

ATTORNEYS FOR APPELLANT                 ATTORNEYS FOR APPELLEE

Susan K. Carpenter,                                Steve Carter
Public Defender of Indiana                         Attorney General of
Indiana

Chris Hitz-Bradley                                 Timothy W. Beam
Deputy Public Defender                       Deputy Attorney General
Indianapolis, Indiana                        Indianapolis, Indiana



                                   In The
                            INDIANA SUPREME COURT


RONIE TUCKER,                           )
      Defendant-Appellant,              )
                                       )
           v.                           )    27S02-0206-PC-306
                                       )
STATE OF INDIANA,                       )
      Plaintiff-Appellee.                     )

              ________________________________________________

                    APPEAL FROM THE GRANT SUPERIOR COURT
                    The Honorable Gary L. Thompson, Judge
                         Cause No. 27D01-9206-CF-43
              ________________________________________________

                           On Petition To Transfer


                               April 22, 2003

DICKSON, Justice.

      The defendant-appellant Ronie Tucker appeals from the post-conviction
court's denial of his motion to withdraw his petition for post-conviction
relief without prejudice.    Tucker was convicted of conspiracy to deal
cocaine as a class A felony, and his conviction was affirmed.  Tucker v.
State, 630 N.E.2d 241 (Ind. Ct. App. 1994).  On June 2, 2000, he filed his
pro se petition for post-conviction relief.  The petition was set for
hearing on December 11, 2000.  Pursuant to Indiana Post-Conviction Rule
1(2), the trial court ordered a copy of the petition sent to the office of
the Indiana Public Defender.  The copy was sent on July 11, and on July 24
counsel entered an appearance for Tucker and filed a motion for
continuance.  The motion was granted, and the hearing was rescheduled for
March 5, 2001.  Tucker's counsel conducted discovery during December and
January.  On February 26, 2001, Tucker, by counsel, moved to withdraw his
post-conviction petition without prejudice.  Following the post-conviction
court's denial of his motion, Tucker did not present evidence or argument
at the post-conviction hearing, but instead renewed his motion to withdraw
his petition without prejudice.  The court denied relief and the Court of
Appeals affirmed in a memorandum decision.  Tucker sought and we granted
transfer.  Tucker v. State, 774 N.E.2d 517 (Ind. 2002).
      Tucker argues that he had a right to withdraw his post-conviction
petition without prejudice absent a showing of substantial prejudice to the
State, citing Neeley v. State, 269 Ind. 588, 382 N.E.2d 714 (1978)
(overruled on other grounds by German v. State, 428 N.E.2d 234 (Ind.
1981)).  In Neeley, we interpreted Indiana Post-Conviction Rule 1(4)(c),
which states in part, "[a]t any time prior to entry of judgment the court
may grant leave to withdraw the petition" to mean that a "petitioner has a
conditional right to withdraw a previously filed petition for post-
conviction relief, but it is not an absolute right and may be granted by
the trial court absent any overriding prejudice which may result to the
state by allowing the petitioner to withdraw his petition."  Id. at 591,
382 N.E.2d at 716.  This is essentially the same standard that governs a
civil plaintiff's motion for voluntary dismissal under Indiana Trial Rule
41(A)(2).  In Levin & Sons, Inc. v. Mathys, 409 N.E.2d 1195 (Ind. Ct. App.
1980), the Court of Appeals determined that motions under Rule 41(A)(2)
should be denied only when the non-moving defendant will suffer
"substantial prejudice," and that "[w]here substantial prejudice is lacking
the district court should exercise its discretion by granting a motion for
voluntary dismissal without prejudice."  Id. at 1198 (quoting 5 Moore's
Federal Practice ¶ 41.05 (2d ed. 1948)).
      Neeley is silent concerning the standard of review to be used in
reviewing motions to withdraw petitions for post-conviction relief.
Following the denial of Tucker's motion to withdraw, and while his appeal
was pending in the Court of Appeals, we decided Tapia v. State, 753 N.E.2d
581 (Ind. 2001), holding that a post-conviction court's denial of a motion
to withdraw is reviewed under an abuse of discretion standard.  We
emphasized that a trial court's exercise of discretion "should be upset
only when the court reached an erroneous conclusion and judgment, one
clearly against the logic and effect of the facts and circumstances before
the court or the reasonable, probable and actual deductions to be drawn
therefrom."  Id. at 585 (omitting emphasis and internal quotation marks).
We noted that, while prejudice to the non-moving party is one relevant
indicator, "it is not a proxy for the post-conviction court's discretion .
. . ."  Id. at 585-86.
      In its attempt to demonstrate prejudice, the State argues that it was
required to spend unnecessary time responding to Tucker's claims, noting
that it had objected to each of the two continuances obtained by Tucker,
and arguing that Tucker did not attempt to amend or withdraw his petition
more promptly.  Noting that prejudice to the State is still a proper
consideration in the abuse of discretion analysis, we stated in Tapia that,
"nothing we say today contradicts with Neeley . . . ."  Id. at 585 n.4.
There is no evidence to suggest that Tucker stood to gain any improper
advantage by delay.  To the contrary, the Public Defender's actions in this
case appear to be diligent and timely.
      The Public Defender's Office operates under considerable strains.
Under its statutory mandate, the Public Defender must provide counsel to
represent every incarcerated indigent post-conviction petitioner.  See Ind.
Code § 33-1-7-2(a).  Tucker asserts, and we agree, that, under this
mandate, some delay in processing cases is inevitable.  Reply Br. of
Appellant at 6.  As we have stated:
      Cases after trial and appeal, like Petitioner's case here, require a
      great deal of time since the client must be interviewed, his appellate
      record read, his trial and appellate attorneys interviewed, and all
      matters of legal and factual manner investigated before a decision can
      be made as to amendment of his petition.

