Chandler v. State
| Decision Date | 11 September 1973 |
| Docket Number | No. 472S36,472S36 |
| Citation | 300 N.E.2d 877,261 Ind. 161 |
| Parties | James Otis CHANDLER, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Harriette Bailey Conn, Public Defender, Paul J. Baldoni, Asst. Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Anthony J. Metz, III, Deputy Atty. Gen., Indianapolis, for appellee.
This matter is before us on an appeal from a denial of post-conviction relief.
On September 20, 1948, Defendant (Appellant) was indicted for murder in the first degree. On September 27, 1948, he appeared in court with counsel and entered a plea of not guilty. On September 30, 1948, he again appeared with counsel, entered a plea of guilty to the included offense of murder in the second degree and was sentenced to life imprisonment. The following is the record thereof under Rule 1--11 (now Criminal Rule 10) which was then in effect.
"COURT: Upon your plea of guilty to second degree murder the court finds you guilty and now commits you to the Indiana State Prison during your life.'
The questions for review presented here and by the motion to correct errors are two:
(1) Did Defendant enter a plea of guilty to the crime of Second Degree Murder knowingly and voluntarily and after being fully advised of his constitutional rights?
(2) Was Defendant adequately and effectively represented by his privately retained attorney?
The findings of fact and conclusions of law rendered by the trial judge are as follows:
'FINDINGS OF FACT
1. Defendant-movant pled guilty to the offense of Second Degree Murder on September 30, 1948, and was thereafter sentenced to the Indiana State Prison.
2. On September 13, 1954, defendant-movant filed a Verified Motion to Vacate Judgment.
3. On February 7, 1955, defendant-movant's Verified Motion to Vacate Judgment was overruled and denied by the court.
4. Defendant-movant filed a Petition for Post-Conviction Relief on January 6, 1971, alleging in part '8':
(a) Ineffective assistance of counsel, in this, that defense counsel refused to investigate this case, subpoena witnesses in behalf of movant, or in any way prepare a defense for movant, although movant had a valid defense in the facts of this case.
(b) The plea of guilty herein was not freely, intelligently, competently, or understandingly given, in this, that neither the trial court nor defense counsel advised movant of any of his constitutional rights, thereby denying such rights, in particular, the right to trial by jury.
5. Defendant-movant's Petition for Post-Conviction Relief filed on the above date in part '9' thereof, sets out a memorandum of law in support of part '8'.
6. On May 6, 1971, defendant-movant's Petition for Post-Conviction Relief was set for hearing and hearing was had.
7. Defendant-movant testified that at the time he pled guilty he had only a third grade education, received in the State of Missouri, was unfamiliar with the law and had been in the State of Indiana only a short time prior to his arrest.
8. Defendant-movant testified that when he entered his plea of Second Degree Murder he was not informed of his constitutional rights by the court. The court records, i.e., the docket sheet, does not show that defendant-movant was advised of his constitutional rights.
9. Defendant-movant testified that his privately retained counsel, Joseph T 10. Defendant-movant testified that to the best of his knowledge Joseph T. Pawlowski did not investigate his case.
Pawlowski, visited him in the jail only three (3) or four (4) times prior to his plea of guilty.
11. Defendant-movant testified concerning the facts of his case, which facts failed to include all of the elements of the offense of Second Degree Murder.
12. Defendant-movant testified that he had served more than twenty-two (22) years for the offense of Second Degree Murder.
13. Defendant-movant testified (and his F.B.I. record substantiates) that this was his first offense.
14. Defendant-movant testified that prior to his conviction his work was that of general unskilled laborer.
15. Defendant-movant's sister, Mrs. Brown, testified that in September of 1948 she journeyed from the State of Missouri to South Bend, Indiana, to aid her brother who was charged with the above offense. During this visit she retained as counsel for him, Mr. Joseph T. Pawlowski, on the advice of the Prosecutor's Office.
16. Mrs. Brown testified that prior to the hearing on May 6, 1971, she had spoken to Mr. Pawlowski on only three (3) occasions:
1. In September of 1948, when she retained Mr. Pawlowski as her brother's attorney; and,
2. On two (2) other occasions after her brother had been incarcerated in the Indiana State Prison.
17. Mr. Joseph T. Pawlowski testified at this hearing that he had conferred with the defendant-movant eight (8) or twelve (12) times. Mr. Pawlowski testified that this was his first murder case. Mr. Pawlowski testified that, at the very most, he spent three (3) weeks investigating this case. Mr. Pawlowski testified that he had been disbarred in 1960. Mr. Pawlowski testified that he had been convicted of a Federal offense: income tax evasion, and had served one (1) year in the Federal Penitentiary.
1. The law is with the State of Indiana.
2. Defendant-movant entered his plea of guilty knowingly and voluntarily and after being fully advised of his constitutional rights.
3. Defendant-movant's attorney was in no way ineffective in his representation of defendant-movant.'
At the outset, it should be pointed out that the findings of fact, upon which the trial court answered both of the above questions in the affirmative are inadequate and probably contradictory. Although there are a few findings entered, for the most part the total entry amounts to no more than a recital of testimony and falls far short of complying with the mandate of P.C. Rule 1, § 6. Under other circumstances, we would remand with instructions to make specific findings, as was done in Love v. State (1971), Ind., 272 N.E.2d 456. Because of the unrelenting burden upon this Court and upon the office of the Public Defender, this matter has been more than two and one-half years coming before us for this review. Desiring that the time and effort expended to date not be wasted, we have, therefore, looked behind the so-called 'findings.' From this view, we have concluded that the defendant should have the relief which he seeks.
Our decision herein is prompted by the combining of forces, that is to say by both the defendant's claim of ineffective counsel and by his claim that his plea of guilty was not knowingly and voluntarily made.
Evidence favorable to the defendant but omitted from the so-called 'findings,' includes the following:
1. Defendant's testimony that the man he killed was a bystander and not the person with whom he was engaged in a gun fight and that the coroner had indicated that the bullet that killed the decedent may not have come from the defendant's gun.
2. Defendant's testimony that his attorney had advised him, at his first interview, that he could get the defendant two to twenty-one years, later urged him to enter the plea of guilty to avoid the electric chair and further advised him that he would be out in several years.
3. Testimony of the defendant's sister that she retained this particular lawyer upon the recommendation of the prosecutor.
4. The attorney denied that he urged the defendant to enter the plea but acknowledged that his investigation consisted of a conference with the police and interviews with those persons named upon the state's list of witnesses. He further testified that the guilty plea was the defendant's own idea, that he did not know the defendant's level of intelligence and did not concern himself with it.
5. The attorney denied that he advised the defendant that he would be out in several uears if he entered the guilty plea, but he acknowledged that he advised him that he would come before the parole board in several years. (It is significant that on a sentence of life, the defendant could not have been eligible for parole in less than fifteen years.)
The proceedings relative to the disbarment of the attorney were held in this Court and are matters concerning which we may here properly take judicial notice. (In Matter of Pawlowski (1960), 240 Ind. 412, 165 N.E.2d 595.) Although his disbarment occurred nearly twelve years...
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