IN THE INDIANA SUPREME COURT
BELLAMY, Lamont, ) Court of Appeals
appellant, ) cause no. 45A05-0104-PC-140
v. )
) Supreme Court
STATE OF INDIANA, ) cause no. 45S05-0201-PC-91
appellee. )
ORDER GRANTING TRANSFER AND
REMANDING TO THE COURT OF APPEALS
Introduction
Appellant was convicted by a jury of attempted murder, rape, criminal
deviate conduct, robbery, and criminal confinement. His convictions and
sentences were affirmed in an unpublished memorandum decision. Bellamy v.
State, Cause No. 45A04-9605-CR-165 (Ind. Ct. App. February 24, 1997).
Appellant then filed a pro se petition seeking post-conviction
relief. That petition was denied and the post-conviction court entered
findings of fact and conclusions of law. This appeal ensued.
A notice of completion of the clerk’s record and transcript was
filed. At that point, counsel appeared on behalf of appellant. But rather
than file a brief, the appellant filed a “Verified Motion To Dismiss Appeal
Without Prejudice And Leave To File Amended Petition For Post-Conviction
Relief.” The motion asserted that additional evidence in support of the
post-conviction petition should have been offered. The motion asserted
further that there may be new issues that appellant might want to raise in
the post-conviction court. As the title of the motion suggests, appellant
asked that the appeal be dismissed and the cause remanded to the post-
conviction court to pursue these avenues of relief.
The Rules of Appellate Procedure allowed the State ten days within
which to file a response to the motion. See Ind. Appellate Rule 34(C).
Before that time elapsed, however, the Court of Appeals granted the motion.
Having not had an opportunity to object, the State filed a motion seeking
rehearing on the order of dismissal. The motion was denied. The State
then petitioned to transfer jurisdiction in accordance with Appellate Rules
56(B) and 57(B)(4).
The remand to present additional evidence
in support of the initial post-conviction petition
As noted above, one of the forms of relief requested by appellant was
leave from the Court of Appeals to submit evidence in support of his post-
conviction petition that was not offered during the initial proceeding.
The motion asserted an interest in offering additional testimonial evidence
from appellant’s direct appeal counsel and from “other necessary
witnesses.” Motion, ¶ 11.
In short, appellant asked to retry his post-conviction petition with
the hope of doing a better job this time. The Court of Appeals order, in
effect, authorizes a retrial of the same issues already litigated. A new
trial is a form of relief available when the trial conducted contains
reversible error. But in this instance, appellant has made no claim of
error in the post-conviction proceeding. He simply wants, among other
things, to try the same issues again with different evidence. Our rules do
not permit such relief absent a showing of reversible error.
The remand to interject new issues
into the post-conviction proceeding
Again as previously noted, the other form of relief requested by
appellant was leave to file an amended petition for post-conviction relief
that would contain additional issues. Motion, ¶ 12. Those new issues or
claims are nowhere identified.
In support of its order allowing the filing of an amended petition
for post-conviction relief, the Court of Appeals cited Davis v. State, 368
N.E.2d 1149 (Ind. 1977). In Davis, this Court approved a procedure by
which an appellant may move an appellate court to terminate a direct appeal
of a criminal conviction and remand a case to the trial court for the
purpose of filing a petition seeking post-conviction relief. Davis
requires the appellant to show a “substantial likelihood” of relief in
order to avail himself of the remand procedure. 368 N.E.2d at 1151. In
this instance, appellant does not even identify what the new issues are,
much less demonstrate a substantial likelihood of relief.
But there is a more important point of concern here. This appeal
differs from the appeal in Davis in a significant manner. Davis was an
appeal from a direct conviction and sentence; this is an appeal from the
denial of post-conviction relief.
Our rules create procedures by which persons who have been convicted
of crimes in Indiana may appeal those convictions. See Indiana Rules of
Appellate Procedure (West 2001). If unsuccessful on appeal, there are
procedures in place that allow the convicted person an opportunity to file
a petition seeking post-conviction relief. See Ind. Post-Conviction Rule
1. If still unsuccessful, one of the avenues potentially open to the
convicted person is to again seek post-conviction relief in the state court
through a second, or successive petition. There are rules governing this
process as well. See P-C. R. 1 § 12.
To the extent appellant seeks to raise new issues on post-conviction
that were not included in his original petition, he has not followed the
proper procedure. The proper procedure is to file a request for leave to
file a successive petition seeking post-conviction relief in the form
required by rule. See P-C. R. 1 § 12.
We would not completely rule out the possibility that, for example,
new exculpatory evidence could be discovered during the pendency of an
appeal of the denial of post-conviction relief. In that circumstance, it
might be appropriate for an appellate court to terminate the appeal of the
denial of post-conviction relief and remand for the purpose of filing a
successive post-conviction relief petition. Thus, while it seems unlikely
that a Davis-like remand would ever be warranted from an appeal of the
denial of post-conviction relief, it is within the realm of possibility.
But even in that instance, the petitioner would not be relieved of the
procedural requirements of Post-Conviction Rule 1, section 12. Among those
requirements is the necessity of tendering a proposed successive petition
demonstrating a reasonable possibility of entitlement to post-conviction
relief. Id. In these regards, appellant’s motion falls well short.
Conclusion
The Court of Appeals’ order constitutes a significant departure from
accepted law and practice. See Ind. Appellate Rule 57(H)(6). For the
foregoing reasons, we grant transfer and remand the appeal to the Court of
Appeals with instructions to vacate its order granting the appellant’s
motion to dismiss, to deny the motion, and to establish a briefing schedule
for review of the appeal on the merits.
The Clerk is directed to send a copy of this order to Hon. Sanford M.
Brook, Chief Judge of the Court of Appeals; to Steve Lancaster, Court of
Appeals Administrator; to Janet Roberts Blue, Commissioner of the Court of
Appeals; to Hon. Kathleen Sullivan; to the Attorney General of Indiana; to
the Indiana Public Defender; and to all counsel of record.
Done at Indianapolis, Indiana this 30th day of January, 2002.
______________________________
Randall T. Shepard
Chief Justice of Indiana
All Justices concur except Rucker, J., who votes to deny transfer, stating
as follows:
I respectfully dissent. It appears to me that as a matter of judicial
economy, the Court of Appeals simply treated appellant’s motion as a
successive petition for post-conviction relief. See Ind. Post-
Conviction Rule 1(12). The court then exercised its discretion and
granted the motion. I see no problem with the use of this expedited
procedure.