Dobeski v. State
| Decision Date | 29 April 1981 |
| Docket Number | No. 980S369,980S369 |
| Citation | 275 Ind. 662,419 N.E.2d 753 |
| Parties | Richard Allen DOBESKI, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Nile Stanton, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., George B. Huff, Jr., Deputy Atty. Gen., Indianapolis, for appellee.
The petitioner is before this Court appealing from the denial of his petition for relief under Post-Conviction Relief, Rule 2. The only issue raised is whether the court abused its discretion by denying petitioner's request to file a belated motion to correct error.
The facts from the record show that petitioner was tried by a jury and found guilty of first-degree murder in October, 1965. He was sentenced to life imprisonment. His trial counsel filed a timely motion for new trial on November 5, 1965, which was denied on December 21, 1965. There is no record of any further action being taken until October 4, 1979, when petitioner filed a request to file a belated motion to correct error and motion for evidentiary hearing. A hearing was held in Porter County Circuit Court on October 30, 1979, and the request was denied without comment on May 2, 1980.
At the hearing, petitioner's mother testified that she and her son assumed that trial counsel, John J. Davie, was going ahead with an appeal after the trial. She stated that she learned one or two years later that an appeal had not been taken and that it was then too late to take an appeal. Petitioner testified that he believed after the trial that his trial counsel had prepared his appeal, but learned about two years later that an appeal had not been taken. Both petitioner and his mother also testified about their efforts to retain counsel for an appeal during the following ten years.
After the hearing, John J. Davie filed an affidavit with the court at the request of the prosecuting attorney. Mr. Davie stated that he specifically remembered talking to Mrs. Dobeski after the trial and explaining various options which were available for her son. He remembered advising her that there would be further substantial costs for an appeal and that there were still attorney's fees and psychiatrists' fees from the trial which had not been paid. He stated that he left the decision up to her after conferring with her son whether they wanted to appeal and she did not respond to him. Mr. Davie stated that he had explained that an appeal would not likely be successful, that the appeal would be costly, and that he would not become personally liable for any further expenses in her son's case.
We must first note that it is well settled that the petitioner in a post-conviction proceeding has the burden of establishing his grounds for relief by a preponderance of the evidence. The judge hearing the petition weighs the evidence and determines the credibility of witnesses. His determination will be reversed only where the evidence is without conflict and leads unerringly to a result not reached by the trial court. Laird v. State, (1979) Ind., 385 N.E.2d 452; Cottingham v. State, (1978) 269 Ind. 261, 379 N.E.2d 984. Whether or not a petitioner has exercised due diligence in requesting permission to file a belated motion to correct error lies within the sound discretion of the trial court and will not be disturbed unless in abuse of discretion is shown. Wilhite v. State, (1980) Ind., 402 N.E.2d 1211; Jones v. State, (1979) Ind., 387 N.E.2d 1313; Newland v. State, (1968) 250 Ind. 512, 236 N.E.2d 45.
In this case, petitioner contends that the circumstances show that he did exercise due diligence. At the time of his arrest, he was 16 years old and depended upon his mother to make all the necessary legal arrangements for him both during and after his trial. He had no resources of his own and acquiesced in his mother's wishes, foregoing opportunities to contact attorneys on his own. He stated that he continually asked his mother about the appeal. His mother contacted several different private attorneys over a period of ten years but was repeatedly advised that there was nothing they could do. Petitioner, on his own, finally contacted a public defender who advised him that the transcript was probably unattainable. Petitioner still pursued the matter until he contacted a private attorney willing to seek the transcript and represent him. The petition for belated appeal was filed on October 4, 1979, approximately fourteen years after his original conviction.
In denying this petition, the trial court found that petiti...
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Adams v. State
...be reversed only where the evidence is without conflict and leads unerringly to a result not reached by the trial court. Dobeski v. State, (1981) Ind., 419 N.E.2d 753; Lagenour v. State, (1980) Ind., 414 N.E.2d 295; Laird v. State, (1979) Ind., 385 N.E.2d 452. It is apparent the post-convic......
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...motion would not render such motion inadequate so as to serve as grounds for a petition under Ind.R.P.C. Relief 2(1). Dobeski v. State, (1981) Ind., 419 N.E.2d 753; Adams v. State, Furthermore, the record in this case reveals that the original motion to correct errors did raise three of the......
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...1313. We must decide each of these cases on a case by case basis, depending upon their individual factual situation. Dobeski v. State (1981), 275 Ind. 662, 419 N.E.2d 753. In the case at bar appellant has wholly failed in his proof. On the one hand appellant has consistently claimed he was ......
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