Attorney for Appellant
Dale Allen
Merrillville, IN
Attorneys for Appellee
Karen Freeman-Wilson
Attorney General of Indiana
Andrew L. Hedges
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
JOSE ANGEL TAPIA,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 45S03-0011-PC-708
)
) Court of Appeals No.
) 45A03-9908-PC-304
)
)
)
)
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Richard J. Conroy, Special Judge
Cause No. 45G04-8802-CF-47
ON PETITION TO TRANSFER
August 20, 2001
SULLIVAN, Justice
A post-conviction court denied Jose Angel Tapia’s request to withdraw
without prejudice his petition for post-conviction relief. Tapia had no
such right to withdraw his petition; our rules give post-conviction courts
discretion in disposing of such request. We find no abuse of the post-
conviction court’s discretion here.
Background
The facts of petitioner Jose Angel Tapia’s crime are detailed in our
opinion on direct appeal. See Tapia v. State, 569 N.E.2d 655, 657 (Ind.
1991). In short, Tapia was convicted of Murder[1] and Felony Murder[2] for
killing a friend’s grandmother while stealing a stereo. Id. at 656-57. On
direct appeal, we affirmed his conviction in most respects, but remanded
because the trial court had entered judgment and sentenced Tapia for both
felony murder and murder in violation of the proscription against double
jeopardy. Id. at 658.
In January, 1993, Tapia filed a petition for post-conviction relief,
alleging that he received ineffective assistance of trial counsel. The
post-conviction case appears to have sat dormant for another three years,
as the record does not reflect any activity between early 1993 and early
1996. Frustrated by the slow pace of his case, Tapia sought leave to
proceed pro se, which was granted by the post-conviction court in April,
1996.
Acting pro se, Tapia asked for an evidentiary hearing on his claims
and the post-conviction court scheduled a hearing for May 20, 1997. On May
1, Tapia filed a motion to continue the hearing and a motion to amend his
petition for post-conviction relief. The court denied these motions.
Subsequently, Tapia filed a motion to withdraw his petition for post-
conviction relief without prejudice. The court received this motion on May
19 – the day before the hearing – although Tapia’s certificate of service
stated that he mailed it on May 14. The post-conviction court orally
denied Tapia’s motion during the hearing.
On June 24, 1999, the post-conviction court denied Tapia’s petition
for relief by adopting the State’s proposed findings of fact and
conclusions of law. Tapia appealed and the Court of Appeals reversed,
concluding that the post-conviction court was required to allow Tapia to
withdraw his petition for post-conviction relief without prejudice unless
the State could show that it would be harmed by the delay. See Tapia v.
State, 734 N.E.2d 307, 310 (Ind. Ct. App. 2000). We granted transfer,
Tapia v. State, 734 N.E.2d 307 (Ind. 2000) (table), and now affirm the
judgment of the post-conviction court.
I
Tapia contends that the post-conviction court should have granted
either his joint motions for a continuance and to amend his petition or his
subsequent motion for leave to withdraw his petition without prejudice. In
reviewing these claims, the Court of Appeals analyzed whether the post-
conviction court erred by denying Tapia the chance to withdraw without
prejudice. Tapia, 734 N.E.2d at 310-11. The Court of Appeals analogized
Tapia’s argument to a civil plaintiff’s motion for voluntary dismissal
under Trial Rule 41(A)(2). Id. at 309. The Court of Appeals determined
that such motions should be rejected only when the non-movant
[W]ill suffer some prejudice other than the mere prospect of a second
lawsuit. [Therefore] substantial prejudice to the defendant should be
the test. Where substantial prejudice is lacking the district court
should exercise its discretion by granting a motion for voluntary
dismissal without prejudice.
