Robertson v. State
| Decision Date | 31 August 1998 |
| Docket Number | No. 22A01-9706-PC-189,22A01-9706-PC-189 |
| Citation | 699 N.E.2d 697 |
| Parties | William D. ROBERTSON, Appellant-Petitioner, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Appellant, William D. Robertson (Robertson), appeals the trial court's denial of his Successive Petition for Post-Conviction Relief.
We affirm.
On October 12, 1989, the State charged Robertson with two counts of Dealing in Cocaine, as Class A felonies, 1 and one count of Dealing in Cocaine, as a Class B felony. 2 On June 6, 1990, a jury convicted him on all counts, and the trial court sentenced him to consecutive terms totaling eighty years. Thereafter, another panel of this court affirmed the convictions in an unpublished memorandum decision. Robertson v. State (1991) Ind.App., 577 N.E.2d 625.
Robertson filed a Petition for Post-Conviction Relief on August 17, 1992, which the trial court denied. Another panel of this court affirmed the denial with respect to the underlying convictions. However, the court remanded the case for resentencing, and the trial court resentenced Robertson to concurrent terms of imprisonment of thirty-five years. Robertson v. State (1995) Ind.App., 650 N.E.2d 1177, reh'g denied. (Hereafter Robertson II ). Specifically, the court concluded that Robertson was not entitled to an instruction regarding the lesser-included offense of Possession of Cocaine, 3 because the language of the information closely tracked the wording of the Dealing in Cocaine statute. 4 Id. at 1182.
Thereafter, in Wright v. State (1995) Ind., 658 N.E.2d 563, 570, the Indiana Supreme Court expressed its disapproval of Robertson II, supra, 650 N.E.2d at 1177. Contrary to the holding in Robertson II, the Court stated that prosecutors may not preclude an instruction regarding a lesser-included offense by closely tracking statutory language in the information. 5 Wright, supra at 570. Rather, the Court developed a three-pronged analysis to be applied when a party requests an instruction on an included offense.
On March 26, 1996, Robertson filed his Successive Petition for Post-Conviction Relief, which again asserted that the trial court erred in failing to instruct the jury about the included offense. The trial court denied this petition on March 17, 1997. This denial prompted the present appeal.
Upon appeal, Robertson essentially argues that he should receive the benefit of the new constitutional rule 6 enunciated in Wright. Moreover, he contends that the charging information was deficient and the trial court erred in submitting a verdict form for Dealing in Cocaine, as a Class B felony, to the jury.
In Teague v. Lane (1989) 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334, reh'g denied, the United States Supreme Court held that a criminal defendant may not generally receive the benefit of a new constitutional rule of criminal procedure upon collateral review of a final decision. However, the Court concluded that a new rule should apply retroactively "if it places 'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.' " Id., 109 S.Ct. at 1073. (Quoting Mackey v. United States (1971) 401 U.S. 667, 692, 91 S.Ct. 1160, 28 L.Ed.2d 404). In addition, retroactive application is appropriate where, as a result of growth in society and the judiciary, understanding of "bedrock procedural elements" is altered so as to "vitiate the fairness of a particular conviction," such as the right to counsel. Id. at 1076. (Quoting Mackey, supra at 693-94, 91 S.Ct. 1160). (Emphasis omitted).
As neither exception applies in the instant case, we decline to retroactively apply the new rule regarding the court's duty to instruct the jury about included offenses. 7 The first exception has no relevance, as the rule does not bear upon the ability of the government to proscribe individual conduct. Moreover, although the rule significantly clarifies the procedure governing these particular jury instructions, it does not reflect an alteration of "bedrock procedural elements" necessary to implicate the second exception. Id.
Robertson also argues that the failure of the charging information to set forth to whom the cocaine was delivered warrants reversal. This contention is without merit. Although the crimes of which Robertson was convicted require the transfer of cocaine from one person to another, I.C. 35-48-4-1 does not mandate that the identity of the transferee be stated in the charging information. Robertson cites no precedent to the contrary.
Finally, Robertson appears to urge that irregularities in the verdict forms entitle him to a new trial. Our uncertainty in this respect is occasioned by the lack of coherence in the presentation. However, if our assessment of the argument is correct, Robertson waived this issue by not presenting it at the time of the first post-conviction proceeding. Ind. Post-Conviction Rule 1(8).
The judgment is affirmed.
I fully concur with the majority opinion as to Issues II and III. I concur with the majority's conclusion with respect to Issue I, but base my concurrence as to that issue upon reasoning that differs from the majority's.
The majority concludes that the new rule enunciated in Wright v. State, 658 N.E.2d 563 should not be applied retroactively in view of the retroactivity analysis espoused by the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), reh'g denied. I believe that Robertson's appeal of this question fails for a different reason--it is barred by the doctrine of res judicata.
Robertson unsuccessfully challenged his convictions upon direct appeal and again via petition for post-conviction relief. Among other issues presented in the post-conviction proceeding, Robertson argued that the court erred in failing to instruct the jury on the inherently lesser included offense of possession of cocaine. In addressing Robertson's contention, this court applied the two-step analysis set out by our supreme court in Compton v. State, 465 N.E.2d 711 (Ind.1984). We first examined the statutes involved and the charging information, and then we examined the evidence to determine whether the facts would support the instruction. We determined that the trial court did not err in refusing to instruct on the lesser included offense. See Robertson v. State, 650 N.E.2d 1177 (Ind.Ct.App.1995) ().
In Wright v. State, 658 N.E.2d 563 (Ind.1995), our supreme court changed the analysis for determining whether a trial court errs in failing to instruct on a lesser included offense. In so doing, the court overruled Compton v. State, 465 N.E.2d 711, to the extent that it held that by drafting a charging instrument in such a way as to track the statutory language defining the crime charged, the State may preclude an instruction on either an inherently or factually included offense of the crime charged. The court also explicitly "disapproved" several cases, including Robertson II. Robertson contends that the disapproval of Robertson II means, in effect, that Robertson II was overruled and may not be relied upon for res judicata purposes.
The meaning and significance of the supreme court's "disapproval" of Robertson II are pivotal questions in this appeal. Robertson contends that "disapproved" in this context is the same as "overruled". In both cases, he argues, the opinion is a nullity and cannot be viewed as a source for later deciding the issues on the basis of waiver or res judicata. I do not agree with Robertson's premise, i.e., that "disapproved" and "overruled" are synonymous in this context.
It is significant to me that the court in Wright explicitly "overruled" some cases and "disapproved" others. I find it unlikely that the supreme court would have made a distinction that carried with it no significance, and conclude that there is indeed a distinction between the two. The meaning of "overruled" in this context is clear to me. A case that is overruled based upon a new rule or principle of law is void and held for naught. In such cases, the only question remaining is whether the new rule applies retroactively. See Davis v. State, 598 N.E.2d 1041 (Ind.1992), cert. denied, 510 U.S. 948, 114 S.Ct. 392, 126 L.Ed.2d 340 (1993). On the other hand, the meaning of "disapproved" as used in Wright must be gleaned from context.
The court disapproved Robertson II "[t]o the same extent-but only to the same extent", Wright v. State, 658 N.E.2d at 570, that it incorporated the principle endorsed in Compton to the effect that "prosecutors may, by drafting a charging instrument to track the statutory language defining the crime charged, foreclose or preclude an instruction on either an inherently or factually included offense of the crime charged." Id. (footnote omitted). Therefore, in Robertson II, the supreme court disapproved only the use of the Compton analysis for determining the...
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