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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: THEODORE J. MINCH Sovich Minch, LLP McCordsville, Indiana

FILED
Dec 31 2009, 9:56 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JERRY TURNER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No.49A02-0908-PC-770

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Sheila A. Carlisle, Judge The Honorable Stanley E. Kroh, Master Commissioner Cause Nos. 49G03-0508-FB-138822 49G03-0508-PC-138822

December 31, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge

Jerry Turner appeals the post-conviction court`s denial of his petition for post conviction relief. Turner raises one issue, which we revise and restate as whether the post-conviction court erred in determining that Turner waived his argument regarding his habitual offender charge. 1 We affirm. The relevant facts as discussed in Turner`s direct appeal are as follows:
Turner also argues that the trial court erred in determining that Turner`s claim in his original petition for ineffective assistance of counsel, which Turner withdrew from the petition before final disposition, was withdrawn with prejudice. Turner states that he withdrew his claim for ineffective assistance of counsel because the Public Defender, Tim Miller, could not be located. Turner then argues that because [t]he unavailability of [Public Defender Miller] was through no fault of Turner, and that Turner exercised the requisite due diligence to attempt to locate and bring [Miller] into court to testify with regard to Turner`s allegations of ineffectiveness of counsel, he should have the opportunity to subsequently pursue his ineffective assistance of counsel claim. Appellant`s Brief at 6.
1

As the State points out in its brief, it is this Court, and not the post -conviction court, that has the ability to authorize successive petitions. State`s Brief at 7. We observe that the Indiana Rules of PostConviction Remedies make clear that: All grounds for relief available to a petitioner under this rule must be raised in his original petition. Any ground finally adjudicated on the merits or not so raised and knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the petitioner has taken to secure relief, may not be the basis for a subsequent petition, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original petition. Ind. Post-Conviction Rule 1(8); see also Neeley v. State, 269 Ind. 588, 591, 382 N.E.2d 714, 716 (1978), overruled on other grounds by German v. State, 428 N.E.2d 234, 237 (Ind. 1981)) (noting that the policy behind the Post-Conviction Rules is for a petitioner to present all of his claims in one petition to avoid a multiplicity of post-conviction petitions). Under Ind. Post-Conviction Rule 1(12), a defendant may request a second, or successive, Petition for Post-Conviction Relief by completing a properly and legibly completed Successive PostConviction Relief Rule 1 Petition Form in substantial compliance with the form appended to this Rule. Ind. Post-Conviction Rule 1(12)(a). That form is to be sent to the Clerk of the Indiana Supreme Court, Indiana Court of Appeals, and Tax Court. Id. This court will authorize the filing of a second or successive petition if the petitioner establishes a reasonable possibility that the petitioner is entitled to post-conviction relief. Ind. Post-Conviction Rule 1(12)(b). Here, Turner has not followed the Ind. Post-Conviction Rule 1(12) procedures, and therefore we need not address whether Turner should be allowed to bring a second petition on his potential ineffective assistance claim.