Tapia, 734 N.E.2d at 310 (quoting Levin & Sons, Inc. v. Mathys, 409 N.E.2d
1195, 1198 (Ind. Ct. App. 1980) (quoting in turn 5 Moore’s Federal Practice
§ 41.05 (2d ed.1948) (citations omitted)). Finding that the State would
have suffered no harm if the post-conviction court granted Tapia’s motion,
the Court of Appeals reversed. Tapia, 734 N.E.2d at 310-11 (“In sum,
because the record contains no showing of prejudice to the State from the
prospect of allowing Tapia to withdraw his petition without prejudice, the
trial court erred in denying his motion.”).
The types of motions at the heart of this case are primarily matters
of trial court discretion, and appellate courts should review those matters
only for an abuse of that discretion. As for the motion to withdraw that
proved determinative in the Court of Appeals, the terms of Indiana Post-
Conviction Rule 1(4)(c) give the trial court the discretion – but not a
mandate – to allow the petitioner to withdraw the petition without
prejudice: “[a]t any time prior to entry of judgment the court may grant
leave to withdraw the petition.” (emphasis added). Therefore the plain
language of the Rule compels us to review the post-conviction court’s
actions in this regard under an abuse of discretion standard.
Outside of the plain language of the rule, two additional arguments
support an abuse of discretion review. First, employing an abuse of
discretion standard gives the post-conviction court the ability to curtail
attempts by petitioners, including those in capital cases, to delay final
judgment on their petitions. Second, abuse of discretion is the well-
established standard of review for voluntary motions to dismiss in the
somewhat rare cases when such motions are subject to appeal. See Mattingly
v. Whelden, 435 N.E.2d 61, 64 (Ind. Ct. App. 1982) (using abuse of
discretion standard to analyze the trial court’s grant of summary judgment
in lieu of his motion to dismiss under Trial Rule 41(A)(1)). Cf. Federal
Deposit Insurance Corporation v. Knostman, 966 F.2d 1133, 1142 (7th Cir.
1992) (“The dismissal of a plaintiff’s action without prejudice under Rule
41(a)(2) of the Federal Rules of Civil Procedure is within the ‘sound
discretion of the district court’ and may only be reversed if the appellant
shows an abuse of that discretion.”) (citation omitted).
Our reliance on the abuse of discretion standard invokes some of its
well-worn contours. Typically, a fact-finding court is given discretion to
act on an issue when it is in a better position than an appellate court to
evaluate the factual context surrounding the issue. We will second-guess
the fact-finding court only when it responds to that factual context in an
unreasonable manner. Prof. Stroud has provided the following description
of this standard of review:
Abuse of discretion review, like all mixed question review, consists
of an evaluation of facts in relation to legal formulae. In the final
analysis, the reviewing court is concerned with the reasonableness of
the action in light of the record.
4A Kenneth M. Stroud, Indiana Practice § 12.8 at 246 (2d ed.1990) (emphasis
in original). Therefore, a trial court’s exercise of discretion should be
upset only when the court reached “‘an erroneous conclusion and judgment,
one clearly against the logic and effect of the facts and circumstances
before the court or the reasonable, probable and actual deductions to be
drawn therefrom.’” Id. (quoting Dahnke v. Dahnke, 535 N.E.2d 172, 174
(Ind. Ct. App. 1989), reh’g denied). See also McCullough v. Archbold Ladder
Co., 605 N.E.2d 175, 180 (Ind. 1993) (“Discretion is a privilege afforded a
trial court to act in accord with what is fair and equitable in each case.
An abuse of discretion may occur if the trial court's decision is clearly
against the logic and effect of the facts and circumstances before the
court, or if the trial court has misinterpreted the law.”).
Relying on cases determined under Indiana Trial Rule 41(A), the Court
of Appeals concluded that a petitioner was entitled to withdraw a petition
for post-conviction relief unless the State could make a “showing of
prejudice.” Tapia, 734 N.E.2d at 310.[3] However, as discussed supra, the
Post-Conviction Rule grants the post-conviction court discretion to
determine whether to allow a petitioner to withdraw a petition. Id.
