Cross v. State
| Decision Date | 02 October 1974 |
| Docket Number | No. 1--1173A200,1--1173A200 |
| Parties | Willie C. CROSS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Harriette Bailey Conn, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Henry O. Sitler, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant, Willie C. Cross, brings this appeal after the denial of his petition for post conviction relief from a ten year determinate sentence for robbery while armed.
The specific issues for review are:
(1) Whether Cross' trial counsel was ineffective; and
(2) Whether Cross entered his guilty plea knowingly, willingly, and voluntarily.
We affirm the trial court.
Ind. Rules of Procedure, Post Conviction Remedy Rule 1 places the burden of proof on the petitioner.
'The petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence.' P.C.R. Rule 1, § 5.
The trial court held that Cross had failed to meet this burden of proof as to the two issues stated above. On appeal Cross seeks relief from that negative judgment. In reviewing the court's decision we cannot weigh the evidence. We may reverse only if the judgment is contrary to law; that is, only if the evidence is all one way and but one reasonable conclusion could be reached from the facts and the trial court has reached a contrary conclusion. Hoskins v. State (1973), Ind., 302 N.E.2d 499; Sargeant v. State (1973), Ind.App., 299 N.E.2d 219. We review Cross' assertions of error with this limited standard of review in mind.
Cross first contends that he is entitled to have his plea of guilty withdrawn due to the fact that the evidence presented proved by a preponderance that he was denied effective and adequate assistance of counsel because the only efforts of his court-appointed attorney were to get him to plead guilty. Moreover, Cross claims that his attorney talked him into pleading guilty by telling him that he would get a life sentence as a habitual criminal when in fact no habitual criminal charge had been filed.
There is a presumption that counsel appointed by the court to represent a defendant is competent. This presumption may be overcome only by showing that the attorney's actions made the proceedings a mockery and shocking to the conscience of the court. Kelly v. State (1972), Ind., 287 N.E.2d 872; Lenwell v. State (1973), Ind.App., 294 N.E.2d 643. Cross had the burden of rebutting this presumption by strong and convincing proof. Conley v. State (1972), Ind., 284 N.E.2d 803; Isaac v. State (1971), 257 Ind. 319, 274 N.E.2d 231.
No such evidence is apparent in this case. Cross merely asserts that his counsel advised him to plead guilty in order to get the ten year determinate sentence and possibly avoid a greater penalty. As to the threat of the habitual criminal conviction, the fact that such a charge was not filed is not conclusive. The attorney's advice concerning such a possibility may have been reasonable at the time it was given. Even if true, Cross' assertions are not sufficient to overcome the presumption that he was effectively represented by counsel.
Secondly, Cross contends that he should be allowed to withdraw his guilty plea since the evidence he presented proved by the preponderance that his plea was not entered knowingly, intelligently, or willingly.
In regard to this issue it is important to note what Cross is not...
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Campbell v. State, 2--873A176
... ... State (1974), Ind., 319 N.E.2d 344, the trial counsel is presumed to be competent and there is required strong and convincing proof to overcome this presumption. Maxwell, supra; Hoskins, supra; Isaac v. State (1971), 257 Ind. 319, 274 N.E.2d 231; Cross v. State (1974), Ind.App., 316 N.E.2d 685 ... Matters such as raising particular issues on appeal, waiving a jury trial, filing a plea of insanity, calling witnesses and objecting to the admission of particular items into evidence constitute trial strategy and any misjudgment ... ...
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