2

At approximately 1:00 a.m. on February 24, 2000, Arnold Curry, Jr. was visiting with relatives at his aunt`s home in Indianapolis. After leaving the residence, Curry got into his car and made a call on his cellular phone. Just then, Marlon Coleman and Prentis Shelton approached Curry on foot, demanded that he hand over all his money and jewelry, and climbed into the car after brandishing a revolver and a shotgun. As Coleman drove Curry`s car away from the scene, with Shelton holding a gun to Curry`s head, a white Grand Am followed them and pulled alongside as the two cars stopped on a nearby side street. Turner, who was a passenger in the Grand Am, conversed briefly with Coleman and Shelton and then followed them to a nearby location. Coleman and Shelton ordered Curry out of the car and began, along with Turner, to kick and beat Curry, as he lay helpless on the ground. The men then stripped Curry to his underwear, duct-taped his hands behind his back, and shoved him into t he trunk of Curry`s car. Curry`s cousin witnessed the abduction and phoned police, who soon thereafter stopped both vehicles and rescued Curry from the trunk. Turner fled the scene on foot and managed to elude capture. However, police arrested him at a gas station a few days later after Curry identified Turner from a photo lineup. Turner v. State, 755 N.E.2d 194, 197 (Ind. Ct. App. 2001), trans. denied. On February 28, 2000, the State charged Turner with: Count I, kidnapping as a class A felony; Count II, robbery as a class B felony; and Count III, criminal confinement as a class B felony. On May 5, 2000, the State filed a Motion to Extend the Omnibus Date. The trial court granted the State`s motion, and it exte nded the omnibus date, which had been originally set for April 20, 2000, until the date of the final pretrial conference. A pretrial conference was held on June 14, 2000, but on June 19, 2000, the matter was continued due to congested Court Calendar. Appellant`s Appendix at 11. On June 21, 2000, the State filed a Motion to Add Count adding a count of habitual offender, which the trial court granted. The habitual offender count alleged in pertinent part:

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[T]hat on or about February 24, 2000, Jerry Turner had accumulated two prior unrelated felony convictions in violation of I.C. 35-50-2-8, specifically: on or about November 6, 1995, in Warren County Circuit Court, Commonwealth of Kentucky, Jerry Turner was convicted of Possession of a Controlled Substance, and on or about August 19, 1997, in Marion County Superior Court Criminal Division 18, Jerry Turner was convicted of Possession of Cocaine or Narcotic Drug. Appellant`s Appendix at 26 n.1. The final pretrial conference was then held on August 9, 2000. A jury trial was held on October 16 and 17, 2000, and the jury found Turner guilty on Counts I-III. On October 17, 2000, Turner pled guilty to the habitual offender count. On November 15, 2000, the trial court sentenced Turner to twenty years for Count I, kidnapping as a class A felony, and enhanced the sentence by thirty years for the habitual offender charge, for a total sentence of fifty years executed in the Department of Correction. The trial court vacated Counts II and III under the theory that they were part of the same course of conduct as count I. Id. at 26. Turner brought a direct appeal and presented three issues for review: (1) whether the State presented sufficient evidence to support his kidnapping conviction; (2) whether the trial court`s jury instruction on accomplic e liability constituted fundamental error; and (3) whether the trial court erred when it imposed $125 in costs and a $1,000 public defender reimbursement fee. Turner, 755 N.E.2d at 196-197. This court affirmed the trial court on the first two issues and reversed and remanded on the costs and fees issue. Id. at 201.

4

On April 16, 2002, Turner filed pro se a petition for post-conviction relief. On May 1, 2002, the State Public Defender filed an appearance on Turner`s behalf. On May 22, 2003, the public defender filed a withdrawal of appearance, which was granted on June 12, 2003. On October 29, 2003, the trial court granted Turner`s motion to withdraw his petition without prejudice. In December of 2003, Turner again filed pro se a petition for post-conviction relief and requested representation. 2 The Public Defender filed notices of non-representation on January 26 and 29, 2004. On June 12, 2006, Turner, by private counsel, filed a verified amended petition for post-conviction relief and made the following claims: A) ineffective assistance of trial counsel; B) violation of speedy trial right; C) improper habitual offender enhancement; D) Brady violations by the State; and E) unreasonable sentence. The State answered Turner`s amended petition on July 14, 2006, denying the material allegations and asserting affirmative defenses of waiver and res judicata. Appellant`s Appendix at 27. A hearing on Turner`s petition was continued several times while Turner a ttempted to locate the Public Defender who represented him at his jury trial, Tim Miller. On October 28, 2008, the post-conviction court held a post-conviction hearing. At the hearing, Turner withdrew issues A, B, D, and E from the petition and proceeded exclusively on issue C alleging an improper habitual offender enhancement. On

