Gates v. State, 30217

• Decision Date: 28 June 1962
• Docket Number: No. 30217,30217
• Citation: 183 N.E.2d 601,243 Ind. 325
• Parties: James GATES, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 601

183 N.E.2d 601

243 Ind. 325

James GATES, Appellant, v.STATE of Indiana, Appellee.

No. 30217.

Supreme Court of Indiana.

June 28, 1962.

Robert S. Baker, Public Defender, Thomas A. Hoadley, Deputy Public Defender, for appellant.

Edwin K. Steers, Atty. Gen., Donald L. Adams, Deputy Atty. Gen., for appellee.

BOBBITT, Judge.

This is an appeal from the denial of a writ of error coram nobis.

Two questions are presented for our consideration.

1.Was petitioner-appellant properly advised of his right to counsel?

2.Did he enter a plea of guilty knowingly and understandingly?

In a petition for writ of error coram nobis the burden is upon the petitioner to sustain the allegations in his petition and establish facts which, if known to the court, would have prevented the entry of a judgment against him.State ex rel. Emmert v. Gentry (s945), 223 Ind. 535, 538, 62 N.E.2d 860, 161 A.L.R. 532;State ex rel. Barnes v. Howard(1946), 224 Ind. 107, 110, 65 N.E.2d 55.

First: The evidence in the record here discloses that petitioner-appellant was, at three different times, advised by the court of his right to counsel with an attorney if he so desired.

At appellant's arraignment on June 3, 1957, appellant, when asked, 'Would you like to talk to an attorney?' replied, 'I would like to talk to the parole officer.'The judge then replied, 'You understand you have a right to have a trial and have the witnesses brought in and you are entitled to the services of an attorney at that trial.You wish to talk to the parole officer?'The appellant answered, 'Yes.'

The Parole Officer, in an affidavit filed as evidence in the hearing on the petition for writ of error coram nobis, stated that, 'Affiant further states that James Gates stated that he did not have money to obtain an attorney, and he was advised by the Court that the Court would appoint him an attorney if he so desired.'It is further stated in such affidavit, 'Affiant further states that Mr. Gates informed the court that he did not desire an attorney, but requested to talk to the Parole Officer, namely, this affiant.'

While it is true that it was the court's duty to advise appellant that he was entitled to counsel, the court could not compel him to accept counsel against his will, if he did not desire to have one appointed.Chandler v. State(1949), 226 Ind. 648, 652, 83 N.E.2d 189.

In our judgment the evidence in the record here is sufficient to support the finding of the trial court on the question of whether or not appellant was advised that he was entitled to counsel.

Appellant further asserts that he was induced to enter his plea of guilty by a promise from the Probation Officer that if he plead guilty he would receive a sentence of not more than six months.This assertion is denied by the Probation Officer Davis as attested by his affidavit which is a part of the evidence in the record.Had the evidence here been undisputed that the Probation Officer had advised appellant that he would receive a six months' sentence, the court would in no way have been bound thereby.Mahoney v. State(1926), 197 Ind. 335, 341-342, 149 N.E. 444.

Second: An examination of the record here discloses that appellant was advised that he was charged with obtaining money under false pretenses under a chattel mortgage from the Irwin Union Bank & Trust Company in the amount of $200.When asked if he understood the charge he replied, 'Yes, I understand what the charge is.'The penalty provided by statute was read to appellant and he was advised of his right to have a trial and have witnesses brought in, and that he had a right to the services of an attorney.Appellant had been in court as a defendant on a prior occasion.After being advised by the court, as above stated, appellant replied that he understood what the charge and penalty therefor was, and that he desired to enter a plea of guilty.

At the hearing on the petition for writ, the trial judge took the stand as a witness for the State and testified, inter alia, that he asked appellant-Gates if he was a pauper and informed him that he had a right to talk to an attorney, at public expense; and because he had talked with the appellant face to face, and had heard his answers and observed the expression on his face, it was his (the court) opinion that he(appellant) knew what he was doing, and when appellant said he wanted to plead guilty, the court accepted his plea.

A question similar to that here under consideration was before this court in Hoelscher v. State(1944), 223 Ind. 62, at pages 68-69, 57 N.E.2d 770, at page 772, this court said:

'Appellant says that it does not appear that he intelligently and understandingly waived his constitutional right to a trial by jury and to be represented by counsel.This is a question of fact to be determined primarily by the trial court, and unless we can say that upon the...