Holsclaw v. State, No. 478S66

Docket NºNo. 478S66
Citation384 N.E.2d 1026, 270 Ind. 256
Case DateJanuary 29, 1979
CourtSupreme Court of Indiana

Page 1026

384 N.E.2d 1026
270 Ind. 256
Gordon L. HOLSCLAW, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 478S66.
Supreme Court of Indiana.
Jan. 29, 1979.

Page 1027

Harriette Bailey Conn, Public Defender, Susan K. Carpenter, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Petitioner (Appellant) is before this Court appealing the denial of his petition for post conviction relief under Post Conviction Remedy Rule 1, with respect to his sentencing on November 24, 1976, upon a guilty plea entered on October 26, 1976, with respect to two charges filed February 11, 1976, for offenses committed November 24 and December 8, 1975. He was sentenced to the Indiana Department of Corrections for a period of twelve (12) years on each count, the sentences to run concurrently. He presents the following issues for our review:

(1) Whether the court erred in holding that the petitioner's guilty pleas were voluntarily and intelligently entered.

(2) Whether the sentence imposed for unlawful dealing in marijuana was excessive.

[270 Ind. 257] ISSUE I

The petitioner was originally charged in a three count indictment with unlawful dealing in marijuana, unlawful dealing in a controlled substance and with being an habitual offender. Four days prior to the start of his trial, the petitioner was presented with a plea offer whereby he would plead guilty to the two counts of unlawful dealing, in exchange for the dismissal of the habitual criminality count. In view of the life sentence provision of the habitual criminal statute, the petitioner advised his retained counsel that he desired to obtain the opinion of a second attorney as to whether or not to accept the offer, but at no time did he express any dissatisfaction with the representation that he had been receiving.

On the morning that the trial was scheduled to begin, the attorney orally moved for a continuance, in order to enable the petitioner to retain additional counsel. The

Page 1028

motion was denied. Petitioner was then given the opportunity to and did discuss the proposed bargain further with his counsel, after which time he withdrew his plea of not guilty and entered a plea of guilty, according to the terms of the agreement.

The petitioner, by his post conviction petition sought to set aside his guilty plea, as involuntary, in that it was made in reliance upon his counsel's erroneous advice that the supposed error of the trial court, in denying the motion for a continuance, would be reviewable, notwithstanding the guilty plea.

In a post conviction hearing, the burden of proof rests with the petitioner to establish his grounds for relief by a preponderance of the evidence. Post Conviction Remedy Rule 1, § 5. The trial judge is the sole judge of the credibility of the witnesses and the weight of the evidence. His determination will be set aside only where it can be shown that the evidence is without conflict and leads unerringly to a result other than that reached by the trial court. Carroll v. State, (1976) Ind., 355 N.E.2d 408.

Petitioner's trial attorney testified at the post conviction hearing with regard to the circumstances surrounding the entry of the plea. The following exchange took place.

"Q. What advice did you give him regarding the denial of that motion for continuance?

[270 Ind. 258] "A. I told him that the trial judge had said that the trial would not be continued, that he would accept the plea bargain agreement which had been proposed or the case would go to trial that morning. I told him, I said, 'Based on the fact that you face life imprisonment if you go on trial and you lose,' I said, 'you have to seriously consider the consequences of of going to trial.' I said, 'It's your decision. I wouldn't not want to sway you one way or the other. I think it should be your decision. I can advise you that I think if you go to trial that we have raised the defenses in pre-trial motions that would be applicable to trial.' And I said he had served time on four previous occasions, and I said "to be convicted of an habitual criminal they introduce your record.' And I said, 'It's very hard to defend that type of case.' I said, 'If you want to go to trial, we're certainly prepared to go and we would do so . . .'

"Q. Did you advise Mr. Holsclaw that you felt the denial of the motion for...

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27 practice notes
  • Collins v. State, No. 35A02-0902-CR-162.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 21, 2009
    ...point.2 We acknowledge that, in general, "the law in effect at the time that the crime was committed is controlling." Holsclaw v. State, 270 Ind. 256, 261, 384 N.E.2d 1026, 1030 (1979). But an "exception to this rule exists for remedial statutes, which are statutes intended to cure a defect......
  • People v. Miller, Docket No. 108997
    • United States
    • Court of Appeal of Michigan (US)
    • April 10, 1990
    ...disapproved penalty[182 MICHAPP 486] should apply, serves no purpose other than a "desire for vindictive justice." Holsclaw v. Indiana, 270 Ind. 256, 261, 384 N.E.2d 1026 (1979). In those limited circumstances where sentencing is conducted after the effective date of amending legislation, w......
  • Walsman v. State, No. 69A04-0512-CR-701.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 23, 2006
    ...N.E.2d 341 (Ind.Ct.App.2006). In general, "the law in effect at the time that the crime was committed is controlling." Holsclaw v. State, 270 Ind. 256, 384 N.E.2d 1026, 1030 (1979). But an "exception to this rule exists for remedial statutes, which are statutes intended to cure a defect or ......
  • Sickels v. State , No. 20A03–1102–CR–66.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 13, 2012
    ...and 1999. “The general rule ... is that the law in effect at the time that the crime was committed is controlling.” Holsclaw v. State, 270 Ind. 256, 261, 384 N.E.2d 1026, 1030 (1979). According to the statute in effect at the time of Sickels' crimes: A person who knowingly or intentionally ......
  • Request a trial to view additional results
27 cases
  • Collins v. State, No. 35A02-0902-CR-162.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 21, 2009
    ...point.2 We acknowledge that, in general, "the law in effect at the time that the crime was committed is controlling." Holsclaw v. State, 270 Ind. 256, 261, 384 N.E.2d 1026, 1030 (1979). But an "exception to this rule exists for remedial statutes, which are statutes intended to cure a defect......
  • People v. Miller, Docket No. 108997
    • United States
    • Court of Appeal of Michigan (US)
    • April 10, 1990
    ...disapproved penalty[182 MICHAPP 486] should apply, serves no purpose other than a "desire for vindictive justice." Holsclaw v. Indiana, 270 Ind. 256, 261, 384 N.E.2d 1026 (1979). In those limited circumstances where sentencing is conducted after the effective date of amending legislation, w......
  • Walsman v. State, No. 69A04-0512-CR-701.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 23, 2006
    ...N.E.2d 341 (Ind.Ct.App.2006). In general, "the law in effect at the time that the crime was committed is controlling." Holsclaw v. State, 270 Ind. 256, 384 N.E.2d 1026, 1030 (1979). But an "exception to this rule exists for remedial statutes, which are statutes intended to cure a defect or ......
  • Sickels v. State , No. 20A03–1102–CR–66.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 13, 2012
    ...and 1999. “The general rule ... is that the law in effect at the time that the crime was committed is controlling.” Holsclaw v. State, 270 Ind. 256, 261, 384 N.E.2d 1026, 1030 (1979). According to the statute in effect at the time of Sickels' crimes: A person who knowingly or intentionally ......
  • Request a trial to view additional results

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