Opinion
No. 49A04-1103-PC-144
08-30-2011
JOE M. MEYERS, Appellant-Petitioner, v. STATE OF INDIANA, Appellee-Respondent.
APPELLANT PRO SE : JOE M. MEYERS New Castle, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE:
JOE M. MEYERS
New Castle, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Lisa F. Borges, Judge
Cause No. 49G04-0504-PC-71150
MEMORANDUM DECISION - NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Petitioner, Joe M. Meyers (Meyers), appeals the post-conviction court's denial of his request for post conviction relief.
We affirm.
ISSUE
Meyers raises one issue on appeal, which we restate as follows: Whether the post-conviction court properly denied Meyers' request for relief for lack of jurisdiction because the State had failed to file an appearance for trial.
FACTS AND PROCEDURAL HISTORY
On April 29, 2005, the State filed an Information charging Meyers with one Count each of robbery and confinement, as Class B felonies, one Count of unlawful possession of a firearm by a serious violent felon, as a Class C felony, and one Count of resisting law enforcement, as a Class A misdemeanor. On October 29, 2007, Meyers pled guilty to the robbery and confinement charges in exchange for dismissal of the other charges, a guarantee of concurrent sentences, and a maximum sentence cap of eight years. On November 13, 2007, the trial court imposed concurrent sentences of seven years on each conviction. On July 1, 2010, Meyers filed a petition for post-conviction relief for lack of jurisdiction claiming that because the State had filed an appearance form with minor errors, the trial court's jurisdiction was void. On February 18, 2011, the post-conviction court issued findings and conclusions denying relief.
Meyers now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
Under the rules of post-conviction relief, a petitioner must establish his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1, §5; Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). To succeed on appeal, the post-conviction petitioner must show that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). The purpose of post-conviction relief is not to provide a substitute for direct appeal, but to provide a means for raising issues not known or available to the defendant at the time of the original appeal. Strowmatt v. State, 779 N.E.2d 971, 975 (Ind. Ct. App. 2002). If an issue was available on direct appeal but not litigated, it is waived. Id.
II. Petition for Post-Conviction Relief
Meyers claims that the State's failure to file an appearance form implicates the jurisdiction of the trial court to hear the case, and thus, his conviction is void. We disagree. Indiana Criminal Rule 2.1 states, "[a]t the time a proceeding is commenced, the prosecuting attorney for the county where the action is pending shall file an appearance form," that contains all attorney contact information, the case type, fax information, the number of the arrest report, identification number for a fingerprint report, and any other information to conform with state and local rules. Our review of the record reveals that an appearance form was filed with the charging information, but the form was lacking both an arrest report number, a file stamp by the clerk's office, and a signature by the deputy prosecuting attorney. However, despite these omissions, we conclude that the trial court had jurisdiction to enter a judgment of conviction.
Subject matter jurisdiction is the power to hear and determine cases of the general class to which any particular proceeding belongs. K.S. v. State, 849 N.E.2d 538, 542 (Ind. 2006). Subject matter jurisdiction must be conferred by Constitution or statute and cannot be conferred by the consent or agreement of the parties. Truax v. State, 856 N.E.2d 116, 122 (Ind. Ct. App. 2006). Further, an objection to subject matter jurisdiction cannot be waived. Id. Meyers was convicted by the Marion County Superior Court for a crime he committed in Marion County. The Marion County Superior Court has original jurisdiction over any violations of Indiana law that occur within the county. Ind. Code § 33-33-49-9(3). Therefore, the trial court had subject matter over Meyer's criminal case.
Personal jurisdiction refers to the right of the court to exercise jurisdiction over the particular parties who are brought before the court. Truax, 856 N.E.2d at 122. Unlike subject matter jurisdiction, a defendant can waive personal jurisdiction by failing to make a timely objection. Id. For over two years, Meyers attended hearings with and without counsel, filed motions, and pled guilty in exchange for dismissed charges and concurrent sentencing. At no point during these proceedings did Meyers raise a personal jurisdiction claim; rather, it was not until post-conviction proceedings that Meyers brought his allegation to the attention of the court. As such, we find that Meyers waived his claim of personal jurisdiction.
Insofar as Meyers makes arguments under the Fourth, Fifth, and Fourteenth Amendment of the United States Constitution, we find his claim waived for failure to make a cogent argument. See Ind. Appellate Rule 46(A)(8).
CONCLUSION
Based on the foregoing, we conclude that the post-conviction court properly denied Meyer's petition for post-conviction relief.
Affirmed. NAJAM, J. and MAY, J., concur.