Darmody v. State
Decision Date | 18 April 1973 |
Docket Number | No. 3--1072A70,3--1072A70 |
Citation | 156 Ind.App. 88,294 N.E.2d 835 |
Parties | John James DARMODY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
Court | Indiana Appellate Court |
Ronald V. Aungst and Lyons, Aungst & Guastella, Valparaiso, for appellant.
Theo. L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., for appellee.
John James Darmody had been charged with kidnapping. He stood before the trial court without his attorney being present as the prosecutor filed a second charge of assault and battery with intent to kill. The prosecutor has a note in his file from Darmody's attorney that indicated a guilty plea would be entered. The record is silent as to any advice received from or conferences with Darmody's attorney which relate to a plea of guilty being entered on the second affidavit. John James Darmody entered his plea of guilty to assault and battery with intent to kill. He was sentenced on the same day after the filing of a pre-commitment report to the Indiana State Prison for a period of not less than two nor more than fourteen years.
Approximately one year later, John James Darmody filed a verified petition for post-conviction relief pursuant to P.C. 1 of the Indiana Rules of Procedure. This petition was denied and Darmody filed his motion to correct errors. Our opinion will review the issue:
Does the record reflect that John James Darmody knowingly and intelligently made a voluntary waiver of his constitutional right to have his legal counsel present at the arraignment on the second affidavit charging him with assault and battery with intent to kill before he entered his plea of guilty?
We conclude in our opinion that an intelligent waiver was not made by John James Darmody. The judgment of the trial court is reversed with instructions to grant John James Darmody's motion to withdraw his plea of guilty to assault and battery with intent to kill.
John James Darmody was charged by affidavit with the crime of kidnapping on July 21, 1969. He appeared in court on July 29, 1969 and entered a plea of not guilty. His attorney withdrew and a second attorney, Richard W. Mehl, entered Darmody was returned to the Elkhart Circuit Court on April 30, 1970. The record indicates that Darmody appeared in court without counsel. The court made an entry which stated that the Defendant would be returned to the state prison until his counsel would be available. However, on the same day, the Defendant was again brought before the Honorable Aldo J. Simpson. The record of what transpired is as follows:
his appearance on September 5, 1969. Richard W. Mehl requested the court to determine, by court-appointed psychiatrist, the ability of Darmody to comprehend the legal consequences of his act and to determine if Darmody were able to stand trial. The two court-appointed psychiatrists reported on October 3, 1969 that in their opinion Darmody had sufficient comprehension[156 Ind.App. 90] and was not insane. Later, at the request of the prosecuting attorney, based upon the recommendations of the court-appointed psychiatrists, Darmody was committed to the Norman Beatty Hospital to determine if he was a criminal sexual psychopath. On April 23, 1970, the superintendent of Norman Beatty Memorial Hospital filed his psychiatric report finding that Darmody was not a criminal sexual psychopath and was he was not insane or feeble-minded and could cooperate in his defense.
'MR. PETERSON: You understand the affidavit for assault and battery reads as follows: (omitting formal parts)
'A. Yes.
'MR. PETERSON: You fully understand that?
'A. Yes.
'MR. PETERSON: You fully understand all of your constitutional rights here?
'A. Yes.
'MR. PETERSON: And you wish to waive further arraignment and enter a plea of guilty. Is that correct?
'A. Yes.
'MR. PETERSON: You also told me you wished to go to Michigan City today if you could. Is that right?
'A. Yes.
'MR. PETERSON: Do you also wish to waive presentence investigation?
'A. Yes. I said that in my plea. I believe I did.
'A. There won't be no trouble from me.
How old are you?
Darmody was brought back to court at 2:00 o'clock P.M. with the presentence investigation completed. He was sentenced to the Indiana State Prison for a period of not less than two nor more than fourteen years.
Darmody filed a verified petition for post-conviction relief pursuant to P.C. 1 of the Indiana Rules of Procedure on April 23, 1971. On May 25, 1972, Darmody through his third counsel, Ronald V. Aungst, appeared before the Honorable Aldo J. Simpson and submitted evidence. At the conclusion of the argument, the petition was denied by the court. Darmody timely filed his motion to correct errors which was overruled by the trial court.
One issue will be discussed in the 'Statement on the Law' section of our opinion:
Does the record reflect that John James Darmody knowingly and intelligently made a voluntary waiver of his constitutional right to have his legal counsel present at the arraignment on the second affidavit charging him with assault and battery with intent to kill before he entered his plea of guilty?
Darmody has filed his petition for post-conviction relief pursuant, to P.C. 1 of the Indiana Rules of Procedure. The content of his petition is that he wishes to withdraw his plea of guilty to assault and battery with intent to kill. Our courts have held that this is the proper method of attacking the plea after sentencing and the time period for appeal has elapsed. Grimes v. State (1972), Ind., 278 N.E.2d 271. Darmody's basic contention of error is that his plea of guuilty was invalid. After the prosecutor filed the second affidavit charging him with assault and battery with intent to kill, the record does not show a valid waiver of his constitutional right to The law is now settled that at the arraignment, the accused has a constitutional right to have the assistance of counsel. Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, and Auer v. State (1972), Ind.App., 289 N.E.2d 321.
have counsel present at this very critical state of the criminal proceeding. We agree.
'A plea of guilty is not valid unless the accused either has counsel or has entered a knowing and voluntary waiver of his right to counsel.' Grimes v. State, supra, 278 N.E.2d at 272.
The Supreme Court of the United States in Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 stated the following regarding the constitutional right of the accused to be represented by counsel:
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