Henson v. State, 1175S349

• Decision Date: 13 September 1976
• Docket Number: No. 1175S349,1175S349
• Citation: 265 Ind. 276,354 N.E.2d 174
• Parties: William Henry HENSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 174

354 N.E.2d 174

265 Ind. 276

William Henry HENSON, Appellant, v. STATE of Indiana, Appellee.

No. 1175S349.

Supreme Court of Indiana.

Sept. 13, 1976.

Rehearing Denied Dec. 8, 1976.

Edward L. Volk, Newby, Lewis Kaminski & Jones, LaPorte, Norman L. Lowery, Rosenfeld, Wolfe, Frey & Lowery, Terre Haute, for appellant.

Theodore L. Sendak, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Petitioner-appellant, William Henry Henson, appeals from a denial of post-conviction relief. In 1965, he pleaded guilty to four counts of second degree murder. On January 3, 1974, he filed a petition for post-conviction relief. As finally amended, he stated three grounds for his petition to vacate his plea and have a trial. The first was that he was 'mentally incompetent at the time he entered his guilty plea and did not knowingly or intelligently waive any of the constitutional rights to which he was entitled in the absence of such guilty plea.' On August 9, 1974, and on August 22, 1974, the trial judge heard evidence on the issue of petitioner's competency at the time he pleaded guilty, as well as on the other grounds for the grant of a trial. He also considered petitioner's brief. On October 3, 1974, he found in favor of petitioner. The judge determined that 'there has been sufficient evidence in the record to show to the court there is a question as to the Defendant's competency to stand trial and understand the proceedings against him. The Court now vitiates the plea to Second Degree Murder and the plea having been vitiated, the sentence is hereby vacated for four counts.' The judge then appointed two psychiatrists to determine petitioner's present competency.

The psychiatrists reported that petitioner was now competent. The State refiled four new charges of second degree murder. Three psychiatrists were appointed to determine petitioner's sanity at the time of the crime. They reported that he had been temporarily insane. Petitioner filed a notice of a special defense of insanity. Then, on April 4, 1975, five weeks before the date of trial, the State filed a motion pursuant to Ind.R.Tr.P. 60(B)(2) and (8) to vacate the decision of October 3, 1974, and reinstate petitioner's guilty pleas. The ground for the motion was this Court's decision in Colvin v. State, (January 10, 1975) Ind., 321 N.E.2d 565. The State argued that Colvin was handed down more than sixty days after the October 3, 1974, judgment, so that it was not possible for the State to file a motion to correct errors based on that case. The State argued that the trial court had to reverse its decision to conform to the law of Indiana as defined by this Court:

'The Colvin decision was decided subsequent to this Court's prior decision granting relief to the petitioner herein and therefore the Court did not have the benefit of a Indiana Supreme Court decision which squarely addressed the issue presented by the petitioner in his Petition. Mindful of the Colvin decision, justice requires that the petitioner's Post Conviction Relief be denied; any other judgment would be contemptuous of the judicial system as well as a mockery of the principle of stare decisis.'

The State's motion and brief also compared the facts of the Colvin case with the facts of this case and argued that the holding of that case comprehended the situation of petitioner's plea.

After hearing on April 17 and April 22, 1975, the trial judge issued findings of fact and conclusions of law. He stated that he had based his October 3, 1974, decision on a finding that petitioner was incompetent at the time of his plea.

'The Court further concludes that the case of Colvin v. State, supra is dispositive of the issue herein, in that the Petitioner entered his pleas of guilty prior to the case of Boykin v. Alabama, (395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)), supra, that counsel of record for the Petitioner in 1965 were competent and not known to be ineffective, and that, therefore, the voluntariness and knowingness of Petitioner's pleas of guilty entered in 1965 necessarily follows. . . .'

On that basis, the court denied the petition and reinstated petitioner's four guilty pleas to second degree murder. From this judgment, petitioner filed a motion to correct errors which was denied. Petitioner appeals from that determination.

