Brandon v. State

• Decision Date: 04 February 1976
• Docket Number: No. 674S116,674S116
• Parties: Phillip Morris BRANDON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 756

340 N.E.2d 756

264 Ind. 177

Phillip Morris BRANDON, Appellant, v. STATE of Indiana, Appellee.

No. 674S116.

Supreme Court of Indiana.

Feb. 4, 1976.

Rehearing Denied March 25, 1976.

Harriette Bailey Conn, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

In July, 1967, following a trial by jury, appellant was convicted of second degree murder. He was sentenced to life imprisonment. In January, 1973, pursuant to Post Conviction Remedy Rule 2, § 1, appellant filed a petition for permission to file a belated motion to correct error. That petition was denied in September, 1973, and this is an appeal from that decision.

Post Conviction Remedy Rule 2, § 1, is available to 'any defendant convicted after a trial or plea of guilty,' where he was convicted before or after the adoption of the Rule. The right to the benefit of a newly-adopted post conviction remedy is not in question. E.g., Frazier v. State, (1975) Ind., 335 N.E.2d 623; Langley v. State, (1971) 256 Ind. 199, 267 N.E.2d 538; State ex rel. Macon v. Orange Circuit Court, (1964) 245 Ind. 269, 195 N.E.2d 352, 198 N.E.2d 229. The trial court will permit the defendant to file a belated motion to correct error, pursuant to Ind. R.P.C. 2, § 1, if

'(a) no timely and adequate motion to correct error was filed for the defendant;

(b) the failure to file a timely motion to correct error was not due to the fault of the defendant; and

(c) the defendant has been diligent in requesting permission to file a belated motion to correct error under this rule.'

Appellant's January, 1973, petition for permission to file was submitted with attached exhibits. The State filed no answer and asserted no legal defenses. On September 19th, after several months of inaction by the State, appellant moved for summary judgment on his petition, asserting that there was 'no genuine issue (of) material fact.' Trial Rule 56. The State again made no response to the motion. On September 25th, on the basis of appellant's petition for permission and the supporting matter, the trial court denied his motion for summary judgment and also his petition for permission to file. By denying appellant's petition for permission to file on the basis of the pleadings and exhibits without further proceedings, the trial court granted summary judgment for the non-moving State, as Trial Rule 56(B) permits.

The order of the trial court does not state that the trial judge found no genuine issue of material fact. Nor does the order identify the legal basis relied upon in granting summary judgment for the State. The order should include an affirmative finding that there is no genuine issue of material fact and a statement of the legal grounds. Singh v. Interstate Finance of Indiana No. 2, Inc., (1969) 144 Ind.App. 444, 246 N.E.2d 776; Harris v. Young Women's Christian Association of Terre Haute, (1968) 250 Ind. 491, 237 N.E.2d 242. If appellate review is frustrated by the lack of such statements, remand to the trial court is proper. Barron & Holtzoff, Federal Practice and Procedure § 1242, at 139 n. 56.1 (1970 Pocket Part). However, in this case, review is not impossible.

First, we note that appellant appeals the denial of his petition for permission to file (the summary judgment for the State), not the denial of his motion for summary judgment. We note also, that, upon review of a grant of summary judgment, the appellate court has before it the same issues as were before the trial court, that is, (1) is there any issue of material fact; (2) was the law applied correctly. 10 Wright & Miller, Federal Practice and Procedure § 2716 (1973).

To grant or deny a summary judgment, the trial court must take certain steps. Those steps may be described briefly as follows:

Identify the legal issues;

Identify the nature of the material facts;

Identify the material facts presented by the parties;

Determine whether the material facts presented are in genuine issue, and, if they are, deny summary judgment;

If the material facts presented are not in genuine issue, apply the law and grant or deny summary judgment.

Accordingly, the trial court must first determine what legal issues are presented by the pleadings. In this case, the legal issues are: whether or not (1) a timely motion to correct error was filed, (2) failure to timely was the fault of the defendant, and (3) defendant was diligent in requesting a belated motion.

