Curt Lowder v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 06 2017, 10:36 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Curt Lowder Curtis T. Hill, Jr.
Wabash Valley Correctional Facility Attorney General of Indiana
Carlisle, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Curt Lowder, April 6, 2017
Appellant-Petitioner, Court of Appeals Case No.
49A04-1606-PC-1518
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Lisa F. Borges,
Appellee-Respondent Judge
The Honorable Anne Flannelly,
Magistrate
Trial Court Cause No.
49G04-0006-PC-89141
Crone, Judge.
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Case Summary
[1] Curt Lowder appeals the denial of his amended petition for postconviction
relief (“PCR”) after he pled guilty to class D felony resisting law enforcement
while using a vehicle. First, he challenges the postconviction court’s denial of
his motion to amend his amended PCR petition, which he did not file until
after the evidentiary hearing, arguing that the new claims he sought to add were
tried by the parties’ express consent. Second, he argues that the postconviction
court clearly erred in finding that he failed to carry his burden to show that
there was no factual basis to support his guilty plea.
[2] We conclude that the parties did not try the claims Lowder sought to add by
express or implied consent, and therefore the postconviction court did not abuse
its discretion in denying his motion to amend his amended PCR petition. We
also conclude that the evidence does not unerringly and unmistakably show
that Lowder’s guilty plea had no factual basis. Accordingly, we affirm.
[3] We note that Lowder argues that the postconviction court clearly erred in
finding that the State carried its burden to establish its laches defense and
presents additional arguments related to the State’s laches defense. However,
because we address Lowder’s claim on the merits, we need not address those
arguments.
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Facts and Procedural History1
[4] At Lowder’s guilty plea hearing, the following factual basis was established.
Sometime after midnight one evening in May 2000, Marion County Sheriff’s
Department Deputy Daniel Herrick was in his patrol car on East Washington
Street in Indianapolis. He was flagged down by two individuals who told him
that they were having trouble with two people in a white pickup truck. As he
was speaking with them, the white pickup truck passed by. Deputy Herrick
activated his emergency equipment and attempted to stop the truck. The truck
turned into Irvington Plaza and accelerated through the parking lot, attempting
to get away. The truck continued through the parking lot at a high rate of
speed, exited onto the street, did a U-turn, and struck another vehicle. Deputy
Herrick saw two males jump from the truck. Deputy Herrick yelled for both
subjects to stop, but they continued running. Deputy Herrick saw Lowder hide
behind a bush, where Lowder was apprehended by a canine unit.
[5] In June 2000, the State charged Lowder with class D felony resisting law
enforcement and class A misdemeanor resisting law enforcement. According to
the probable cause affidavit, Deputy Herrick believed that Lowder was the
1
Lowder’s filings with this Court violate our appellate rules in several ways. The table of contents for his
appellant’s appendix indicates that “[a]ll PCR Motions and Filings Records” begin on page number 130 and
fails to provide the specific page number for each individual pleading, motion, and order in contravention of
Indiana Appellate Rule 50(C). Appellant’s App. Vol. 1 at 2. Also, although his appellant’s appendix
includes the chronological case summary (“CCS”) from the underlying criminal case, it does not include the
CCS from the postconviction proceedings in contravention of Indiana Appellate Rule 50(B)(1)(a). In
addition, in his appellant’s brief, Lowder fails to provide any citations to the page numbers in his appendix in
contravention of Appellate Rule 46(A)(6)(a) and 46(A)(8)(a). Lowder’s noncompliance with our appellate
rules has substantially hindered our review. However, given our preference for deciding cases on their
merits, we have not found Lowder’s arguments waived.
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driver of the truck. The charging information for class D felony resisting law
enforcement alleged that Lowder did knowingly flee from Deputy Herrick after
the officer had identified himself and ordered Lowder to stop and while
committing the offense Lowder “did operate a motor vehicle.” Appellant’s App.
Vol. 2 at 14 (emphasis added).
[6] In March 2001, Lowder entered into a plea agreement, in which he agreed to
plead guilty to class D felony resisting law enforcement, and the State agreed to
dismiss the remaining charge. The State also agreed to dismiss all counts in
cause number 49G14-0008-DF-151462 (class D felony possession of cocaine
and class A misdemeanor driving while suspended) and not to file a charge of
class D felony auto theft, which the State believed was linked to the conduct
that gave rise to the resisting law enforcement charges. The plea agreement
called for open sentencing.
