Cates v. Superintendent, Indiana Youth Center

• Decision Date: 17 August 1990
• Docket Number: No. IP 89-881-C.,IP 89-881-C.
• Citation: 752 F. Supp. 854
• Parties: Mark Allen CATES, Plaintiff, v. SUPERINTENDENT, INDIANA YOUTH CENTER, Defendant.
• Court: U.S. District Court — Southern District of Indiana

752 F. Supp. 854

Mark Allen CATES, Plaintiff, v. SUPERINTENDENT, INDIANA YOUTH CENTER, Defendant.

No. IP 89-881-C.

United States District Court, S.D. Indiana, Indianapolis Division.

August 17, 1990.

David A. Arthur, Deputy Atty. Gen., Indianapolis, Ind., for defendant.

Mark Allen Cates, Plainfield, Ind., pro se.

ENTRY

STECKLER, Senior District Judge.

This matter comes before the Court on the petitioner's Petition for Writ of Habeas Corpus and Memorandum in Support thereof, which were filed pursuant to 28 U.S.C. § 2254, the Court's Entry and Order to Show Cause of August 23, 1989, the respondent's Return to Order to Show Cause and Memorandum in Support thereof, the petitioner's Traverse and Memorandum in Support thereof, and the Record of Proceedings and the parties' appellate briefs which were filed on appeal from the denial of the petitioner's state court Petition for Post-Conviction Relief. In his habeas Petition, the petitioner argues that (1) he was denied his Sixth Amendment right to the effective assistance of counsel as a result of his original trial counsel's joint representation of the petitioner and his co-defendant, Dennis Hanaway, (2) his guilty plea was not knowingly, intelligently and voluntarily entered because he was not advised of his right to confront and cross-examine his accusers, and (3) the post-conviction relief court failed to enter specific findings of fact and conclusions of law with respect to each of the issues which had been raised in his Petition for Post-Conviction Relief. The Court having carefully reviewed the foregoing pleadings and Record of Proceedings, and being duly advised, concludes that the petitioner's Petition for Writ of Habeas Corpus should be granted, and that the petitioner should be discharged if he is not retried within ninety (90) days of the date of the respondent's receipt of the Court's Entry. The Court further concludes that if the State elects to retry the petitioner it may not avail itself of the testimony of his co-defendant, Dennis Hanaway.

I. FACTUAL BACKGROUND

On or about October 12, 1983, the State filed its Information in Cause Number S-17-83 charging the petitioner, Mark Cates, with one (1) count of Class C felony Forgery and one (1) count of Class D felony Theft (R. 140-141).

On October 14, 1983, the Court conducted an initial hearing in Cause Number S-17-83 (R. 134). After informing the petitioner and co-defendant Hanaway of the nature of the charges against them and the possible penalties if they were found guilty, the Court informed them of their constitutional right to be represented by counsel (R. 136-137). Both the petitioner and his co-defendant indicated that they understood, and that they had already retained Ronald V. Aungst, who was present in the courtroom, as their counsel (R. 135-137). The trial court then inquired of Aungst whether he was entering his appearance for both defendants (R. 137). After Aungst responded affirmatively, the Court proceeded to advise the petitioner and co-defendant Hanaway of their constitutional rights, including their right to "meet the witnesses against them face to face", but did not discuss with them the possibility that Aungst could encounter a conflict of interest as a result of his joint representation (R. 137-138). At the conclusion of the hearing, the Court entered preliminary pleas of not guilty on the petitioner's and his co-defendant's behalf (R. 142).

On October 24, 1983, the State filed its Information in Cause Number S-20-83 charging the petitioner with one (1) count of Class B felony Burglary and one (1) count of Class C felony Burglary (R. 13-15). On the same day, the State filed an Amended Information, apparently because the Class B felony count deviated from the statute with respect to one (1) of the elements of the offense (R. 14, 21-22).

On the following day, October 25, 1983, the State filed its Information in Cause Number S-21-83 charging the petitioner and co-defendant Hanaway with Class D felony Attempted Escape and Class B misdemeanor Criminal Mischief (R. 25-27). After the State's Information was filed, the petitioner and his co-defendant appeared for their initial hearing in Cause Numbers S-20-83 and S-21-83 (R. 23). They were then informed of the nature of the charges filed against them, the possible penalties which could result if they were convicted, and (once again) of their constitutional right to counsel (R. 23, 36-37, 152). At that time they were asked whether they had in fact retained counsel (R. 23, 36-37, 152). Judge Daugherty noted that the petitioner and his co-defendant had retained Aungst to represent them on other pending charges. Judge Daugherty inquired whether the petitioner and his co-defendant intended to contact Aungst in order to retain him to represent them on the current charges (in Cause Numbers S-20-83 and S-21-83) as well (R. 23, 36-37). The petitioner and his co-defendant indicated that it was their intention to do so (R. 36-37, 152). After the petitioner and co-defendant Hanaway were again advised of their constitutional rights, including their right to "meet the witnesses face to face", preliminary pleas of not guilty were entered on their behalf (R. 23, 154, 159-160). Because the petitioner had been charged with Attempted Escape and was believed to constitute a security risk, he was transferred to the Department of Corrections for "safe keeping" until trial (R. 35).

