Cushman v. State
| Decision Date | 26 July 1978 |
| Docket Number | No. 977S648,977S648 |
| Parties | Ronald CUSHMAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Harriette Bailey Conn, Public Defender, Kyle M. Payne, Deputy Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Dennis K. McKinney, Deputy Atty. Gen., Indianapolis, for appellee.
Petitioner (Appellant) is before this Court appealing the denial of his petition for post conviction relief, Post Conviction Remedy Rule 1. He was charged with first degree murder, Ind.Code § 35-13-4-1 (Burns 1975). He entered a plea of guilty to second degree murder, and was sentenced to imprisonment for an indeterminate period of fifteen (15) to twenty-five (25) years. Petitioner presents the following issues for review:
(1) Whether the petitioner's plea of guilty was entered knowingly and intelligently.
(2) Whether the petitioner was denied adequate representation by counsel at the time that his plea was entered.
As his first assignment of error, the petitioner alleges that his plea of guilty was not entered knowingly and intelligently inasmuch as he was under the influence of drugs. The record of the guilty plea hearing indicates that the petitioner was fully advised of his rights by the trial court. With this the petitioner does not quarrel, but he argues that he was incapable of waiving these rights as he was then under the influence of drugs. At the post conviction hearing, he stated that he was told by his attorney to respond affirmatively to all of the judge's questions, which he alleges he did without any comprehension as to what was going on around him.
The burden of proof rests with the petitioner in a post conviction proceeding, to establish his grounds for relief by a preponderance of the evidence. Post Conviction Remedy Rule 1, § 5. The judge hearing the petition is the sole judge of the weight of the evidence and the credibility of the witnesses. Carroll v. State (1976) Ind., 355 N.E.2d 408. His decision will be set aside only upon a showing that the evidence is without conflict and leads unerringly to a result not reached by the trial court. Carroll v. State, supra; Roberts v. State (1975) 263 Ind. 55, 324 N.E.2d 265.
The evidence introduced at the post conviction hearing indicated that the petitioner had been a user of hard drugs prior to the time of the crime charged. He admitted however, to having had no contact with any hard drugs between the time of his arrest and the entry of his guilty plea. Subsequent to the petitioner's arrest and prior to the time of his hearing, he was examined by two court appointed psychiatrists. Both of the doctors agreed in a written report sent to the trial judge, that the petitioner at the time of the crime, had full comprehension of his actions and, at the time of the examination the ability to understand the nature of the charges and the proceedings. At the guilty plea hearing the petitioner's answers were not confined solely to responses of yes and no. On several occasions he indicated that he did not understand a question on which occasion the judge took time to explain in greater detail. In addition, there was a dialogue between the petitioner and the trial court concerning those present in the court room, the charges pending against him, and the petitioner's general background.
All indications from the record of the pre-trial and guilty plea proceedings are that the petitioner's plea was entered knowingly and intelligently. The trial judge was not required to believe the petitioner's witnesses. Boles v. State (1973) 259 Ind. 661, 291 N.E.2d 357. If he did attach verity to their testimony, we, nevertheless, cannot say in the face of the...
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Decker v. State
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