Robertson v. State

Decision Date30 May 1995
Docket NumberNo. 22A05-9403-PC-120,22A05-9403-PC-120
Citation650 N.E.2d 1177
PartiesWilliam D. ROBERTSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
CourtIndiana Appellate Court
OPINION

RILEY, Judge.

Petitioner-Appellant William Robertson appeals from the denial of his Ind.Post-Conviction Rule 1 Petition for Post-Conviction Relief.

We affirm in part, reverse in part and remand.

ISSUES

Robertson presents eleven issues for our review which we consolidate and rephrase as:

1. Did the trial court exceed its jurisdiction by amending the file-stamped date on the charging information?

2. Did the charging information lack proper approval by the prosecutor?

3. Did the trial court err by denying Robertson's tendered instruction?

4. Did the trial court err by refusing to re-read a preliminary instruction?

5. Did the trial court improperly communicate with the jury during its deliberations?

6. Did the trial court err by failing to hold an in camera hearing regarding the State's motion in limine?

7. Did the prosecutor improperly elicit irrelevant testimony from the confidential informant?

8. Was Robertson's sentence manifestly unreasonable?

9. Did the trial court err by not asking the jury if the tornado that interrupted the trial affected its ability to decide the case?

10. Did Robertson receive ineffective assistance of counsel?

FACTS

On August 17, 1992, after a jury trial, Robertson was convicted of two counts of dealing in cocaine as a Class A felony 1 and one count of dealing in cocaine as a Class B felony. 2 He was sentenced to two thirty-five-year terms and a ten-year term of imprisonment to be served consecutively. His conviction was affirmed on direct appeal in Robertson v. State (filed September 4, 1991), Ind.App., Cause No. 22A01-9010-CR-398, slip op. 1-7, 577 N.E.2d 625.

Robertson filed his Petition for Post-Conviction Relief on August 17, 1992. After a hearing on May 28, 1993, the court denied Robertson's petition. It is this ruling from which Robertson appeals.

DISCUSSION

In a post-conviction relief proceeding, the petitioner bears the burden of establishing the grounds for relief by a preponderance of the evidence. Babbs v. State (1993), Ind.App., 621 N.E.2d 326, 329, trans. denied. After a denial by the post-conviction court, the petitioner must satisfy the reviewing court that the evidence, without conflict, leads inevitably to a conclusion opposite that of the trial court. Id. In reviewing a denial of post-conviction relief, we neither reweigh the evidence nor judge witness credibility. Joseph v. State (1992), Ind.App., 603 N.E.2d 873, 876.

The State contends that Robertson has waived many of the issues which he now presents to this court because he failed to raise them in his direct appeal. We agree with the State that post-conviction proceedings are not a substitute for a direct appeal and issues which could have been raised on direct appeal may not be raised in a post-conviction proceeding. Rhoton v. State (1991), Ind.App., 575 N.E.2d 1006, 1008, trans. denied; Combs v. State (1989), Ind., 537 N.E.2d 1177, 1179. Generally, allegations of error available but not asserted on direct appeal are waived for purposes of post-conviction relief. Rhoton, 575 N.E.2d at 1008. However, at no point during the post-conviction proceedings did the State raise the defense of waiver, neither did the post-conviction court find waiver, rather, the State responded to and the court based its findings upon the merits of Robertson's argument which we must do as well. Dodson v. State (1987), Ind., 502 N.E.2d 1333, 1335; Richardson v. State (1982), Ind., 439 N.E.2d 610, 612; see Mickens v. State (1991), Ind.App., 579 N.E.2d 615, 616-18 (review of waiver and res judicata defense as they apply to post-conviction proceedings).

I.

Robertson first contends that the trial court exceeded its jurisdiction by amending the file-stamped date on the charging instrument. He argues that the original information misled him "as evidenced by his Motion to Dismiss and caused unfair surprise." Appellant's Brief at 19.

The charging information was file-stamped with a date of September 12, 1989, but 'sworn to' on October 6, 1989. On the morning of Robertson's trial, he motioned to dismiss the charges citing the defective information and the trial court's lack of jurisdiction. In considering the motion, the trial judge stated:

The file stamp was mis-set for September because our filing indicates that it was all filed October 12th which was the Thursday before the October 13th bust.... Thus, apparently, the file stamp was inadvertently set for September. It's changed every morning. The girl must have hit the month change instead of the date change because the original filed with the Court is scratched through and marked October. And all of our computer records indicate filing on October.