At some point after the petitioner and his co-defendant's initial hearings in Cause Numbers S-20-83 and S-21-83 were conducted, their mothers, Barbara O'Brien (the petitioner's mother) and Maude Hanaway (co-defendant Hanaway's mother) drove to Aungst's office in order to retain him to represent the petitioner and co-defendant Hanaway (R. 117, 219). While they were both present in Aungst's law office, O'Brien and Hanaway both met with Aungst although not at the same time (R. 118). When the petitioner's mother paid Aungst his retainer fee, Aungst did not discuss with her the potential conflicts of interest which are inherent in the representation of co-defendants (R. 118-119, 126). Similarly, Aungst did not discuss with Maude Hanaway the possibility that conflicts could occur (R. 126). Aungst would later testify that he did not foresee any conflicts at the time he was retained, and that it was not necessarily his usual practice to advise co-defendants that he jointly represented of possible conflicts of interest at the time he undertook to represent them (R. 126).

Shortly after Aungst was retained to represent the petitioner and his co-defendant, he met jointly with the petitioner and his co-defendant and discussed with them the details of their involvement in the crimes which had been charged in Cause Numbers S-20-83 and S-21-83 (R. 117, 122, 201-202, 219-220).

Sometime prior to December 19, 1983, while he was representing both the petitioner and his co-defendant, Aungst entered into plea negotiations with the prosecutor's office but only on co-defendant Hanaway's behalf (R. 128-129). As a result of these negotiations, co-defendant Hanaway entered into a plea bargain agreement with the State of Indiana which required him to testify against the petitioner at trial (R. 222). Co-defendant Hanaway had not considered testifying against the petitioner prior to the State's offer, however, and the provision requiring his testimony was included in the plea bargain agreement at the State's suggestion (R. 222-223). The Record of Proceedings does not indicate whether the prosecutor's office was receptive, at that point in time, to entering into plea negotiations with the petitioner. The Record indicates only that a plea agreement was not offered to the petitioner at that time (R. 127-128).

Although Aungst would later testify that he did not recall whether he had been involved in negotiating the terms of co-defendant Hanaway's plea agreement or whether the prosecutor's office had simply submitted a completed proposed plea agreement to him, Aungst did encourage co-defendant Hanaway to accept the proposed plea agreement (R. 128, 222-223). This recommendation was made while Aungst was still "representing" the petitioner.

After co-defendant Hanaway entered into a plea agreement with the State, Aungst moved to withdraw as the petitioner's counsel. The Court granted Aungst's motion on December 15, 1983, finding that there "may be a potential conflict of interest in said attorney representing both defendants" (R. 38-39; Emphasis added). By letter dated December 19, 1983, Aungst informed the petitioner that it was no longer possible to represent him as a result of a conflict of interest which had developed (R. 125, 128-129, 202). Aungst's letter provided, in pertinent part, as follows:

This is to advise you that a result of a plea agreement that has been entered into by your co-defendant, Dennis Hanaway, it becomes impossible for me to continue to represent you in your pending criminal matters. This comes as a result of a conflict of interest arising from the plea agreement entered into by Dennis Hanaway.

(R. 125). After the petitioner received Aungst's letter, he telephoned his mother (O'Brien) and informed her that Aungst had withdrawn as his counsel (R. 204). Apparently, Aungst also telephoned O'Brien and informed her that he could not continue to represent her son due to a conflict of interest (R. 119). During his conversation with O'Brien, Aungst did not explain what a conflict of interest was, and O'Brien had no idea of its meaning (R. 118-120). Aungst did not later write a follow-up letter to O'Brien explaining the term (R. 119-120).

On January 6, 1984, the petitioner appeared pro se before Judge Daugherty for a hearing regarding counsel (R. 40-41, 162). Judge Daugherty noted that Aungst had withdrawn as the petitioner's counsel, and the petitioner indicated that he wished to retain new counsel (R. 40-41, 163). The Court admonished the petitioner that he should act quickly in...