State v. Lopez

• Decision Date: 28 January 1997
• Docket Number: No. 64A04-9512-PC-505,64A04-9512-PC-505
• Citation: 676 N.E.2d 1063
• Parties: STATE of Indiana, Appellant-Respondent, v. Jesse LOPEZ, Appellee-Petitioner.
• Court: Indiana Appellate Court

Page 1063

676 N.E.2d 1063

STATE of Indiana, Appellant-Respondent, v. Jesse LOPEZ, Appellee-Petitioner.

No. 64A04-9512-PC-505.

Court of Appeals of Indiana.

Jan. 28, 1997.

Transfer Denied April 3, 1997.

Pamela Carter, Attorney General, Andrew L. Hedges, Deputy Attorney General, Indianapolis, for Appellant.

Alan K. Mills, Barnes & Thornburg, Indianapolis, for Appellee.

OPINION

CHEZEM, Judge.

Case Summary

Respondent-Appellant, the State of Indiana ("the State"), appeals from the grant of Petitioner-Appellee's, Jesse Lopez's ("Lopez"), petition for postconviction relief. We reverse in part and affirm in part.

Issues

The State raises one issue for our review, which we restate as:

I. Whether the decision of the postconviction court with regard to Lopez's sentence is barred by principles of res judicata.

Lopez raises two issues on cross appeal, which we restate as:

II. Whether the State withheld evidence from Lopez and, if so, whether there was a reasonable probability that the outcome of Lopez's trial would have been different by virtue of that withholding of evidence; and,

III. Whether Lopez received effective assistance of trial and appellate counsel.

Facts and Procedural History

The postconviction court vacated a portion of Lopez's sentence. Lopez was sentenced to a term of forty years for aiding the delivery of cocaine and to a term of four years for dealing in a sawed-off shotgun. Because it found three aggravating circumstances and no mitigating circumstances, the trial court added ten years to the presumptive sentence for dealing in cocaine and added two years to the presumptive sentence for dealing in a sawed-off shotgun. On September 6, 1988, our supreme court affirmed Lopez's conviction and sentence. Lopez v. State, 527 N.E.2d 1119 (Ind.1988).

On August 29, 1995, the postconviction court granted Lopez's petition for postconviction relief with regard to his sentence. In so doing, the postconviction court found that there were mitigating circumstances which canceled out the aggravating circumstances found by the trial court. In all other respects, the postconviction court denied Lopez's petition for post-conviction relief. Because the trial court on sentencing did not factor in mitigating circumstances, the postconviction court reduced Lopez's sentence from 40 years to 30 years on the conviction for dealing in cocaine. The State appeals ¹ the reduction in Lopez's sentence and Lopez appeals the denial of his petition for postconviction relief on two other issues.

Discussion and Decision

I

We look first to the issue of whether the decision of the postconviction court with regard to Lopez's sentence is barred by principles of res judicata. The standard of review of a judgment granting postconviction relief is governed by Indiana Trial Rule 52(A). State v. Van Cleave, 674 N.E.2d 1293 (Ind.1996); Spranger v. State, 650 N.E.2d 1117 (Ind.1995). "We reverse only upon a showing of 'clear error'--that which leaves us with a definite and firm conviction that a mistake has been made." Spranger, 650 N.E.2d at 1119. Our supreme court characterized the nature of our review:

In reviewing a finding of ineffective assistance, we substantially defer under the "clear error" standard to the trial court's findings of fact but not to its conclusions of law. A "clearly erroneous" judgment can result from application of the wrong legal standard to properly-found facts, and in that situation we do not defer to the trial court. We are not bound by the trial court's characterization of its results as "findings of fact" or "conclusions of law." Rather, we look past these labels to the substance of the judgment and will review a legal conclusion as such even if the judgment wrongly classifies it as a finding of fact.

State v. Van Cleave, at 1296. The same standard of review applies in this case. Clear error exists because the postconviction court ignored the rule of res judicata. Res judicata operates to bar further litigation where a final judgment on the merits has been rendered on the same claim between the same parties. Lopez argued in his direct appeal that his sentence was manifestly unreasonable because the trial judge did not factor in any mitigating circumstances. The post-conviction process is not a substitute for a direct appeal, but is a process for raising issues not known at the time of the original trial or for some reason not available to the defendant for direct appeal. Wallace v. State, 553 N.E.2d 456 (Ind.1990), cert. denied, 500 U.S. 948, 111 S.Ct. 2250, 114 L.Ed.2d 491 (1991), denial of PCR aff'd, 640 N.E.2d 374 (Ind.1994), cert. denied, 514 U.S. 1115, 115 S.Ct. 1972, 131 L.Ed.2d 861 (1995).