[7] At the guilty plea hearing, the prosecutor read the probable cause affidavit to
establish the factual basis for class D felony resisting law enforcement. Id. at
92-94. The trial court asked Lowder whether the affidavit accurately stated
what had occurred. Lowder answered that everything was correct except that
he was not driving the vehicle. Id. at 94-95. The trial court observed that it did
not “sound like a factual basis for resisting by operating a motor vehicle.” Id. at
95. Lowder’s defense counsel stated that the relevant statute included conduct
in which a person “uses” a vehicle to commit the offense but that was
inconsistent with the charging information. Id. The trial court responded that
the charging information could be amended and that it was “a fair statement to
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say that Mr. Lowder was using the vehicle, although albeit not operating it, to
flee.” Id. at 96. Lowder’s defense counsel then cited Jones v. State, 536 N.E.2d
267 (Ind. 1989), in which Jones’s conviction for class D felony resisting law
enforcement was upheld even though he had been a backseat passenger in the
vehicle. Appellant’s App. Vol. 2 at 96. The trial court asked the prosecutor
whether the State wished to amend the charging information, and the
prosecutor said it did. Id. The trial court asked whether there was any
objection from the defendant, and defense counsel said there was not. Id. The
trial court then declared, “So we’ll show that the word ‘operate’ in the
information of Count One is stricken and in lieu thereof the word ‘use’ is
inserted. And based on the information I received, I now find that there [is] a
factual basis for the plea agreement.” Id. The trial court then accepted the plea
agreement. In April 2001, the trial court sentenced Lowder to 545 days with
180 days executed through community corrections home detention and 365
days suspended to probation.
[8] In June 2013, Lowder filed a pro se PCR petition. Appellant’s App. Vol. 2 at
122.2 The postconviction court appointed a public defender to represent
Lowder. It also issued a scheduling order, in which it advised Lowder that
“[a]ny amendment to the Petition shall be filed at least sixty (60) days before
the evidentiary hearing except under extraordinary circumstances.” Id. at 133.
2
Page 3 of Lowder’s PCR petition, which is the page that would contain the facts which support each of the
grounds for vacating, setting aside, or correcting the conviction and sentence, is missing from the appellant’s
appendix.
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After Lowder’s public defender withdrew her appearance, the postconviction
court issued an amended scheduling order that again advised Lowder that
“[a]ny amendment to the petition shall be filed at least sixty (60) days before the
Evidentiary Hearing date except under extraordinary circumstances.” Id. at
154.
[9] In August 2014, Lowder, pro se, filed an amended PCR petition, replacing the
allegations in the original petition with the following: “Trial court errored [sic]
when [it] entered judgment upon a plea of guilty due to the fact there was no
factual basis to support [his] guilt.” Id. at 156.
[10] In November 2014, the postconviction court held an evidentiary hearing on
Lowder’s amended PCR petition. Lowder called defense counsel as a witness.
Lowder asked defense counsel if he had researched whether the police had
reasonable suspicion or probable cause to stop the truck. Tr. at 41. The State
objected to the question, arguing that Lowder’s amended PCR petition did not
state a claim based on lack of reasonable suspicion or probable cause. Id. The
postconviction court sustained the State’s objection. During cross-examination,
the State asked Lowder’s defense counsel whether he “would have done
anything to coerce Mr. Lowder to plead guilty even though he wasn’t admitting
that he was guilty.” Id. at 48. Lowder’s defense counsel answered that he did
not coerce Lowder, and then continued, “The question always lingered in my
mind … that he was not the driver of the car and whether or not the police
officer had the authority or the probable cause … to stop them in the first
place.” Id. The State unsuccessfully attempted to interrupt defense counsel, but
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he went on to state, “I didn’t research that part of the case. I was focused on
the driver aspect of the whole thing.” Id.
[11] In January 2015, Lowder filed a “Motion To Amend The Pleadings To Cause
Them To Conform To The Evidence” presented at the PCR hearing (“motion
to amend”). Appellant’s App. at 175. The postconviction court took the
motion under advisement and directed the State to file its response by March 2,
2015. On March 3, 2015, the State filed an objection to Lowder’s motion to
amend. Id. at 180. In March 2015, the postconviction court issued an order
denying Lowder’s motion to amend. Id. at 182. Lowder filed a request for
reconsideration, which the postconviction court denied. Id. at 189.
