Leo Dent, Jr. v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: May 24, 2013
• Docket: 45A03-1208-CR-362
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before May 24 2013, 9:19 am 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:

LEO DENT, JR. GREGORY F. ZOELLER Michigan City, Indiana Attorney General of Indiana

JUSTIN. F. ROEBEL Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

LEO DENT, JR., ) ) Appellant-Defendant, ) ) vs. ) No. 45A03-1208-CR-362 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Diane Ross Boswell, Judge The Honorable Kathleen A. Sullivan, Magistrate Cause No. 45G03-9605-CF-94

May 24, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge Leo Dent, Jr., appeals the denial of his motion for relief from judgment. As the trial

court had jurisdiction to enter judgment on Dent’s petition for post-conviction relief even

though the amendments to Dent’s verified petition were not themselves verified, we affirm.

FACTS AND PROCEDURAL HISTORY

Dent was convicted of murder. After exhausting his direct appeals he brought, pro se,

a verified petition for post-conviction relief. Dent then accepted representation by a public

defender, who amended the petition by substituting paragraphs 8(a) and 9(a) for paragraphs

eight and nine of Dent’s original petition. Dent asserted the amended paragraphs were never

presented to him for his review or approval. The post-conviction court denied relief, and

Dent brought a motion for relief from judgment, arguing the post-conviction court lacked

jurisdiction to rule on his petition because the amended pleading was not verified.

DISCUSSION AND DECISION

The burden is on the movant to establish grounds for Trial Rule 60(B) relief. In re

Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind. 2010). A T.R. 60(B) motion addresses only

the procedural, equitable grounds justifying relief from the legal finality of a final judgment,

not the legal merits of the judgment. Id. A T.R. 60(B) motion is addressed to the equitable

discretion of the trial court, whose ruling will be disturbed only upon an abuse of that

discretion. Id. at 740-41. In exercising its discretion, the trial court must balance the alleged

injustice suffered by the movant against the interests of the nonmovant, and society generally,

in the finality of litigation. Mid-West Fed. Sav. Bank v. Epperson, 579 N.E.2d 124, 129 (Ind.

Ct. App. 1991), reh’g denied.

2 Dent has not established the post-conviction court lacked jurisdiction. He argues the

court did not have jurisdiction because the amended petition for post-conviction relief was

not itself verified, and he asserts, without citation to authority, that “[i]n Indiana, Petitions for

Post-Conviction Relief are to be verified and such is a jurisdictional question as interpreted

by the Indiana Supreme Court.” (Br. of Petitioner-Appellant at 4.) As Dent has not

demonstrated his lack of opportunity to verify the two amended paragraphs denied the court

jurisdiction over his petition, we cannot find an abuse of discretion in the court’s denial of his

motion for relief from judgment.

We acknowledge Post-Conviction Rule 1(3) explicitly provides a petition “shall be

made under oath and the petitioner shall verify the correctness of the petition, the authenticity

of all documents and exhibits attached to the petition, and the fact that he has included every

ground for relief under Sec. 1 known to the petitioner.” But that requirement is not

jurisdictional. In Brown v. State, 458 N.E.2d 245, 248-49 (Ind. Ct. App. 1983), we noted

“the time-honored principle that a statutory requirement of verification of pleadings is not

jurisdictional.” Want of verification is waived if an objection is not presented at the earliest

possible opportunity. Id. at 249. In Brown, the State did not raise lack of verification in the

trial court; we therefore determined the issue was waived. Id. Nor does it appear Dent raised

lack of verification until after his post-conviction petition was denied.

Dent relies on Corcoran v. State, 820 N.E.2d 655 (Ind. 2005), aff’d on reh’g, 827

N.E.2d 542 (Ind. 2005), but Corcoran does not require a contrary result. There, our Indiana

Supreme Court noted “[t]o litigate the post-conviction claims discussed in Part II, Corcoran

3 himself would need to authorize such a proceeding.” Id. at 662. Dent reasons the lack of

verification of the amendments to his original verified petition reflects the post-conviction

petition was brought without his authorization. The Corcoran Court noted “Corcoran

himself did not authorize this proceeding within the timeframe required by Criminal Rule

24(H) and without his authority, neither the trial court in this proceeding nor this Court has

jurisdiction to review claims for post-conviction relief.” Id. at 663. Corcoran is

distinguishable. As noted above, Dent “authorize[d] this proceeding” when he filed a

verified petition for post-conviction relief.1

As Dent has not established the post-conviction court lacked jurisdiction because

amendments to his verified petition were not themselves verified, we affirm the denial of his

Affirmed.

BAKER, J., and MATHIAS, J., concur.

1 Dent does not argue he was prejudiced by the amendments. Both amendments asserted there was insufficient evidence to permit Dent’s convictions. 4