Henry v. State

Decision Date31 August 1976
Docket NumberNo. 2--375A70,2--375A70
PartiesJohn HENRY, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Appellate Court

Harriette Bailey Conn, Public Defender, Stephen Brown, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Presiding Judge.

CASE SUMMARY AND FACTS

Defendant-Appellant, John Henry, Jr. (Henry), was convicted of robbery on October 17, 1966, and thereafter was sentenced to a term in the Indiana State Prison of ten (10) to twenty-five (25) years. A direct appeal was taken and the Indiana Supreme Court affirmed Henry's conviction on December 8, 1969, in Cline et al. v. State (1969), 253 Ind. 264, 252 N.E.2d 793.

Henry filed a Petition for Post-Conviction Relief under Post-Conviction Remedy Rule 1 on March 17, 1970. He later amended the Petition on May 25, 1970, to add as an additional ground for relief the allegation that the trial court erroneously allowed the arresting officer to testify regarding certain statements made by Henry at the time of his arrest which could be construed as admissions of guilt.

At the post-conviction hearing held on July 15, 1970, the court denied Henry's Petion and made Findings of Fact and Conclusions of Law, but did not enter a finding on the issue of the alleged admissions made by Henry at the time of his arrest.

On December 9, 1974, Henry filed a timely Belated Motion to Correct Errors to this final judgment pointing out the omission to the court in Specification 1, citing Post-Conviction Remedy Rule 1, § 6 and Love v. State (1971), 257 Ind. 57, 272 N.E.2d 456, Ind., 274 N.E.2d 238 in support thereof.

The post-conviction court denied this Belated Motion, and Henry now appeals.

ISSUE

Did the post-conviction court commit reversible error by failing to make a specific finding of fact and conclusion of law as to the trial court's admission in evidence of alleged incriminating statements made by Henry at the time of his arrest?

We affirm.

DECISION

CONCLUSION--Reversible error was not committed by the post-conviction court in failing to make a specific finding as to the admission in evidence of testimony regarding certain statements made by Hnery at the time of his arrest.

Although the technical distinction between Post-Conviction Remedy Rule 1 (PCR 1) and Post-Conviction Remedy Rule 2 (PCR 2) is at times obscured, the distinction may determine the outcome of an appeal. In this case our affirmance is based on the nature of the hearing afforded under PCR 1 and its attendant rules.

PCR 1, § 6 states in part:

The court shall make specific findings of fact and conclusions of law on all issues presented, whether or not a hearing is held. . . .

An examination of the post-conviction court's Findings reveals, as Henry contends, that no finding was made regarding the admissibility of the statements made by Henry at the time of his arrest. Such deficiency would appear to require a reversal and an order to the post-conviction court to make specific findings of fact and conclusions of law as indicated in Specification 1 of Henry's Belated Motion. However, no such remand is required.

May v. State (1975), Ind., 338 N.E.2d 258 establishes the principle that in reviewing a post-conviction hearing this Court will look to the record to determine if the post-conviction judge's failure to make adequate findings is in fact harmless to the appealing party. Speaking for a unanimous Court, Justice Prentice stated:

It is true that the trial court is required to make findings of facts sufficient to enable this Court to dispose of the issues presented on appeal. Davis v. State (1975), Ind., 330 N.E.2d 738; Love v. State (1971), 257 Ind. 57, 272 N.E.2d 456. It is also true that the judge's finding of fact on this issue was subject to the same criticism as were the findings in Davis, supra. However, as in Davis, there is another factor which precludes a determination of reversible error--the allegations contained in the second paragraph quoted above are not supported by any testimony produced at the hearing. Thus, no issue was presented to the court, and the only finding that could have been forthcoming was that the petitioner failed to carry his burden upon that specific issue. Such a finding would not have benefitted the petitioner, and its absence was not prejudicial.

338 N.E.2d at 259--260. (Emphasis supplied.)

In a PCR 1 hearing, which is a quasi-civil hearing totally separate and distinct from the original criminal trial, 1 the complainant bears the burden of proving his right to relief by a preponderance of the evidence.

See Baynard v. State (1974), Ind.App., 317 N.E.2d 897; Lockhart v. State (1971), 257 Ind. 349, 274 N.E.2d 523; PCR 1, § 5. His affirmative duty is to present evidence sufficient to prove his...

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7 cases
  • Williams v. State
    • United States
    • Indiana Appellate Court
    • February 26, 1986
    ...relief petition, necessarily credited the testimony of Jones that no pre-trial identification occurred. See Henry v. State (1976), 170 Ind.App. 463, 353 N.E.2d 482. Further, the trial court made the following conclusion of law: "The Petitioner has failed to meet his burden of proof as to th......
  • James v. State
    • United States
    • Indiana Appellate Court
    • February 27, 1989
    ...rule 2 proceeding at which the record of trial is deemed to have been before the post-conviction court. Henry v. State (1976), 170 Ind.App. 463, 353 N.E.2d 482, 484, n. 2. James has not included that portion of the record dealing with his absence from trial in the transcript and he does not......
  • Shaffer v. State
    • United States
    • Indiana Appellate Court
    • September 21, 1983
    ...(1981) Ind., 429 N.E.2d 933, 934. The hearing on a petition for post-conviction relief is civil in nature, Henry v. State, (1976) 170 Ind.App. 463, 465, 353 N.E.2d 482, 484; Shields v. State, (1976) 169 Ind.App. 238, 240, 348 N.E.2d 36, 37, and the petitioner must prove his allegations by a......
  • State ex rel. Sufana v. Superior Court of Lake County
    • United States
    • Indiana Supreme Court
    • October 18, 1978
    ...evidence. Johnson v. State, (1974) 262 Ind. 183, 313 N.E.2d 542; Lockhart v. State, (1971) 257 Ind. 349, 274 N.E.2d 523; Henry v. State, (1976) Ind.App., 353 N.E.2d 482; Baynard v. State, (1974) 162 Ind.App. 86, 317 N.E.2d 897; Harrison v. State, (1973) 155 Ind.App. 231, 292 N.E.2d The rule......
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