Bullard v. State

• Decision Date: 02 April 1964
• Docket Number: No. 30441,30441
• Parties: William Alfred BULLARD, Jr., Appellant, v. The STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 295

197 N.E.2d 295

245 Ind. 190

William Alfred BULLARD, Jr., Appellant, v. The STATE of Indiana, Appellee.

No. 30441.

Supreme Court of Indiana.

April 2, 1964.

William Alfred Bullard, Jr., pro se.

Warren R. Everett, Terre Haute, for appellant.

Edwin K. Steers, Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Judge.

The appellant was charged with murder in the first degree and upon trial, was found guilty of murder in the second degree. Following an appeal, we affirmed the judgment. (See Bullard v. State (1964), Ind., 195 N.E.2d 856)

The appellant has filed a petition for rehearing, stating that his trial counsel (privately employed) following his trial and conviction, did not file a motion for a new trial and that the appellant was compelled pro se to file a motion for a new trial, which was overruled.

Thereafter, upon application of the appellant, the trial court appointed counsel for him as a pauper for the purposes of an appeal. The counsel so appointed was an attorney other than the one who had represented the appellant at the trial, and the case thus differs from that of Sparks v. State (on rehearing) March, 1964, Ind., 196 N.E.2d 748. In the latter case trial counsel failed or refused to file a motion for a new trial, yet inconsistently accepted an appointment to represent an appellant on appeal.

In State ex rel. Macon v. Orange Circuit Court (1962), 243 Ind. 429, 185 N.E.2d 619 we held that it was the duty of trial counsel, whether representing a pauper or a rich person, to file a motion for a new trial if such counsel feels there are meritorious grounds for a new trial. A failure of counsel to do so is an assumption thta no meritorious grounds existed in the opinion of competent counsel. There is no claim here that counsel was incompetent. Willoughby v. State (1960), 242 Ind. 183, 177 N.E.2d 465. (cert. den.) 374 U.S. 832, 83 S.Ct. 1876, 10 L.Ed.2d 1055.

There are many cases in which no motion for a new trial is ever filed because either no grounds therefor existed in the opinion of competent counsel, or the defendant has acquiesced and accepted the same and waived any motion for a new trial or appeal. A defendant may waive in Indiana his right to appeal by his act or the act of his counsel. Both a pauper and a rich man in Indiana are bound by his counsel's actions.

'A pauper can not claim the beneficial portions of counsel's services and disclaim the undesirable portions thereof, any more than a rich man may do so. The pauper has no greater rights in this state than a rich man whose counsel has failed to file a motion for a new trial.' State ex rel. Macon v. Orange Circuit Court, January, 1964, Ind., 195 N.E.2d 352, 353.

Appellant states that he has presented the question of his privately employed trial counsel's failure to file a motion for a new trial to this court at the first opportunity. However, the record shows that judgment was entered against the defendant and he was sentenced on March 22, 1963. The motion for a new trial was filed and overruled on April 11, 1963 and upon his application, counsel was appointed for him as a pauper on April 11, 1963. There was still sufficient opportunity to file a new or amended motion for a new trial if his counsel on appeal found the original motion insufficient for any reason. ¹ A pauper and a rich man alike in this state are bound by the action or non-action of their counsel. Courts can operate only upon such a principle.

No facts support the appellant in his contention that he acted promptly in this case. We have a right to assume that he could have discussed or did discuss this question with his counsel at the time he was appointed, the same as he has presented it to this court--almost a year later. We have no right to assume that his counsel deliberately...