While prejudice to the non-moving party is one indicia of an abuse of
discretion,[4] it is not a proxy for the post-conviction court’s discretion
in the face of plain language in the Rule to the contrary.
Applying the abuse of discretion standard, we conclude that the post-
conviction court’s refusal to allow Tapia to withdraw his petition was not
“clearly against the logic and effect of the facts and circumstances before
the court.” Stroud, supra. Paramount among the “facts and circumstances”
surrounding Tapia’s motion to withdraw is that fact that Tapia made little
effort to explain what he would gain by delaying the proceedings. Tapia
asserted that he “recently discovered substantial errors which he verily
believes warrant relief.” Tapia did not explain what these errors were or
why he could not develop evidence to support them in the four years since
he filed his petition for post-conviction relief.[5] The post-conviction
court could balance what speculative benefit Tapia would derive from a
delay against the costs to the court in wasted time, and conclude that
Tapia was not entitled to withdraw his petition.[6] Without any valid
explanation as to what would be gained from further delay, we cannot say
that the post-conviction court abused its discretion by rejecting Tapia’s
motion.
Because the Court of Appeals determined that the post-conviction
court erred by denying Tapia’s motion to withdraw, it did not address his
motion for a continuance or his motion to amend his petition. Again we
analyze the post-conviction court’s actions for abuse of discretion.
First, it is well-established that we review the grant or denial of a
continuance for abuse of discretion. See Troutman v. State, 730 N.E.2d
149, 151 (Ind. 2000), Wine v. State, 637 N.E.2d 1369, 1379 (Ind. Ct. App.
1994) (“[A post-conviction court’s] decision whether to grant or deny a
motion for a continuance is left to the sound discretion of the trial
court.”), transfer denied. Second, we review the post-conviction court’s
refusal to amend a petition for abuse of discretion because the Post-
Conviction Rules state that any motion to amend made within 60 days of an
evidentiary hearing may be granted only “by leave of the court.” Ind. Post-
Conviction Rule 1(4)(c).[7] Moreover, motions to amend civil complaints
are also reviewed for abuse of discretion. See Templin v. Fobes, 617
N.E.2d 541, 543 (Ind. 1993) (“The trial court has broad discretion when
deciding whether to permit amendments to pleadings.”).
We conclude that the post-conviction court did not abuse its
discretion by denying these motions. Again Tapia failed to show what he
would gain by forestalling the evidentiary hearing. Tapia’s motion for a
continuance asserted that he “recently discovered new issues” but never
sets out what they were or how they could affect his post-conviction
claims. He further failed to document why these issues could not have been
developed in the four years leading up to the evidentiary hearing or at
least prior to the 60-day period. He did assert that he was having
difficulty developing these claims because of his inexperience in legal
matters (id.), but we have consistently held that a “defendant who chooses
to exercise his right to proceed pro se must accept the burden and hazards
incidental to his position.” Kindred v. State, 540 N.E.2d 1161, 1185 (Ind.
1989). As for his motion to amend, Tapia asserted only that he “recently
discovered new grounds for relief” and that “in the interests of justice
[he] should be allowed to present all issues know[n] to him … .” Tapia
failed to take the minimal step of setting out what new claims he would add
to the petition. Tapia’s motions did not present persuasive reasons to
delay a hearing in a four-year-old case and the post-conviction court could
reasonably decide not to grant them.[8]
II
Tapia argues that he was entitled to post-conviction relief on his
claims of ineffective assistance of trial counsel. In his original
petition for post-conviction relief, Tapia asserted that his trial counsel
was ineffective for failing to: (1) present testimony from Tapia’s sister,
who, Tapia claims, would have testified that Tapia’s former girlfriend gave
a damaging statement to police because the police threatened the girlfriend
and because the girlfriend wanted to retaliate against Tapia for his
infidelity when they were dating; (2) object to the fact that the State
charged Tapia with both murder and felony murder; (3) contest the State’s
evidence as to the chain of custody for certain evidence; (4) challenge the
qualifications of an expert witness; and (5) object to two jury
instructions.