(R. at 156-57). 3 The trial judge then altered the file stamp on Robertson's copy of the information to read October 12, 1989. In its conclusions of law, the post-conviction court found that the September stamp was an administrative error which had no bearing on conferring jurisdiction upon the court and "correcting the error to reflect the actual filing date was of no consequence or prejudice to" Robertson. (P-CR R. at 115).

An information may not be amended to change the theory of the case or the identity of the offense charged; however, it may be amended at any time to cure a defect if the substantial rights of the defendant are not prejudiced. Wright v. State (1992), Ind., 593 N.E.2d 1192, 1197, cert. denied 506 U.S. 1001, 113 S.Ct. 605, 121 L.Ed.2d 540. Although Robertson contends that the amendment to his charging document misled him and caused unfair surprise, he does not elaborate on this contention. The change of date did not create a material variance between the charging information and the evidence adduced at trial. See Robinson v. State (1994), Ind.App., 634 N.E.2d 1367, 1372. A material variance, which requires reversal, must mislead the defendant in the preparation of his defense or subject him to the likelihood of another prosecution for the same offense. Id.

Robertson has not shown how his defense would have changed had the file-stamp been initially correct and nothing in the record reflects undue surprise due to the mis-dated information. We note that Robertson's counsel stated to the trial court that he only noticed the erroneous date the weekend before the trial. (R. at 155). In addition there is no showing that Robertson has been placed in danger of double jeopardy. We see no error here.

II.

Robertson next contends that the charging information was never "approved by" the prosecutor and thus the conviction is void. We do not agree.

I.C. 35-34-1-2(b) provides that an information shall be signed by the prosecuting attorney or the deputy and sworn to or affirmed by the prosecutor or any other person. The purpose of the indorsement "approved by me" signed by the prosecuting attorney was to assure that all criminal prosecutions were in fact approved by the prosecuting attorney and initiated by the prosecuting attorney who was the officer invested with jurisdiction to act for the State. Brown v. State (1980), Ind.App., 403 N.E.2d 901, 909; see Clark v. State (1990), Ind., 561 N.E.2d 759, 765 (The signature of the prosecuting attorney insures that prosecutions have been investigated and approved by the prosecutors officer, the only office authorized to initiate criminal prosecutions.). In the case at bar, this purpose has been served. The deputy prosecutor's signature as notary to the affiant meets that policy of the law and is in sufficient compliance with the statutory requirement that the information be signed by the prosecuting attorney. As the trial court noted, while it would have been better for the prosecutor to set forth the approval of the information, we will not reverse where the purpose of requiring such a signature is so clearly satisfied.

III.

Robertson asserts that he was entitled to an instruction on possession of cocaine, an inherently included lesser offense of dealing cocaine.

The determination of the propriety of instructions on lesser included offenses involves two steps: first, we examine the statutes involved and the charging information; and second we examine the evidence to determine whether the facts would support the instruction. Compton v. State (1984), Ind., 465 N.E.2d 711, 713; Lawrence v. State (1978), 268 Ind. 330, 337, 375 N.E.2d 208, 213. Both of these steps must be satisfied before an instruction is proper. Compton, 465 N.E.2d at 713; Roddy v. State (1979), 182 Ind.App. 156, 162, 394 N.E.2d 1098, 1103. Here Robertson has failed to pass the first step. The information in this case shows that Robertson was charged with two counts of dealing in cocaine as a class A felony and one count of dealing in cocaine as a class B felony. The information closely tracks the statute and there is no doubt that the prosecutor was not attempting to seek a conviction on a lesser included offense. As our supreme court stated in Jones v. State (1982), Ind., 438 N.E.2d 972, 975, "the state through its drafting can foreclose as to the defendant, the tactical opportunity to seek a conviction for a lesser offense. The point is that absolute discretion rests in the state to determine the crime[s] with which a defendant will be charged." Thus, notwithstanding that the evidence in this case may have supported an instruction on a lesser offense, Robertson was not entitled to have the instructions given to the jury. To do so would result in the possibility of a compromise verdict. Compton, 465 N.E.2d at 713. We find that the trial court did not err in refusing to instruct the jury on lesser included offenses.

IV.

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