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ATTORNEYS FOR APPELLANT Susan K. Carpenter Public Defender of Indiana Liisi Brien Deputy Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Steve Carter Attorney General of Indiana Daniel Jason Kopp Deputy Attorney General Indianapolis, Indiana

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In the

Indiana Supreme Court
_________________________________ No. 49S04-0502-PC-57 WILLIAM LACEY, Appellant (Petitioner below), v. STATE OF INDIANA, Appellee (Respondent below). _________________________________ Appeal from the Marion County Superior Court, No. 49G04-9710-CF-135067 The Honorable Nancy Broyles, Master Commissioner The Honorable Patricia J. Gifford, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-0406-PC-317 _________________________________ June 23, 2005 Sullivan, Justice.

Petitioner William Lacey was convicted in March, 1998, of the robbery of a Kroger grocery store and carrying a handgun without a license. The parties agree that the evidence at trial indicated that the man who robbed the store wore a baseball hat and that the police found the hat on the ground outside the store following the robbery. In June, 1999, Lacey filed a pro se petition for post-conviction relief. In August, now represented by counsel, Lacey asked the court for

permission to perform a DNA test on the hat. Following a hearing, the post-conviction court denied the request. Lacey then sought to take an interlocutory appeal of this determination, but that request was also denied. At this point, Lacey (by counsel) amended his pro se petition for postconviction relief to add a claim that the post-conviction court had improperly denied his motion for DNA testing. The post-conviction court subsequently denied the petition (including the DNA testing claim) and the Court of Appeals affirmed. Lacey v. State, No. 49A04-0406-PC-317, 819 N.E.2d 910 (Ind. Ct. App. 2004) (mem.). Lacey sought, and we granted, transfer. No. 49S040502-PC-57, 2005 Ind. LEXIS 145 (Ind. Feb. 18, 2005).

On the date this matter was set for oral argument in our Court, the State, for the first time, asserted that the post-conviction court had not had subject matter jurisdiction to consider the DNA testing request. We deny the State's motion for dismissal. In brief, the State's argument is that Lacey's August, 1999, request for DNA testing itself constituted a petition for postconviction relief separate and apart from the petition that Lacey already had on file. 1 As such, the State contends that the DNA testing request was a "successive" petition for post-conviction relief for which appellate court authorization was required for it to be considered by the postconviction court. 2 It is clear that Lacey sought the DNA testing in order to prosecute his thenpending petition for post-conviction relief, and he did so without implicating our rule on successive petitions. It would be a different matter if he had already litigated one petition to conclusion. But here his request was simply part of discovery in a proceeding in fieri. He was entitled to file it without appellate court authorization.

For somewhat similar reasons, we conclude that the post-conviction court was wrong to deny Lacey's request. Lacey was entitled to employ reasonable means in order to obtain evidence in support of his petition. It is our understanding from the record that he simply sought to

1

Indiana Post-Conviction Rule 1(1)(d) provides: A petition filed by a person who has been convicted or sentenced for a crime by a court of this state that seeks to require forensic DNA testing or analysis of any evidence, whether denominated as a petition filed pursuant to Ind. Code

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Indiana Law