Gregory v. State

• Decision Date: 08 March 1979
• Docket Number: No. 678S122,678S122
• Citation: 270 Ind. 435,386 N.E.2d 675
• Parties: Rick A. GREGORY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 675

386 N.E.2d 675

270 Ind. 435

Rick A. GREGORY, Appellant, v. STATE of Indiana, Appellee.

No. 678S122.

Supreme Court of Indiana.

March 8, 1979.

Kenneth R. Cady, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was charged in criminal court with commission of a felony while armed, to-wit: robbery, in violation of Ind.Code § 35-12-1-1, and physical injury while in commission of robbery in violation of Ind.Code § 35-13-4-6. A trial to the court resulted in a conviction on the armed felony charge and a not guilty determination on the inflicting injury charge, and a determinate sentence of fifteen years was assessed.

This appeal presents the issue of whether the criminal court had jurisdiction to hear appellant's case. Appellant's jurisdictional challenge is based upon his contention that he was a juvenile at the time of the offense and that the record does not reflect a proper waiver from the jurisdiction of the juvenile court. However, two preliminary issues are presented as well, namely, whether this appeal should be dismissed upon motion of appellant, and whether this Court has jurisdiction to hear this appeal in light of the fact that appellant's jurisdictional challenge was first raised in an additional motion to correct errors after a first had been filed and overruled.

With regard to the first preliminary issue, we note that appellant's motion to dismiss appeal was filed on his behalf by counsel on November 16, 1978, in response to a verified written request therefor by appellant. That request was based upon the assertion that he had not asked for an appeal and that by dismissing the appeal, his way would be made clear to file for post-conviction relief under Ind.R.C.P. 1. We have considered the motion and it is denied. The motion, when considered with the record before us, is ambiguous with regard to whether appellant appreciates the fact that a dismissal of this appeal may constitute a relinquishment of the right to appeal based upon those errors alleged in his motions to correct errors. Langley v. State, (1971) 256 Ind. 199, 267 N.E.2d 538. Appellant claims that he never requested an appeal in the first place, while the record of proceedings before us clearly memorializes his personal request to Judge Tranberg for this appeal. Due regard for appellant's right to appeal requires that we reject his plea for dismissal. Moreover the motion and supporting exhibits would indicate that appellant has demanded that his counsel file the motion to dismiss under the assumption that he is totally foreclosed from bringing a petition for post-conviction relief during the pendency of this appeal. Such is not the case. Logal v. Cruse, (1977) Ind., 368 N.E.2d 235; Davis v. State, (1977) Ind., 368 N.E.2d 1149. This state of confusion on the part of appellant further buttresses our decision to deny the motion.

The second preliminary issue has been raised by the State and is that appellant's jurisdictional issue was waived when it was not included in his initial motion to correct errors. Appellant was sentenced on March 9, 1978. His trial counsel filed the first motion to correct errors on April 21, 1978, which was overruled on April 24, 1978. On April 25, 1978, Judge Tranberg appointed counsel for the purpose of taking an appeal. New counsel, present counsel, filed a motion for leave to amend the motion to correct errors on May 5, 1978, alleging that the time for filing motions to correct errors had not yet expired and that an additional error had not been raised in the initial motion to correct errors. This motion was granted on May 5, 1978, and the addition to the motion to correct errors raising the present jurisdictional issue was immediately filed and overruled on the same day. The trial court was confronted with a criminal defendant seeking a first direct appeal in an active and timely manner and a motion to correct errors which was incomplete and if permitted to stand would render the impending appeal perfunctory at best. Pauper appellate counsel within days after his appointment pointed out the incompleteness of the motion to correct errors to the trial court. Nothing before the trial court suggested to any extent that the defendant had participated in or expected to benefit from the filing of the initial motion to correct errors in its limited form, and there could be no harm to the State from permitting the amended motion to correct errors to be filed. We find that the authority of the trial court to grant permission to file an amended motion to correct errors under circumstances such as these in a criminal case arises by implication from Ind.R.Tr. P. 59. We, therefore, conclude that the jurisdictional issue is properly before us for determination and we now turn to it.

The waiver order challenged by appellant consists of several pages and contains a descriptive reference to each stage of the juvenile proceedings which culminated in the waiver order. The waiver order itself is dated November 9, 1977. The order includes the following references, notations and findings:

"BE IT REMEMBERED That heretofore on the 15th day of September, 1977, Informations were given to the Court by Jack H. Lyday. . . .

A preliminary hearing was held on the 20th day of September, 1977. . . . The State made an oral motion that jurisdiction be waived to adult court, and filed a written Motion for Waiver of Jurisdiction, on October 4, 1977. (Copy attached and marked Exhibit No. 2). . . . The Court then found that formal jurisdiction should be acquired and authorized Probation Officer . . . to file formal Petitions alleging the delinquent offenses. . . .

A waiver hearing was held on the 7th day of November, 1977. . . . The Court made a full investigation and held a complete hearing in said cause and, upon the conclusion of all of the evidence, makes the following findings:

1. That said child was 16 years of age or older on the date of the alleged offenses, September 14, 1977, to-wit: 17 years of age, his date of birth being March 14, 1960.

2. That the evidence would constitute an offense defined as a crime if committed by an adult, to-wit: Commission Of A Felony While Armed, To-Wit: Robbery, and Inflicting Physical Injury in Commission Of A Felony, To-Wit: Robbery.

3. That the offense is one designated as a violent crime and specifically described in I.C. 31-5-7-14(b).

4. That the Prosecutor has filed his formal Motion For Waiver Of Jurisdiction.

5. That there is probable cause to believe that the offenses have specific prosecutive merit.

6. That it would be in the best interest of the child, the public welfare and public security for the juvenile to be waived to the adult court for the alleged offenses.

The Court now orders jurisdiction of this matter waived for trial under the regular procedure of the court which would have jurisdiction of the offenses if committed by an adult, on the charges of Count No. 1 Commission Of A Felony While Armed, To-Wit: Robbery, and Count No. 2 Inflicting Physical Injury In Commission Of A Felony, To-Wit: Robbery, alleged to have occurred on the 14th day of September, 1977. (Copies of Petitions attached and marked Exhibit No. 3 2 pages.)"

Appellant challenges the order waiving jurisdiction to the criminal court on two grounds: first, (A) he contends that the waiver order should be deemed improper because the record upon which it is based is incomplete; and second, (B) he contends that the waiver order should be deemed ineffective because the juvenile court judge did not state his reasons for granting the order with sufficient particularity to permit a meaningful judicial review of it.

(A)

In challenging the adequacy of the record of juvenile court proceedings, appellant places reliance upon the requirements for such records set forth in Seay v. State, (1975) Ind.App., 337 N.E.2d 489, as follows:

"In passing on a...