MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 29 2016, 8:55 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Glenn Carpenter Gregory F. Zoeller Pendleton, Indiana Attorney General
George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Glenn Carpenter, February 29, 2016 Appellant-Defendant, Court of Appeals Case No. 49A04-1412-PC-608 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Anne Flannelly, Appellee-Plaintiff. Magistrate The Honorable John M.T. Chavis, Judge Trial Court Cause No. 49F15-9901-DF-11314
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PC-608| February 29, 2016 Page 1 of 6 Case Summary [1] Fifteen years after pleading guilty to and being sentenced for Class D felony
theft in Marion Superior Court, Glenn Carpenter filed a petition for post-
conviction relief alleging that the magistrate who accepted his guilty plea and
sentenced him did not have authority to do so. We, however, find that
Carpenter has waived any challenge to the magistrate’s authority because he
did not object at the trial-court level. We therefore affirm the post-conviction
court.
Facts and Procedural History [2] On July 7, 1999, Carpenter, who was represented by counsel, and the State
entered into a plea agreement in which Carpenter agreed to plead guilty to
Class D felony theft. That same day, Carpenter’s guilty-plea hearing was held
in Marion Superior Court, Criminal Court 15, before Magistrate Mark Renner,1
who accepted Carpenter’s guilty plea and sentenced him—in accordance with
the plea agreement—to 545 days with 507 days suspended and 180 days of
1 There is some issue as to whether Mark Renner was a magistrate or master commissioner in July 1999. At the post-conviction hearing, the court stated the following regarding Renner’s status: “The Court is aware of the fact that currently he’s a commissioner; he’s never been elected a judge; and at one point he was a magistrate.” P-C Tr. p. 12. Regardless of Renner’s status at that time, a master commissioner has the same powers and duties as a magistrate. See Ind. Code Ann. 33-33-49-16(e) (West 2004); see also Ind. Code 33-5.1-2-11(e) (1996 Supp.) (version in effect when Carpenter pled guilty). Therefore, it does not matter whether Renner was a magistrate or master commissioner. But because the deputy clerk’s letter (Exhibit B) refers to Renner as a magistrate, we do so as well.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PC-608| February 29, 2016 Page 2 of 6 probation. See Ex. B (Order of Judgment of Conviction signed by “Mark F.
Renner”). The CCS entry for July 7, 1999, however, notes that the presiding
judge of Criminal Court 15, the Honorable John M.T. Chavis II, disposed of
the case. Ex. A.
[3] Fifteen years later, in March 2014, Carpenter, pro se, filed a petition for post-
conviction relief. He argued that Magistrate Renner “did not have statutory
authority to sentence [him] and enter a final judgment” because Magistrate
Renner did not get “approval of the Presiding Judge of the Court” in violation
of Indiana Code section 33-23-5-9. Appellant’s Supp. App. p. 2-3. Although
Carpenter was pro se when he filed his petition for post-conviction relief, he
was represented by counsel six months later at the evidentiary hearing.
[4] At the hearing, post-conviction counsel admitted into evidence Carpenter’s
CCS, plea agreement, and judgment of conviction. Counsel also admitted into
evidence a letter from the deputy clerk of Criminal Court 15. According to the
letter, the “file . . . does not have any Appointment and Acceptance Documents
in the Court Clerk[’]s Order Book Entries for the appointment of Magistrate
Mark Renner due to the age of the case. Appointment documents were not
required back then . . . .” Ex. B. In addition, post-conviction counsel secured
the following stipulation from the State: “State stipulates to [the post-
conviction] court’s recognition of non-elected judicial officer status of
Commissioner (then-Magistrate) Mark Renner.” P-C Tr. p. 12 (formatting
altered). After the hearing, the post-conviction court entered findings of fact
and conclusions of law denying Carpenter relief.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PC-608| February 29, 2016 Page 3 of 6 [5] Carpenter, pro se, now appeals.
Discussion and Decision [6] Carpenter contends that the post-conviction court erred in denying his petition
for post-conviction relief. Carpenter makes several arguments on appeal, all of
which revolve around Magistrate Renner’s authority to enter a final order on
his guilty plea and sentence him. When Carpenter pled guilty, Indiana Code
section 33-4-7-8 (1998) provided:
(a) Except as provided under subsection (b), a magistrate shall report findings in an evidentiary hearing, a trial, or a jury’s verdict to the court. The court shall enter the final order.
(b) If a magistrate presides at a criminal trial, the magistrate may do the following:
(1) Enter a final order.[2]
(2) Conduct a sentencing hearing.
(3) Impose a sentence on a person convicted of a criminal offense.
(Emphasis added). In 2004, this statute was recodified at Indiana Code section
33-23-5-9. See P.L. 98-2004. According to case law interpreting Indiana Code
2 According to case law interpreting this statute, a magistrate’s power to enter a final order includes the power to enter a judgment of conviction. See Boyer v. State, 883 N.E.2d 158, 161-62 (Ind. Ct. App. 2008).
