Davis v. State, No. 581S145

Docket NºNo. 581S145
Citation446 N.E.2d 1317
Case DateApril 13, 1983
CourtSupreme Court of Indiana

Page 1317

446 N.E.2d 1317
Robert L. DAVIS, Appellant (Petitioner below),
v.
STATE of Indiana, Appellee (Respondent below).
No. 581S145.
Supreme Court of Indiana.
April 13, 1983.

Page 1319

Harriette Bailey Conn, Susan K. Carpenter, Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The petitioner, Robert L. Davis, is before this Court appealing from the denial of his petition for Post-Conviction Relief, Rule 1. Therein, he sought relief from judgments entered on his plea of guilty to rape, Ind.Code Sec. 35-13-4-3 (Burns 1975) and a jury's conviction of him for the crime of kidnapping, Ind.Code Sec. 35-1-55-1 (Burns 1975). On his direct appeal, this Court affirmed the trial court's judgments. Davis v. State, (1976) 265 Ind. 476, 355 N.E.2d 836. We have previously remanded his appeal from the denial of his petition for post-conviction relief for the reason that the trial court had erroneously failed to grant a change of judge. Davis v. State, (1979) Ind., 396 N.E.2d 893. After a hearing before a new judge, the petition for post-conviction relief was again denied. Petitioner now presents the following issues for our review:

1. Whether the trial court erred in denying petitioner's motion that facts alleged in his petition for post-conviction relief be deemed admitted;

2. Whether petitioner's guilty plea to the offense of rape was voluntary and knowingly and intelligently made;

3. Whether the trial court erred in sentencing petitioner for both rape and kidnapping;

4. Whether petitioner received competent representation by counsel at his guilty plea hearing and at his trial on the kidnapping charges;

5. Whether evidence of the guilty plea was properly admitted at the trial on the kidnapping charge; and

6. Whether the court erred when it concluded that a sentence of life imprisonment for kidnapping did not constitute cruel and unusual punishment.

At the outset it is recognized that petitioner had the burden of proving his grounds for relief by a preponderance of the evidence at the post-conviction relief

Page 1320

proceeding. Ind.R.P.C. 1, Sec. 5; Turman v. State, (1979) Ind., 392 N.E.2d 483. In our review of the denial of a petition for post-conviction relief, this Court does not weigh the evidence or judge the credibility of witnesses. Only when the evidence is without conflict and leads to but one reasonable conclusion contrary to that reached by the trier of fact will the decision be reversed as contrary to law. Henson v. State, (1979) Ind., 392 N.E.2d 478; Hoskins v. State, (1973) 261 Ind. 291, 302 N.E.2d 499.

I.

Petitioner's post-conviction relief petition was filed on April 5, 1978. On April 10, 1978, petitioner filed a motion for change of venue from the judge, which was subsequently denied. On June 30, 1978, the state filed its response to the petition for post-conviction relief. At the outset of the hearing conducted on the petition on July 6, 1978, petitioner moved that the factual allegations contained in his petition be deemed admitted; in support thereof, he relied on the fact that the state had failed to file a response to his petition within thirty days, as required by Ind.R.P.C. 1, Sec. 4.

The trial court denied the motion; the court thereafter also denied the petition for post-conviction relief. Petitioner then appealed the denial of his petition to this Court. Solely on the basis that the trial court had erred in failing to grant petitioner's motion for a change of venue from the judge, this Court reversed the judgment of the court and remanded the cause for a new hearing. Davis v. State, supra (1979 decision).

On remand before a new judge, petitioner did not assert that the allegations contained in his petition should be deemed admitted for the failure of the state to respond within thirty days. Instead, he proceeded to a hearing on the merits of those factual allegations, which culminated in the court's denial of his petition.

Petitioner here asserts, however, that the second court which considered his petition should have deemed the factual allegations admitted due to the state's tardy response. In support thereof, he relies on Ind.R.P.C. 1, Sec. 4, as implemented in Purcell v. State, (1975) 165 Ind.App. 47, 330 N.E.2d 779.

