Tinker v. State

• Decision Date: 13 April 2004
• Docket Number: No. 49A02-0310-PC-860.,49A02-0310-PC-860.
• Court: Indiana Appellate Court
• Parties: Anthony TINKER, Appellant-Defendant, v. STATE of Indiana, Appellee.

805 N.E.2d 1284

Anthony TINKER, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 49A02-0310-PC-860.

Court of Appeals of Indiana.

April 13, 2004.

Transfer Denied June 17, 2004.

Anthony Tinker, Pendleton, IN, appellant pro se.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, attorneys for appellee.

OPINION

SULLIVAN, Judge.

Appellant, Anthony Tinker, challenges the post-conviction court's dismissal of his petition for post-conviction relief with prejudice, claiming that the trial court's decision was an abuse of discretion.

We affirm.

In March 1995, Tinker was convicted of three counts of attempted murder and sentenced to concurrent sentences of forty-five years upon each count. Upon direct appeal, a panel of this court affirmed Tinker's convictions. See Tinker v. State, No. 49A02-9504-CR-200, 665 N.E.2d 962 (Ind. Ct.App. June 10, 1996). Almost two years later, on April 29, 1998, Tinker filed his first pro se petition for post-conviction relief.¹ The protracted procedural history of Tinker's post-conviction journey then began.

In May 1998, Tinker's appointed counsel filed an appearance and, on June 24, 1998, moved to continue the hearing scheduled for July 22, 1998. The post-conviction court granted the continuance and ordered the public defender to advise the court upon readiness for a hearing. On July 10, 1998, Tinker filed pro se documents seeking to proceed pro se and requesting a hearing on his petition. Soon thereafter, on July 29, 1998, Tinker's counsel filed a motion to withdraw his appearance. The post-conviction court granted the motion to withdraw appearance, scheduled a post-conviction hearing for October 28, 1998, and declined to rule on Tinker's pro se motions. At the October 28 hearing, Tinker, pro se, requested and was granted a continuance. The court rescheduled the hearing for January 20, 1999. On January 13, 1999, Tinker moved for another continuance. The post-conviction court granted the motion and reset the hearing for April 28, 1999. On April 16, 1999, the State moved for a continuance, which the post-conviction court granted, rescheduling the hearing for June 6, 1999. At the June 6 hearing, Tinker again appeared pro se and orally moved for another continuance. The post-conviction court granted the motion and ordered Tinker to file a "motion of readiness for PCR." Appendix at 38.

On August 25, 1999, Tinker filed a motion for a hearing. The post-conviction court eventually scheduled a hearing for December 8, 1999. On October 7, 1999, Tinker filed a motion to consider the appointment of counsel, which the trial court denied. At the scheduled December 8 hearing, Tinker again appeared pro se and moved to dismiss his petition for post-conviction relief. The State did not object, and the post-conviction court dismissed Tinker's petition without prejudice.

Not quite one year later, on November 27, 2000, Tinker filed his second pro se petition for post-conviction relief, which is the subject of the current appeal.² A hearing on this petition was set for April 25, 2001. Tinker's newly appointed counsel filed an appearance on December 19, 2000, and on April 4, 2001, moved for a continuance.³ This motion was granted, and a hearing date of October 24, 2001 was set. On October 19, 2001, Tinker filed another motion for continuance, which the post-conviction court granted shortly thereafter, setting yet another hearing date for March 13, 2002. Tinker moved for an additional continuance on February 28, 2002. On March 1, 2002, the post-conviction court granted the continuance and reset the hearing for October 9, 2002.

The chronological case summary indicates that, due to a computer error, the October 9 hearing was not scheduled. The post-conviction court therefore scheduled a hearing on Tinker's post-conviction petition to be held on October 23, 2002. Tinker moved for another continuance on October 17, 2002. The post-conviction court granted the continuance and set the hearing for April 23, 2003. Before the hearing could be held, Tinker's counsel filed a motion to withdraw her appearance and to continue the hearing. The verified motion states in part:

"3. Undersigned counsel certifies Petitioner has been consulted regarding the grounds raised in the pro se petition, as well as other possible grounds.

4. Undersigned counsel certifies appropriate investigation has been conducted, including a review of all pertinent transcripts.

5. Petitioner Tinker was recently notified that undersigned counsel would be moving to withdraw the appearance of the State Public Defender under Ind.Post-Conviction Rule § 1(9)(c) 6. Petitioner Tinker has notified counsel that he wishes to exercise his right to proceed pro se, but he cannot be prepared by the April 23, 2003, hearing date.