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PC-608| February 29, 2016 Page 4 of 6 section 33-23-5-9, because a guilty-plea hearing is not the same as a criminal
trial and Section 33-23-5-9 references only “a criminal trial,” a magistrate does
not have authority to enter a final order and sentence a defendant who pleads
guilty. See Long v. State, 962 N.E.2d 671 (Ind. Ct. App. 2012), trans. denied.3
[7] It is well settled that the authority of a court officer appointed to try a case does
not affect the jurisdiction of the court. Floyd v. State, 650 N.E.2d 28, 32 (Ind.
1994) (specifically addressing failure of trial court to validly appoint judge pro
tempore). Accordingly, if a defendant does not object “at the original trial to
the jurisdiction of a court officer to enter a final appealable order,” then the
defendant waives “the issue both on appeal . . . and on collateral attack in a
proceeding for post-conviction relief.” Id. at 33.
[8] In a case similar to this one, McMichel v. State, a master commissioner—who
was not a duly appointed judge pro tempore—accepted the defendant’s guilty
plea and sentenced him. 655 N.E.2d 61, 62 (Ind. 1995). The defendant did not
object to the master commissioner’s authority to act as a judge over his case. Id.
Instead, seven years later, the defendant filed a petition for post-conviction
relief claiming that his conviction was invalid because the master commissioner
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 29 2016, 8:55 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Glenn Carpenter Gregory F. Zoeller Pendleton, Indiana Attorney General
George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Glenn Carpenter, February 29, 2016 Appellant-Defendant, Court of Appeals Case No. 49A04-1412-PC-608 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Anne Flannelly, Appellee-Plaintiff. Magistrate The Honorable John M.T. Chavis, Judge Trial Court Cause No. 49F15-9901-DF-11314
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PC-608| February 29, 2016 Page 1 of 6 Case Summary [1] Fifteen years after pleading guilty to and being sentenced for Class D felony
theft in Marion Superior Court, Glenn Carpenter filed a petition for post-
conviction relief alleging that the magistrate who accepted his guilty plea and
sentenced him did not have authority to do so. We, however, find that
Carpenter has waived any challenge to the magistrate’s authority because he
did not object at the trial-court level. We therefore affirm the post-conviction
court.
Facts and Procedural History [2] On July 7, 1999, Carpenter, who was represented by counsel, and the State
entered into a plea agreement in which Carpenter agreed to plead guilty to
Class D felony theft. That same day, Carpenter’s guilty-plea hearing was held
in Marion Superior Court, Criminal Court 15, before Magistrate Mark Renner,1
who accepted Carpenter’s guilty plea and sentenced him—in accordance with
the plea agreement—to 545 days with 507 days suspended and 180 days of
1 There is some issue as to whether Mark Renner was a magistrate or master commissioner in July 1999. At the post-conviction hearing, the court stated the following regarding Renner’s status: “The Court is aware of the fact that currently he’s a commissioner; he’s never been elected a judge; and at one point he was a magistrate.” P-C Tr. p. 12. Regardless of Renner’s status at that time, a master commissioner has the same powers and duties as a magistrate. See Ind. Code Ann. 33-33-49-16(e) (West 2004); see also Ind. Code 33-5.1-2-11(e) (1996 Supp.) (version in effect when Carpenter pled guilty). Therefore, it does not matter whether Renner was a magistrate or master commissioner. But because the deputy clerk’s letter (Exhibit B) refers to Renner as a magistrate, we do so as well.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PC-608| February 29, 2016 Page 2 of 6 probation. See Ex. B (Order of Judgment of Conviction signed by “Mark F.
Renner”). The CCS entry for July 7, 1999, however, notes that the presiding
judge of Criminal Court 15, the Honorable John M.T. Chavis II, disposed of
the case. Ex. A.
[3] Fifteen years later, in March 2014, Carpenter, pro se, filed a petition for post-
conviction relief. He argued that Magistrate Renner “did not have statutory
authority to sentence [him] and enter a final judgment” because Magistrate
Renner did not get “approval of the Presiding Judge of the Court” in violation
of Indiana Code section 33-23-5-9. Appellant’s Supp. App. p. 2-3. Although
Carpenter was pro se when he filed his petition for post-conviction relief, he
was represented by counsel six months later at the evidentiary hearing.
[4] At the hearing, post-conviction counsel admitted into evidence Carpenter’s
CCS, plea agreement, and judgment of conviction. Counsel also admitted into
evidence a letter from the deputy clerk of Criminal Court 15. According to the
letter, the “file . . . does not have any Appointment and Acceptance Documents
in the Court Clerk[’]s Order Book Entries for the appointment of Magistrate
Mark Renner due to the age of the case. Appointment documents were not
required back then . . . .” Ex. B. In addition, post-conviction counsel secured
the following stipulation from the State: “State stipulates to [the post-
conviction] court’s recognition of non-elected judicial officer status of
Commissioner (then-Magistrate) Mark Renner.” P-C Tr. p. 12 (formatting
altered). After the hearing, the post-conviction court entered findings of fact
and conclusions of law denying Carpenter relief.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PC-608| February 29, 2016 Page 3 of 6 [5] Carpenter, pro se, now appeals.
