Filipiak, In re

• Decision Date: 16 June 1953
• Docket Number: No. 28897,28897
• Citation: 113 N.E.2d 282,232 Ind. 414
• Parties: In re FILIPIAK.
• Court: Indiana Supreme Court

Page 282

113 N.E.2d 282

232 Ind. 414

In re FILIPIAK.

No. 28897.

Supreme Court of Indiana.

June 16, 1953.

Charles C. Baker, Indianapolis, James R. Newkirk, Ft. Wayne, Robert H. Moore, Gary, Chester E. Bielby, Lawrenceburg, Wilbur F. Dassel, Evansville, for appellant.

Albert H. Gavit, Gary, for appellee.

BOBBITT, Chief Justice.

This proceeding was commenced by the filing of an information in revocation of admission to practice law as an attorney by the Disciplinary Commission appointed by this court under Rule 3-21 thereof. Defendant filed his answer denying the material allegations of the information.

The Hon. Dan Pyle, Judge of the St. Joseph Circuit Court, was subsequently appointed as commissioner to hear evidence and report his findings of fact thereon. After due notice, a hearing was held on December 1 and 2, 1952, in Crown Point, Indiana, at which the Disciplinary Commission and the defendant were represented by able and competent counsel.

On February 13, 1953, the commissioner filed his report and findings of fact. Such findings disclosed that defendant did not act dishonestly or corruptly, but was not 'careful and meticulous' in the making of his records as Judge of the Juvenile Court of Lake County, at the times mentioned in the information, and that all of the acts relating to the matters herein were performed by him in his capacity as Judge of the Juvenile Court and not as an attorney. The commissioner further found that the allegations of the information were not supported by a preponderance of the evidence.

To this report the Disciplinary Commission filed exceptions.

Rule 3-24 of this court pertaining to disciplinary proceedings provides that if a material issue of fact is formed, this court will appoint 'one or more commissioners to hear and report the evidence and to make findings of fact, to which exceptions may be taken * * *.' Such commissioner is given power to fix the time and place of the hearing, administer oaths, subpoena witnesses, and order the taking of depositions.

The above provisions of Rule 3-24 require the commissioner to file and report the facts for the use of this court. The facts as reported by the commissioner will be presumed to be correct until the contrary is shown.

The burden was upon the Disciplinary Commission to prove the allegations of the information by a preponderance of the evidence. The commissioner's report shows that it failed to sustain this burden.

We have carefully examined the exceptions to the commissioner's report and in our opinion they are not sufficient to overcome the presumption of verity which attaches to the commissioner's findings of fact.

An examination of the evidence discloses nothing upon which we could justify a refusal to accept the facts as found by the experienced and able jurist who served as commissioner.

Upon the facts as found by the commissioner this court finds that the defendant, Anthony A. Filipiak, should not be disbarred from the practice of law in Indiana.

The petition herein is denied and the costs incurred in connection therewith are assessed against the State of Indiana.

DRAPER, J., not participating.

EMMERT, J., concurs in result.

GILKISON, J., dissents.

EMMERT, Judge (concurring).

The defendant, Anthony A. Filipiak, was charged, in substance, with having entered into a conspiracy with Blaz A. Lucas ¹ and Bryan Narcowich, attorneys of this bar and state, to free one Joseph Kaczka from serving a sentence in the Indiana State Farm for six months, for a financial consideration in the sum of $600.

It is not possible to obtain the full picture of the factual situation from the findings of facts made by the Commissioner, and it has been necessary to refer to the record of the evidence received in order to relate the history of the controversy. I agree with the Commissioner's finding of facts that there was no case proved that the defendant acted dishonestly or corruptly. There is no proof that the defendant knew anything about the payment of any fee, either to Lucas or Narcowich. What was proved was judicial stupidity of a high order. When a judge in a criminal matter acts without jurisdiction to set aside a judgment of imprisonment and then enters a suspended sentence he invites suspicion that he has acted corruptly. There were violations of some of the Canons of Judicial Ethics of the American Bar Association, and because these canons were violated it is proper to note them by an opinion.

The defendant was a judge of the Juvenile Court of Lake County. On April 6, 1950, in Cause No. 4432, Joseph Kaczka pleaded guilty to a charge of contributing to delinquency, upon which judgment was pronounced that he be imprisoned in the State Farm for a term of six months, and pay a fine in the sum of $100 and costs. In this proceeding the State was represented by Deputy Prosecuting Attorney Obermiller of Lake County. Kaczka was transported to and imprisoned in the Indiana State Farm.

