Harrison v. State

• Decision Date: 14 February 1973
• Docket Number: No. 272A71,272A71
• Citation: 292 N.E.2d 612,155 Ind.App. 231,35 Ind.Dec. 165
• Parties: David HARRISON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 612

292 N.E.2d 612

155 Ind.App. 231

David HARRISON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 272A71.

Court of Appeals of Indiana, Second District.

Feb. 14, 1973.

John M. Cronin, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., for plaintiff-appellee.

ORDER GRANTING REHEARING AND SUBSTITUTING OPINION

HOFFMAN, Chief Judge.

Appellant having heretofore filed his Petition for Rehearing and the Court being duly advised, finds that said Petition for Rehearing should be granted and that the opinion of this Court heretofore issued in this appeal on December 29, 1972 should be withdrawn. The Court further finds that the opinion entered of record in this appeal this date should be substituted for the opinion withdrawn.

It is, therefore, ordered that Appellant's Petition for Rehearing be and the same is, granted.

It is further ordered that the opinion heretofore issued and made of record be and it is hereby withdrawn and held for naught.

It is further ordered that the opinion issued and spread of record on this date be and the same is hereby substituted for the prior opinion.

SULLIVAN, Judge.

This is an appeal by David Harrison from an adverse decision rendered in a proceeding initiated by him pursuant to Post-Conviction Remedy Rule 1. Harrison was charged by indictment with First Degree Burglary. Tried before the court without jury, Harrison was convicted of entering a dwelling house to commit a felony and was sentenced to the Indiana State Prison for not less than one year nor more than ten years. He then filed motions for a new trial, for extension of time and leave to amend, and for appointment of an attorney and free transcript. Such motions were overruled as not timely filed. Harrison then submitted a petition for post-conviction relief and later filed a petition for leave to amend that petition. Supporting the latter petition was a brief containing extensive quotations alleged to be from the record of the felony trial. ¹

Following a hearing, the court denied the petition for post-conviction relief. Harrison then filed a motion to correct errors which was overruled. This appeal presents the following issues for review:

1) Whether Harrison was adequately represented at the felony trial?

2) Whether there was sufficient evidence to support the conviction?

3) Whether there is evidence that Harrison was convicted by perjured testimony?

4) Whether the sentence imposed was constitutional?

NO EVIDENCE OF INADEQUATE REPRESENTATION AT THE FELONY TRIAL

The appellant admits that the law presumes counsel to be competent. Conlen v. State (1972) Ind., 284 N.E.2d 803, 808 Langley v. State (1968), 250 Ind. 29, 232 N.E.2d 611, cert. den. (1968) 393 U.S. 835, 89 S.Ct. 110, 21 L.Ed.2d 106. This presumption can be overcome only if it be shown that the attorney's acts or omissions made the proceedings a mockery and shocking to the conscience of the court. Robbins v. State (1971) Ind., 274 N.E.2d 255, 258.

The petitioner for post-conviction relief has the burden of establishing his grounds for relief by a preponderance of the evidence. P.C. 1 § 5. Harrison asserts that he has overcome the presumption in favor of adequate representation by more than a preponderance of the evidence. We must disagree. Harrison failed to make the evidence and proceedings at his trial a part of the record. He did submit a memorandum brief supporting his motion for leave to amend but this argumentative brief refers to pages of the trial transcript--the transcript that is not included in the record. Thus, we can not now say that the evidence at trial supported Harrison's allegations made in his memorandum brief. Miles v. State (1972) Ind.App., 284 N.E.2d 551, 553. Consequently, Harrison's testimony and the testimony of Harrison's counsel at the felony trial was the only evidence presented at the hearing below concerning representation of counsel. Obviously the trial court chose to accept the testimony of the attorney over that of Harrison as was its prerogative. Asher v. State (1969) 253 Ind. 25, 244 N.E.2d 89, cert. den. (1969) 369 U.S. 821.

NO SHOWING THAT EVIDENCE WAS NOT SUFFICIENT TO SUPPORT CONVICTION

Harrison contends that there was not sufficient evidence to prove him guilty beyond a reasonable doubt. The question of sufficiency of the evidence must normally be raised on a direct appeal. TR. 59, IC 1971, 34--5--1--1; CR. 16. The post-conviction remedies are not a substitute for a direct appeal. P.C. 1 § 1(b). See Curry v. State (1972) Ind.App., 290 N.E.2d 729.

Even if we were to consider this assertion, the principle is well established that, upon review, an appellate court must look to the evidence itself to determine whether it is sufficient to sustain the conviction.