Discussion and Decision [6] Carpenter contends that the post-conviction court erred in denying his petition
for post-conviction relief. Carpenter makes several arguments on appeal, all of
which revolve around Magistrate Renner’s authority to enter a final order on
his guilty plea and sentence him. When Carpenter pled guilty, Indiana Code
section 33-4-7-8 (1998) provided:
(a) Except as provided under subsection (b), a magistrate shall report findings in an evidentiary hearing, a trial, or a jury’s verdict to the court. The court shall enter the final order.
(b) If a magistrate presides at a criminal trial, the magistrate may do the following:
(1) Enter a final order.[2]
(2) Conduct a sentencing hearing.
(3) Impose a sentence on a person convicted of a criminal offense.
(Emphasis added). In 2004, this statute was recodified at Indiana Code section
33-23-5-9. See P.L. 98-2004. According to case law interpreting Indiana Code
2 According to case law interpreting this statute, a magistrate’s power to enter a final order includes the power to enter a judgment of conviction. See Boyer v. State, 883 N.E.2d 158, 161-62 (Ind. Ct. App. 2008).
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PC-608| February 29, 2016 Page 4 of 6 section 33-23-5-9, because a guilty-plea hearing is not the same as a criminal
trial and Section 33-23-5-9 references only “a criminal trial,” a magistrate does
not have authority to enter a final order and sentence a defendant who pleads
guilty. See Long v. State, 962 N.E.2d 671 (Ind. Ct. App. 2012), trans. denied.3
[7] It is well settled that the authority of a court officer appointed to try a case does
not affect the jurisdiction of the court. Floyd v. State, 650 N.E.2d 28, 32 (Ind.
1994) (specifically addressing failure of trial court to validly appoint judge pro
tempore). Accordingly, if a defendant does not object “at the original trial to
the jurisdiction of a court officer to enter a final appealable order,” then the
defendant waives “the issue both on appeal . . . and on collateral attack in a
proceeding for post-conviction relief.” Id. at 33.
[8] In a case similar to this one, McMichel v. State, a master commissioner—who
was not a duly appointed judge pro tempore—accepted the defendant’s guilty
plea and sentenced him. 655 N.E.2d 61, 62 (Ind. 1995). The defendant did not
object to the master commissioner’s authority to act as a judge over his case. Id.
Instead, seven years later, the defendant filed a petition for post-conviction
relief claiming that his conviction was invalid because the master commissioner
did not have authority to accept his plea or sentence him. The Indiana
3 In 2015, our legislature amended Indiana Code section 33-23-5-9(b) to rectify this omission, and the amended statute now provides: “If a magistrate presides at a criminal trial or a guilty plea hearing . . . .” P.L. 173-2015, Sec. 5 (emphasis added); see also Ind. Code Ann. § 33-23-5-9(b) (West 2015 Supp.). Thus, a magistrate may now enter a final order and sentence a defendant who pleads guilty.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PC-608| February 29, 2016 Page 5 of 6 Supreme Court held that because the defendant did not challenge the authority
of the court officer in the trial court so as to properly preserve the issue for
appeal, his petition for post-conviction relief should be denied due to waiver.
Id. at 63.
[9] Likewise, here, Carpenter did not object to Magistrate Renner’s authority to act
as a judge over his case. Instead, fifteen years later, Carpenter filed a petition
for post-conviction relief claiming that Magistrate Renner did not have
authority to accept his guilty plea and sentence him. But even assuming that
Magistrate Renner acted without authority, the court’s jurisdiction was not
affected. Carpenter has waived this issue for failing to object at the trial-court
level.4 We therefore affirm the post-conviction court’s denial of Carpenter’s
petition for post-conviction relief.
[10] Affirmed.
Bailey, J., and Crone, J., concur.
4 Carpenter also argues on appeal that his trial counsel was ineffective for not objecting to Magistrate Renner’s authority at the trial-court level, even though Carpenter did not raise this issue in his pro se petition for post-conviction relief. See Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001) (noting that issues not raised in a petition for post-conviction relief may not be raised for the first time on post-conviction appeal), reh’g denied. But even if trial counsel was deficient for not objecting to Magistrate Renner’s authority at the trial-court level, Carpenter has not alleged how he was prejudiced because a magistrate—rather than the regular sitting judge—accepted his guilty plea and sentenced him. See Hall v. State, 646 N.E.2d 379, 382 (Ind. Ct. App. 1995), reh’g denied, trans. denied. For similar reasons, we find no merit to Carpenter’s argument on appeal that his post-conviction counsel was ineffective for not amending his pro se petition to add an ineffective- assistance-of-trial-counsel claim.
Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PC-608| February 29, 2016 Page 6 of 6