Hendricks v. State, 780S203

• Decision Date: 02 October 1981
• Docket Number: No. 780S203,780S203
• Citation: 426 N.E.2d 367
• Parties: Shawn Anthony HENDRICKS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 367

426 N.E.2d 367

Shawn Anthony HENDRICKS, Appellant, v. STATE of Indiana, Appellee.

No. 780S203.

Supreme Court of Indiana.

Oct. 2, 1981.

Harriette Bailey Conn, Public Defender of Indiana, James G. Holland, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Frank A. Baldwin, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is an appeal from the denial of a petition for postconviction relief. In November, 1977, three delinquency petitions were filed in Juvenile Court, Marion County, charging appellant, then seventeen years old, with three separate robberies committed while he was armed with a deadly weapon in violation of Ind.Code § 35-42-5-1. In one of the robberies the appellant was alleged to have stabbed the victim.

On December 13, 1977, after a hearing, the juvenile court waived jurisdiction over the appellant on all three charges and ordered him bound over to criminal court. On December 15, 1977, the appellant was charged by information with one count of robbery, a class A felony and one count of robbery, a class B felony. A third charge of robbery, a class B felony, was dismissed under the terms of a plea agreement. On April 14, 1978, appellant entered pleas of guilty to the two counts, but he withdrew the pleas and trial was set for June 17, 1978. Appellant then moved to withdraw the not-guilty pleas and entered pleas of guilty on June 8, 1978. The court accepted the pleas and later sentenced appellant to twenty years in prison on the class A felony count, and ten years on the class B felony count, the sentences to run concurrently.

Appellant filed a petition for post-conviction relief which was denied after a hearing.

Appellant raises three issues on appeal:

1. Whether the post-conviction court erred in determining that juvenile court acquired jurisdiction over him initially, and in determining that he was not denied effective assistance of counsel because of the failure to raise a jurisdictional issue.

2. Whether the post-conviction court erred in determining that appellant failed to prove his claim that he was denied effective assistance of counsel at the hearing on waiver from juvenile court to criminal court.

3. Whether the post-conviction court erred in its finding that appellant did not prove his claim that his guilty pleas were not knowingly, intelligently, and voluntarily made.

I.

The post-conviction court made a finding that the petitions filed initially in juvenile court were properly verified. Appellant's first challenge to jurisdiction centers on the validity of the petitions requesting that juvenile court assume formal jurisdiction. The statute in effect when this case arose provided in pertinent part:

When jurisdiction shall have been obtained by the 'court' in the case of any child, such child shall continue under the jurisdiction of the court until he becomes twenty-one years of age unless discharged prior thereto or is committed to a correctional or other state institution. A person subject to the jurisdiction of the juvenile court under this act may be brought before it by either of the following means and no other:

(a) By petition praying that the person be adjudged delinquent or dependent or neglected.... Ind.Code § 31-5-7-7 (Repealed, Acts 1978, P.L. 136, § 57).

Indiana Code § 31-5-7-8 (Repealed, Acts 1978, P.L. 136, § 57) provided that "such petition shall be verified".

Appellant argues that the petitions were fatally defective because they were not verified. The defects, he continues, prevented the juvenile court from acquiring jurisdiction initially and rendered the proceedings in juvenile court and in subsequent criminal proceedings a nullity.

Each petition begins:

To the Judge of the Juvenile Court of Marion County Indiana: Your petitioner ... respectfully represents to the court as follows....

and, after reciting information describing the child and his circumstances and his conduct deemed wrongful, closes with the following prayer, signature, and jurat:

WHEREFORE, your petitioner prays that summons issue to said child________, and to the said____________ requiring them to appear before the Marion County Juvenile Court, or the Judge thereof, and show cause why said child________ should not be dealt with pursuant to the laws of the State of Indiana; and that the Court shall hear and determine the matters herein set forth and shall enter such judgment and orders as the Court may deem best and as will best serve the welfare of said child....

Betty Funderburgh /s/

Petitioner

Subscribed and sworn to before me, a Deputy Prosecutor, this 8 day of November, 1977.

L. Craig Turner /s/

Deputy Prosecutor

My Commission expires:12/31/78

We agree that the petitions were not verified as required by the statute. The sine qua non of a verified petition is that the person executing it affirm under the penalties for perjury, or state upon oath, before an official authorized to administer oaths, that the representations within the body of the petition are true. Ind.R.Tr.P. 11(B). Nothing on the face of these petitions evidences either of these requirements for proper verification.

We nevertheless hold that the juvenile court did acquire jurisdiction. We have held, in a criminal case in which an affidavit did not contain, as it was required to have done, the signature of the prosecuting witness, that the defect did not deprive the court of jurisdiction and that an objection to the defect should have been voiced immediately by a motion to quash or it would be deemed to have been waived. Bowling v. State, (1967) 248 Ind. 663, 230 N.E.2d 439. The result in Bowling was based on the following provision in effect in Indiana since 1905:

In consideration of the questions which are presented upon an appeal, the court shall not regard technical errors or defects, or exceptions to any decision or action of the trial court, which did not, in the opinion of the court to which the appeal is taken, prejudice the substantial rights of the defendant. Ind.Code § 35-1-47-9.

Appellant has not shown that his substantial rights have been prejudiced.

The verification requirement serves to foreclose the bringing of frivolous petitions by imposing the penalties of perjury on the petitioner. If the appellant had objected at an early opportunity, the court indeed would have had to reject the petitions as insufficient and it could have afforded the probation department an opportunity to submit verified petitions. As it was, the case proceeded to the hearing on waiver to the criminal court during which sworn testimony of the alleged victims of the three alleged robberies was taken. This sworn testimony effectively served the purpose of assuring that the petition was not frivolous. There was no merit to the petitioner's contention that the juvenile court never acquired jurisdiction of the matter.

The post-conviction court made a finding of fact and conclusion of law that the juvenile court's pre-petition investigation was sufficient under the controlling statute, Ind.Code § 31-5-7-8 (Repealed). That statute provided in pertinent part that upon the court's receipt of information that there is within the county or residing within the county a dependent, neglected, or delinquent child

the court shall, as far as possible, make preliminary inquiry to determine whether the interest of the public or of the child require that further action be taken. Whenever practicable such inquiry shall include a preliminary investigation of the home and environmental situation of the child, his previous history and the circumstances of the condition alleged....

Appellant complains that an eight-line statement by a probation department officer at the pre-petition hearing was completely inadequate to satisfy the statutory requirements, citing a number of cases dealing with pro forma orders waiving jurisdiction to criminal court which were disapproved by the Court of Appeals following the dictates of Summers v. State, (1967) 248 Ind. 551, 230 N.E.2d 320.

Appellant argues that the reasoning in these cases as to the sufficiency of the waiver order should apply to the sufficiency of the pre-petition hearing. We agree that pro...