Harris v. State

• Decision Date: 13 July 1982
• Docket Number: No. 281S29,281S29
• Citation: 437 N.E.2d 44
• Parties: Virginia Jo HARRIS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 44

437 N.E.2d 44

Virginia Jo HARRIS, Appellant, v. STATE of Indiana, Appellee.

No. 281S29.

Supreme Court of Indiana.

July 13, 1982.

Harriette Bailey Conn, Public Defender of Ind., Melanie C. Conour, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is an appeal from the denial of a petition for post-conviction relief under Ind.R.P.C. 1. The petitioner, Virginia Jo Harris, was charged with murder in the second degree, Ind.Code Ann. Sec. 35-1-54-1 (Burns 1975) (repealed), and convicted after trial by jury in 1977. She was sentenced to a prison term of not less than fifteen nor more than twenty-five years. The conviction was affirmed on direct appeal, Harris v. State, (1978) Ind., 382 N.E.2d 913.

In 1979, the petitioner filed a petition for post-conviction relief, alleging that she was denied the effective assistance of counsel because of the failure of defense counsel to communicate offers of a plea negotiation made by the prosecution, and to pursue plea negotiations. The petition was denied after a hearing, and this appeal follows the denial of the motion to correct error. The sole issue on appeal is whether the post-conviction relief court erred in finding and concluding that Harris was effectively represented.

In a proceeding for post-conviction relief, the petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence. Ind.R.P.C. 1, Sec. 5. The judge hearing the petition is the sole judge of the weight of the evidence and the credibility of witnesses. Turman v. State, (1979) Ind., 392 N.E.2d 483. On appeal from an adverse judgment, the petitioner must demonstrate that "the evidence as a whole was such that it leads unerringly and unmistakably to a decision in his favor; that is, one opposite to that reached by the trial court." Sotelo v. State, (1980) Ind., 408 N.E.2d 1215, 1216.

The petitioner's argument is that although no binding offer of a plea bargain was made by the prosecution, the failure of her counsel to communicate to her discussions about the possibility of a plea bargain, and the failure of her counsel to attempt to negotiate a plea agreement denied her the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States, and by Art. 1, Sec. 13, of the Constitution of Indiana. Because no binding offer was made, petitioner argues that this is a case of first impression in Indiana and she relies on the authority of the American Bar Association Standards for Criminal Justice, Standards Relating to the Defense Function (ABA Standards) for the proposition that there was a duty to communicate certain conversations and an absolute duty to pursue plea negotiations in the absence of a prosecution offer.

1. Failure to communicate discussions

At the hearing on post-conviction relief, evidence was adduced which showed that two different deputy prosecutors on two different occasions discussed with defense co-counsel Brinkmeyer the possibility of a plea bargain. The first discussion was held early in the criminal proceedings. Defense counsel Brinkmeyer testified that he had a conversation with deputy prosecutor Carithers who said of the case that it was an unfortunate set of circumstances and that it would perhaps be appropriate if the petitioner could plead guilty to voluntary manslaughter. Brinkmeyer characterized this exchange as merely a discussion and not an offer and said that he related the conversation to senior defense co-counsel Rice. Rice testified that he recalled Brinkmeyer's relating Carithers "expression" that the charge might be too great for the facts of the case. Deputy Prosecutor Bowers testified that three weeks before the trial he had a brief discussion with Brinkmeyer in which Bowers asked if Brinkmeyer could check with Rice about whether there was some possibility of a plea to voluntary manslaughter. Bowers testified that at the time he did not have authority to offer a binding plea bargain and that the remark was made entirely on his own initiative.

The post-conviction relief hearing judge found as facts that neither deputy prosecutor had authority to offer a binding plea bargain, and that both conversations referred to above "were casual conversations without authority from the Prosecutor or Chief Prosecutor and were not of such a binding nature which required communication with the client."

In Curl v. State, (1980) Ind., 400 N.E.2d 775, this Court adopted the ruling of the Court of Appeals in Lyles v. State, (1978) Ind.App., 382 N.E.2d 991, that if a defendant's counsel failed to inform the defendant of a plea offer, we would be compelled to reverse a conviction and permit the defendant to pursue the plea negotiations or to be retried. The Lyles court adopted as persuasive authority the then-extant A.B.A. Standard Sec. 6.2(a) "In conducting discussions with the prosecutor, the lawyer should keep the accused advised of developments at all times and all proposals made by the prosecutor should be communicated promptly to the accused."

We reaffirm that rule here,...