Leo Dent, Jr. v. State of Indiana ( 2013 )

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MEMORANDUM DECISION - NOT FOR PUBLICATION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
motion for relief from judgment.
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