Attorneys for Appellant Attorneys for
Appellee
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General
of Indiana
Joanna McFadden Stephen R. Creason
Deputy Public Defender Deputy Attorney
General
Indianapolis, Indiana Indianapolis,
Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 02S00-0304-PD-00143
Joseph E. Corcoran,
Appellant (Plaintiff below),
v.
State of Indiana,
Appellee (Defendant below).
_________________________________
Appeal from the Allen Superior Court, No. 02D04-9707-CF-465
The Honorable Frances C. Gull, Judge
_________________________________
On Petition for Rehearing
_________________________________
May 12, 2005
Sullivan, Justice.
Joseph E. Corcoran filed a Petition for Rehearing on February 10,
2005, asking us to reconsider our decision of January 11, 2005.[1] In that
decision, we had affirmed the post-conviction court’s determination that
Corcoran was competent to waive collateral review of convictions for four
murders and sentence of death. Corcoran v. State, 820 N.E.2d 655, 662
(Ind. 2005).
Some background is helpful in understanding the present posture of
this unusual case. A person whose Indiana death sentence is affirmed on
direct appeal is entitled to seek collateral review—called “post-conviction
relief”—under rules (including time deadlines) promulgated by this Court.
See Ind. Crim. Rule 24(H); Post-Conviction Rule 1. When the time came for
Corcoran to seek post-conviction relief, he declined the opportunity,
indicating that he believed he should be put to death for his crimes. He
waived any further legal review of his convictions and sentence.
When that happened, the State Public Defender took the position that
Corcoran was not competent to make that decision. The post-conviction court
considered that proposition but found Corcoran to be competent. The State
Public Defender appealed that determination. While the Public Defender’s
appeal was pending before us, Corcoran recanted his waiver of further
review and sought dismissal of the appeal so that he could seek collateral
review after all. We denied Corcoran’s request for dismissal of the
appeal, Corcoran, 820 N.E.2d at 658, and we affirmed the post-conviction
court’s ruling that Corcoran was competent. Id. at 662.
In the Petition for Rehearing, Corcoran makes two broad claims.
First, he contends that in denying his request that his appeal be dismissed
so that he could seek collateral relief in the post-conviction court, we
violated his federal and state constitutional rights to due process, to
equal protection, to open access to courts, and to be free from cruel and
unusual punishment. Second, he argues that we were incorrect to affirm the
post-conviction court’s finding that he was competent.
As to the second of these claims, Corcoran asks that we revisit
territory that we covered with care in our original decision. We have
given due consideration to his request but find no basis to alter our
original analysis or conclusion.
We do find, however, grounds to address his first claim concerning
our denial of his request that his appeal be dismissed so that he could
seek collateral relief in the post-conviction court. We grant rehearing
for that purpose.
In our opinion rejecting Corcoran’s request to dismiss his appeal and
remand the case to the post-conviction court for further proceedings, we
said that “petitions for post-conviction relief in capital cases must be
filed within 30 days following completion of rehearing.” Corcoran, 820
N.E.2d at 658 (footnote omitted). Corcoran accurately points out that this
statement misstates the requirements of Indiana Criminal Rule 24(H).
Rather than directing that “petitions for post-conviction relief in capital
cases must be filed within 30 days following completion of rehearing” as we
said in the opinion, Indiana Criminal Rule 24(H) (which was correctly
quoted elsewhere in our opinion) requires counsel for a petitioner for post-
conviction relief in a capital case to file an appearance within 30 days
following the completion of rehearing (Corcoran’s lawyers met this
requirement) and then requires the petitioner to file the petition itself
by the date set forth in a case management schedule submitted to the trial
court and approved by this Court.
This mistake does not affect our analysis or conclusion, however. In
Corcoran’s case, the post-conviction court established a case management
schedule requiring Corcoran to file a petition for post-conviction relief
on or before September 9, 2003. We approved this schedule by Order dated
May 30, 2003. As discussed in our prior opinion, Corcoran refused to sign
a petition; the State Public Defender filed a petition for post-conviction
relief on September 9, 2003, unsigned by Corcoran; and the post-conviction
court properly refused to allow the petition because it was unsigned. Our
opinion correctly stated the fact that Corcoran had failed to file a
petition for post-conviction relief by the deadline set by rule; we were
incorrect only in describing the deadline.