Second, the court should determine what types of facts would be material to the determination of the issues. A fact is material if it tends to facilitate resolution of any of the issues either for or against the party having the burden of persuasion on that issue. In this case, the following types of facts would be material: (1) a record of the filing of a motion to correct error in the trial court within thirty days of the rendition of the verdict, per former Rule 1--14a; (2) evidence of appellant's awareness or lack of awareness, during the thirty-day period after conviction, of his right to file a motion to correct error in order to preserve appellate rights; and (3) evidence of any acts or knowledge by appellant which indicate purposeful delay in requesting permission to file a belated motion to correct error (that is, abuse of process) or which indicate purposeful attempts to follow the procedures to get appellate review.

Third, the court shouls identify the material facts included in the pleadings and other matter presented by either party. In this case, the material fact presented with regard to a timely filing is that no motion was filed in the trial court within thirty days. With regard to the second issue, whether defendant was at fault for not filing a motion to correct error within thirty days, the evidence shows: In 1966, when he was fifteen years old, appellant was indicted for first degree murder, in a 1965 homicide. He was tried when he was seventeen years old, and, at trial, he was represented by pauper counsel. Neither at conviction nor at sentencing, in July, 1967, did the trial court inform appellant of his right to file a motion to correct error or to appeal. In 1967, the judge was not required to do so. (Criminal Rule 11 was adopted April 15, 1969.) In 1967, an attorney was not expected to file a motion for new trial unless he found 'meritorious grounds,' per former Rule 2--40, whatever the desire of the defendant.

In a sworn statement attached to his petition for permission to file, appellant states the following:

'(P)etitioner's court appointed counsel failed or refused to advise him that he had a constitutional right to have an appellate review of his conviction and sentence; further that counsel failed or refused to tell petitioner that under Indiana law a motion for a new trial must be filed within thirty (30) days of the verdict; further counsel for the petitioner did not file a motion for a new trial in behalf of the petitioner or inform him that he was not going to file such a motion; that said counsel allowed the time for filing such a motion to elapse without informing the petitioner that such a motion could be filed by the petitioner himself and thus keep alive his right to appeal; nor did said counsel explain to the petitioner in any way that the petitioner could understand what steps should be taken by the petitioner or some other lawyer in his behalf to protect petitioner's right to appeal.

3. that the failure to file a timely motion for a new trial (or motion to correct errors) was not the fault of the petitioner because he was relying upon his court appointed counsel to take the necessary legal steps to protect his right to an appellate review of his conviction; that he was an unskilled fifteen year old layman with no knowledge of the law or legal procedures.'

With regard to appellant's diligence in requesting permission to file a belated motion, the following evidence relevant to appellant's acts and knowledge was before the trial court, either in its record ¹ or in appellant's petition for permission and the exhibits:

September 23, 1968, Appellant wrote trial judge pleading for leniency and reconsideration of his sentence.

August 1, 1969, Post Conviction remedies adopted.

September 11, 1969, Appellant files pro se PC. 1 petition with the trial court.

September 17, 1969, Appellant notified of hearing scheduled on PC. 1 petition for October 29, 1969.

January, 1970, Appellant learned from Public Defender that a petition for permission to file a belated motion to correct error (PC. 2, § 1) was his proper remedy. (In the sworn statement attached to his petition for permission, appellant states:

'4. that this petitioner first learned that he had a post-conviction remedy under Indiana Supreme Court Rule P.C. #2 on the _ _ day of January 1970 whien a member of the State Public Defender's office informed him that P.C. #1 was the incorrect remedy and that P.C. #2 was the correct one where he, or someone in his behalf, had not filed a motion for a new trial (or motion to correct errors) and had not perfected an appeal; that thereafter this petitioner used all reasonable diligence is (sic) asking that this pleading be prepared and filed in his behalf.')*

March 26, 1970, Appellant writes judge to learn the results of the hearings on October 29, 1969 and February 17, 1970, on his PC. 1 petition and the chance for a new trial.

August 21, 1970, Appellant writes:

'Dear Mrs. Publish Defender, I will like to have an interview with you when you come down again. I been trying to get in tough with you for a long time. I has a P.C. one fill out, and they had a hearing october 29, of 69, and when I went to the hospital in December Mel Thorbury came down and talk with me and gave me some paper to fill my name in and he said they were going to have an hearing February 17, and every sence then, I having heard a thing. ...