Cushman v. State, No. 977S648

Docket NºNo. 977S648
Citation378 N.E.2d 643, 269 Ind. 68
Case DateJuly 26, 1978
CourtSupreme Court of Indiana

Page 643

378 N.E.2d 643
269 Ind. 68
Ronald CUSHMAN, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 977S648.
Supreme Court of Indiana.
July 26, 1978.

Page 644

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.

PRENTICE, Justice.

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:

[269 Ind. 69] (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.

ISSUE I

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...

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10 practice notes
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • March 5, 1979
    ...is presumed competent in the absence of strong [179 Ind.App. 479] and convincing evidence to the contrary. Cushman v. State (1978), Ind., 378 N.E.2d 643; further, the presumption prevails unless there is evidence that counsel made the proceedings a mockery of justice. Cottingham v. State (1......
  • Weaver v. State, No. 481S99
    • United States
    • Indiana Supreme Court of Indiana
    • March 8, 1982
    ...incumbent upon the attorney to seek a third examination and opinion and incur additional costs of representation. Cushman v. State, (1978) 269 Ind. 68, 378 N.E.2d In addition, the record reveals counsel's decision to forego a third psychiatric opinion and insanity defense was based on the f......
  • Olvera v. State, No. 79A02-0807-PC-632.
    • United States
    • Indiana Court of Appeals of Indiana
    • January 14, 2009
    ...testimony at the post conviction relief hearing wherein the defendant now claims ineffective assistance of counsel. Cushman v. State, 269 Ind. 68, 378 N.E.2d 643 6. Advising a defendant of his rights and what rights will be waived by a plea of guilty, including the right to appeal his sente......
  • McKrill v. State, No. 382S78
    • United States
    • Indiana Supreme Court of Indiana
    • August 31, 1983
    ...day of the guilty plea hearing, that, standing alone, would not have mandated a competency hearing to be held. Cushman v. State, (1978) 269 Ind. 68, 70, 378 N.E.2d 643, It cannot be said that the evidence adduced at the post conviction hearing was without conflict and led but to one conclus......
  • Request a trial to view additional results
10 cases
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • March 5, 1979
    ...is presumed competent in the absence of strong [179 Ind.App. 479] and convincing evidence to the contrary. Cushman v. State (1978), Ind., 378 N.E.2d 643; further, the presumption prevails unless there is evidence that counsel made the proceedings a mockery of justice. Cottingham v. State (1......
  • Weaver v. State, No. 481S99
    • United States
    • Indiana Supreme Court of Indiana
    • March 8, 1982
    ...incumbent upon the attorney to seek a third examination and opinion and incur additional costs of representation. Cushman v. State, (1978) 269 Ind. 68, 378 N.E.2d In addition, the record reveals counsel's decision to forego a third psychiatric opinion and insanity defense was based on the f......
  • Olvera v. State, No. 79A02-0807-PC-632.
    • United States
    • Indiana Court of Appeals of Indiana
    • January 14, 2009
    ...testimony at the post conviction relief hearing wherein the defendant now claims ineffective assistance of counsel. Cushman v. State, 269 Ind. 68, 378 N.E.2d 643 6. Advising a defendant of his rights and what rights will be waived by a plea of guilty, including the right to appeal his sente......
  • McKrill v. State, No. 382S78
    • United States
    • Indiana Supreme Court of Indiana
    • August 31, 1983
    ...day of the guilty plea hearing, that, standing alone, would not have mandated a competency hearing to be held. Cushman v. State, (1978) 269 Ind. 68, 70, 378 N.E.2d 643, It cannot be said that the evidence adduced at the post conviction hearing was without conflict and led but to one conclus......
  • Request a trial to view additional results

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