In order to review a conviction alleged to be based on insufficient evidence, therefore, the evidence presented below must be brought into the record. Calvert v. State (1968) 251 Ind. 119, 239 N.E.2d 697. A question of sufficiency is not before us when the evidence is not in the record before us. Messersmith v. State (1940) 217 Ind. 132, 26 N.E.2d 908.

It is the appellant's duty to present a sufficient record to the court. Johnson v. State (1972) Ind., 283 N.E.2d 532. Harrison has not fulfilled this duty. There is no transcript of the felony trial. We are therefore unable to say that the evidence was insufficient to support Harrison's conviction.

NO SHOWING THAT CONVICTION RESTED UPON PERJURED TESTIMONY

Harrison submits that he was denied due process because the prosecutor used perjured testimony and that he suppressed evidence with respect to the criminal record of a witness. We are again confronted with the absence of evidence of record. Therefore, we are unable to say that Harrison was convicted by

perjured testimony. SENTENCE IMPOSED IS NOT UNCONSTITUTIONAL

PER SE BUT MUST BE MODIFIED IN ACCORDANCE WITH

BINDING DECISIONAL PRECEDENT

The Constitution of Indiana provides in Article I, § 16 that 'all penalties shall be proportioned to the nature of the offense.' This has been interpreted to mean that a punishment for a lesser included offense can not be greater in years than the punishment for the greater offense. Dembowski v. State (1968) 251 Ind. 250, 253, 240 N.E.2d 815.

Harrison was initially charged with first degree burglary. The penalty for that offense is imprisonment for not less than ten years nor more than twenty years. IC 1971, 35--13--4--4, Ind.Ann.Stat. § 10--701 (Burns 1956). Harrison was convicted of entering a dwelling house to commit a felony ² and was sentenced to imprisonment for not less than one year nor more than ten years as provided by IC 1971, 35--13--4--5, Ind.Ann.Stat. § 10--704 (Burns 1956). The offense of entering a dwelling house with intent to commit a felony is necessarily included in the offense of first degree burglary. Watford v. State (1957) 237 Ind. 10, 143 N.E.2d 405. Consequently, Harrison's sentence for the lesser included offense of entering a dwelling house with intent to commit a felony did not exceed the sentence he could have received upon conviction of the greater offense, first degree burglary.

Nevertheless, appellant, citing Hobbs v. State (1969), 253 Ind. 195, 252 N.E.2d 498 contends that our Supreme Court has held that the statutory penalty of one to ten years for entering to commit a felony is a per se violation of the Indiana Constitution. The Court in Hobbs specifically limited its decision as follows:

'We hold that because the appellant was originally charged with second degree burglary, the maximum time for which is five years, it is an unconstitutional application of the included offense statute to sentence the appellant to a maximum period of ten years.' (252 N.E.2d at 501) (Our emphasis)

Furthermore, Landaw v. State (1972), Ind., 279 N.E.2d 230 and Easton v. State (1972), Ind., 280 N.E.2d 307 specifically noted that a penalty of one to ten years imprisonment for 'entering' was not unconstitutional per se but was unconstitutional only in the sense that it unfairly exceeded the maximum penalty for the more serious and 'greater' crime of second degree burglary.

Although not currently recognized by Indiana case law, a well reasoned view with respect to 'lesser included offenses' vis-a-vis crimes consisting of different degrees is that which was approved but only partially followed in Barker v. State (1958), 238 Ind. 271 at 275, 150 N.E.2d 680 at 682:

'Under an indictment charging a crime which has different degrees fixed by statute, a defendant may not be found guilty of any lesser included offense (other than a degree) unless such lesser included offense is stated in a separate count in the indictment or affidavit.' ³

The quoted principle recognizes the obvious demarcation between two separate and distinct, though related, statutory provisions. IC 1971, 35--1--39--1, Ind.Ann.Stat. § 9--1816 (Burns 1956) provides:

'Upon an indictment or affidavit for an offense consisting of different degrees, the jury may find the defendant not guilty of the degrees charged in the indictment or affidavit, and guilty of any degree inferior thereto or of an attempt to commit the offense.',

while Section 9--1817, IC 1971, 35--1--39--2 provides:

'In all other cases, the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or affidavit.' (Emphasis supplied)

In any event, it appears that our Supreme Court in Barker found an impracticality in attempting to follow the letter of the statutes and to apply the well reasoned view it had approved. Demonstration of that impracticality is implicit in the facts before us which reflect an offense necessarily included in the offense charged, which latter offense is one of 'degrees'. Notwithstanding the unambiguous language of § 9--1816 therefore, it is clear that a jury cannot convict one of the...