Colvin v. State, 382S124
Decision Date | 30 November 1982 |
Docket Number | No. 382S124,382S124 |
Citation | 441 N.E.2d 1353 |
Parties | Richard COLVIN, a/k/a Fareed Muhammad, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, David R. Swinford, Deputy Public Defender, Indianapolis, for appellant.
This is an appeal from the denial of a post-conviction relief petition. Appellant was convicted of two counts of armed robbery and was sentenced to thirty (30) years imprisonment on December 5, 1974. His direct appeal to this Court resulted in the affirmance of his conviction. Colvin v. State, (1976) 264 Ind. 514, 346 N.E.2d 737, cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1976). Appellant twice previously petitioned the trial court for post-conviction relief. Both petitions were denied. On January 2, 1981, appellant filed a pro se verified petition for post-conviction relief. The presiding judge summarily denied appellant's petition. Appellant claims abuse of trial court discretion.
A hearing on a petition for post-conviction relief is required only when an issue of material fact is presented. When the allegations of the petition conclusively demonstrate the petitioner is entitled to no relief, a hearing on the matter is unnecessary. Baker v. State, (1976) 265 Ind. 411, 355 N.E.2d 251. The petition alleges (a) his sentence is in violation of the constitutions of the United States and the State of Indiana and the laws of the State; (b) the Court was without jurisdiction to impose the sentence, which was erroneous, based upon evidence "not previously heard requiring vacation of conviction of sentence;" (c) trial misconduct by counsel, court and jury and incompetency of counsel; and (d) his sentence was in violation of the United States Constitution, Amendments I, IV, V, VIII, IX and XIV.
Attached to the petition was a pleading entitled "Motion to Dismiss for Lack of Jurisdiction over Plaintiff," who is presumed to be the petitioner-appellant. Appellant, responding to the court's inquiry, stated this pleading supports each allegation in the petition.
The thrust of appellant's "Motion to Dismiss" is that:
The motion also traces United States black history, dating from the seventeenth century.
The trial court, following the dictates of Rule PC 6, wrote a memorandum containing his specific findings of fact and conclusions of law. The memorandum correctly and succinctly identifies petitioner's supporting arguments as follows:
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...the allegations of the petition conclusively show that the petitioner is entitled to no relief, a hearing is unnecessary. Colvin v. State (1982), 441 N.E.2d 1353. On the other hand, an evidentiary hearing is required when issues of fact are raised, and this is true even if it is unlikely th......
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