[12] In June 2016, the postconviction court entered its findings of fact and
conclusions of law, finding that Lowder failed to carry his burden to show that
there was no factual basis supporting his guilty plea to class D felony resisting
law enforcement and denying his amended PCR petition. Id. at 231-44. This
appeal ensued.
Discussion and Decision
Section 1 – The postconviction court did not abuse its
discretion in denying Lowder’s motion to amend.
[13] Lowder challenges the postconviction court’s denial of his motion to amend.
Indiana Post-Conviction Rule 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
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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.
“[W]e review the post-conviction court’s refusal to amend a petition for abuse
of discretion because the Post-Conviction Rules state that any motion to amend
made within 60 days of an evidentiary hearing may be granted only ‘by leave of
the court.’” Tapia v. State, 753 N.E.2d 581, 586 (Ind. 2001) (quoting Ind. Post-
Conviction Rule 1(4)(c)).
[14] To support his argument that the postconviction court abused its discretion in
denying his motion to amend, Lowder relies on Indiana Trial Rule 15(B),
which provides,
When issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects
as if they had been raised in the pleadings. Such amendment of
the pleadings as may be necessary to cause them to conform to
the evidence and to raise these issues may be made upon motion
of any party at any time, even after judgment, but failure so to
amend does not affect the result of the trial of these issues.
[15] We note that the Indiana Trial Rules “generally only govern procedure and
practice in civil cases.” Corcoran v. State, 845 N.E.2d 1019, 1021 (Ind. 2006).
However, we consider their applicability in postconviction proceedings “on a
case-by-case basis where the Indiana Rules of Procedure for Post-Conviction
Remedies are silent.” Id. In Harrington v. State, 466 N.E.2d 1379 (Ind. Ct. App.
1984), another panel of this Court cited Trial Rule 15(B) in concluding that
although the State did not plead laches as an affirmative defense in
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postconviction proceedings, the issue was tried by consent and the State’s
answer was deemed amended to raise the laches issue. Id. at 1381.
[16] Assuming, without deciding, that Trial Rule 15(B) applies to the postconviction
court’s ruling on Lowder’s motion to amend, his argument is without merit.
The claims he sought to add were based on the premise that the police lacked
reasonable suspicion or probable cause to stop the vehicle. He argues that these
claims were tried by express consent because his defense counsel testified at the
evidentiary hearing that he did not research reasonable suspicion or probable
cause. Tr. at 48. Lowder ignores that the State objected when he attempted to
question defense counsel as to whether he had investigated reasonable suspicion
or probable cause, and the postconviction court sustained the objection. Id. at
41. On cross-examination, the State asked defense counsel whether he “would
have done anything to try to coerce Mr. Lowder to plead guilty even though he
wasn’t admitting that he was guilty.” Id. at 48. In answering, defense counsel
stated that he had not researched reasonable suspicion. However, the State’s
question clearly was not an attempt to solicit that information. We conclude
that the claims Lowder sought to add were not tried by express or implied
consent. Therefore, the postconviction court did not abuse its discretion in
denying Lowder’s motion to amend.3
3
Because it was within the postconviction court’s discretion to permit Lowder to amend his PCR petition
and we have concluded that the postconviction court did not abuse its discretion, we need not address
Lowder’s argument that the postconviction court erred in sustaining the State’s objection to his motion to
amend.
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Section 2 – The postconviction court did not clearly err in
finding that Lowder failed to carry his burden to show that
there was no factual basis to support his guilty plea.
[17] Lowder claims that the postconviction court erred in finding that he failed to
show that there was no factual basis to support his guilty plea. We observe that
the postconviction court entered findings of fact and conclusions of law as
required by Indiana Post-Conviction Rule 1(6). Our review is limited to
whether the findings are supported by the facts and the conclusions are
supported by the law. Ward v. State, 969 N.E.2d 46, 51 (Ind. 2012). The
petitioner seeking postconviction relief “bears the burden of establishing
grounds for relief by a preponderance of the evidence.” Ritchie v. State, 875
N.E.2d 706, 713 (Ind. 2007). A judgment entered against a party bearing the
burden of proof is a negative judgment. Burnell v. State, 56 N.E.3d 1146, 1149-
50 (Ind. 2016). When a petitioner appeals from a negative judgment, he or she
must convince the appeals court that “the evidence as a whole leads unerringly
and unmistakably to a decision opposite that reached by the post-conviction
court.” Wesley v. State, 788 N.E.2d 1247, 1250 (Ind. 2003). Although Lowder
is “proceeding pro se and lacks legal training, such litigants are held to the same
standard as trained counsel and are required to follow procedural rules.” Ross v.
