JOHNSON v. STATE (2021)

Court of Appeals of Indiana.2021-04-15No. Court of Appeals Case No. 20A-PC-76

Summary · law.co

Holding. The court affirmed the post-conviction court's denial of relief because Johnson's challenge to the March 2017 sentencing order was procedurally defaulted due to his failure to raise it through timely direct appeal or other appropriate mechanisms.

Timothy Johnson challenged a post-conviction court's denial of relief, arguing that a sentencing order from March 2017 (amended in April 2017) was improperly altered. Johnson had been convicted of child molesting in 2001 and received multiple probation violations over the years, culminating in the 2017 orders that affected his sentence length. Johnson filed his post-conviction petition nearly two years after the 2017 orders were entered.

The court determined that Johnson's challenge was procedurally defaulted because he failed to raise it through available direct remedies at the time, such as a motion to correct error or a direct appeal filed after the March 2017 order. By waiting nearly two years to raise the issue in a post-conviction petition, Johnson lost his opportunity to challenge the order through the proper procedural channels. Accordingly, the court upheld the post-conviction court's decision to deny relief.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether Johnson's challenge to the 2017 sentencing order was procedurally defaulted
Timeliness of raising sentencing challenges in post-conviction proceedings
Requirements for preserving procedural default arguments on appeal

Procedural posture

Johnson appealed a post-conviction court's December 2019 order denying his petition for relief, which had challenged a sentencing order from March 2017 that was amended in April 2017.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM DECISION

Statement of the Case

[1] Timothy D. Johnson appeals from the post conviction courts (PC Court) December 13, 2019 order denying him relief, contending that it upheld an improper alteration of his sentence by order of March 16, 2017, and amended on April 22, 2017. Because Johnsons claim is procedurally defaulted, we affirm.

Issue

[2] The dispositive issue in this appeal follows: Is Johnsons challenge to the March 16, 2017 order amended on April 22, 2017 procedurally defaulted?

Facts and Procedural History

[3] Johnson was charged with Class A felony child molesting and pleaded guilty to the offense in December 2001. In accordance with the plea agreement, on February 21, 2002, Johnson was sentenced to fifty years in the Indiana Department of Correction with twenty years suspended to reporting probation. Johnson completed serving the executed portion of his sentence on July 25, 2013 and began probation after his release from the DOC. Next, on July 8, 2014, the court entered its order, later followed by its abstract of judgment, imposing the sanction of five years executed in the DOC with the balance of the suspended sentence to be served on ten years of reporting probation for Johnsons violation of probation. Yet another probation violation notice was filed, and he admitted to the violations on March 16, 2017, with the court ordering him to serve his remaining time of ten years in the DOC. On April 22, 2017, the courts amended abstract of judgment stated Johnson was to serve fifteen years executed at the DOC. Johnsons petition for post-conviction relief, filed on March 18, 2019, nearly two years later, was denied on December 13, 2019 and he now appeals.

Discussion and Decision

[4] Johnson appeals from the PC Courts denial, contending that it erroneously decided the merits of his petition. The State claims waiver from Johnsons failure to appeal the order of March 16, 2017 amended on April 22, 2017. The State was required to plead the affirmative defense of waiver and argue it at the evidentiary hearing for the issue to be preserved for appeal. See Bunch v. State, 778 N.E.2d 1285, 1288 (Ind. 2002). However, the record does not reveal that the State pleaded or raised the defense of waiver or argued it in the post-conviction relief hearing. However, a party is not precluded from suggesting to this Court that procedural default of a claim is a means of affirming a courts judgment. Id. at 1289. Therefore, while the record suggests the State is not entitled as a matter of right to the ruling that Johnsons argument is waived, we may find that Johnsons argument was forfeited by procedural fault. See id. at 1289.

[5] Here, Johnson did not file a motion to correct error, a direct appeal, or request for relief under Post-Conviction Rule 2 on the grounds he raises now, years later, as to the March 16, 2017 order amended on April 22, 2017. His claim is procedurally defaulted. The PC Court did not err by denying Johnson relief.

Conclusion

[6] Because Johnsons claim is procedurally defaulted, we affirm the judgment of the PC Court.

[7] Affirmed.

Sharpnack, Senior Judge.

Brown, J., and Altice, J., concur.