The post-conviction court rejected these claims, concluding in part
that Tapia failed to carry the burden of proof. See Ind. Post-Conviction
Rule 1(5) (“The petitioner has the burden of establishing his grounds for
relief by a preponderance of the evidence.”).[9]
Despite the fact that he bore the burden of proof, Tapia presented no
evidence to support his post-conviction claims. He called no witness
during the hearing on his petition.[10] This failure was due in part
because of Tapia sought to continue the hearing, as discussed supra.
However, the ineffective assistance of counsel claims were raised in
Tapia’s initial petition for post-conviction relief and did not relate to
any new claims he sought to add to the petition. He had months to prepare
his presentation of evidence on these claims, as the post-conviction court
granted his request for a hearing on December, 9, 1996, but did not
actually hear the case until May 20, 1997. Moreover, at the close of the
evidentiary hearing, the post-conviction court gave Tapia the opportunity
to present documentary evidence for up to 90 days after the hearing.
Despite this offer, Tapia failed to put any documentary evidence into the
record.[11] He also cited no evidence in his proposed findings of fact and
conclusions of law. The total absence of evidence on any of Tapia’s claims
of ineffective assistance of counsel supports the post-conviction court’s
conclusion that Tapia did not meet his burden of proof.
III
As a final matter, Tapia claims that a magistrate who issued several
orders in his case lacked authority over his post-conviction proceedings
because a special judge had been assigned to hear the case.[12] However,
Tapia waived any claims in regards to the magistrate’s authority because he
failed to object. See Floyd v. State, 650 N.E.2d 28, 32 (Ind. 1994) (“[I]t
has been the long-standing policy of this court to view the authority of
the officer appointed to try a case not as affecting the jurisdiction of
the court. Therefore, the failure of a party to object at trial to the
authority of a court officer to enter a final appealable order waives the
issue for appeal.”). See generally Ind. Evidence Rule 103.[13] Tapia
suggests that we view the magistrate’s purported lack of authority as
fundamental error. However, Tapia cites no harm that he suffered because
the magistrate, as opposed to the special judge, heard parts of his case.
We therefore decline to examine further his claims of error in regards to
the magistrate’s authority. Cf. Lucas v. State, 552 N.E.2d 35, 36-37 (Ind.
1990), Rodgers v. Rodgers, 503 N.E.2d 1255, 1257-58 (Ind. Ct. App. 1987),
transfer denied.
Conclusion
Having previously granted transfer pursuant to Indiana Appellate Rule
11(B)(3),[14] thereby vacating the opinion of the Court of Appeals, we now
affirm the denial of Tapia’s petition for post-conviction relief.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code § 35-42-1-1 (1982).
[2] Id.
[3] It is unclear how this standard would co-exist with the burden a
petitioner bears on post-conviction appeal. Tapia, as an appellant in a
post-conviction case, bears the burden to show that he is entitled to
relief. See, e.g., Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000).
The standard used by Court of Appeals either requires him to prove a
negative – i.e., that the State would have suffered no prejudice if the
motion was granted – or flips this typical burden on appeal – i.e., by
making the State (the appellee) establish that it would suffer harm if the
motion was granted.
[4] The Court of Appeals relied on language from our opinion in Neeley
v. State:
A proper interpretation of [Indiana Post-Conviction Rule 1(4)(c)] is
that the petitioner has a conditional right to withdraw a previously
filed petition for post-conviction relief, but it is not an absolute
right and may be granted by the trial court absent any overriding
prejudice which may result to the state by allowing the petitioner to
withdraw his petition.
