MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                Feb 29 2016, 8:55 am
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                                         ATTORNEYS FOR APPELLEE
Glenn Carpenter                                          Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General


                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Glenn Carpenter,                                         February 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1412-PC-608
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Anne Flannelly,
Appellee-Plaintiff.                                      Magistrate
                                                         The Honorable John M.T. Chavis,
                                                         Judge
                                                         Trial Court Cause No.
                                                         49F15-9901-DF-11314



Vaidik, Chief Judge.



Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PC-608| February 29, 2016      Page 1 of 6
                                            Case Summary
[1]   Fifteen years after pleading guilty to and being sentenced for Class D felony

      theft in Marion Superior Court, Glenn Carpenter filed a petition for post-

      conviction relief alleging that the magistrate who accepted his guilty plea and

      sentenced him did not have authority to do so. We, however, find that

      Carpenter has waived any challenge to the magistrate’s authority because he

      did not object at the trial-court level. We therefore affirm the post-conviction

      court.



                              Facts and Procedural History
[2]   On July 7, 1999, Carpenter, who was represented by counsel, and the State

      entered into a plea agreement in which Carpenter agreed to plead guilty to

      Class D felony theft. That same day, Carpenter’s guilty-plea hearing was held

      in Marion Superior Court, Criminal Court 15, before Magistrate Mark Renner,1

      who accepted Carpenter’s guilty plea and sentenced him—in accordance with

      the plea agreement—to 545 days with 507 days suspended and 180 days of




      1
        There is some issue as to whether Mark Renner was a magistrate or master commissioner in July 1999. At
      the post-conviction hearing, the court stated the following regarding Renner’s status: “The Court is aware of
      the fact that currently he’s a commissioner; he’s never been elected a judge; and at one point he was a
      magistrate.” P-C Tr. p. 12.
      Regardless of Renner’s status at that time, a master commissioner has the same powers and duties as a
      magistrate. See Ind. Code Ann. 33-33-49-16(e) (West 2004); see also Ind. Code 33-5.1-2-11(e) (1996 Supp.)
      (version in effect when Carpenter pled guilty). Therefore, it does not matter whether Renner was a
      magistrate or master commissioner. But because the deputy clerk’s letter (Exhibit B) refers to Renner as a
      magistrate, we do so as well.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PC-608| February 29, 2016             Page 2 of 6
      probation. See Ex. B (Order of Judgment of Conviction signed by “Mark F.

      Renner”). The CCS entry for July 7, 1999, however, notes that the presiding

      judge of Criminal Court 15, the Honorable John M.T. Chavis II, disposed of

      the case. Ex. A.

[3]   Fifteen years later, in March 2014, Carpenter, pro se, filed a petition for post-

      conviction relief. He argued that Magistrate Renner “did not have statutory

      authority to sentence [him] and enter a final judgment” because Magistrate

      Renner did not get “approval of the Presiding Judge of the Court” in violation

      of Indiana Code section 33-23-5-9. Appellant’s Supp. App. p. 2-3. Although

      Carpenter was pro se when he filed his petition for post-conviction relief, he

      was represented by counsel six months later at the evidentiary hearing.

[4]   At the hearing, post-conviction counsel admitted into evidence Carpenter’s

      CCS, plea agreement, and judgment of conviction. Counsel also admitted into

      evidence a letter from the deputy clerk of Criminal Court 15. According to the

      letter, the “file . . . does not have any Appointment and Acceptance Documents

      in the Court Clerk[’]s Order Book Entries for the appointment of Magistrate

      Mark Renner due to the age of the case. Appointment documents were not

      required back then . . . .” Ex. B. In addition, post-conviction counsel secured

      the following stipulation from the State: “State stipulates to [the post-

      conviction] court’s recognition of non-elected judicial officer status of

      Commissioner (then-Magistrate) Mark Renner.” P-C Tr. p. 12 (formatting

      altered). After the hearing, the post-conviction court entered findings of fact

      and conclusions of law denying Carpenter relief.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PC-608| February 29, 2016   Page 3 of 6
[5]   Carpenter, pro se, now appeals.



                                  Discussion and Decision
[6]   Carpenter contends that the post-conviction court erred in denying his petition

      for post-conviction relief. Carpenter makes several arguments on appeal, all of

      which revolve around Magistrate Renner’s authority to enter a final order on

      his guilty plea and sentence him. When Carpenter pled guilty, Indiana Code

      section 33-4-7-8 (1998) provided:

               (a) Except as provided under subsection (b), a magistrate shall
               report findings in an evidentiary hearing, a trial, or a jury’s verdict
               to the court. The court shall enter the final order.