On April 21, 1950, Blaz Lucas, who was then a deputy prosecuting attorney of Lake County, telephoned the defendant Filipiak. Lucas asked for a new trial for the prisoner, and the defendant made the following minutes: 'Comes now Atty. Blaz Lucas and files motion for new trial. Motion granted. Sheriff of Lake County ordered to return the def Joseph Kaczka and have him in court on April 28th, 1950 at 10 A.M.' This minute was signed by the defendant judge. ² The defendant insisted that he inserted on the minute book immediately after the words 'Motion granted,' the following: 'Motion to be heard on April 28-50.' It is not necessary for us to decide when this insertion was made, since he was not charged with making this as a false entry.

Thereafter the defendant informed Lucas he could not act as attorney in the matter, since he was a deputy prosecuting attorney. Lucas had been paid the sum of $300 by the sister of Joseph Kaczka, with the understanding he would receive another $300 if the motion for new trial resulted in a suspended sentence. Lucas refused to give any receipt for this money. A bondsman by the name of Henry Sero had first contacted Kaczka's sister, and he was present when the $300 in cash was paid.

After Lucas was informed he could not represent the prisoner, Henry Sero made arrangements with Bryan Narcowich to represent the prisoner, and he prepared a motion for new trial which was filed with the papers in the cause, and he later received between $200 and $300 paid by Sero as agent for Kaczka's sister.

Narcowich and Lucas had offices in the same building and floor and hallway thereof. Narcowich had no stenographer, and Mrs. Lucas typed both motions for a new trial. Both motions stated the same three causes,

'1. For newly discovered evidence material to this defendant which could not with reasonable deligence have discovered and produced at the trial.

'2. Accident and surprise which ordinary prudence on the part of this defendant and his counsel could not have foreseen or prevented.

'3. That the judgment of the court was against the weight of the evidence that the finding of the court was excessive.'

Narcowich appeared in open court on April 28th, and filed the motion for a new trial.

The order book entry of April 28th fails to state that a new trial was granted. It erroneously referred to the matter as a rehearing. It found the defendant guilty and that he should be sentenced to serve six months at the Indiana State Farm, and be fined in the sum of $300 and that the sentence should be suspended. The judgment did not recite that the defendant be imprisoned or that he pay the fine but it did state, 'It is therefore considered, ordered, adjudged and decreed by the court that the serving of said State Farm sentence and the paying of said fine be and the and the same are hereby suspended and defendant ordered placed on probation to the Probation Department of this court. Defendant ordered released from Sheriff of Lake County. April 28, 1950.'

We have held that even though a petition be designated as a motion for new trial, it may be considered as a petition for writ of error coram nobis, if it is in substance such a petition. Sharp v. State, 1939, 215 Ind. 505, 19 N.E.2d 942. Under no possible construction could either one of these motions for a new trial be considered a petition for a writ of error coram nobis. There had been no trial, since the prisoner had pleaded guilty. The motion for a new trial presented nothing under such circumstances. Carr v. State, 1924, 194 Ind. 162, 142 N.E. 378; Jackson v. State, 1903, 161 Ind. 36, 67 N.E. 690; Meyers v. State, 1901, 156 Ind. 388, 59 N.E. 1052; Trattner v. State, 1916, 185 Ind. 188, 113 N.E. 243. Section 9-2209, Burns' 1942 Replacement, provides that 'the court may not suspend the execution of sentence after the defendant shall have commenced to serve his sentence of imprisonment.' This prohibits a suspension of sentence even during the same term if the prisoner has commenced to serve his sentence. State ex rel. Steers v. Criminal Court of Lake County, Ind.Sup.1953, 112 N.E.2d 445, 113 N.E.2d 44.

There was no proof that the defendant Filipiak was to receive any part of any fee or money for sustaining a motion for new trial, or changing the judgment. His assertion of innocence in this matter is corroborated by the fact that subsequently he did revoke the suspended sentence, and the prisoner was imprisoned for six months in the Indiana State Farm.

However, the defendant's judicial conduct falls very short of the proper standards laid down by the Canons of Judicial Ethics. Canon 4 provides:

'A judge's official conduct should be free from impropriety and the appearance of impropriety; he should avoid infractions of law; and his personal behavior, not only upon the Bench and in the performance of judicial duties, but also in his every day life, should be beyond reproach.'

Canon 17 state:

'He should not permit private interviews, arguments or communications designed to...