ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN PINNOW STEVE CARTER
Greenwood, Indiana Attorney General of
Indiana
CHRISTOPHER LAFUSE
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
RICHARD ANNES, )
)
Appellant (Defendant below), ) 49S04-0303-PC-100
) in the Supreme Court
v. )
) 49A04-0109-PC-410
STATE OF INDIANA, ) in the Court of Appeals
)
Appellee (Plaintiff below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable W.T. Robinette, Master Commissioner
Cause No. CR72-7350
June 10, 2003
SHEPARD, Chief Justice.
Appellant Richard Annes has contended in this post-conviction case
that he is entitled to re-litigate a claim already decided against him in a
previous proceeding because previous judgments are not res judicata unless
they were rendered by an appellate court. He is wrong. Trial court
judgments are entitled to equal force.
Annes pled guilty to a drug offense in 1972 and received probation.
About a decade later, after being adjudicated an habitual offender, he set
about trying to vacate the previous convictions. During a post-conviction
proceeding in 2000, he argued that his 1972 plea was not voluntary and
intelligent because the court had not advised him of all his Boykin rights.
His petition was denied, and he did not appeal.
In 2001, Annes filed a successive petition for post-conviction
relief, asserting the same claim that he had raised during the case of the
previous year. The trial court denied the petition, and Annes appealed.
The State continued to argue the defenses of res judicata and laches. The
Court of Appeals held that res judicata did not apply because the issue
litigated earlier “has never been considered by an appellate court.” Annes
v. State, 767 N.E.2d 1051 (Ind. Ct. App. 2002). It also observed that it
thought Annes had received ineffective assistance of counsel during the
first post-conviction proceeding, though Annes had not made such a
claim.[1] We grant transfer.
First, the “doctrine of res judicata bars later suit when earlier
suit resulted in final judgment on merits, was based on proper
jurisdiction, and involved the same cause of action and same parties or
privies as the later suit.” Indiana Dept. of Environmental Management v.
Conard, 614 N.E.2d 916, 923 (Ind. 1993). That the trial court’s judgment
was not appealed is of no moment.
Second, inasmuch as Annes did not plead or argue ineffective
assistance of his earlier post-conviction counsel, the issue was not before
the trial court or the Court of Appeals in the present case, and thus the
State did not have the chance to argue its position before the Court of
Appeals ruled.
The real question in this case is whether Annes has established any
recognized grounds for avoiding res judicata. The bar of res judicata may
sometimes give way when the initial decision was “clearly erroneous and
would work manifest injustice.” State v. Lewis, 543 N.E.2d 1116, 1118
(Ind. 1989).[2]
Whether the judgment of the original post-conviction court was
erroneous or not, we are not persuaded that the outcome is manifestly
unjust. When Annes stood charged with both possession and sale of LSD in
1972, his lawyer and the prosecution worked out a rather favorable plea
agreement. The State agreed to dismiss the more serious charge of sale,
and Annes agreed to plead guilty to possession. The State also agreed that
Annes could undergo treatment rather than suffer a conviction and
sentencing. Seven weeks later, Annes asked the court to be sentenced
instead. The resulting sentence was itself relatively modest: one to ten
years, suspended to two years probation. It was only after Annes violated
the terms of his probation a few months later that the trial court revoked
his probation and ordered him to serve an executed sentence.
To prevail against the State’s defense of res judicata, Annes must
establish that it is “manifestly unjust” not to re-open a thirty-year-old
conviction from a proceeding in which the prosecutor and the court afforded
him multiple opportunities to avoid conviction and punishment. We conclude
that he has not met the standard.
Accordingly, we affirm the post-conviction court.
DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] The standard applicable to lawyering in post-conviction proceedings is
not the familiar Strickland rule. See Baum v. State, 533 N.E.2d 1220 (Ind.
1989)(“We adopt the standard that if counsel in fact appeared and
represented the petitioner in a procedurally fair setting which resulted in
a judgment of the court, it is not necessary to judge his performance by
the rigorous standard set forth in Strickland v. Washington, 466 U.S. 668
(1984).”
[2] This formulation had its origin in Arizona v. California, 460 U.S. 605,
618, n. 18 (1983).