Holliness v. State, 496 N.E.2d 1281 (Ind. 1986).  If those strains affect
counsel's ability to proceed, courts should be liberal in granting
continuances and withdrawals.  Courts should seek to avoid penalizing a
petitioner for such delays by the Public Defender's Office.  As the Court
of Appeals has explained:
      One arm of the state (the Prosecutor) may not take advantage of a
delay            created by another arm of the state (the Public Defender)
to the detriment of    the defendant.  While we recognize the burdensome
caseload of the Public            Defender's Office and the high turnover
of attorneys resulting in delays, as         between a defendant and the
State, the defendant will not be penalized for           the delays.

Douglas v. State, 634 N.E.2d 811, 816 (Ind. Ct. App. 1994).
      These considerations, however, do not entitle the Public Defender's
Office to pursue cases without efficiency and diligence.  See Fortson v.
State, 510 N.E.2d 1369 (Ind. 1987) (upholding a summary denial of a
petition for post-conviction relief despite delay attributable to Public
Defender's Office where attorney was on notice of imminent summary denial
and took no action); Wilhite v. State, 402 N.E.2d 1211 (Ind. 1980) (holding
that delay was not attributable to Public Defender's Office despite
defendant's contentions where defendant knew that appellate review was
available, was advised to contact the public defender, and did not do so
for four years).
      The facts of the present case demonstrate that the Public Defender's
Office has actively pursued Tucker's case since the date counsel entered
his appearance and continuing through Tucker's motion to withdraw his
petition for post-conviction relief and the appeals process.
      The State also warns that permitting withdrawals without prejudice
could allow a petitioner to use a post-conviction proceeding to "test" the
State's responses and defenses on one ground, and then to withdraw and
assert a different ground.  It also cautions that permitting such
withdrawals could pose a psychological hardship on the victims of a crime,
who would have to prepare again and again to confront the petitioner.  The
first concern is not persuasive.  The availability of discovery and amended
petitions presently enables a post-conviction petitioner to determine and
respond to the State's responses.  The second concern does not appear to
apply in the present case.  The motion to withdraw the petition without
prejudice was filed one week before the scheduled hearing, and the State
does not establish any particular resulting victim hardship.
      Finding no indication of improper purpose for Tucker's motion to
withdraw without prejudice, and finding no showing of substantial prejudice
to the State, we conclude that the post-conviction court's refusal to
permit Tucker to withdraw his petition for post-conviction relief without
prejudice was clearly against the logic and effect of the facts and
circumstances before the court.  We reverse the post-conviction court and
grant Tucker's motion to withdraw his petition for post-conviction relief
without prejudice.
      SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.