Appellant raises three major issues on appeal: (1) Does Trial Rule 60(B) apply to this case? (2) If it does, Colvin v. State hold that the presence of competent counsel precludes any subsequent attack on the entry of a guilty plea, notwithstanding the fact that the defendant was incompetent at the time? (3) Was it a denial of due process for the prosecutor to withhold from the defense the report of a psychiatrist who examined appellant the day of the murders and who concluded that appellant was legally insane at the time of the offense?

We decide this case on the second ground raised by appellant. Assuming the State could challenge the trial court's final judgment on appeal's post-conviction petition, Ind.R.P.C. 1, § 6, by recourse to Trial Rule 60(B) after the time for an appeal had passed, still the Colvin case upon which the Trial Rule 60 motion relied does not in fact work the controlling change in the governing law which the State has asserted.

In its brief in support of its motion pursuant to Trial Rule 60, the State noted the facts set out in the Colvin opinion. At Colvin's post-conviction hearing, he testified that 'he was, at the time the guilty plea was entered, still suffering from the trauma of his experience and the aftermath of several weeks of heavy drinking. He stated that he had no conception of the various degrees of homicide but that he entered the guilty plea because of a feeling of moral guilt, in that he caused the child's death.' 321 N.E.2d at 567. Colvin also had been having domestic troubles. He shot and killed his son and wounded his son's mother on January 12, 1959. On January 21st, twenty-four hours after counsel was appointed to represent him, Colvin pleaded guilty to first degree murder.

This Court did not discuss Colvin's competency to understand the charges against him, etc. The Court held that the trial court had correctly denied Colvin's post-conviction petition '(n)otwithstanding the petitioner's testimony that counsel permitted the proceedings to move too swiftly and that he failed to advise him properly and make him comprehend all of the legal intricacies of his position.' 321 N.E.2d at 567. The Court then stated:

'We know of no case prior to Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, where a defendant represented by counsel, not shown to have been ineffective, was permitted to withdraw a guilty plea upon a claim that it was not knowingly and voluntarily made. We have previously determined that Boykin (supra) has no retroactive application. Conley v. State (1972), Ind., 284 N.E.2d 803. Therefore, upon the court's finding that the petitioner was represented by competent counsel, the voluntariness of his plea necessarily follows. . . .' 321 N.E.2d at 567--68.

In spite of the broad language of this closing paragraph of Colvin, it may not be interpreted as a holding that an incompetent person's guilty plea is necessarily knowing and intelligent if he has competent counsel. In Drope v. Missouri, (1975) 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103, Chief Justice Burger set out the common law position:

'It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial. Thus, Blackstone wrote that one who became 'mad' after the commission of an offense should not be arraigned for it 'because he is not able to plead to it with the advice and caution that he ought.' Similarly, if he became 'mad' after pleading, he should not be tried, 'for how can he make his defense?' 4 Blackstone's Commentaries 24 (9th ed. 1783). See Youtsey v. United States, 97 F. 937, 940--946 (CA6 1899). Some have viewed the common-law prohibition 'as a by-product of the ban against trials in absentia; the mentally incompetent defendant, though physically present in the courtroom, is in reality afforded no opportunity to defend himself.' Foote, 'A Comment on Pre-Trial Commitment of Criminal Defendants,' 108 U.Pa.L.Rev. 882, 834 (1960). See Thomas v. Cunningham, 313 F.2d 934, 938 (CA4 1963). For our purposes, it suffices to note that the prohibition is fundamental to an adversary system of justice. See generally Note, 'Incompetency to Stand Trial,' 81 Harv.L.Rev. 455, 457--459 (1967).' 95 S.Ct. at 903--04.

In Brady v. United States, (1970) 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, the Court noted: 'The requirement that a plea of guilty must be knowing and voluntary to be valid has long been...