Bunch v. State

ATTORNEY FOR APPELLANT

Earl McCoy

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Steve Carter

Attorney General of Indiana

Jodi Kathryn Stein

Deputy Attorney General

Indianapolis, Indiana

__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

ALAN BUNCH, )

)

Appellant (Defendant Below), ) Indiana Supreme Court

) Cause No. 79S02-0205-PC-293

v. )

) Indiana Court of Appeals

STATE OF INDIANA, ) Cause No. 79A02-0105-PC-338

)

Appellee (Plaintiff Below). )

__________________________________________________________________

APPEAL FROM THE TIPPECANOE SUPERIOR COURT

The Honorable Donald Johnson, Judge

Cause No. 79D01-9009-CF-116

__________________________________________________________________

ON PETITION TO TRANSFER

__________________________________________________________________

November 26, 2002

BOEHM, Justice.

We hold that in order to establish the affirmative defense of waiver

the State must raise it in its pleading in a post-conviction relief

proceeding and carry the burden of proof on the issue in the trial court.

However, a court on appeal may nevertheless find, sua sponte or at the

suggestion of a party, that the issue presented in a post-conviction

petition was waived by procedural default if the matter could have been

presented on direct appeal but was not.

Factual and Procedural Background

Alan Bunch was found guilty by a jury of two counts of Dealing in

Cocaine as Class A felonies and four counts of Dealing in Cocaine as Class

B felonies. For each Class A felony, Bunch was sentenced to fifty years in

prison, with four years suspended for supervised probation. He received a

twenty-year sentence on each count of Dealing in Cocaine as a Class B

felony. All time was ordered to be served concurrently.

On direct appeal, the Court of Appeals overturned one of Bunch’s Class

A felony convictions in an unpublished memorandum decision but his sentence

remained at fifty years. Bunch v. State, 594 N.E.2d 847, No. 79A02-9112-CR-

539 (Ind. Ct. App. June 18, 1992). Bunch did not raise any sentencing

issues in his direct appeal.[1]

Bunch then filed a petition for post-conviction relief which was

denied by the trial court. The Court of Appeals affirmed the denial of

post-conviction relief by unpublished memorandum decision. Bunch v. State,

659 N.E.2d 262, No. 79A04-9501-PC-14 (Ind. Ct. App. Dec. 14, 1995). Bunch

raised no challenge to the trial court’s handling of mitigating or

aggravating circumstances.[2] This Court denied transfer.

Bunch then filed a successful request for permission to file a

successive petition for post-conviction relief. In the successive

petition, Bunch argued that in sentencing him, the trial court improperly

weighed the aggravating and mitigating circumstances.[3] The State filed a

response asserting the affirmative defenses of waiver, res judicata, and

laches.[4]

At the successive post-conviction hearing, Bunch challenged four

aggravating factors cited by the trial court.[5] The State responded to

Bunch’s arguments on the merits contending that one aggravating

circumstance was sufficient to enhance a sentence above the presumptive

sentence. The post-conviction court denied Bunch relief without ruling on

the State’s pleaded defense of waiver.

On appeal, the Court of Appeals affirmed the trial court’s denial of

post-conviction relief on the merits, but noted that “because the State

failed to argue the affirmative defense of waiver at the post-conviction

hearing, it cannot now raise waiver on appeal.” Bunch v. State, 760 N.E.2d

1163, 1168 (Ind. Ct. App. 2002).[6] We granted transfer in a separate

order dated May 23, 2002 to address this last issue.

I. “Waiver” and Procedural Default

On appeal, relying on Rouster v. State, 705 N.E.2d 999, 1003 (Ind.

1999), the State argued that Bunch had waived the sentencing issue because

he did not raise it on direct appeal.[7] The Court of Appeals interpreted

Langley v. State, 256 Ind. 199, 267 N.E.2d 538 (1971), to require the State

to raise the defense of waiver at the hearing. The court concluded that,

because the defense was not raised at the hearing, the State did not

preserve the defense in the post-conviction court, and the court could not

entertain it.

We agree that the State was not entitled to affirmance on the basis of

waiver, but conclude that the Court of Appeals was not barred from finding

that Bunch had waived his sentencing issues. The term “waiver” has been

applied to several different concepts. Here, we need to distinguish

between waiver as an affirmative defense and a discretionary judicial

doctrine that forecloses an issue on appeal. We think the latter is more

properly described as “procedural default” or “forfeiture,” but we

acknowledge that it is often referred to as “waiver.” Indiana Trial Rule

8(C) requires parties to plead some affirmative defenses, including

“waiver,” or forfeit them.[8] It also places the burden of proof at trial

on the party required to plead the matter as an affirmative defense. In

contrast to the “waiver” governed by Rule 8(C), there is also a doctrine of

judicial administration whereby appellate courts may sua sponte find an

issue foreclosed under a variety of circumstances in which a party has

failed to take the necessary steps to preserve the issue. See e.g., West

v. State, 755 N.E.2d 173, 184 (Ind. 2001) (where the defendant fails to

make an offer to prove); Flowers v. State, 738 N.E.2d 1051, 1061 (Ind.

