APPEAL FROM THE TIPPECANOE COUNTY CIRCUIT COURT. The Honorable Vincent F. Grogg, Judge.
DeBRULER, J., Shepard, C.j., Givan, Pivarnik, and Dickson, JJ., concur.
This is an appeal following the summary denial of appellant's petition for post-conviction relief.
The issues raised by appellant have been combined as follows: (1) whether the Honorable Vincent Grogg had jurisdiction to decide appellant's post-conviction claim; and (2) whether the issues presented in appellant's petition for post-conviction relief have been waived, consisting of four subparts: (a) whether fundamental error occurred at trial; (b) whether the Honorable Vincent Grogg erred by not specifically identifying the alleged fundamental error in his findings; (c) whether the summary denial of appellant's petition for post-conviction relief deprived him of his right to appeal; and (d) whether uncorrected error of law occurred at trial which requires reversal of his conviction.
Appellant asserts that the appointment of Vincent Grogg as special Judge was error. The charges of dealing in a controlled substance and habitual criminal were initially brought before the Honorable Robert F. Munro. A change of venue from Judge Munro was granted and he appointed a panel comprised of the Honorable Marvin D. McLaughlin, the Honorable V. Sue Shields and the Honorable Gene B. Lee.
The Honorable V. Sue Shields assumed jurisdiction; the case was tried to a hung jury; Judge Shields disqualified herself and appointed a panel consisting of the Honorable Vincent F. Grogg, the Honorable John B. Wilson, and the Honorable Thomas Wright. The Honorable John B. Wilson assumed jurisdiction, presided over the jury trial, entered judgment of conviction and sentenced appellant to five years for dealing in a controlled substance and to life on the habitual criminal count.
Appellant filed his petition for post-conviction relief with Judge Wilson and a hearing date was scheduled. The State then filed a motion for change of venue. Judge Wilson granted the motion and appointed a panel for selection of a special Judge. The State then filed a motion to certify cause to the Supreme Court for naming of a special Judge and thereafter Judge Wilson disqualified himself from the case and certified it to this court for special Judge appointment. This court then appointed the Honorable Vincent Grogg special Judge.
Appellant asserts as error the appointment of Judge Grogg as special Judge, relying on Ind.R.T.P. 79(11):
"Any regular Judge of a circuit, superior, criminal, probate or juvenile court and any member of the bar in this state shall be eligible for appointment in any of such courts as a special Judge in any case pending in which he has not sat as Judge or been named on a previous panel . . . ."
He asserts that since Judge Grogg had been named on a previous panel, he was ineligible to be appointed as special Judge in this case.
Initially, we must note that while the State did ask for certification based on Ind.R.T.P. 79(6) asserting there had already been two panels appointed, this court accepted the certification pursuant to Ind.R.T.P. 79(7), based on the fact Judge Wilson had disqualified himself. The fact that two panels of Judges had been appointed prior to appellant's criminal trial was irrelevant to our decision. When Judge Wilson disqualified himself, we were empowered to appoint a special Judge under Ind.R.T.P. 79(7).
As for the premise that Judge Grogg was ineligible due to the fact he had been on a previous panel, had this been the initial trial level this position would be correct. However, a post-conviction action is not the "same case" for purposes of Ind.R.T.P. 79. As this court stated in State ex rel ...