               (b) If a magistrate presides at a criminal trial, the magistrate may do
               the following:


                        (1) Enter a final order.[2]


                        (2) Conduct a sentencing hearing.


                        (3) Impose a sentence on a person convicted of a criminal
                        offense.


      (Emphasis added). In 2004, this statute was recodified at Indiana Code section

      33-23-5-9. See P.L. 98-2004. According to case law interpreting Indiana Code



      2
       According to case law interpreting this statute, a magistrate’s power to enter a final order includes the
      power to enter a judgment of conviction. See Boyer v. State, 883 N.E.2d 158, 161-62 (Ind. Ct. App. 2008).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PC-608| February 29, 2016             Page 4 of 6
      section 33-23-5-9, because a guilty-plea hearing is not the same as a criminal

      trial and Section 33-23-5-9 references only “a criminal trial,” a magistrate does

      not have authority to enter a final order and sentence a defendant who pleads

      guilty. See Long v. State, 962 N.E.2d 671 (Ind. Ct. App. 2012), trans. denied.3


[7]   It is well settled that the authority of a court officer appointed to try a case does

      not affect the jurisdiction of the court. Floyd v. State, 650 N.E.2d 28, 32 (Ind.

      1994) (specifically addressing failure of trial court to validly appoint judge pro

      tempore). Accordingly, if a defendant does not object “at the original trial to

      the jurisdiction of a court officer to enter a final appealable order,” then the

      defendant waives “the issue both on appeal . . . and on collateral attack in a

      proceeding for post-conviction relief.” Id. at 33.


[8]   In a case similar to this one, McMichel v. State, a master commissioner—who

      was not a duly appointed judge pro tempore—accepted the defendant’s guilty

      plea and sentenced him. 655 N.E.2d 61, 62 (Ind. 1995). The defendant did not

      object to the master commissioner’s authority to act as a judge over his case. Id.

      Instead, seven years later, the defendant filed a petition for post-conviction

      relief claiming that his conviction was invalid because the master commissioner

      did not have authority to accept his plea or sentence him. The Indiana




      3
       In 2015, our legislature amended Indiana Code section 33-23-5-9(b) to rectify this omission, and the
      amended statute now provides: “If a magistrate presides at a criminal trial or a guilty plea hearing . . . .”
      P.L. 173-2015, Sec. 5 (emphasis added); see also Ind. Code Ann. § 33-23-5-9(b) (West 2015 Supp.).
      Thus, a magistrate may now enter a final order and sentence a defendant who pleads guilty.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PC-608| February 29, 2016                   Page 5 of 6
       Supreme Court held that because the defendant did not challenge the authority

       of the court officer in the trial court so as to properly preserve the issue for

       appeal, his petition for post-conviction relief should be denied due to waiver.

       Id. at 63.


[9]    Likewise, here, Carpenter did not object to Magistrate Renner’s authority to act

       as a judge over his case. Instead, fifteen years later, Carpenter filed a petition

       for post-conviction relief claiming that Magistrate Renner did not have

       authority to accept his guilty plea and sentence him. But even assuming that

       Magistrate Renner acted without authority, the court’s jurisdiction was not

       affected. Carpenter has waived this issue for failing to object at the trial-court

       level.4 We therefore affirm the post-conviction court’s denial of Carpenter’s

       petition for post-conviction relief.


[10]   Affirmed.

       Bailey, J., and Crone, J., concur.




       4
         Carpenter also argues on appeal that his trial counsel was ineffective for not objecting to Magistrate
       Renner’s authority at the trial-court level, even though Carpenter did not raise this issue in his pro se petition
       for post-conviction relief. See Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001) (noting that issues not raised
       in a petition for post-conviction relief may not be raised for the first time on post-conviction appeal), reh’g
       denied.
       But even if trial counsel was deficient for not objecting to Magistrate Renner’s authority at the trial-court
       level, Carpenter has not alleged how he was prejudiced because a magistrate—rather than the regular sitting
       judge—accepted his guilty plea and sentenced him. See Hall v. State, 646 N.E.2d 379, 382 (Ind. Ct. App.
       1995), reh’g denied, trans. denied. For similar reasons, we find no merit to Carpenter’s argument on appeal that
       his post-conviction counsel was ineffective for not amending his pro se petition to add an ineffective-
       assistance-of-trial-counsel claim.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1412-PC-608| February 29, 2016                 Page 6 of 6
