Fraley v. State, No. 2--574A114
| Docket Nº | No. 2--574A114 |
| Citation | 163 Ind.App. 226, 323 N.E.2d 239 |
| Case Date | February 20, 1975 |
| Court | Court of Appeals of Indiana |
Page 239
v.
STATE of Indiana, Plaintiff-Appellee.
[163 Ind.App. 227]
Page 240
Harriette Bailey Conn, Public Defender, Eugene C. Hollander, Deputy Public Defender, Indianapolis, for defendant-appellant.Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
Before STATION, P.J., and GARRARD and HOFFMAN, JJ.
PER CURIAM.
The defendant, Fraley, sought to set aside his plea of guilty to aggravated assault and battery throught a petition for post-conviction relief, Indiana Rules of Procedure, Post-Conviction Remedy Rule 1. In so doing, he assumed the burden of proof and now stands in the shoes of one appealing from a negative judgment. Childs v. State (1975), Ind., 321 N.E.2d 841; Hoskins v. State (1973), Ind., 302 N.E.2d 499. He [163 Ind.App. 228] had failed to sustain the burden of proof imposed upon such appellants.
He first contends that the plea was not knowingly, voluntarily and intelligently entered.
Two of his specifications regarding this contention are based upon his testimony at the PCR 1 hearing, in which he denied understanding his rights and asserted that he had only a fourth grade education, could not read, and could barely write. The statement that he did not understand his rights merely conflicts with his prior statements to the court during the original proceedings that he did understand. Similarly, the evidence of his lack of education and illiteracy, while relevant, does not so conclusively demonstrate a lack of capacity for understanding that we must conclude the evidence was without conflict and led
Page 241
only to one reasonable conclusion. Hoskins, supra.The third specification asserts that he was not advised of his constitutional rights as required by Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; Bonner v. State (1973), Ind., 297 N.E.2d 867; and Brimhall v. State (1972), Ind., 279 N.E.2d 557.
The record discloses that Fraley was originally charged by affidavit with the crime of robbery. He was arrested August 26, 1970, and was brought before the court the next day. He was then thoroughly advised of his constitutional rights by the court. He stated that he understood them and had no questions regarding any of them. At his request, an attorney was appointed to represent him.
On October 6, he was arraigned and pleaded not guilty. Trial was set for February 9, 1971.
On that date there was an indication that Fraley desired to plead guilty to 'theft from the person.' The court then advised him of the rights he would waive by...
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Nuss v. State, 1--874A123
...guilty of voluntary (or involuntary) manslaughter as a lesser included offense, even in the absence of proof of 'sudden heat." 323 N.E.2d at 239. Thus, the mere absence of evidence tending to prove provocation giving rise to 'sudden heat' will not, as a matter of law, amount to reversible H......
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Landers v. State, 2-973A205
...or Involuntary Manslaughter as a lesser included offense even in the absence of proof of 'sudden heat.' Fraley v. State (1974), Ind.App., 323 N.E.2d 239. All the circumstantial evidence against Landers need not be recited for us to conclude that there was strong circumstantial evidence supp......
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Platt v. State, 1--1074A153
...the trial court reached the opposite conclusion. Willoughby v. State (1975), Ind.App., 330 N.E.2d 120; Fraley v. State (1975), Ind.App., 323 N.E.2d 239. As to the inadequacy of counsel there must be 'strong and convincing' proof to overcome the presumption that an attorney discharged his fu......
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Curtis v. State, 2-476A136
...the opposite conclusion. See Willoughby v. State (1st Dist. 1975) Ind.App., 330 N.E.2d 120; Fraley v. State (3d Dist. 1975) Ind.App., 323 N.E.2d 239. Curtis was placed on probation on May 17, 1974. On June 9, 1975, he was charged with Rape. The victim of the alleged rape testified at the fi......
-
Nuss v. State, No. 1--874A123
...guilty of voluntary (or involuntary) manslaughter as a lesser included offense, even in the absence of proof of 'sudden heat." 323 N.E.2d at 239. Thus, the mere absence of evidence tending to prove provocation giving rise to 'sudden heat' will not, as a matter of law, amount to reversi......
-
Landers v. State, No. 2-973A205
...or Involuntary Manslaughter as a lesser included offense even in the absence of proof of 'sudden heat.' Fraley v. State (1974), Ind.App., 323 N.E.2d 239. All the circumstantial evidence against Landers need not be recited for us to conclude that there was strong circumstantial evidence supp......
-
Platt v. State, No. 1--1074A153
...the trial court reached the opposite conclusion. Willoughby v. State (1975), Ind.App., 330 N.E.2d 120; Fraley v. State (1975), Ind.App., 323 N.E.2d 239. As to the inadequacy of counsel there must be 'strong and convincing' proof to overcome the presumption that an attorney discharged his fu......
-
Curtis v. State, No. 2-476A136
...the opposite conclusion. See Willoughby v. State (1st Dist. 1975) Ind.App., 330 N.E.2d 120; Fraley v. State (3d Dist. 1975) Ind.App., 323 N.E.2d 239. Curtis was placed on probation on May 17, 1974. On June 9, 1975, he was charged with Rape. The victim of the alleged rape testified at the fi......