Weatherford v. State, 79S00-8603-PC-311

• Decision Date: 21 September 1987
• Docket Number: No. 79S00-8603-PC-311,79S00-8603-PC-311
• Citation: 512 N.E.2d 862
• Parties: Michael J. WEATHERFORD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 862

512 N.E.2d 862

Michael J. WEATHERFORD, Appellant, v. STATE of Indiana, Appellee.

No. 79S00-8603-PC-311.

Supreme Court of Indiana.

Sept. 21, 1987.

E. Kent Moore, Lafayette, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is an appeal following the summary denial of appellant's petition for post-conviction relief.

The issues raised by appellant have been combined as follows: (1) whether the Honorable Vincent Grogg had jurisdiction to decide appellant's post-conviction claim; and (2) whether the issues presented in appellant's petition for post-conviction relief have been waived, consisting of four subparts: (a) whether fundamental error occurred at trial; (b) whether the Honorable Vincent Grogg erred by not specifically identifying the alleged fundamental error in his findings; (c) whether the summary denial of appellant's petition for post-conviction relief deprived him of his right to appeal; and (d) whether uncorrected error of law occurred at trial which requires reversal of his conviction.

I.

Appellant asserts that the appointment of Vincent Grogg as special judge was error. The charges of dealing in a controlled substance and habitual criminal were initially brought before the Honorable Robert F. Munro. A change of venue from Judge Munro was granted and he appointed a panel comprised of the Honorable Marvin D. McLaughlin, the Honorable V. Sue Shields and the Honorable Gene B. Lee.

The Honorable V. Sue Shields assumed jurisdiction; the case was tried to a hung jury; Judge Shields disqualified herself and appointed a panel consisting of the Honorable Vincent F. Grogg, the Honorable John B. Wilson, and the Honorable Thomas Wright. The Honorable John B. Wilson assumed jurisdiction, presided over the jury trial, entered judgment of conviction and sentenced appellant to five years for dealing in a controlled substance and to life on the habitual criminal count.

Appellant filed his petition for post-conviction relief with Judge Wilson and a hearing date was scheduled. The State then filed a motion for change of venue. Judge Wilson granted the motion and appointed a panel for selection of a special judge. The State then filed a motion to certify cause to the Supreme Court for naming of a special judge and thereafter Judge Wilson disqualified himself from the case and certified it to this court for special judge appointment. This court then appointed the Honorable Vincent Grogg special judge.

Appellant asserts as error the appointment of Judge Grogg as special judge, relying on Ind.R.T.P. 79(11):

"Any regular judge of a circuit, superior, criminal, probate or juvenile court and any member of the bar in this state shall be eligible for appointment in any of such courts as a special judge in any case pending in which he has not sat as judge or been named on a previous panel...."

He asserts that since Judge Grogg had been named on a previous panel, he was ineligible to be appointed as special judge in this case.

Initially, we must note that while the State did ask for certification based on Ind.R.T.P. 79(6) asserting there had already been two panels appointed, this court accepted the certification pursuant to Ind.R.T.P. 79(7), based on the fact Judge Wilson had disqualified himself. The fact that two panels of judges had been appointed prior to appellant's criminal trial was irrelevant to our decision. When Judge Wilson disqualified himself, we were empowered to appoint a special judge under Ind.R.T.P. 79(7).

As for the premise that Judge Grogg was ineligible due to the fact he had been on a previous panel, had this been the initial trial level this position would be correct. However, a post-conviction action is not the "same case" for purposes of Ind.R.T.P. 79. As this court stated in State ex rel Sufana v. Superior Court of Lake County (1978), 269 Ind. 466, 381 N.E.2d 475:

"An Ind.R.P.C. 1 hearing is a quasi-civil hearing totally separate and distinct from the original criminal trial.... The rule provides that the proceeding under Ind.R.P.C. 1 is commenced by the filing of a petition, provides for the manner in which the action will be pleaded as well as the manner in which it will be answered by the State of Indiana, provides for a right in the petitioner for a change of venue from the judge, and provides for an appeal from the final judgment in the proceedings under rules applicable to civil actions. The Ind.R.P.C. 1 action is obviously then, by its very nature, an action brought after final judgment has been entered in the original cause, when either rulings have been entered by one or both of the appellate courts, or when time for such appeals has passed.

Consequently, the fact that Judge Grogg had been named on a panel in the original criminal case does not preclude him from being named on a panel or appointed by this court as special judge in this postconviction action.

II.

Following appellant's conviction, a timely motion to correct errors was filed and denied by the trial court. Appellant then proceeded with the appropriate steps to perfect a direct appeal. Following the filing of the record but prior to a brief being filed, appellant requested and received leave from this court to proceed in post-conviction proceedings. The direct appeal was terminated, but leave was granted to reinstate the direct appeal if post-conviction proceedings were unsuccessful.

Appellant, who was free on a $50,000.00 appellate bond, then became a fugitive. Judge Wilson dismissed the post-conviction action due to appellant's status and ordered the appeal bond forfeited. As a result, counsel for appellant filed a motion to correct error, which was denied, and instituted an appeal of Judge Wilson's action. Upon receiving a petition for extension of time within which to file transcript and a petition to incorporate the post-conviction transcript into the direct appeal, this court found appellant had failed to timely file the transcript and entered a fugitive status. Consequently, this court ordered dismissal of appellant's appeal.

Following appellant's capture and incarceration, the postconviction action before us was filed. As related...