Cottingham v. State, No. 877S559

Docket NºNo. 877S559
Citation269 Ind. 261, 379 N.E.2d 984
Case DateAugust 31, 1978
CourtSupreme Court of Indiana

Page 984

379 N.E.2d 984
269 Ind. 261
Henry COTTINGHAM, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 877S559.
Supreme Court of Indiana.
Aug. 31, 1978.

Page 985

Harriette Bailey Conn, Public Defender, K. Richard Payne, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Victoria R. Vanduren, Deputy Atty. Gen., for appellee.

HUNTER, Justice.

The petitioner is before this Court appealing from the denial of his petition for relief under Post-Conviction Remedy, Rule 1. His conviction for armed robbery was affirmed by this Court on direct appeal, Cottingham v. State (1973) 261 Ind. 346, 303 N.E.2d 268. He raises the single issue of whether he was denied his constitutionally guaranteed right to the effective assistance of counsel.

We first take notice that in post-conviction proceedings the burden of proof rests with the petitioner to establish his grounds to relief by a preponderance of the evidence. Ind.R.P.C. 1 § 5; Davis v. State (1975) 263 Ind. 327, 330 N.E.2d 738. The judge hearing the petition is the sole judge of the weight of the evidence and the credibility of the witness. Carroll v. State (1976) 265 Ind. 423, 355 N.E.2d 408. His decision will be reversed only where the evidence is without conflict and leads unerringly to a result not reached by the trial court. Roberts v. State (1975) 263 Ind. 53, 324 N.E.2d 265.

At the post-conviction hearing, the defendant stated that he only talked with his court-appointed attorney a "couple of times" for a "few minutes" and that he never discussed the facts of the case. He alleged that his counsel was ineffective because he had not adequately investigated the facts of the case, had not filed a motion for change of venue, had not obtained an independent ballistics test of the weapon, and had not subpoenaed certain alibi witnesses.

However, the attorney presented evidence at the hearing to show that he had talked with petitioner at least five times during three months he had been assigned to the case; he had consulted with the private attorney who had originally worked on the case; and he had appeared in court with defendant on several preliminary matters. He testified that he had discussed with the defendant his not guilty plea, his right to a jury trial, his bond reduction, his alibi defense and possible alibi witnesses.

[269 Ind. 263]

Page 986

It has long been established that there is a presumption that counsel is competent and that strong and...

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59 practice notes
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • March 5, 1979
    ...presumption prevails unless there is evidence that counsel made the proceedings a mockery of justice. Cottingham v. State (1978), Ind., 379 N.E.2d 984. On behalf of Defendant, counsel filed a Notice of Alibi and Motion to Suppress. He conducted the hearing on said motion, cross-examined the......
  • Adams v. State, No. 580S129
    • United States
    • Indiana Supreme Court of Indiana
    • January 26, 1982
    ...398 N.E.2d 1273; Smith v. State, (1979) Ind., 396 N.E.2d 898; Crisp v. State, (1979) Ind., 394 N.E.2d 115; Cottingham v. State, (1978) 269 Ind. 261, 379 N.E.2d 984; White v. State, (1981) Ind.App., 414 N.E.2d 973; Lyles v. State, (1978) Ind.App., 382 N.E.2d 991. A true application of this s......
  • Dew v. State, No. 49A02-0508-PC-800.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 10, 2006
    ...because of the failure of the attorney to provide the defendant with adequate legal representation. Cottingham v. State, (1978) Ind., 269 Ind. 261, 379 N.E.2d 984, In the case at bar, the defense counsel's failure to communicate the State's plea offer short-circuited the entire guilty plea ......
  • Davis v. State, No. 581S145
    • United States
    • Indiana Supreme Court of Indiana
    • April 13, 1983
    ...test as modified by the adequate legal representation standard. Darnell v. State, (1982) Ind., 435 N.E.2d 250; Cottingham v. State, (1978) 269 Ind. 261, 379 N.E.2d 984. Deliberate choices made by counsel for some contemplated tactical or strategic reason do not establish ineffective assista......
  • Request a trial to view additional results
59 cases
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • March 5, 1979
    ...presumption prevails unless there is evidence that counsel made the proceedings a mockery of justice. Cottingham v. State (1978), Ind., 379 N.E.2d 984. On behalf of Defendant, counsel filed a Notice of Alibi and Motion to Suppress. He conducted the hearing on said motion, cross-examined the......
  • Adams v. State, No. 580S129
    • United States
    • Indiana Supreme Court of Indiana
    • January 26, 1982
    ...398 N.E.2d 1273; Smith v. State, (1979) Ind., 396 N.E.2d 898; Crisp v. State, (1979) Ind., 394 N.E.2d 115; Cottingham v. State, (1978) 269 Ind. 261, 379 N.E.2d 984; White v. State, (1981) Ind.App., 414 N.E.2d 973; Lyles v. State, (1978) Ind.App., 382 N.E.2d 991. A true application of this s......
  • Dew v. State, No. 49A02-0508-PC-800.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 10, 2006
    ...because of the failure of the attorney to provide the defendant with adequate legal representation. Cottingham v. State, (1978) Ind., 269 Ind. 261, 379 N.E.2d 984, In the case at bar, the defense counsel's failure to communicate the State's plea offer short-circuited the entire guilty plea ......
  • Davis v. State, No. 581S145
    • United States
    • Indiana Supreme Court of Indiana
    • April 13, 1983
    ...test as modified by the adequate legal representation standard. Darnell v. State, (1982) Ind., 435 N.E.2d 250; Cottingham v. State, (1978) 269 Ind. 261, 379 N.E.2d 984. Deliberate choices made by counsel for some contemplated tactical or strategic reason do not establish ineffective assista......
  • Request a trial to view additional results

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