. Pinkston sought to add an additional statement to her original petition alleging error in the trial court's acceptance of her guilty plea despite her claim of innocence. Following the evidentiary hearing, the trial court issued its findings of facts and conclusions of law, in accordance with Ind.Rules of Procedure, Post-Conviction Rule 1 Sec. 6. The court again denied Pinkston's petition for post-conviction relief relying upon the State's affirmative defense of laches.

The issues now presented to this Court for review, restated, are as follows:

(1) whether the Court of Appeals erred in denying Pinkston's petition to reconsider and limit remand;

(2) whether the trial court erred in denying Pinkston's petition for permission to amend her petition for post-conviction relief; and (3) whether the trial court erred in finding Pinkston guilty of laches and denying her petition for post-conviction relief.

Pinkston first alleges the Court erred in denying her petition to reconsider and limit remand. Her petition was filed subsequent to this Court's order to remand for an evidentiary hearing. Although not denominated as a second petition for rehearing, the effect of the petition is the same. See, Metropolitan Life Ins. Co. v. Frankel (1914), Ind., 104 N.E. 856. After Pinkston's petition was denied by this Court, she had the right to appeal that adverse ruling. Metropolitan Life Ins. Co. v. Frankel, supra. She, however, failed to seek transfer upon this adverse ruling to the Supreme Court of Indiana within the time provided in the Ind.Rules of Procedure, Appellate Rule 11. She may not now present the issue to this Court for review.

While this action was on remand to the trial court, Pinkston filed a petition for permission to amend her original petition for post-conviction relief. Pinkston sought to add an additional paragraph to her petition alleging error in the trial court's acceptance of her guilty plea notwithstanding her claim of innocence. Prior to the presentation of evidence at the October 3, 1984 hearing, the trial court denied her request to amend the petition.

Pinkston argues that P.C.R. 1 Sec. 4(c) sanctions amendment of her post-conviction petition at any time. That rule provides as follows:

"(c) At any time prior to entry of judgment the court may grant leave to withdraw the petition, and the petitioner shall be given leave to amend the petition as a matter of right."

Pinkston does not have a right to amend her petition at any time and therefore misconstrues the provision. A final judgment was entered upon her petition by the trial court prior to appeal. P.C.R. 1 Sec. 6. The cause was remanded by this Court for the sole purpose of allowing an evidentiary hearing on the issue of laches. The action was not remanded in order to expand the issues decided prior to appeal. The trial court did not err in denying Pinkston's request to amend her petition.

Pinkston additionally argues that Trial Rule 15 should be applied in considering her petition to amend. Trial Rule 15 vests with the trial court the discretion to allow amendment of pleadings when justice so requires. This discretionary function is reviewable only for an abuse of discretion. Hoosier Plastics v. Westfield Sav. & Loan (1982), Ind.App., 433 N.E.2d 24. At the initial evidentiary hearing, Pinkston was specifically advised that any issues not raised at that time would be waived. When questioned as to whether she wished to amend her petition in any way, she responded negatively. As Pinkston was fully informed of her right to amend her petition at the initial hearing but declined to do so, and as the cause had been remanded for evidence on the issue of laches only, the trial judge did not abuse her discretion in prohibiting Pinkston from raising additional issues at the hearing on laches.

Pinkston argues the trial court erred in finding her guilty of laches in bringing her petition for post-conviction relief. A proceeding for post-conviction relief is civil in nature with the petitioner bearing the burden of proving entitlement to relief by a preponderance of the evidence. Twyman v. State, supra, Ind., 459 N.E.2d 705. Although a petitioner may bring an action for post-conviction relief at any time, the State may raise the doctrine of laches as an affirmative defense and has the burden of proving the defense by a preponderance of the evidence. Twyman v. State, supra. Laches has been defined as:

"the neglect for an unreasonable or unexplained length of time, under circumstances permitting diligence, to do what in law should have been done. It is an implied waiver arising from knowledge of existing conditions and an acquiescence in them, the neglect to assert a right, as taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to the adverse party and thus operating as a bar in a court of equity."

Frazier v. State (1975), 263 Ind. 614, 616, 617, 335 N.E.2d 623, 624.

On appeal from a post-conviction relief proceeding, this Court is not at liberty to reweigh the evidence presented at trial nor reassess the credibility of the witnesses testifying therein. Vickers v. State (1984), Ind., 466 N.E.2d 3. A petitioner appealing the denial of post-conviction relief is appealing a negative judgment. Only where the evidence is without conflict and leads to but one conclusion and the trial court reached the opposite conclusion will the decision be disturbed as being contrary to law. Vickers v. State, supra.

To explain the delay in filing her petition for post-conviction relief, Pinkston denies having had any knowledge of the post-conviction process prior to 1980. The evidence presented at the evidentiary hearing shows that her action for post-conviction relief was initiated only...