State v. Fair
| Decision Date | 28 June 1983 |
| Docket Number | No. 1282S476,1282S476 |
| Citation | 450 N.E.2d 66 |
| Parties | STATE of Indiana, Appellant, v. Orlando FAIR, Appellee. |
| Court | Indiana Supreme Court |
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellant.
This is an appeal from the grant of post-conviction relief under Ind.R.P.C.R. 1. The case history commences with the filing of a three-count indictment returned by the grand jury in St. Joseph County. Petitioner was charged with two counts of First Degree Murder and one count of Conspiracy to Commit Murder. After the case was venued to Porter County, petitioner was tried before a jury and found guilty on all three counts. The sentences imposed on the three counts were, respectively, death by electrocution, life imprisonment, and a term of imprisonment of two to fourteen years. In Fair v. State, (1977) 266 Ind. 380, 364 N.E.2d 1007, petitioner's conviction was affirmed, although this Court remanded the case with instructions to vacate the death penalty and to impose a term of life imprisonment in its stead.
Following affirmance of his conviction, petitioner filed a pro se petition for post-conviction relief under Rule 1 on June 2, 1980, in Porter Superior Court. In the next three months petitioner enlisted the assistance of Richard Lee Owen, an Indiana State Prison inmate who was not a lawyer, to help him. Owen drafted some pleadings on petitioner's behalf which were filed with the Porter Superior Court. However, on September 30, 1980, pursuant to the order of this Court, the Porter Superior Court ordered all pleadings filed on petitioner's behalf by Richard Lee Owen stricken. On January 30, 1981, petitioner filed a motion for appointment of counsel. That motion was granted and a duly licensed attorney was appointed to represent petitioner. On November 25, 1981, petitioner filed another Petition for Post-Conviction Relief, this petition having been prepared by his attorney.
The petition was eventually set for hearing on May 14, 1982, in Porter Superior Court. However, the State was unrepresented at the hearing, due to confusion as to whether the State was to be represented by the prosecutor of Porter County or St. Joseph County. The post-conviction judge entered Findings of Fact and Conclusions of law on that date, the effect of which was to grant petitioner the relief, ordering the indictment under which he was charged dismissed and ordering him discharged from incarceration. After a hearing on the State's Motion to Correct Error, the judge found as a fact that petitioner's whereabouts were unknown. No brief has been filed on petitioner's behalf, further indicating he fled the jurisdiction after his discharge.
Following the post-conviction court's grant of relief, a number of motions were filed by the State in an effort to get the grant of relief set aside or vacated. On September 10, 1982, the State also filed a Verified Motion for Change of Venue from the Judge and a Supplemental Motion for Relief from Judgment. The court entered findings of fact that in effect denied the relief sought by the State. The State then perfected its appeal.
The State first asserts the post-conviction court erred in granting the petition following the May 14, 1982, hearing during which the petitioner presented no evidence in support of his allegations of fact.
The State's reasoning is as follows. Ind.R.P.C.R. 1, Sec. 5 states:
Moreover, the State points out, this Court has frequently held in a post-conviction relief proceeding, the burden of proof is on the petitioner to prove the right to relief by a preponderance of the evidence. See, e.g., Phillips v. State, (1982) Ind., 441 N.E.2d 201. The State's position is that the record in this case shows no presentation of evidence by the petitioner at all. Therefore he cannot be deemed to have met his burden of proof. The State further points out that on appeal the reviewing court will disturb the post-conviction court's judgment "only if the evidence is without conflict and leads inescapably to a conclusion contrary to that reached by the trial court." Id., 441 N.E.2d at 203. In this case, the State argues, the record shows no presentation of evidence by the petitioner. Thus the trial court could not possibly have found petitioner entitled to relief by a preponderance of evidence. We are compelled to the inescapable conclusion the trial court erred in granting the relief.
First, we are obliged to consider if the petitioner in fact presented any evidence at all from which the trial court could have found by a preponderance of that evidence that relief should be granted. We begin with the language of Rule P.C. 1, Sec. 5 that states in part; "A record of proceedings shall be made and preserved." Since Rule 1, Sec. 5 is captioned "Hearing," the inevitable conclusion is that if the post-conviction court holds a hearing at all, it is required to make a record of that hearing.
We next turn to Ind.R.App.P. 7.2(A) to see what is required to be in such a record. That rule states:
Though a hearing on a post-conviction relief petition has never been held to be a "trial," we think it is apparent that in an appeal from either the grant of or denial of post-conviction relief, a fair reading of the Rules of Appellate Procedure indicates that part of Rule 1, Sec. 5 referring to a "record of proceedings" includes all the papers filed or offered to be filed in the proceeding and a transcript of the oral testimony taken at the proceeding.
Further, Ind.R.App.P. 7.2(A)(4) states:
"The transcript of the proceedings at the trial, including all papers, objections and other matters referred to above shall be presented to the judge who presided at the trial, who shall examine the same and if not true, correct the same without delay, and as finally settled by the court, shall sign the same certifying to the same as being true and correct in said proceedings, and order the same filed and made a part of the record in the clerk's office."
The Judge's Certificate in this case recites, inter alia, "[T]his Transcript of Evidence and Proceedings [is] a full, true, and correct photocopy of proceedings, and does correctly set forth and contain all the proceedings and evidence introduced during the hearing of this cause." There is nothing in the way of a transcript of oral testimony presented at the hearing, nor is there anything else in the record in the way of "papers" or "documents" that could qualify as evidence presented at the hearing. We hold petitioner presented no evidence in support of his claim for relief.
We note an order book entry contained in the record recites that a deposition was "reviewed." However, the record we have before us contains no such deposition. A deposition may be part of the evidence introduced at the hearing on a petition for post-conviction relief. Ind.R.P.C.R. 1, Sec. 5. But where, as here, we have only an order book entry stating that a deposition was "reviewed," and it is not included in the record certified by the trial judge as full and correct, we can only conclude that the recital of the order book entry is a nullity insofar as a showing that evidence was presented by petitioner by way of such deposition.
Moreover, there is no showing in the record that there was any compliance with I.C. Sec. 34-1-16-1 [Burns 1973] requiring publication of a deposition upon motion by either party and by order of court before it can be put into evidence. See also, Augustine v. First Federal Savings and Loan Association of Gary, (1979) 270 Ind. 238, 384 N.E.2d 1018. Thus even if we were to concede that the record is sufficient to show evidence was presented by petitioner at the hearing, it is apparent the procedure was improper. There is no showing that the deposition was published upon motion by petitioner, nor was the required order of the court ever entered. Without complying with the requirements for publication of the deposition, it was error for the court to "review" the deposition in considering the merits of petitioner's claim. Id.
It is true under P.C. Rule 1, Sec. 4(f) the post-conviction court can summarily dispose 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." It has also been held where the State fails to file the responsive pleading required under P.C. Rule 1, Sec. 4(a) the factual allegations of the petition may be deemed admitted by the post-conviction court, thus obviating the need to hold a hearing for the purpose of hearing evidence to support the petitioner's factual allegations. See Purcell v. State, (1975) 165 Ind.App....
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