Lopez argues that the State is prohibited from asserting the affirmative defense of res judicata in this appeal because it did not assert the defense as required in its responsive pleading or at the postconviction hearing. However, in its response to Lopez's claim of a manifestly unreasonable sentence in his petition for postconviction relief, the State pleaded: "That the sentencing of Petitioner was upheld by the Supreme Court in Lopez v. State." (P.C.Rec. 43). This language was specific enough to alert the court and Lopez under the notice pleading requirement that the State was asserting the affirmative defense of res judicata.

Even if the State had not pleaded the affirmative defense of res judicata at all, we would reverse the postconviction court's reduction of Lopez's sentence. Our supreme court held in Schiro v. State, 533 N.E.2d 1201, 1204-5 (Ind.1989), cert. denied, 493 U.S. 910, 110 S.Ct. 268, 107 L.Ed.2d 218 (1989), that "[a]n issue which is raised and determined adverse to petitioner's position is res judicata." In so holding, the Supreme Court noted:

The entire record of the trial and the original PCR petition were put into evidence in the instant cause. The trial court had the ability to read the opinion and compare issues, and the power to dismiss these issues disposed of in this court's prior proceedings. The trial court properly found all four issues were so disposed and there was not error in dismissing them as res judicata.

Id. at 1205.

In Mickens v. State, 596 N.E.2d 1379 (Ind.1992), the Indiana Supreme Court dealt with the issue of how the State may appeal affirmative defenses when the petition for postconviction relief has been denied. In Mickens, postconviction relief was denied and the petitioner appealed. The State failed to file a cross-appeal asserting the affirmative defense of waiver, though it argued waiver to the postconviction court. It was held that when postconviction relief has been denied, the State need no longer file a cross-appeal of the affirmative defenses it argued to the postconviction court. Rather, the State may argue those affirmative defenses in its appellee brief. The holding in Mickens, though instructional, does not answer the question of whether the State may assert affirmative defenses in its appeal of a grant of a petition for postconviction relief when the State did not assert those defenses with the postconviction court.

The issue is whether the doctrine of waiver may be asserted on appeal by a petitioner who was granted postconviction relief, thereby circumventing the doctrine of res judicata. In essence, when the State can plead res judicata on an issue but fails to sufficiently do so, is a postconviction court afforded the latitude of overruling the prior holding of our supreme court on the issue? We faced this issue once before in Clark v. State, 648 N.E.2d 1187 (Ind.Ct.App.1995), trans. denied. In that case, unlike Lopez's, the State failed altogether to file an answer to the petitioner's petition for postconviction relief. Nonetheless, postconviction relief was denied and petitioner appealed, arguing that the State was barred from asserting the affirmative defenses of waiver and res judicata in its appellee brief. We held:

However, by distilling the concept of res judicata to its essence, it is clear that review of actions finally determined is barred. This is especially true when the Court of Appeals is asked to re-review questions finally determined by our supreme court. Our supreme court in Mickens, 596 N.E.2d at 1381, determined that the State may persist in alleging waiver and presumably res judicata even if the post-conviction court does not base its decision on those concepts. The State's failure to somehow preserve the issues cannot allow this Court to engage in the legal fiction that the issues have not been previously determined.

Id. at 1190.

We agree that "at some point, whether specifically pleaded by the State or not, a postconviction petitioner is not entitled to further review of questions finally determined." Id. at 1191. It is for this reason that we reverse the grant of Lopez's petition for postconviction relief with regard to his sentence.

Nonetheless, we hold that Lopez's sentence of 40 years is not manifestly unreasonable. A sentence is manifestly unreasonable only if no reasonable person could find the sentence appropriate to the particular offense and offender. Collins v. State, 643 N.E.2d 375, 382 (Ind.Ct.App.1994), trans. denied. The duration of a defendant's sentence is within the sound discretion of the trial court. Garrison v. State, 575 N.E.2d 700, 703 (Ind.Ct.App.1991), trans. denied. Where the sentence imposed is within the statutorily mandated term, this court will reverse the sentence only if it is manifestly unreasonable. Jarrett v. State, 580 N.E.2d 245, 253 (Ind.Ct.App.1991), trans. denied. The trial court's discretion in sentencing is regulated by Ind.Code § 35-38-1-7.1. The trial judge must consider certain factors in mitigation or aggravation, and may consider others. Id. In determining what sentence to impose, a trial court should identify all significant aggravating and mitigating circumstances, explain why each circumstance is aggravating or mitigating, and weigh the mitigating circumstances against...