Hawkins v. State

• Decision Date: 21 July 1978
• Docket Number: No. 477S278,477S278
• Citation: 269 Ind. 16,378 N.E.2d 819
• Parties: Robert L. HAWKINS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 819

378 N.E.2d 819

269 Ind. 16

Robert L. HAWKINS, Appellant, v. STATE of Indiana, Appellee.

No. 477S278.

Supreme Court of Indiana.

July 21, 1978.

Jim Bancroft Brown, Crown Point, for appellant.

Theodore L. Sendak, Atty. Gen., Victoria R. Van Duren, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

At the conclusion of a jury trial in the Lake Superior Court on November 16, 1976, appellant Hawkins was convicted of delivering a "schedule I" controlled substance, heroin. Hawkins was sentenced to a determinate period of twenty years imprisonment.

Three issues are presented for our review. These issues concern: (1) the adequacy of appellant's trial counsel; (2) whether sentencing by a jury without consideration of a presentence report constitutes cruel and unusual punishment; (3) whether appellant's right to jury trial and right not to testify against himself were denied by Indiana's procedure regarding presentence investigations.

I.

The appellant first argues that he was not afforded adequate representation by his trial counsel. His sole claim in this regard is that his trial attorney failed to object or otherwise suppress the word "Homicide" from Hawkins' confession. Contained in the appellant's statement to police was the following colloquy between Hawkins and the interrogating officer:

"Q. Why are you here in the detective bureau of the Gary Police Dept. at this time?

A. For investigation of Homicide and Narcotics."

Appellant does not challenge the voluntariness of his confession or its admission into evidence at trial. He merely asserts that his lawyer's failure to have the word "Homicide" deleted from the statement demonstrated a degree of incompetence which would require this court to reverse his conviction.

It is well settled that it requires strong and convincing evidence to rebut the presumption that counsel has been competent. Dull v. State (1978), Ind., 372 N.E.2d 171, 173. Incompetency of counsel revolves around the particular facts of each case. Roberts v. State (1977), Ind.,360 N.E.2d 825, 829. The fact that another attorney might have conducted the defense differently is not sufficient reason to require a reversal. Isolated poor strategy, bad tactics, a mistake, carelessness or inexperience does not necessarily amount to ineffective counsel unless, taken as a whole, the trial was a mockery of justice, shocking to the conscience of the reviewing court. Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686, 696. In the present case, we do not believe that the single, isolated mistake relied upon by appellant established that his trial counsel was incompetent. Consequently, appellant's assignment of error is without merit.

II.

Appellant's next contention concerns the procedure under which he was sentenced. Pursuant to Ind.Code § 25-12-1-1 (Burns 1975), the appellant was sentenced by the jury. This was done without the consideration of a presentence report. Hawkins argues that the sentence thus rendered violates the Eighth and Fourteenth Amendments as being cruel and unusual punishment.

The Eighth Amendment to the United States Constitution bans punishments which are either "barbaric" or excessive in relation to the crime committed. Coker v. Georgia (1977), 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982. A punishment is excessive and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment such that it constitutes nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. Gregg v. Georgia (1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859. The appellant's sentence of a determinate period of twenty years imprisonment for the conviction of delivering a "schedule I" controlled substance, heroin, was neither barbaric nor excessive in relation to the crime.

The appellant's argument concerning sentencing by a jury without a presentence report, is essentially a due process argument, attacking the process by which his sentence was ultimately rendered. This court recently decided that this sentencing procedure does not violate either the due process or equal protection rights of defendants. Pulliam v. State (1976), 264 Ind. 381, 345 N.E.2d 229. In Pulliam we held that a defendant has no inherent right to have a presentence report considered prior to his sentencing. Further, the consideration of a presentence report is a privilege which the legislature has granted defendants tried before a judge but which is necessarily denied those defendants tried before a jury. Colvin v. State (1976), Ind., 346 N.E.2d 737, 740; Pulliam, supra. There is no error here.

III.

The appellant's final contention also concerns the sentencing procedure. He argues that by not allowing the jury to...