Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 26 2012, 8:07 am court except for the purpose of establishing the defense of res judicata, CLERK of the supreme court, collateral estoppel, or the law of the case. court of appeals and tax court
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
TODD ANDERSON GREGORY F. ZOELLER Michigan City, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
TODD ANDERSON, ) ) Appellant-Defendant, ) ) vs. ) No. 02A04-1110-PC-596 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Frances C. Gull, Judge Cause No. 02D04-0811-PC-124
April 26, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge In 2006, Todd Anderson was convicted of attempted criminal deviate conduct, a class
B felony, attempted rape, a class B felony, and sexual battery, a class D felony, and was
determined to be a habitual offender. Anderson, pro se, appeals the post-conviction court’s
denial of his petition for post-conviction relief (PCR petition), which challenged those
convictions. Anderson presents a single issue for review: did the trial court err in summarily
denying his PCR petition.
We affirm.
These convictions stemmed from acts Anderson committed and attempted to commit
on a twenty-six-year-old, mentally handicapped woman. The underlying facts were set out in
detail in this court’s unpublished opinion affirming Anderson’s convictions, and need not be
repeated here. See Anderson v. State, No. 02A03-0703-CR-91 (Ind. Ct. App. Sept. 5, 2007),
trans. denied. The issues presented and addressed upon direct appeal included the following:
“Were out-of-court statements the victim made to her guardian, her aunt, and the sexual
assault examiner improperly admitted….? Did the trial court abuse its discretion in
excluding evidence that the victim had previously given birth to a child? Did the trial court
abuse its discretion in sentencing Anderson?” Id., slip op. at 1.
The facts relevant to this appeal are on November 21, 2008, following the adverse
decision on direct appeal, Anderson, pro se, filed a PCR petition presenting five issues for
review. Those issues included the following: (1) Did the trial court abuse its discretion in
sentencing Anderson; (2) did the trial court erroneously admit into evidence out-of-court
statements the victim made to her aunt, her guardian, and the sexual assault examiner; (3) did
Anderson’s conviction violate double jeopardy principles; (4) did the trial court err in
2 excluding evidence that the victim had previously given birth to a child; and (5) did the trial
court abuse its discretion in permitting the State to file the habitual offender allegation?
The case was referred to the State Public Defender’s Office (the Public Defender),
which entered an appearance on Anderson’s behalf on December 19, 2008. The Public
Defender checked out the direct appeal record in October 2010 and returned it to the court in
August 2011. On July 22, 2011, the Public Defender submitted a motion to withdraw from
representation, which was granted on August 2, 2011. On August 23, 2011, Anderson filed
“a Motion to Withdraw Petition for Post-Conviction Relief Without Prejudice.” Appellant’s
Appendix at 4. The trial court denied that motion the same day it was filed. On October 6,
2011, the State submitted its Motion for Denial of Post-Conviction Relief Without Further
Proceedings. The motion was based upon the arguments that PCR Issues 1-3 were identical
to the issues addressed in Anderson’s direct appeal, and Issues 4 and 5 were presented in
free-standing form and as such were impermissible because they were available on direct
appeal. See Baer v. State, 942 N.E.2d 80 (Ind. 2011). The post-conviction court granted the
motion to deny on October 11 upon its finding that the pleadings conclusively showed that
Anderson was not entitled to relief. Anderson appeals that ruling.
We note at the outset that in a post-conviction proceeding, the petitioner bears the
burden of establishing his claims for relief by a preponderance of the evidence. Kubsch v.
State, 934 N.E.2d 1138 (Ind. 2010). When appealing from the denial of a PCR petition, the
petitioner stands in the position of one appealing from a negative judgment and therefore
must show that the evidence as a whole leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Id. We further observe that the post-
3 conviction court is the sole judge of the weight of the evidence and credibility of witnesses.
Fisher v. State, 810 N.E.2d 674 (Ind. 2004). Therefore, its findings and judgment will be
reversed only upon a showing of clear error, i.e., that which leaves us with a definite and firm
conviction that a mistake has been made. Kubsch v. State, 934 N.E.2d 1138.
Anderson contends the trial court erred in denying his PCR petition without first
giving him an opportunity to amend it. He contends Ind. Post-Conviction Rule 1.4(c) grants
him this right. P-C.R. 1.4(c) provides: “At any time prior to entry of judgment the court may
grant leave to withdraw the petition. 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.”
