Chandler v. State

• Citation: 83 N.E.2d 189,226 Ind. 648
• Decision Date: 06 January 1949
• Docket Number: 28422.
• Parties: CHANDLER v. STATE
• Court: Indiana Supreme Court

83 N.E.2d 189

226 Ind. 648

CHANDLER v. STATE

No. 28422.

Supreme Court of Indiana

January 6, 1949

Appeal from Bartholomew Circuit Court; George W Long, Judge.

Charlton J. Walker, of Columbus, for appellant.

Cleon H. Foust, Atty. Gen., Frank E. Coughlin, First Deputy Atty Gen., and Merl M. Wall, Deputy Atty. Gen., for appellee.

YOUNG Judge.

Appellant was charged, by affidavit filed in the Bartholomew Circuit Court, on November 25, 1947, with first degree burglary. On November 29 he appeared before the judge of said court in person and without counsel for arraignment.

The court filed with the Clerk a transcript of the proceedings which occurred in connection with such arraignment and said transcript was made a part of the record in this cause pursuant to Rule 1-11 of this court. This transcript is as follows:

'Transcript of proceedings in connection with the arraignment and sentencing, including questions and answers and statements made by the defendant, Prosecuting Attorney and Judge.

'The Prosecuting Attorney will read the affidavit to you. (Affidavit read by Prosecuting Attorney.) 'Q. What do you say, are you guilty or not guilty? A. Guilty.

'Prosecuting Attorney will read the second affidavit No. 8305. (Prosecuting Attorney reads second affidavit).

'Q. What do you say, guilty or not guilty? A. Guilty.

'Q. You understand what the penalty is for first degree burglary? A. Yes, ten to twenty years.

'Q. You had been informed of that before? A. Yes.

'Q. And you had that in mind when you said you was guilty in these cases? A. Yes.

'Q. You do further understand that if you wanted to have done so you could have pleaded not guilty and had a trial either before a jury or before the court, you understand that? A. Yes, sir.

'Q. You do further understand that you would have the right to have an attorney to represent you if you wanted one to represent you? A. Yes, sir.

'Q. Do you want one to represent you? A. No, sir.

'Q. Knowing all these facts that I have explained to you, which are your constitutional rights, you still desire to plead guilty to these two charges? A. Yes, sir.'

Following his plea of guilty and pursuant thereto he was found to be 30 years of age and sentenced to be imprisoned in the Indiana State Prison for a period of not less than ten (10) years, nor more than twenty (20) years.

On January 9, 1948, appellant filed in the Bartholomew Circuit Court a verified motion and request for an appeal of said cause to the Supreme Court of Indinan as a poor person and for the appointment of an attorney to represent him upon appeal, which said petition was granted and an attorney of good standing was appointed to represent him upon appeal and the Clerk was directed to furnish a transcript of all proceedings in the cause at the expense of the county to be used upon such appeal. Such transcript was duly prepared and filed in this court, together with an assignment of errors. The substance of the errors assigned, and upon which appellant relies, is that he was denied his constitutional right to counsel.

Appellant, in his brief, contends that it was the court's duty to advise him that he was entitled to counsel. This, of course, is true, but it appears to us from the transcript of proceedings in connection with his arraignment that he was advised of such right. It is true that the court took his plea without first advising him of his right to counsel, but he was told before sentence was passed that he had such right and was definitely asked if he wanted counsel and said he did not. He was told of his right to a trial by jury and of the penalty for first degree burglary and then, after being so apprised, was asked if he still desired to plead guilty to the charges against him and replied that he did. It is obvious that if he had indicated that he wanted counsel counsel would have been appointed for him and his constitutional rights would have been fully observed, but he declined counsel and no one can be compelled to accept counsel appointed by the court. It would have been better practice if the judge had explained to the accused his right to counsel before he took his plea, but in our opinion the offer of counsel made by the judge in this case fully met appellant's constitutional right to counsel and having declined the service of such counsel before sentence he cannot now complain that counsel was not appointed for him. Aid of counsel provided after a plea of guilty has been entered, but before sentence, is sufficient to satisfy constitutional requirements. Canizio v. State of New York, 1946, 327 U.S. 82, 66 S.Ct. 452, 90 L.Ed. 545.

The law is well settled that an accused may waive his constitutional rights, if such waiver is made freely and understandingly. Irwin v. State, 1942, 220 Ind. 228, 238, 41 N.E.2d 809; Kuhn v. State, 1944, 222 Ind. 179, 52 N.E.2d 491; Batchelor v. State, 1920, 189 Ind. 69, 76, 80, 125 N.E. 773.

Appellant's counsel in his well thought out brief leans heavily on Batchelor v. State, supra. That case was correctly decided and the law laid down in that case is applicable to the case before us, but the facts in the case before us are so different as to compel a result different from the result in the Batchelor case. In that case this court held that a person prosecuted for a crime may waive his constitutional rights to counsel and a jury trial, and that if a plea of guilty to a charge of murder is made by an accused advisedly, and with full knowledge of his rights and of the consequences of such plea it amounts to a waiver of his constitutional rights.

In the Batchelor case the defendant was not asked if he wanted a lawyer. In this case he was and said no. In the Batchelor case this court pointed out that the defendant was not apprised of the penalty....