Stone v. State, 1-782A167
| Court | Court of Appeals of Indiana |
| Citation | 444 N.E.2d 1214 |
| Docket Number | No. 1-782A167,1-782A167 |
| Parties | Michael STONE, Petitioner-Appellant, v. STATE of Indiana, Respondent-Appellee. |
| Decision Date | 03 February 1983 |
Page 1214
v.
STATE of Indiana, Respondent-Appellee.
First District.
Susan K. Carpenter, Public Defender of Ind., Sheila K. Zwickey, Deputy Public Defender, Indianapolis, for petitioner-appellant.
Linley E. Pearson, Atty. Gen. of Ind., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for respondent-appellee.
RATLIFF, Judge.
Michael Stone appeals the denial of his Petition for Post-Conviction Relief. We affirm.
Stone was charged in 1968 with theft of a $600 motorcycle. He entered a plea of guilty on June 29, 1968, and was sentenced on July 23, 1968, to the Indiana State Reformatory for not less than one nor more than ten years. On January 31, 1981, Stone filed a Petition for Post-Conviction Relief which the trial court denied on April 10,
Page 1215
1981, with extensive findings of facts and conclusions of law. On February 4, 1982, Stone filed a Petition to Reopen for the Purpose of Introducing Evidence on Petitioner's Petition for Post-Conviction Relief and to Amend; Motion to Reconsider. The trial court granted the Motion to Amend and on February 11, 1982, Stone filed his Amended Petition for Post-Conviction Relief and a Memorandum in Support thereof. The state responded on February 15, 1982, and on March 16, 1982, the trial court denied Stone's petition. Stone's Motion to Correct Errors was filed on April 2, 1982, and denied April 19, 1982.1. Did the trial court err in finding a sufficient factual basis to support Stone's guilty plea?
2. Did the trial court err in finding Stone freely and understandingly waived his right to counsel?
3. Did the trial court err in finding that it was not required to inform him that the state bears the burden of proving his guilt beyond a reasonable doubt?
4. Does the lapse of almost thirteen years amount to waiver or laches which should bar Stone from challenging his guilty plea and sentencing thereon?
Issues One and Two
We find that Stone has waived these two issues by failing to file a timely motion to correct errors following the trial court's ruling upon Stone's first petition for post-conviction relief. Indiana Code Section 35-4.1-1-6(c) 1 provides that after judgment and sentence upon a guilty plea, a motion to vacate the judgment and withdraw the plea shall be treated as a petition for post-conviction relief under the post-conviction rules. The appropriate procedure for challenging a conviction based on a plea of guilty is under Indiana Rules of Procedure, Post-Conviction Rule 1, Grimes v. State, (1972) 257 Ind. 660, 661, 278 N.E.2d 271, not via a motion to correct errors. Woods v. State, (1981) Ind.App., 426 N.E.2d 107, 110. There is no absolute right to an appeal from a conviction based on a guilty plea. Id., Ind.Code Sec. 35-4.1-1-6. A Post-Conviction Rule 1 action is civil in nature, Phillips v. State, (1982) Ind., 441 N.E.2d 201, 203, and appeals taken from a final judgment in such proceedings follow rules applicable to civil actions. P.R.C. 1, Sec. 7. 2 Thus, where a petitioner has raised a question upon which the trial court has ruled in a P.C.R. 1 proceeding and petitioner chose not to appeal within the time under the civil rules, that question has been waived for...
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