Bunch v. State

ON PETITION TO TRANSFER

BOEHM, Justice.

We hold that in order to establish the affirmative defense of waiver the State must raise it in its pleading in a post-conviction relief proceeding and carry the burden of proof on the issue in the trial court. However, a court on appeal may nevertheless find, sua sponte or at the suggestion of a party, that the issue presented in a post-conviction petition was waived by procedural default if the matter could have been presented on direct appeal but was not.

Factual and Procedural Background

Alan Bunch was found guilty by a jury of two counts of Dealing in…