Robertson v. State , 699 N.E.2d 697 ( 1998 )

OPINION

SULLIVAN, Judge.

Appellant, William D. Robertson (Robertson), appeals the trial court’s denial of his Successive Petition for Post-Conviction Relief.

We affirm.

On October 12, 1989, the State charged Robertson with two counts of Dealing in Cocaine, as Class A felonies,¹ and one count of Dealing in Cocaine, as a Class B felony.² On June 6, 1990, a jury convicted him on all counts, and the trial court sentenced him to consecutive terms totaling eighty years. Thereafter, another panel of this court affirmed the convictions in an unpublished memorandum decision. Robertson v. State (1991) Ind.App., 577 N.E.2d 625.

Robertson filed a Petition for Post-Conviction Relief on August 17, 1992, which the trial court denied. Another panel of this court affirmed the denial with respect to the underlying convictions. However, the court remanded the case for resentencing, and the trial court resentenced Robertson to concurrent terms of imprisonment of thirty-five years. Robertson v. State (1995) Ind.App., 650 N.E.2d 1177, reh’g denied. (Hereafter Robertson II). Specifically, the court concluded that Robertson was not entitled to an instruction regarding the lesser-included offense of Possession of Cocaine,³ because the language of the information closely tracked the wording of the Dealing in Cocaine statute.⁴ Id. at 1182.

Thereafter, in Wright v. State (1995) Ind., 658 N.E.2d 563, 570, the Indiana Supreme Court expressed its disapproval of Robertson II, supra, 650 N.E.2d at 1177. Contrary to the holding in Robertson II, the Court stated that prosecutors may not preclude an instruction regarding a lesser-included offense by closely tracking statutory language in the information.⁵ Wright, supra at 570. Rather, the Court developed a three-pronged analysis to be applied when a party requests an instruction on an included offense.

On March 26, 1996, Robertson filed his Successive Petition for Post-Conviction Relief, which again asserted that the trial court erred in failing to instruct the jury about the included offense. The trial court denied this petition on March 17, 1997. This denial prompted the present appeal.

Upon appeal, Robertson essentially argues that he should receive the benefit of the new constitutional rule⁶ enunciated in Wright. Moreover, he contends that the charging information was deficient and the trial court erred in submitting a verdict form for Dealing in Cocaine, as a Class B felony, to the jury.

I. RETROACTIVITY OF NEW CONSTITUTIONAL RULE OF CRIMINAL PROCEDURE

In Teague v. Lane (1989) 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334, reh’g denied, the United States Supreme Court held that a criminal defendant may not generally receive the benefit of a new constitutional rule of criminal procedure upon collateral review of a final decision. However, the Court con-eluded that a new rule should apply retroactively “if it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-maldng authority to proscribe.’” Id., 109 S.Ct. at 1073. (Quoting Mackey v. United States (1971) 401 U.S. 667, 692, 91 S.Ct. 1160, 28 L.Ed.2d 404). In addition, retroactive application is appropriate where, as a result of growth in society and the judiciary, understanding of “bedrock procedural elements” is altered so as to “vitiate the fairness of a particular conviction,” such as the right to counsel. Id. at 1076. (Quoting Mackey, supra at 693-94, 91 S.Ct. 1160). (Emphasis omitted).

As neither exception applies in the instant case, we decline to retroactively apply the new rule regarding the court’s duty to instruct the jury about included offenses.⁷ The first exception has no relevance, as the rule does not bear upon the ability of the government to proscribe individual conduct. Moreover, although the rule significantly clarifies the procedure governing these particular jury instructions, it does not reflect an alteration of “bedrock procedural elements” necessary to implicate the second exception. Id.

II. ALLEGED DEFICIENCY OP CHARGING INFORMATION

Robertson also argues that the failure of the charging information to set forth to whom the cocaine was delivered warrants reversal. This contention is without merit. Although the crimes of which Robertson was convicted require the transfer of cocaine from one person to another, I.C. 35-48-4-1 does not mandate that the identity of the transferee be stated in the charging information. Robertson cites no precedent to the contrary.

III. ALLEGED IRREGULARITIES IN VERDICT FORMS

Finally, Robertson appears to urge that irregularities in the verdict forms entitle him to a new trial. Our uncertainty in this respect is occasioned by the lack of coher-enee in the presentation. However, if our assessment.of the argument is correct, Robertson waived this issue by not presenting it at the time of the first post-conviction proceeding. Ind. Post-Conviction Rule 1(8).

The judgment is affirmed.

KIRSCH, J., concurs. FRIEDLANDER, J., concurs in result with separate opinion.

1 . I.C. 35-48-4-1 (b) (Bums Code Ed. Supp.1989).

2 . I.C. 35-48-4-1 (a) (Burns Code Ed. Supp.1989).

3 . I.C. 35-48-4-6 (Burns Code Ed. Supp.1989).

4 . According to the court, " 'the state through its drafting can foreclose as to the defendant, the tactical opportunity to seek a conviction of a lesser offense. The point is that absolute discretion rests in the state to determine the crimefs] with which a defendant will be charged.' " Id. at 1182. (Quoting Jones v. State (1982) Ind., 438 N.E.2d 972, 975).

5 . However, the State may foreclose the possibility of an instruction regarding a factually-included offense if facts which could have been charged as part of the offense are omitted from the charging instrument. Wright, supra at 570.

6 . The rule is new because it "was not dictated by precedent existing at the time” Robertson was convicted. See Teague v. Lane (1989) 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334, reh’g denied. (Emphasis in original). As relevant in the present inquiry, the Court had not previously stated that "the wording of a charging instrument never forecloses or precludes an instruction on an inherently lesser included offense.” Wright, supra, 658 N.E.2d at 567. (Emphasis in original). To the contrary, prior case law created uncertainty with regard to when, if ever, an included offense instruction could be foreclosed by the manner in which the charge was worded. Id.

Moreover, the rule pertains to constitutional matters because Article I, Section 13 of the Indiana Constitution requires that the accused receive clear notice of the charges against him. This constitutional protection is a collateral underpinning to the right of a defendant to receive an instruction as to an included offense. See Howard v. State (1982) Ind.App., 431 N.E.2d 868, 869.

7 . Moreover, we recognize the magnitude of permitting retroactive application in this case, as principles of fairness would necessarily require that such action extend to all similarly-situated individuals. See Teague, supra, 109 S.Ct. at 1070.