2000) (where defendant fails to object to trial judge’s comments);

Trueblood v. State, 715 N.E.2d 1242, 1248 (Ind. 1999) (in post-conviction

proceedings where claims are available on direct appeal but are not

presented to the court); Kindred v. State, 540 N.E.2d 1161, 1176 (Ind.

1989) (where defendant rejected the trial court’s offer to admonish the

jury). This case deals with the procedural default variety of waiver,

which arises solely by reason of failure to raise the issue on direct

appeal. There is no claim of consensual action, stipulation that

eliminated the issue, or some other form of “waiver” that requires proof of

the actions taken by a party that operate to bar it from asserting a claim.

A. Waiver as an Affirmative Defense

We agree with the Court of Appeals that the affirmative defense of

waiver must be raised at the post-conviction hearing to be properly

preserved for appeal. The Court of Appeals relied principally on Langley,

256 Ind. at 199, 267 N.E.2d at 538, for its conclusion that waiver must be

raised at the post-conviction hearing to be properly preserved. Langley

held that the State must raise the issue at the hearing: “[I]t would seem

that the state is precluded from asserting waiver on appeal where they made

no mention concerning it at the hearing.” Id. at 207 n.2, 267 N.E.2d at

543 n.2. Although the State was the appellee, the court considered the

issue precluded “on the same basis that an appellant is normally denied the

right to raise an issue for the first time on appeal.” Id. Langley also

declared, “Where, however, the state, as it did in this case, chooses to

meet a petitioner’s allegations on their merits at the hearing, we must do

likewise on appeal.” Id. at 207, 267 N.E.2d at 542-43. Relying on

Langley, the Court of Appeals in this case concluded that the “key factor

in preserving waiver for appeal is that the issue be argued to the post-

conviction court.” Bunch, 760 N.E.2d at 1167. Similarly, Mickens v.

State, 596 N.E.2d 1379, 1381 (Ind. 1992), interpreted Langley to require

that the waiver defense be “presented” by the State to the post-conviction

court before that court can find waiver. See also State v. Eubanks, 729

N.E.2d 201, 205 (Ind. Ct. App. 2000), trans. denied (State must “argue”

waiver as a defense to the post-conviction court or the defense is waived);

Nelson v. Gurley, 673 N.E.2d 497, 500 n.3 (Ind. Ct. App. 1996) (Waiver

“must be specifically pleaded in the answer or specifically raised at trial

or it is waived.”).

Langley involved two consolidated cases in which post-conviction

relief had been denied. The rules governing post-conviction relief were

adopted in 1969 and the current Trial Rules became effective in 1970.

Langley was decided by this Court in March 1971. It is not clear whether

the Court regarded the Trial Rules as applicable to the post-conviction

proceedings before it. In any event, it is now clear that the Trial Rules

apply to post-conviction relief proceedings. Ind. Post-Conviction Rule

1(5) (“All rules and statutes applicable in civil proceedings including pre-

trial and discovery procedures are available to the parties, except [in

cases involving a change of judge request].”); State v. Drysdale, 677

N.E.2d 593, 595 (Ind. Ct. App. 1997), trans. denied (“Post-conviction

proceedings are governed by the rules and statutes applicable to civil

proceedings and the petitioner has the burden of proving his claims by a

preponderance of the evidence.”).

Under current Trial Rule 8(C), the State must raise the issue in its

pleading and carry its burden of proof at trial in order to prevail on an

affirmative defense. See Troxel v. Troxel, 737 N.E.2d 745, 749 (Ind.

2002). Failure to plead the defense waives it. Having pleaded the

defense, as the State did here, it remained the State’s burden to establish

the necessary facts to support the defense.

Here, at the post-conviction hearing, although the State did not

abandon the defense, it took no steps to call it to the post-conviction

court’s attention. More importantly, the State did not present the facts

necessary to establish this defense either by evidence or by requesting

judicial notice of the issues presented in Bunch’s direct appeal. These

facts were readily available to the State. Simply offering into evidence

Bunch’s appellate brief would establish that the sentencing issue was not

raised on direct appeal. As a result of this omission, the State failed to

establish the facts necessary to carry its burden of proof on this defense.

The State therefore is not entitled as a matter of right to a ruling that

Bunch has waived his claim of sentencing error.

B. Waiver by Procedural Default

Although the State failed to establish an affirmative defense, a court

on appeal may nevertheless find that the sentencing issue presented in a

second post-conviction petition was forfeited by means of procedural

default. More generally, although a party who has failed to plead or prove

a Rule 8(C) affirmative defense has no right to prevail on that basis, the

party may nevertheless suggest to the court that procedural default of an

issue is an appropriate basis to affirm the judgment below. To the extent

Langley and its progeny suggest otherwise, they are overruled. As noted

above, an appellate court is not precluded from determining that an issue

is foreclosed under a wide variety of circumstances. Post-conviction

procedures provide defendants the opportunity to raise issues that were not

known at the time of the original trial or were not available to defendants

on direct appeal. Lowery v. State, 640 N.E.2d 1031, 1036 (Ind. 1994). It

has long been held that claims available on direct appeal but not presented

are not available for post-conviction review. Trueblood, 715 N.E.2d at

1248; Conner v. State, 711 N.E.2d 1238, 1246 (Ind. 1999); Rouster, 705

N.E.2d at 1003; Lowery, 640 N.E.2d at 1036. These are applications of the

basic principle that post-conviction proceedings do not afford the

opportunity for a super-appeal. Wrinkles v. State, 749 N.E.2d 1179, 1187

(Ind. 2001).

