Opinion
No. 49A02–1201–PC–11.
2013-03-15
Tyrone FRAZIER, Appellant–Defendant, v. STATE Of Indiana, Appellee–Plaintiff.
Appeal from the Marion Superior Court; The Honorable James Osborn, Judge; The Honorable John Jay Boyce, Master Commissioner; Cause No. 49F15–8710–PC–12782. Tyrone Frazier, Michigan City, IN, Appellant Pro Se. Gregory F. Zoeller, Attorney General of Indiana, Marjorie Lawyer–Smith, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appeal from the Marion Superior Court; The Honorable James Osborn, Judge; The Honorable John Jay Boyce, Master Commissioner; Cause No. 49F15–8710–PC–12782.
Tyrone Frazier, Michigan City, IN, Appellant Pro Se. Gregory F. Zoeller, Attorney General of Indiana, Marjorie Lawyer–Smith, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
MEMORANDUM DECISION—NOT FOR PUBLICATION
MAY, Judge.
Tyrone Frazier appeals the denial of his successive petition for post-conviction relief. He presents four issues for our review, only two of which we need to address:
1. Whether the trial court erred when it denied his motion to have an elected judge preside over his successive post-conviction evidentiary hearing;
2. Whether Frazier's claims in his petition for successive post-conviction relief were res judicata.
We affirm.
FACTS AND PROCEDURAL HISTORY
On October 22, 1987, the State charged Frazier with Class D felony possession of marijuana.
On March 10, 1988, Frazier pled guilty pursuant to a plea agreement, and the trial court sentenced him to two years, all suspended.
.Ind.Code § 35–48–4–11.
On August 29, 2003, Frazier filed a petition for post-conviction relief. He alleged lack of evidence, ineffective assistance of trial counsel, and invalid guilty plea. The petition also alleged a fourth ground not clear from the record before us, as the allegation apparently was written on the reverse side of the petition, which Frazier did not included in the Appendix filed herein. The post-conviction court denied his petition on October 20, 2003. Frazier did not appeal from that denial.
On March 12, 2008, we authorized Frazier to file a successive petition for postconviction relief, and Frazier filed his petition the same day, alleging ineffective assistance of counsel and invalid guilty plea. On July 15, 2010, Frazier requested the post-conviction court grant him permission to amend his petition, and the post-conviction court granted permission. On August 9, 2010, Frazier amended his petition by adding a claim that the judge pro tern that accepted his guilty plea had not been properly appointed.
Frazier moved for his successive petition for post-conviction relief to be heard by a judge elected to sit in Superior Court. His motion was denied. On August 18, 2010, and March 23, 2011, the post-conviction court heard evidence. On December 13, 2011, it denied Frazier's petition.
DISCUSSION AND DECISION
Frazier appears pro se. Pro se litigants are held to the same standards as licensed attorneys and are required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind.Ct.App.2004).
1. Successive PCR Judge
Frazier requested his successive petition for post-conviction relief be heard by a judge elected to sit in Superior Court. Indiana law provides:
(c) A party to a superior court proceeding that has been assigned to a magistrate appointed under this section may request that an elected judge of the superior court preside over the proceeding instead of the magistrate to whom the proceeding has been assigned. A request under this subsection must be in writing and must be filed with the court:
(1) in a civil case, not later than:
(A) ten (10) days after the pleadings are closed; or
(B) thirty (30) days after the case is entered on the chronological case summary, in a case in which the defendant is not required to answer; or
(2) in a criminal case, not later than ten (10) days after the omnibus date.
Upon a timely request made under this subsection by either party, the magistrate to whom the proceeding has been assigned shall transfer the proceeding back to the superior court judge.
Ind.Code § 33–33–49–32. When, as here, the issue is the interpretation of a statute, we review the matter de novo. Gaudin v. Austin, 921 N.E.2d 895 (Ind.Ct.App.2010), trans. granted, opinion reinstated936 N.E.2d 1241 (Ind.2010).
On March 12, 2008, we authorized Frazier's successive petition for post-conviction relief, and he filed his petition the same day. On March 31, 2008, he filed a Motion for Seated Judge to Preside. The motion was denied, and Master Commissioner John Jay Boyce presided over his evidentiary hearing on March 23, 2011. As post-conviction proceedings are civil in nature, Step hens on v. State, 864 N.E.2d 1022, 1028 (Ind.2007), reh ‘g denied, Frazier was required to file his motion no later than ten days after pleadings closed. Frazier filed his motion eighteen days after the pleadings closed, and therefore his motion was not timely and was properly denied. Accordingly, the post-conviction court did not err when it denied his Motion for Seated Judge to Preside.
2. Denial of Successive Petition
Post-conviction proceedings afford petitioners a limited opportunity to raise issues unavailable or unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind.2002). As post-conviction proceedings are civil in nature, the petitioner must prove his grounds for relief by a preponderance of the evidence. Id. A party appealing a negative postconviction judgment must establish that the evidence is without conflict and, as a whole, unmistakably and unerringly points to a conclusion contrary to that reached by the post-conviction court. Id. Where, as here, the post-conviction court makes findings of fact and conclusions of law in accordance with Indiana Post–Conviction Rule 1(6), we do not defer to the court's legal conclusions, but “the findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made.” Ben–Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (citation omitted), cert denied, 530 U.S. 830 (2001).
A petitioner is entitled to only one post-conviction opportunity to raise the issue of ineffective assistance of counsel. Daniels v. State, 741 N.E.2d 1177, 1185 (Ind.2001). Claims of ineffective assistance already decided adversely to the petition are barred in successive post-conviction proceedings as res judicata, which prevents the re-litigation of issues. Mat hen ey v. State, 834 N .E.2d 658, 662 (Ind.2005). The doctrine of res judicata does not bar an action if “the initial decision was clearly erroneous and would work manifest injustice,” Wallace v. State, 820 N.E.2d 1261, 1263 (Ind.2005), or if there is newly-discovered evidence. Daniels, 741 N.E.2d at 1185.
Frazier's initial petition for post-conviction relief was denied on October 20, 2003. In his appellate brief, Frazier has not explained why the 2003 denial was “clearly erroneous” or created “manifest injustice.” See Wallace, 820 N.E.2d at 1263. Nor does his argument rely on newly discovered evidence. Therefore, all of the arguments he raised in his successive petition for post-conviction relief are precluded by res judicata.
CONCLUSION
The trial court did not err when it denied Frazier's Motion for a Seated Judge to Preside because his motion was not timely. Additionally, the claims he raised in his petition for successive post-conviction relief were res judicata. Accordingly, we affirm the denial of Frazier's petition for successive post-conviction relief.
Affirmed.
ROBB, C.J., and PYLE, J., concur.