Gregory Alan Caudle v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 05 2019, 9:23 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Gregory Alan Caudle Curtis T. Hill., Jr.
Carlisle, Indiana Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gregory Alan Caudle, September 5, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-2292
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Respondent Sheila Carlisle, Judge
The Honorable
Stanley E. Kroh, Magistrate
Trial Court Cause No.
49G03-1603-PC-9902
Vaidik, Chief Judge.
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Case Summary
[1] Gregory Alan Caudle appeals the denial of his petition for post-conviction
relief. We affirm.
Facts and Procedural History
[2] In 2013, Caudle was convicted of burglary, resisting law enforcement, and
being a habitual offender in Marion Superior Court, and the trial court
sentenced him to thirty-eight years. Caudle initially pursued a direct appeal but
later withdrew it. This Court then dismissed his appeal with prejudice in
February 2014. See 49A02-1308-CR-685.
[3] In March 2016, Caudle filed a pro se petition for post-conviction relief alleging
that the charging information was defective because it did not contain the
“indorsement” “Approved by me” signed by the prosecuting attorney, as
required by a statute that existed in 1933. See Lynn v. State, 207 Ind. 393, 193
N.E. 380 (1934). Accordingly, Caudle claimed that the trial court lacked
jurisdiction because there was “no commencement of criminal action.”
Appellant’s P-C App. p. 13.
[4] Along with his petition Caudle filed a motion to forego an evidentiary hearing
and to proceed by affidavit. The post-conviction court granted this request and
ordered affidavits to be filed on or before June 21, 2016, and findings and
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conclusions to be filed by September 20, 2016.1 Id. at 4; Appellee’s P-C App. p.
2. Although it doesn’t appear that Caudle filed any affidavits, he asked the
court to take judicial notice of its file and the record in his direct appeal, which
the court agreed to do. Appellant’s P-C App. p. 47. On June 22—the day after
affidavits were due—Caudle filed a motion for an evidentiary hearing pursuant
to Indiana Post-Conviction Rule 1(9)(b). Id. at 20b. The post-conviction court
denied this motion given the “claims raised on PCR” and the fact that Caudle
had “previously requested to proceed by affidavit.” Id.
[5] On August 12, Caudle filed a motion to amend his petition for post-conviction
relief in order to add a claim of ineffective assistance of appellate counsel. The
post-conviction court denied this motion. Id. at 59. Following the submission
of proposed findings and conclusions by each party, the post-conviction court
entered an order denying relief.
[6] Caudle, pro se, now appeals.
Discussion and Decision
[7] Caudle contends that the post-conviction court erred in denying relief. A
defendant who files a petition for post-conviction relief has the burden of
establishing the grounds for relief by a preponderance of the evidence. Hollowell
1
Due to several motions filed by Caudle (including Caudle’s attempt to seek an interlocutory appeal) and
continuances by the State, the due date was extended to July 31, 2018.
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v. State, 19 N.E.3d 263, 268-69 (Ind. 2014). If the post-conviction court denies
relief, and the petitioner appeals, the petitioner must show that the evidence
leads unerringly and unmistakably to a conclusion opposite that reached by
the post-conviction court. Id. at 269.
[8] Caudle first argues that the post-conviction court erred in denying his motion
for an evidentiary hearing pursuant to Post-Conviction Rule 1(9)(b), which
provides:
In the event petitioner elects to proceed pro se, the court at its
discretion may order the cause submitted upon affidavit. It need
not order the personal presence of the petitioner unless his
presence is required for a full and fair determination of the issues
raised at an evidentiary hearing.
We review a post-conviction court’s “decision to forego an evidentiary hearing
when affidavits have been submitted under Rule 1(9)(b) under an abuse of
discretion standard.” Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App. 2005),
trans. denied.
[9] Here, the post-conviction court proceeded by affidavit at Caudle’s own
request. Then, after the deadline for submitting affidavits had passed, Caudle
“change[d] his mind” and requested an evidentiary hearing. Appellant’s Br. p.
11. Given the narrow, legal nature of the claim Caudle raised in his petition
(whether the charging information was defective because it wasn’t signed by the
prosecuting attorney) and the fact that he was the one who requested to proceed
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by affidavit, the court did not abuse its discretion in denying Caudle’s motion
for an evidentiary hearing.
[10] Caudle next argues that the post-conviction court erred in denying his motion
to amend his petition for post-conviction relief. Indiana Post-Conviction Rule
1(4)(c) addresses the amendment of post-conviction petitions as follows:
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.
(Emphasis added). Although this case was not set for trial, affidavits were due
on June 22, 2016, which is the equivalent of the trial date. But Caudle didn’t
file his motion to amend his petition until August 12—nearly two months after
the June 22 deadline. Caudle claims that the post-conviction court “abused [its]
discretion” in denying his motion because the amendment didn’t change the
substance of his petition but rather “merely wr[ote] between the lines to give a
more indept[h] petition by showing how ineffective assist[a]nce played a part in
the claim.” Appellant’s Br. p. 12. A review of Caudle’s motion to amend his
petition, however, shows that he was not simply filling in his defective-
charging-information argument; rather, he was raising a new issue. See
Appellee’s P-C App. pp. 3-6. The post-conviction court did not abuse its
discretion in denying Caudle’s motion to amend his petition filed after the
evidentiary deadline had passed.
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[11] Finally, Caudle argues that the post-conviction court erred in denying relief on
his claim that his charging information was defective because it did not contain
the “indorsement” “Approved by me” signed by the prosecuting attorney, as
required by a statute that existed in 1933. Regardless of what the law said in
1933, it is no longer the law. Indiana Code section 35-34-1-2(c)—which Caudle
does not even acknowledge on appeal—now provides that the charging
information “shall be signed by the prosecuting attorney or the prosecuting
attorney’s deputy.” (Emphasis added). This has been the law since at least
1973. See Ind. Code 35-3.1-1-2(6)(b); Acts 1973, P.L. 325. Here, Caudle’s
charging documents were signed by a deputy prosecuting attorney. See
Appellant’s Direct Appeal App. pp. 30, 55. The post-conviction court properly
denied relief on this claim.2
[12] Affirmed.
Riley, J., and Bradford, J., concur.
2
Caudle also appears to argue that the State’s answer to his petition for post-conviction relief was somehow
improper because the State filed its appearance about ten days after filing its answer. Caudle did not raise
this issue below. Therefore, it is waived.
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