Our Supreme Court clarified in Tapia v. State, 753 N.E.2d 581 (Ind. 2001) that we
review rulings on motions to amend PCR petitions for an abuse of discretion. In conducting
this review, we accord a post-conviction court “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.” Id. at 585. Specifically, the “‘[a]buse 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.’” Id. (quoting 4A Kenneth M. Stroud, Indiana Practice § 12.8 at 246 (2d ed.
1990)) (emphasis in original). Accordingly, we will reverse the post-conviction court’s
exercise of discretion only if we are convinced it reached a conclusion that was “clearly
against the logic and effect of the facts and circumstances before the court or the reasonable,
4 probable and actual deductions to be drawn therefrom.’” Tapia v. State, 753 N.E.2d at 585
(quoting 4A Kenneth M. Stroud, Indiana Practice § 12.8 at 246) (emphasis in original).
Anderson’s argument contains two allegations of error: (1) that he was not permitted
to amend his complaint, and (2) the trial court erred in denying his PCR petition. It appears
to us, however, that his claim of error relative to the denial of his PCR petition does not
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 26 2012, 8:07 am court except for the purpose of establishing the defense of res judicata, CLERK of the supreme court, collateral estoppel, or the law of the case. court of appeals and tax court
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
TODD ANDERSON GREGORY F. ZOELLER Michigan City, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
TODD ANDERSON, ) ) Appellant-Defendant, ) ) vs. ) No. 02A04-1110-PC-596 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Frances C. Gull, Judge Cause No. 02D04-0811-PC-124
April 26, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge In 2006, Todd Anderson was convicted of attempted criminal deviate conduct, a class
B felony, attempted rape, a class B felony, and sexual battery, a class D felony, and was
determined to be a habitual offender. Anderson, pro se, appeals the post-conviction court’s
denial of his petition for post-conviction relief (PCR petition), which challenged those
convictions. Anderson presents a single issue for review: did the trial court err in summarily
denying his PCR petition.
We affirm.
These convictions stemmed from acts Anderson committed and attempted to commit
on a twenty-six-year-old, mentally handicapped woman. The underlying facts were set out in
detail in this court’s unpublished opinion affirming Anderson’s convictions, and need not be
repeated here. See Anderson v. State, No. 02A03-0703-CR-91 (Ind. Ct. App. Sept. 5, 2007),
trans. denied. The issues presented and addressed upon direct appeal included the following:
“Were out-of-court statements the victim made to her guardian, her aunt, and the sexual
assault examiner improperly admitted….? Did the trial court abuse its discretion in
excluding evidence that the victim had previously given birth to a child? Did the trial court
abuse its discretion in sentencing Anderson?” Id., slip op. at 1.
The facts relevant to this appeal are on November 21, 2008, following the adverse
decision on direct appeal, Anderson, pro se, filed a PCR petition presenting five issues for
review. Those issues included the following: (1) Did the trial court abuse its discretion in
sentencing Anderson; (2) did the trial court erroneously admit into evidence out-of-court
statements the victim made to her aunt, her guardian, and the sexual assault examiner; (3) did
Anderson’s conviction violate double jeopardy principles; (4) did the trial court err in
2 excluding evidence that the victim had previously given birth to a child; and (5) did the trial
court abuse its discretion in permitting the State to file the habitual offender allegation?
The case was referred to the State Public Defender’s Office (the Public Defender),
which entered an appearance on Anderson’s behalf on December 19, 2008. The Public
Defender checked out the direct appeal record in October 2010 and returned it to the court in
August 2011. On July 22, 2011, the Public Defender submitted a motion to withdraw from
representation, which was granted on August 2, 2011. On August 23, 2011, Anderson filed
“a Motion to Withdraw Petition for Post-Conviction Relief Without Prejudice.” Appellant’s
Appendix at 4. The trial court denied that motion the same day it was filed. On October 6,
2011, the State submitted its Motion for Denial of Post-Conviction Relief Without Further
Proceedings. The motion was based upon the arguments that PCR Issues 1-3 were identical
to the issues addressed in Anderson’s direct appeal, and Issues 4 and 5 were presented in
free-standing form and as such were impermissible because they were available on direct
appeal. See Baer v. State, 942 N.E.2d 80 (Ind. 2011). The post-conviction court granted the
motion to deny on October 11 upon its finding that the pleadings conclusively showed that
Anderson was not entitled to relief. Anderson appeals that ruling.
