Ferrier v. State

• Decision Date: 09 December 1980
• Docket Number: No. 979S262,979S262
• Citation: 274 Ind. 585,413 N.E.2d 260
• Parties: Hubert FERRIER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 260

413 N.E.2d 260

274 Ind. 585

Hubert FERRIER, Appellant, v. STATE of Indiana, Appellee.

No. 979S262.

Supreme Court of Indiana.

Dec. 9, 1980.

Harriette Bailey Conn, Public Defender, James M. Garrettson, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Asst. Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is an appeal from the denial of post-conviction relief. Appellant was convicted of first degree murder in a trial by jury and his conviction was affirmed on direct appeal. Ferrier v. State, (1977) 266 Ind. 117, 361 N.E.2d 150. Subsequently, he filed a pro se petition for post-conviction relief which was denied summarily without a hearing or appointment of counsel. That judgment was reversed and the cause remanded for appointment of counsel and a hearing in an opinion of this Court received and filed with the Clerk of the Fountain Circuit Court on February 6, 1979. Ferrier v. State, (1979) Ind., 385 N.E.2d 422.

On February 6, 1979, Judge Grogg of that court appointed the public defender for appellant and ordered his return to Fountain County for a hearing on his petition to take place on February 26, 1979. The public defender was granted a continuance of that hearing to April 23, 1979. On March 20, 1979, appellant by counsel filed a motion for change of venue from the county which was denied. On April 23, 1979, the public defender was granted a continuance of the hearing to April 27, 1979.

On April 27, 1979, appellant appeared in court in person and with counsel and filed a pro se motion for change of judge which was denied. The hearing was then held and appellant's petition was denied. This is an appeal from that judgment raising two issues:

(1) whether the trial court committed error in denying appellant's motion for change of judge; and

(2) whether the trial court's findings and conclusions that appellant had not been denied effective assistance of counsel at this initial trial were erroneous.

(1) The right to a change of judge in a proceeding brought under Ind.R.P.C. 1, is governed by § 4(b) of the rule which provides:

"Change of venue from the judge shall be granted when the petitioner files, within ten days of the filing of his petition, an affidavit that the judge has a personal bias or prejudice against petitioner. The affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be accompanied by a certificate of good faith of petitioner's counsel. For good cause shown, the petitioner may be permitted to file the affidavit after the ten day period. No change of venue from the county shall be granted."

Appellant's pro se motion was filed on the day of hearing. No matter how we might choose to interpret the time limiting provision of § 4(b), it is evident that this motion, filed on the very day of hearing could not be deemed timely filed. Moreover, the motion itself contains no attempt at all to show good cause for not filing the motion at an earlier date as required by the rule. Appellant is not entitled to be excused from complying with the rule simply because he chose to file the motion pro se and without the advice of counsel. Owen v. State, (1978) 269 Ind. 513, 381 N.E.2d 1235. The plain provision of the rule required this motion to be denied. In Adams v. State, (1978) 268 Ind. 434, 376 N.E.2d 482, relied upon by appellant, late filing was sanctioned where good cause therefor was apparent on the face of the record, i. e., that the identity of the judge could not have been known during the time ordinarily allowed for filing. Here no good cause is so apparent.

(2) At the trial on the petition for post-conviction relief, appellant sought to establish that his counsel had been insufficiently effective in defending him at his original trial on the charge of murder. It was appellant's burden to establish...