Petitioner misconstrues the effect of our 1979 decision and the responsibilities incumbent upon him in its wake. Our decision vacating the judgment of the first trial court to consider the petition restored the parties to the position they occupied when the error occurred. Doughty v. State Dept. of Pub. Welf., (1954) 233 Ind. 475, 121 N.E.2d 645; Moore v. Ransdel, (1901) 156 Ind. 658, 60 N.E. 1068; Hunter v. Hunter, (1973) 156 Ind.App. 187, 295 N.E.2d 834. It was incumbent upon petitioner to renew his assertion on remand, for the record reveals his motion for a change of judge was erroneously denied prior to the denial of his motion to deem the allegations admitted. The question petitioner presents to us was not placed before the court from which this appeal is taken; the issue consequently has been waived.

II.

Petitioner next alleges that his guilty plea to the charge of rape was not knowingly and intelligently made since he was not fully advised of his rights as enumerated by our statute, Ind.Code Sec. 35-4.1-1-3 (Burns 1979). The record in this case shows that petitioner originally entered pleas of not guilty to both the charges of rape and kidnapping. Then, on the morning of the trial, petitioner appeared before the trial court with his counsel and stated that he wished to enter a plea of guilty to the charge of rape.

The court carefully questioned petitioner to establish the factual basis of the plea and determined that there had been no threats, force, or coercion used to obtain the plea. Petitioner acknowledged that he was aware that the state would continue with the prosecution of the kidnapping charge after the guilty plea for the rape was given. The court advised petitioner of the constitutional rights which he was waiving, but inadvertently failed to advise him of his right to have compulsory process for obtaining witnesses.

Page 1321

This Court has repeatedly emphasized that the record must show that the trial court informed the accused person of all the constitutional rights he is waiving by direct statements at the time of the guilty plea. Strict compliance with our statute is demanded of our trial courts in order to determine that any waiver of fundamental constitutional rights is knowingly and intelligently given. Early v. State, (1982) Ind., 442 N.E.2d 1071; Romine v. State, (1982) Ind., 431 N.E.2d 780; German v. State, (1981) Ind., 428 N.E.2d 234.

Although the record shows that petitioner was aware of the one right which the trial court omitted from his advisements, there is nothing in the record to show that he was actually advised of this right in any manner by the trial court. The conclusion of the post-conviction court that petitioner was adequately informed of his right to compulsory process for obtaining witnesses is not supported by the evidence. Therefore, the judgment denying relief to petitioner on this issue is contrary to law and must be reversed. Petitioner's plea of guilty to the charge of rape must be vacated.

III.

Petitioner argued in his petition for post-conviction relief that the trial court erred in sentencing him on both the rape and kidnapping offenses since both arose from the same transaction. While our decision that petitioner's plea of guilty to the charge of rape must be vacated makes this assignment of error moot, we note that our case law is clearly contrary to petitioner's argument of error on this issue. The crimes of rape and kidnapping are generally held to be separate and distinct offenses when each requires proof of an additional fact which the other does not and both are supported by the evidence beyond a reasonable doubt. Daniels v. State, (1980) Ind., 408 N.E.2d 1244; Dragon v. State, (1979) 270 Ind. 223, 383 N.E.2d 1046; Tewell v. State, (1976) 264 Ind. 88, 339 N.E.2d 792.

IV.

Petitioner next alleges that he was denied his right to effective assistance of counsel at the plea bargain hearing and at the trial on the kidnapping charge. Due to our finding on Issue II above, we do not need to consider any allegations of error assigned to the guilty plea.

Petitioner alleges that his counsel was ineffective at the trial on the kidnapping charge because he failed to interview certain witnesses, he was ill during the trial, he failed to move for a competency hearing, he failed to object to a visibility problem involving certain charts, and he failed to keep petitioner informed as to the progress of the direct appeal. However, the only evidence on these issues is petitioner's own uncorroborated testimony.

It is well settled in Indiana that there is a presumption that counsel is competent and that strong and convincing evidence is required to rebut the presumption. Hollonquest v. State, (1982) Ind., 432 N.E.2d 37; Lindley v. State, (1981) Ind., 426 N.E.2d 398; Jones v. State, (1978) 270 Ind. 141, 387 N.E.2d 440. Incompetency of counsel revolves around the particular facts of each case and the standard of review on this...

