State v. Cleland
| Decision Date | 07 May 1985 |
| Docket Number | No. 585S183,585S183 |
| Parties | STATE of Indiana, Appellant (Respondent Below), v. David CLELAND, Appellee (Petitioner Below). |
| Court | Indiana Supreme Court |
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellant.
John M. Murphy, Shelbyville, for appellee.
ON CRIMINAL PETITION FOR TRANSFER
This cause is before us on the petition of Cleland (Petitioner/Appellee) to transfer the cause from the Court of Appeals, Fourth District, following its reversal of the trial court's granting of Cleland's petitions for post-conviction relief. Because we find that the Court of Appeals erroneously decided a new question of law, as hereinafter set forth, we grant Cleland's petition to transfer, vacate the opinion of the Court of Appeals reported at 471 N.E.2d 722 (1984), and affirm the trial court's judgment granting post-conviction relief.
The record discloses that on July 18, 1983, Cleland filed petitions for post-conviction relief in three traffic cases in which he had entered pleas of guilty in 1973, 1978, and 1980. The petitions' allegations were signed by him and verified. These documents were the only evidence presented by either Cleland or the State at the hearing on the petitions. The trial court granted the petitions and ordered the three convictions expunged from Cleland's driving record. The State appealed.
The State argues that the petitions did not constitute competent evidence and that even if they did they had not been admitted into evidence. The State maintains that Cleland, therefore, could not have met his burden of proof and that the trial court erred in granting post-conviction relief. We cannot, however, agree with the State's contention or the Court of Appeals' holding that the petitions did not constitute competent evidence to establish Cleland's claims for post-conviction relief.
The Court of Appeals held that the petitions could not be considered as evidence inasmuch as they constituted the pleadings which initiated the post-conviction relief procedure. In so holding, the court relied upon the general rule that averments in pleadings are considered self-serving declarations and as such are not admissible evidence. The petitions in the case at bar, however, are not ordinary pleadings. They are, in fact, affidavits. 1 The specific allegations contained therein were made subject to the penalties for perjury and signed by the Petitioner under oath. Post Conviction Rule 1 Sec. 5 provides, in pertinent part, "The court may receive affidavits, depositions, oral testimony, or other evidence and may at its discretion order the applicant brought before it for the hearing." (emphasis added). Moreover, as the following exchange discloses, the trial court clearly considered the petitions to be evidence:
The State made no objection, at any time, to the court's reliance upon the verified petitions as evidence and clearly did not wish to challenge the correctness of the allegations. Rather, it relied upon the defense of "laches." We hold that inasmuch as the petitions were verified, absent a timely objection by the State and under the circumstances of this case, the court could properly consider them as evidence.
The State further argues that the petitions were not properly admitted into evidence. While the exchange quoted above reveals that the Petitioner did not move to introduce the documents into evidence, it also reveals that all parties and the court acknowledged that the documents constituted evidence in the case. It would be patently unfair to the Petitioner to reverse on this ground, when the parties clearly agreed that the documents constituted evidence, there was no objection by the State, the court as much as invited the parties to proceed without formally introducing the documents, and the petitions are a part of the record before us. In Haskett v. Haskett (1975), 164 Ind.App. 105, 327 N.E.2d 612, (trans. den.) certain affidavits were not formally introduced into evidence. The Court of Appeals observed:
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