Here it is clear that Bunch seeks to raise an issue that was available

on direct appeal. The parties’ briefs on direct appeal and in the first

post-conviction relief appeal are matters of public record subject to

judicial notice. See, e.g., Willner v. State, 602 N.E.2d 507, 509 (Ind.

1992); Roeschlein v. Thomas, 258 Ind. 16, 20, 280 N.E.2d 581, 584 (1972).

Our review of Bunch’s brief reveals that Bunch did not raise the

aggravating and mitigating sentencing issue on direct appeal. Because the

“waiver” the State asserts is of the procedural default variety, it may be

raised by an appellate court sua sponte. We conclude that Bunch, by

failing to present this claim on direct appeal, is foreclosed from raising

it in the post-conviction proceeding.

For the first time in his second post-conviction relief appeal, Bunch

contends in his appellate reply brief that “the errors committed by the

trial court as a result of the consideration of improper aggravating

factors constituted fundamental error, and therefore, can not be waived.”

Fundamental error is a doctrine that prevents review of an issue on appeal

despite failure to raise it in the trial court. It does not permit

relitigation of issues that were available on direct appeal. Rather, as we

held in Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002): “In post-

conviction proceedings, complaints that something went awry at trial are

generally cognizable only when they show deprivation of the right to

effective counsel or issues demonstrably unavailable at the time of trial

or direct appeal.”

Finally, Bunch contends for the first time in his reply brief on

appeal in this second post-conviction proceeding that his failure to raise

the trial court’s sentencing errors was the result of ineffective

assistance of counsel. Among the claims Bunch seeks to assert, this is the

only one that is available in post-conviction proceedings. However, it was

waived in this appeal by Bunch’s failure to present it in his appellate

brief.

Conclusion

We affirm the Court of Appeals’ conclusion that the State failed to

preserve the defense of waiver by not establishing the facts relevant to

the defense at the post-conviction relief hearing. We conclude, however,

that an appellate court is free to find the issue foreclosed for failure to

present it on direct appeal. We find the issue foreclosed and therefore

affirm the trial court’s denial of post-conviction relief. Pursuant to

Indiana Appellate Rule 58(A)(2), we summarily affirm all other issues.

SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.

-----------------------

[1] On direct appeal, Bunch argued: (1) a statement given by Bunch was

pursuant to a custodial interrogation that required he be advised of his

Miranda rights; (2) the trial court erred by permitting the State to

question Bunch about his use and possession of marijuana although he had

never been charged or convicted of those activities; and (3) the trial

court erred by permitting the State to prepare four bags of a white powdery

substance as demonstrative evidence.

[2] In his first post-conviction relief appeal, Bunch contended: (1) he

was not sufficiently advised of the accusations against him because the

charging information failed to name the person to whom he intended to

deliver the cocaine; and (2) his Fifth Amendment rights were violated when

he was sentenced twice for the same set of facts.

[3] Bunch also raised the issue of ineffective assistance of trial,

appellate, and post-conviction counsel in his petition to the trial court.

He raised this issue for the first time in his reply appellate brief.

Relying on Ross v. State, 429 N.E.2d 942, 945 (Ind. 1982), the Court of

Appeals found Bunch had waived this issue by not raising it in his

principal brief. Bunch v. State, 760 N.E.2d 1163, 1167 n.3 (Ind. Ct. App.

2002). We summarily affirm this issue. Ind. Appellate Rule 58(A)(2).

[4] The State did not raise either res judicata or laches on appeal, and we

do not address these issues.

[5] Bunch had been charged with reckless homicide based on a death from

overdosing on Bunch’s drugs, but he was acquitted of that count. Bunch

challenged the trial court’s consideration of the victim’s death (a charge

of which he was acquitted), his prior criminal history, his need of

correctional rehabilitation, and the depreciation of the seriousness of the

crime by imposing a lesser sentence.

[6] The Court of Appeals ultimately held that although the sentencing court

improperly considered two aggravators when it enhanced Bunch’s sentence, it

properly considered three aggravators and did not err in failing to find

Bunch’s proffered mitigators. Bunch, 760 N.E.2d at 1170-71.

[7] Without giving citations to the record, the State contends that the

sentencing issues were known at the time of Bunch’s direct appeal and

original post-conviction proceeding because they were “based on the face of

the record of proceedings.”

[8] Trial Rule 8(C) provides in pertinent part, “A responsive pleading

shall set forth affirmatively and carry the burden of proving: . . . waiver

. . . . A party required to affirmatively plead any matters, including

matters formerly required to be pleaded affirmatively by reply, shall have

the burden of proving such matters.”