As we noted in our original opinion, it is a matter first for the post-
conviction court to rule on whether any particular petition for post-
conviction relief is timely, i.e., filed within the deadline set by the
case management order and any appropriate extension. We did not—and do
not—direct the post-conviction court here to dismiss any petition that
Corcoran may have already filed or file in the future. But we do think
that that is the likely result, a result likely to be affirmed on appeal.
If a new petition for post-conviction relief is time-barred, the
ability of Corcoran to obtain post-conviction review of his convictions or
sentence was dependent upon the resolution of the competency issue. We
continue to believe that it was in the best interest of the orderly
processing of this litigation for this Court to complete review of that
issue and that we were correct to deny Corcoran’s motion to dismiss the
appeal.
If Corcoran’s new petition for post-conviction relief is held to be
time-barred, he will not be denied his constitutional rights to due
process, to equal protection, to open access to courts, or to be free from
cruel and unusual punishment.
Corcoran’s due process argument is that by requiring a petition for
post-conviction relief to be filed by the date set forth in the case
management schedule, we applied a new rule to him in contravention of
constitutionally-mandated due process and due course of law requirements.
He maintains that “it was unclear that failing to file a signed post-
conviction petition by September 9, 2003 would mean Corcoran’s certain
execution.” Pet. for Reh’g. at 4. He also says that “historically Indiana
has not treated similarly situated death row inmates in this manner.” Id.
We do not believe this contention requires extended treatment. There
is nothing new about our holding that a person who seeks post-conviction
relief in a capital case must file a signed petition by the date set forth
in the case management schedule. This has been the rule in our state for
approximately 15 years. Ind. Crim. Rule 24(H) (1990). Counsel’s action in
this case—filing the unsigned petition on the date set forth in the case
management schedule—indicates that they were well aware of the requirement.
And it goes without saying that the failure to file did not “mean
Corcoran’s certain execution”; he continues to have federal and certain
state collateral review opportunities.
Nor is it the case that we have treated persons sentenced to death
differently in the past. Corcoran’s only example is a citation to an order
this Court entered on the eve of Robert Smith’s execution that provided
that any last-minute filings be made in this Court (rather than a trial
court) so as to permit expedited consideration. See Smith v. State, No.
77S00-9508-DP-00950 (Ind. filed Jan. 27, 1998) (order directing the Clerk
of the Supreme Court to transfer and accept certain filings). No inference
can reasonably be drawn from the Smith order that Smith would have been
entitled to a review on the merits had he filed a petition for post-
conviction relief.
Corcoran next asks this Court to hold that when a person sentenced to
death first waives the right to appeal and then retracts the waiver, the
retraction be treated as “the final word” and the proceedings be
reinstated. He suggests that such reinstatement is required by the
prohibitions on cruel and unusual punishment in the federal and state
constitutions. U.S. Const. amend. VIII; Ind. Const. art. I, § 16.
Corcoran directs our attention to three courts that have held that
“retraction be treated as the final word.” See St. Pierre v. Cowan, 217
F.3d 939 (7th Cir. 2000); Smith v. Armontrout, 888 F.2d 530, 543 (8th Cir.
1989); Commonwealth v. Saranchak, 810 A.2d 1197 (Pa. 2002).[2] We respect
the reasoning of these courts but observe that none of them found their
holdings compelled by the Eighth Amendment or a state counterpart. Rather,
each court found policy justifications for permitting the appellant’s
proceedings to be reinstated.
In our earlier opinion, the procedural posture of Corcoran's case
prompted us to conduct essentially the same policy analysis. That is,
because Corcoran sought to file an apparently untimely petition for post-
conviction relief, we examined whether we should extend to individuals
sentenced to death automatic post-conviction review (in addition to
automatic review on direct appeal). Corcoran, 820 N.E.2d at 663. For the
reasons set forth at some length in that opinion, we declined to extend
automatic post-conviction review to capital litigants who do not seek such
review within the time limits imposed upon them by the Indiana Rules of
Criminal Procedure. “[A]t the post-conviction stage, the interest in
achieving finality outweighs the benefits of mandating further review.”