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52 practice notes
  • People v. Schultz, Docket Nos. 84788
    • United States
    • Michigan Supreme Court
    • 28 September 1990
    ...10 (Fla.1976); Barrett v. State, 183 Ga.App. 729, 360 S.E.2d 400 (1987); Patterson v. State, 532 N.E.2d 604 (Ind.1988); Davis v. State, 446 N.E.2d 1317 (Ind.1983); State v. Ramos, 240 Kan. 485, 731 P.2d 837 (1987); State v. Armstrong, 238 Kan. 559, 712 P.2d 1258 (1986); State v. Narcisse, 4......
  • Sides v. State, No. 2-284-A-38
    • United States
    • Indiana Court of Appeals of Indiana
    • 12 September 1985
    ...to determine that any waiver of fundamental constitutional rights is knowingly and intelligently given.' Davis v. State, (1983) Ind., 446 N.E.2d 1317, 1321 (emphasis supplied); See also Early v. State, (1982) Ind., 442 N.E.2d 1071. Implicit in this clear language are two logical conclusions......
  • Harris v. State, No. 1284S511
    • United States
    • Indiana Supreme Court of Indiana
    • 15 August 1985
    ...not dictate a reversal because his sentencing occurred prior to the effective date of the new statute. See Davis v. State (1983), Ind., 446 N.E.2d 1317; Watford v. State (1979), 270 Ind. 262, 384 N.E.2d 1030 (if defendant's judgment is final prior to the effective date of the statute, he ca......
  • Martin v. State, No. 2-1183-A-417
    • United States
    • Indiana Court of Appeals of Indiana
    • 13 November 1984
    ...v. State (Decided July 23, 1984) Ind., 465 N.E.2d 1101 (guilty plea February 5, 1979); Davis v. State (Decided April 13, 1983) Ind., 446 N.E.2d 1317 (guilty plea prior to April 5, 1978); Early v. State (Decided December 22, 1982) Ind., 442 N.E.2d 1071 (guilty plea April 10, 1979); Morrison ......
  • Request a trial to view additional results
52 cases
  • People v. Schultz, Docket Nos. 84788
    • United States
    • Michigan Supreme Court
    • 28 September 1990
    ...10 (Fla.1976); Barrett v. State, 183 Ga.App. 729, 360 S.E.2d 400 (1987); Patterson v. State, 532 N.E.2d 604 (Ind.1988); Davis v. State, 446 N.E.2d 1317 (Ind.1983); State v. Ramos, 240 Kan. 485, 731 P.2d 837 (1987); State v. Armstrong, 238 Kan. 559, 712 P.2d 1258 (1986); State v. Narcisse, 4......
  • Sides v. State, No. 2-284-A-38
    • United States
    • Indiana Court of Appeals of Indiana
    • 12 September 1985
    ...to determine that any waiver of fundamental constitutional rights is knowingly and intelligently given.' Davis v. State, (1983) Ind., 446 N.E.2d 1317, 1321 (emphasis supplied); See also Early v. State, (1982) Ind., 442 N.E.2d 1071. Implicit in this clear language are two logical conclusions......
  • Harris v. State, No. 1284S511
    • United States
    • Indiana Supreme Court of Indiana
    • 15 August 1985
    ...not dictate a reversal because his sentencing occurred prior to the effective date of the new statute. See Davis v. State (1983), Ind., 446 N.E.2d 1317; Watford v. State (1979), 270 Ind. 262, 384 N.E.2d 1030 (if defendant's judgment is final prior to the effective date of the statute, he ca......
  • Martin v. State, No. 2-1183-A-417
    • United States
    • Indiana Court of Appeals of Indiana
    • 13 November 1984
    ...v. State (Decided July 23, 1984) Ind., 465 N.E.2d 1101 (guilty plea February 5, 1979); Davis v. State (Decided April 13, 1983) Ind., 446 N.E.2d 1317 (guilty plea prior to April 5, 1978); Early v. State (Decided December 22, 1982) Ind., 442 N.E.2d 1071 (guilty plea April 10, 1979); Morrison ......
  • Request a trial to view additional results

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