We note at the outset that in a post-conviction proceeding, the petitioner bears the
burden of establishing his claims for relief by a preponderance of the evidence. Kubsch v.
State, 934 N.E.2d 1138 (Ind. 2010). When appealing from the denial of a PCR petition, the
petitioner stands in the position of one appealing from a negative judgment and therefore
must show that the evidence as a whole leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Id. We further observe that the post-
3 conviction court is the sole judge of the weight of the evidence and credibility of witnesses.
Fisher v. State, 810 N.E.2d 674 (Ind. 2004). Therefore, its findings and judgment will be
reversed only upon a showing of clear error, i.e., that which leaves us with a definite and firm
conviction that a mistake has been made. Kubsch v. State, 934 N.E.2d 1138.
Anderson contends the trial court erred in denying his PCR petition without first
giving him an opportunity to amend it. He contends Ind. Post-Conviction Rule 1.4(c) grants
him this right. P-C.R. 1.4(c) provides: “At any time prior to entry of judgment the court may
grant leave to withdraw the petition. 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.”
Our Supreme Court clarified in Tapia v. State, 753 N.E.2d 581 (Ind. 2001) that we
review rulings on motions to amend PCR petitions for an abuse of discretion. In conducting
this review, we accord a post-conviction court “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.” Id. at 585. Specifically, the “‘[a]buse 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.’” Id. (quoting 4A Kenneth M. Stroud, Indiana Practice § 12.8 at 246 (2d ed.
1990)) (emphasis in original). Accordingly, we will reverse the post-conviction court’s
exercise of discretion only if we are convinced it reached a conclusion that was “clearly
against the logic and effect of the facts and circumstances before the court or the reasonable,
4 probable and actual deductions to be drawn therefrom.’” Tapia v. State, 753 N.E.2d at 585
(quoting 4A Kenneth M. Stroud, Indiana Practice § 12.8 at 246) (emphasis in original).
Anderson’s argument contains two allegations of error: (1) that he was not permitted
to amend his complaint, and (2) the trial court erred in denying his PCR petition. It appears
to us, however, that his claim of error relative to the denial of his PCR petition does not
involve a claim that the PCR petition, as originally filed, should not have been denied.
Indeed, the post-conviction court was clearly correct in denying the PCR petition on the basis
of its merits as originally filed. Rather, his claim of error with respect to the denial of his
PCR petition relies entirely upon him prevailing on the first argument, i.e., that the trial court
erred in not allowing him to first amend his complaint.
The appendix Anderson filed in this appeal contains only (1) this court’s order
granting Anderson’s motion for a copy of the record, (2) the post-conviction court’s terse
order denying his PCR petition, and (3) the chronological case summary (CCS), beginning
with the charging informations, through and including the Notice of Completion of Clerk’s
Record filed in conjunction with the present appeal. We find no indication that Anderson
filed a motion to amend his PCR petition, nor of anything even approximating a motion to
amend. We do find an entry on August 23, 2011 that states: “Defendant’s Motion to
Withdraw Petition for Post-Conviction Relief Without Prejudice denied without hearing.
Petition to Pend.” Appellant’s Appendix at 4. We may surmise that it was Anderson’s
intention to withdraw the original PCR petition and file a new one. This is merely
conjecture, however. Having failed to obtain the ruling he sought regarding withdrawal of
the original petition, it certainly was possible for Anderson to submit a motion to amend his
5 petition, see P-C.R. 1(4), notwithstanding the denial of his motion to withdraw. It appears
that he failed to do this.
This leaves the following scenario: Anderson filed a motion to withdraw his PCR
petition and that motion was denied. Anderson, however, failed to challenge that ruling upon
appeal. Instead, Anderson challenges the denial of a motion – i.e., a motion to amend his
PCR petition – that he apparently never filed. Inasmuch as Anderson’s challenge to the
denial of his PCR petition is premised entirely upon his claim that the trial court erred in not
allowing him to amend his PCR petition, the claim is without merit. The post-conviction
court “did not err in failing to grant a motion that was never filed or in disallowing an
amendment that was never tendered.” Payday Today, Inc. v. Hamilton, 911 N.E.2d 26, 35
(Ind. Ct. App. 2009), trans. denied.
Judgment affirmed.
MAY, J., and BARNES, J., concur.