269 Ind. 588, 591, 382 N.E.2d 714, 716 (1978), overruled on other grounds
by German v. State, 428 N.E.2d 234, 237 (Ind. 1981). Nothing we say today
contradicts with Neeley, as that case was silent as to the proper standard
of review to apply to claims arising under Rule 1(4)(c)’s withdraw
language. Like Neeley, we consider prejudice to the State, but emphasize
that it is simply one factor to consider in an abuse of discretion
analysis.
[5] Tapia did assert that he was pursuing DNA testing of certain
evidence, but did not offer a valid explanation of what he hoped the
testing would show or why this testing could not have been conducted and
completed over the previous four years.
[6] Also weighing in this balance is that fact that Tapia had already
attempted to delay the hearing through motions to continue and to amend his
petition. Viewing the facts as a whole, it is clear that Tapia’s motion to
withdraw was nothing more than a reassertion of these earlier motions.
[7] This Rule was amended in 1995. Prior to that time, the Rule
stated that “the petitioner shall be given leave to amend the petition as a
matter of right.” See Ind. Post-Conviction Rule 1(4)(c) (1994) (emphasis
added). The Rule now provides that the “petitioner shall be given leave to
amend the petition as a matter of right no later than sixty [60] days prior
to the date the petition has been set for trial. Any later amendment of
the petition shall be by leave of the court.” (emphasis added). This
change in Rule 1(4)(c) demonstrates our intent to grant the post-conviction
court discretion when ruling on amendments within the 60-day period.
[8] Cf. Nyby v. Waste Management, Inc., 725 N.E.2d 905, 915 (Ind. Ct.
App. 2000) (“The Plaintiffs waited twelve years to assert a claim that
could have been raised in their initial complaint. The Plaintiffs do not
identify new evidence that was discovered during the course of the
litigation that led them to seek this amendment. This court has refused to
find an abuse of discretion where the trial court denied a motion to amend
filed four years after the complaint and where there was no newly
discovered evidence that justified the delay. Similarly, we conclude that
the trial court could have reasonably found that the delay here was undue.
The Plaintiffs have not shown that the trial court abused its
discretion.”), transfer denied.
[9] Because a petitioner bears the burden of proving post-conviction
claims, a petitioner whose claims are rejected appeals from a negative
judgment. “On appeal from a negative judgment, to the extent this appeal
turns on factual issues, the defendant must convince this Court that the
evidence as a whole leads unerringly and unmistakably to a decision
opposite that reached by the postconviction court.” Latta v. State, 743
N.E.2d 1121, 1125 (Ind. 2001).
[10] Even the transcript of Tapia’s trial is absent from the post-
conviction record. It is practically impossible to gauge the performance
of trial counsel without the trial record, as we have no way of knowing
what questions counsel asked, what objections he leveled, or what arguments
he presented.
[11] The only documents Tapia presented at all are attachments to an
unverified memorandum in support of his petition for post-conviction
relief. These documents – which purport to be an affidavit from his sister
and transcripts of statements to the police – were not admitted as evidence
and Tapia laid no foundation for their authenticity. See Ind. Evidence
Rule 901. Although Tapia filed the memorandum with his petition for post-
conviction relief in 1993, he failed to introduce properly the documents
into evidence at his 1997 hearing – or at any time before or after the
hearing. Tapia cannot rely on these documents as evidence.
[12] Tapia also claims that the wrong judge signed the order that
denied his motion for a continuance and his motion to amend his petition.
Appellant’s Br. at 19. However, the record clearly shows that this order
was signed by the special judge who presided over Tapia’s case.
[13] Tapia argues that he objected to the magistrate’s authority by
asking her if he could appeal her rulings. Appellant’s Reply Br. at 11.
However, an objection must be “sufficiently specific to alert the trial
judge fully of the legal issue.” Moore v. State, 669 N.E.2d 733, 742
(Ind.1996), reh’g denied. Tapia’s broad question as to whether he could
appeal his case did not alert the magistrate to any challenge to her
authority.
[14] Now Ind. Appellate Rule 58.