State, 877 N.E.2d 829, 833 (Ind. Ct. App. 2007), trans. denied (2008).
[18] Regarding a trial court’s acceptance of a guilty plea, our supreme court has
stated,
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An Indiana court cannot accept a guilty plea unless there is an
adequate factual basis for the plea. Ind. Code § 35-35-1-3(b)
(2008). The purpose of the factual basis requirement is to ensure
that a person who pleads guilty is truly guilty. As the ABA
standards put it, the court should satisfy itself that “the defendant
could be convicted if he or she elected to stand trial.” ABA
Standards for Criminal Justice Pleas of Guilty 65 (3d. ed. 1999). A
factual basis exists when there is evidence about the elements of
the crime from which a court could conclude that the defendant
is guilty. The presentation about facts need not prove guilt
beyond a reasonable doubt. The original trial court’s
determination that the factual basis was adequate is clothed with
the presumption of correctness. We will only set aside the trial
court’s acceptance of a guilty plea for an abuse of discretion.
State v. Cooper, 935 N.E.2d 146, 150 (Ind. 2010) (citations, quotation marks, and
brackets omitted) (emphasis added).
[19] Here, Lowder pled guilty to class D felony resisting law enforcement. A person
who knowingly or intentionally flees from a law enforcement officer after the
officer has identified himself or herself and ordered the person to stop commits
class A misdemeanor resisting law enforcement. Ind. Code § 35-44-3-3(a)(3).4
The offense is elevated to a class D felony if “the person uses a vehicle to
commit the offense.” Ind. Code § 35-44-3-3(b)(1)(A) (emphasis added). We
note that although Lowder was initially charged with operating the vehicle, the
charging information was amended to replace “operate” with “use.”
Appellant’s App. at 96. Nevertheless, Lowder argues that “[t]he facts are
4
In 2012, the statute was recodified at Indiana Code Section 35-44.1-3-1 and has since been amended.
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Lowder never had control over the vehicle or over the person that was driving,
so to use the vehicle to flee Lowder would have had to put the vehicle into
action which he never did, nor did Lowder ever admit to this action of ‘use’ the
vehicle to flee.” Appellant’s Br. at 20.
[20] In Jones, 536 N.E.2d 267, the PCR petitioner argued that his conviction for
class D felony resisting law enforcement was unsupported by sufficient evidence
because “he had no control over the fleeing vehicle, and once the vehicle
stopped, he did not try to escape police.” Id. at 271. Although Jones was
sitting in the back seat of the vehicle as it fled police and had no control over the
vehicle, our supreme court concluded that his conviction was supported by
sufficient evidence because the acts of Jones’s accomplices in furtherance of the
crimes were imputed to him. Id. Additionally, the court noted that Jones
testified that he told the driver not to stop. Id.[21] At the guilty plea hearing, Lowder, under oath, admitted to all the facts in the
probable cause affidavit other than that he was driving the vehicle. Even if
Lowder was not the driver, he admitted to the following facts. When Deputy
Herrick activated his emergency equipment and attempted to stop the truck in
which Lowder was a passenger, the truck sped away, accelerated through a
parking lot, proceeded back out on the street at a high rate of speed, did a U-
turn, and crashed into another vehicle. After the vehicle crashed, Lowder
continued to flee from the police by jumping out of the vehicle, running away,
and hiding behind a bush. We will not reverse unless the evidence leads
unerringly and unmistakably to the conclusion that Lowder carried his burden
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to show that his guilty plea had no factual basis. Based on this record, we
conclude that the postconviction court did not clearly err in finding that Lowder
failed to carry his burden. Accordingly, we affirm the postconviction court’s
denial of his amended PCR petition.
[22] Affirmed.
Riley, J., and Altice, J., concur.
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