Id. at 664. Although couched as compelled by the constitutional
prohibitions on cruel and unusual punishment, we find Corcoran’s request
for a “retraction as the final word” rule to constitute a request that we
reverse this conclusion. We adhere to our original position.
Corcoran’s final constitutional claim is that imposing a filing
deadline on persons sentenced to death when there is no counterpart
deadline for persons with lesser sentences violates the Equal Protection
Clause of the United States Constitution and the Equal Privileges and
Immunities Clause of the Indiana Constitution. U.S. Const. amend XIV; Ind.
Const. art I, § 23. As with the due process claims, this argument does not
require extended treatment. Corcoran does not point us to any authority
that the federal or state constitutions require that a state have identical
procedures for the collateral review of the convictions and sentences of
capital and non-capital litigants, and we are aware of none. We believe
that having a separate set of procedural requirements for the collateral
review of the convictions and sentences of capital and non-capital
litigants easily meets the rational basis and reasonableness requirements
necessary to pass federal Equal Protection Clause and state Equal
Privileges and Immunities Clause muster. See Jeffers v. Lewis, 38 F.3d
411, 419 (9th Cir. 1994) (applying a rational basis test for Arizona
statute treating capital and non-capital sentencing differently), overruled
on other grounds, Ring v. Arizona, 536 U.S. 584 (2002) ; Ben-Yisrayl v.
State, 753 N.E.2d 649, 656 (Ind. 2001) (noting that the differential
statutory treatment of capital and non-capital jury selection procedures
was reasonably related to inherent characteristics that distinguish the
unequally treated class). In fact, many of the procedures required by
Indiana Criminal Rule 24 (which applies only to death penalty cases) inure
to the benefit of capital litigants. See Norman Lefstein, Reform of
Defense Representation in Capital Cases: The Indiana Experience and Its
Implications for the Nation, 29 Ind. L. Rev. 495 (1996) (discussing the
role of Indiana Criminal Rule 24 in improving the quality of representation
in death penalty cases).
Conclusion
Having granted Corcoran’s Petition for Rehearing, we nevertheless
affirm the judgment of our opinion of January 11, 2005.
Accordingly, we find that Joseph Corcoran has received the review to
which he is entitled as a matter of right in Indiana state court. Pursuant
to Indiana Criminal Rule 24(H) and Indiana Code § 35-50-2-9, we will set a
date for execution of Corcoran’s sentence by separate order.
Shepard, C.J., and Dickson and Boehm, JJ., concur. Rucker, J., dissents
with separate opinion.
Rucker, Justice, dissenting.
For reasons previously expressed, I respectfully dissent from that
portion of the majority’s opinion denying Corcoran’s petition for rehearing
on the question of his competency. See Corcoran v. State, 820 N.E.2d 655,
665 (Ind. 2005) (Rucker, J., dissenting). I also respectfully dissent from
the remainder of the majority’s opinion because it essentially forecloses
any chance that Corcoran may obtain post-conviction review of his
conviction and sentence. The majority correctly characterizes this case as
“unusual.” Slip op. at 2. Precisely for that reason, and because
“execution is the most irremediable and unfathomable of penalties,” Ford v.
Wainwright, 477 U.S. 399, 411 (1986), I would allow Corcoran the
opportunity to pursue collateral review of his claims.
-----------------------
[1] On April 7, 2005, Corcoran’s lawyers advised us that Corcoran had filed
a petition for post-conviction relief in the Allen Superior Court in
February; that Corcoran had subsequently notified them “of his present
desire to withdraw that [p]etition”; and that “Corcoran has not expressed a
desire” to withdraw the petition for rehearing to which this opinion
responds.
[2] Corcoran’s situation differs somewhat from those in St. Pierre, Smith,
and Saranchak. In each of those cases, the appellant had initially filed
apparently timely petitions for collateral review, subsequently asked that
the proceedings be dismissed, and then asked that they be reinstated.
Unlike Corcoran, none of these appellants failed to file their initial
petitions for collateral review by the deadlines established by applicable,
statute, rule, or order. Cf. Johnson v. McBride, 381 F.3d 587 (7th Cir.
2004) (affirming dismissal of petition for habeas corpus filed one day
after the statutory deadline in death penalty case), cert. denied 73
U.S.L.W. 3555 (March 21, 2005).