7. This motion to continue is not intended to frustrate the State or prejudice the proceedings in any way. A message was left by telephone with [the deputy prosecutor]. It is assumed that she would object to the continuance because it is her practice to do so...." Appendix at 93-94.

The post-conviction court granted this combined motion on April 3, 2003, and reset the hearing for July 30, 2003.

At the July 30 post-conviction hearing, Tinker appeared pro se. At the hearing, Tinker claimed that a worker at the prison law library had prepared his petition and that he was unable to represent himself. The post-conviction court explained to Tinker that, by signing the verified post-conviction petition, he "adopted everything that was signed in that petition as [his] own." Transcript at 3. Tinker indicated that he understood this. The post-conviction court then took note of the verified motion to withdraw appearance and noted that no further continuance motions had been filed. After the post-conviction court indicated that "we're going to have a hearing today," Tinker moved to dismiss his petition without prejudice, again claiming that he was unprepared. Id. at 5. When asked by the court why he had not indicated his lack of preparedness earlier, Tinker responded that his former counsel had not informed him that he would be proceeding pro se. The post-conviction court discredited this explanation based upon the contents of the verified motion to withdraw appearance and the fact that Tinker had a few minutes earlier told the court that his former counsel had informed him that he would be proceeding pro se. The post-conviction court reiterated its unwillingness to continue the cause any further, either by continuance or by granting a motion to withdraw the petition without prejudice. Tinker restated that he was unprepared or unable to represent himself. The following exchange then took place between the post-conviction court and Tinker:

"THE COURT: ... So do you wish to present any evidence in support of your petition for post-conviction relief? If you wish to withdraw it, I will grant your request to withdraw but that will not be without prejudice, meaning you can't file it again without special leave of the appellate courts.

THE PETITIONER: Yes, I'll withdraw.

THE COURT: And that's going to be with prejudice, meaning you can't file again.

THE PETITIONER: Okay." Id. at 6-7.

The post-conviction court then dismissed the petition with prejudice. It is from this dismissal which Tinker now appeals.

Tinker argues that the trial court erred by denying his request to withdraw his petition without prejudice.⁴ The authority of the court to grant a motion to withdraw a petition for post-conviction relief is governed by Indiana Post Conviction Rule 1 § 4(c), which states in part, "At any time prior to entry of judgment the court may grant leave to withdraw the petition." Our Supreme Court expounded upon this rule in Tapia v. State, 753 N.E.2d 581 (Ind.2001). In Tapia, the petitioner filed a post-conviction petition in January 1993. After the case sat dormant for three years, Tapia became frustrated and was granted leave to proceed pro se. Tapia requested a hearing, which the post-conviction court set for May 20, 1997. On May 1, 1997, Tapia moved to continue the hearing and to amend his petition. The post-conviction court denied both motions. Tapia subsequently moved to withdraw his petition for post-conviction relief without prejudice. At the scheduled hearing, this motion was denied.

Upon appeal, a panel of this court reversed, holding that the post-conviction court was required to allow the withdrawal without prejudice absent a showing that the State would be harmed by the delay. Tapia v. State, 734 N.E.2d 307 (Ind.Ct. App.2000). Our Supreme Court granted transfer and affirmed the post-conviction court's decision, holding that Rule 1 § 4(c) gives trial court discretion, not a mandate, to allow petitioners to withdraw the petition without prejudice. Tapia, 753 N.E.2d at 585-86. Applying this standard to the case before it, the Court considered that Tapia had made little effort to explain what he would have gained by delaying the proceedings. Id. at 586. Although Tapia asserted that he had recently discovered substantial errors, he did not explain what these errors were or why he had been unable to develop evidence to support them in the four years since he had filed his post-conviction petition. Id. The Court concluded:

"The post-conviction court could balance what speculative benefit Tapia would derive from a delay against the costs to the court in wasted time, and conclude that Tapia was not entitled to withdraw his petition. Without any valid explanation as to what would be gained from further delay, we cannot say that the post-conviction court abused its discretion by rejecting Tapia's motion." Id. (footnote omitted)

See also Ford v. State, 755 N.E.2d 1138 (Ind.Ct.App.2001)

(following Tapia and holding that post-conviction court did not abuse its discretion in denying motion to withdraw petition on day of hearing where petitioner had done little to explain what he would...