February 24, 2009, both Turner and the State filed Proposed Findings of Fact and
This filing was noted by the post-conviction court in its Findings of Fact and Conclusions of Law; it is not reflected in the chronological case summary, however.
2

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Conclusions of Law. On March 19, 2009, the post-conviction court issued Findings of Fact and Conclusions of Law and denied Turner`s petit ion. The post-conviction court found that the allegations contained in parts A, B, D, and E, which had been withdrawn by Turner, were withdrawn with prejudice. The court also found that [d]uring the plea hearing to the habitual phase, following the jur y`s verdict, the record indicate[d] that the parties and the court all agreed that the omnibus date had been extended to August 9, 2000. Id. at 28. The court found that the reason for extending the omnibus date was to provide an extension . . . to allo w the parties to engage in plea negotiations which will determine whether the habitual offender enhancement may be filed. Id. Finally, the post-conviction court found that the record from the guilty plea hearing contained the following colloquies: THE COURT: All right. Do you understand if there were a trial on the habitual offender information you would`ve had the right to appeal your conviction as being an habitual offender, and if you are indigent your appeal would`ve been at public expense? TURNER: Yes. THE COURT: Like I told you before, you are not waiving your right to appeal the decision of the jury on Counts One, Two, and Three, just the habitual offender, do you understand that? MR. TURNER: Yes. ***** THE COURT: Understanding all your legal rights and the questions I`ve asked you, do you still wish to plead guilty to being an habitual offender? TURNER: Yes. THE COURT: Have you had sufficient time to talk to Mr. Miller about this? TURNER: Yes. 6

***** THE COURT: Now, Mr. Turner, you`ve heard the factual basis as read by the Deputy Prosecutor, are these things true? TURNER: Yes. Id. at 28-29 (internal citations omitted). 3 The post-conviction court then entered Conclusions of Law on Turner`s claim for an improper habitual offender enhancement. First, the court concluded that [w]hen Turner entered a plea of guilty to the habitual offender charge, he gave up the right to challenge said charge as untimely filed or as improperly charged. Id. at 30. The court, citing the colloquies listed in its Findings of Fact, concluded that: The court conducted a thorough guilty plea hearing regarding the habitual count . . . . When a defendant pleads guilty he [] cannot question pre-trial orders after a guilty plea is entered. [Cornelious] v. State, 846 N.E.2d 354, 357 (Ind. Ct. App. 2006), trans. denied (citing Branham v. State, 813 N.E.2d 809, 811 ([Ind. Ct. App. 2004])). Issues related to the trial court`s extension of the omnibus date or the trial court`s finding that the habitual charge was filed timely was waived by Turner when he pled guilty to that charge. Id. at 30 (footnote omitted). The post-conviction court also concluded that even though Turner did not plead guilty under a plea agreement, the court did consider Turner`s admission of guilt in [Turner`s] favor. Id. at 31. The post-conviction court noted that the trial court listed Turner`s guilty plea as a mitigating factor, and it noted that Turner received the minimum sentence of 20 years on the underlying A felony kidnapping conviction, where he could have received 50 years on that A felony alone. Id. The post3

The record does not include a copy of the transcript from the guilty plea hearing.

7

conviction court concluded that Turner received a more favorable outcome than he could have, had he not chosen to plead guilty to the habitual offender count. By doing so, he relinquished the right to later challenge the propriety of the habitual offender sentence. See Mills[ v. State], 868 N.E.2d [446, 453 (Ind. 2007)]. Id. Next, the post-conviction court concluded that [e]ven if the merits of Turner`s claim were properly before this Court, said claim would nonetheless fail. The facts show that the habitual offender charge in Turner`s case was both timely -filed and legally sound. Id. at 31. First, on the issue of timing, the court concluded that in lieu of the fact that the omnibus date had been extended to August 9, 2000, the State filed the habitual offender information on June 21, 2000

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