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A felony convictions in an unpublished memorandum decision but his sentence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post-conviction relief by unpublished memorandum decision.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.”