Hutchinson v. State
| Decision Date | 28 June 1989 |
| Docket Number | No. 84A04-8903-PC-74,84A04-8903-PC-74 |
| Citation | 540 N.E.2d 109 |
| Parties | Phillip W. HUTCHINSON, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below). |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender, John Ribble, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Petitioner-Appellant Phillip W. Hutchinson (Hutchinson) appeals the summary dismissal of his petition for post-conviction relief pursuant to Post-Conviction Rule 1, Sec. 4(e) and (f).
We affirm.
Hutchinson presents one issue for our review, namely, whether the post-conviction court erred in summarily dismissing his petition for post-conviction relief.
Hutchinson was charged with Burglary, a class B felony. The trial court appointed Christopher Gambill to represent Hutchinson. Gambill withdrew from representing Hutchinson when Gambill became aware of a conflict of interest. Upon Gambill's withdrawal, the trial court appointed Daniel Weber to represent Hutchinson. He was tried, convicted, and sentenced to fifteen years. On direct appeal, Hutchinson was represented by Geoffrey Creason. Our Supreme Court affirmed Hutchinson's conviction. See Hutchinson v. State (1987), 515 N.E.2d 514. Hutchinson filed a pro se petition for post-conviction relief which the trial court summarily dismissed.
Hutchinson appeals.
Hutchinson contends the post-conviction court erred by summarily dismissing his petition for post-conviction relief without a hearing. Had he known his trial counsel was appointed by the trial judge pursuant to I.C. 33-9-10-1, he would have arranged for other means of representation Hutchinson maintains. He contends the fact his lawyer was appointed by the trial judge denied him a fair trial. He argues these allegations rise to the level of ineffective assistance of counsel and create a material issue of fact precluding summary dismissal of his petition for post-conviction relief, citing Sherwood v. State (1983), Ind., 453 N.E.2d 187. Hutchinson notes he alleged in his post-conviction petition "my lawyer was hired by my judge who retained the right to fire him." He also argues that agreement denied him a fair trial because Hutchinson's trial counsel "only put on a pro forma defense on my behalf to satisfy the requirement that I have counsel."
In Sherwood, supra, the petitioner alleged he was given ineffective assistance of counsel because his lawyer told him he would be "placed in a hospital to do" his time. He also stated "my lawyer did not give me proper counsel." Our Supreme Court reversed the post-conviction court's summary dismissal of the post-conviction petition for relief because the petitioner alleged specific facts which were denied by the State. However the majority there noted "without specific factual allegations in support of the claim of inadequacy of representation no evidentiary hearing is required." Id. at 189. The court pointed out the claim "my lawyer told me I would be placed in a hospital to do my time" was a specific factual allegation requiring a hearing. Id. The court did not mention the statement "my lawyer did not give me proper counsel" in its discussion of specific factual allegations which would require an evidentiary hearing. That statement is merely an unsupported allegation. Such an unsupported allegation does not require an evidentiary hearing. Id.
Likewise, Hutchinson's allegations are unsupported by fact. He cites no evidence establishing (1) bias, (2) ineffective assistance or (3) a denial of due process. Accordingly, Hutchinson's petition was correctly dismissed by the post-conviction court without a hearing. Hutchinson alleged nothing more than conclusory allegations.
Hutchinson contends he was not required to plead facts in his post-conviction relief petition. We disagree.
Post-Conviction Rule 1, Sec. 3 states "the petition shall be submitted in a form in substantial compliance with the standard form appended to this Rule." Item 9 of that form requires the petitioner to "state concisely ... the facts which support each of the grounds ..." (Emphasis added). We find no error here.
The post-conviction court correctly noted in its findings of fact Hutchinson waived his opportunity to raise the errors alleged in his ...
To continue reading
Request your trial
-
Harding v. State
...of representation, no evidentiary hearing is required. Sherwood v. State (1983), Ind., 453 N.E.2d 187, 189; Hutchinson v. State (1989), Ind.App., 540 N.E.2d 109, 111, trans. pending. Cf. also Robinson, supra and Shropshire v. State (1987), Ind., 501 N.E.2d 445. A post-conviction petitioner ......
-
Lyons v. State
...because he contends that he was denied effective assistance of appellate counsel, we will address the issue. See Hutchinson v. State (1989), Ind.App., 540 N.E.2d 109, 111, trans. denied. The instructions Lyons tendered to the trial court "Instruction Number 1 The possibility of human error,......
-
Emery v. State Of Ind.
...evidentiary hearing is required." Tyson v. State, 868 N.E.2d 855, 858 (Ind. Ct. App. 2007), transfer denied (quoting Hutchinson v. State, 540 N.E.2d 109, 110 (Ind. Ct. App. 1989)). Here, Emery's assertion in his petition that trial counsel failed to advise him of his right to an appeal and ......
-
Crawford v. State
...counsel failed to introduce available exculpatory evidence" was insufficient to plead ineffective assistance); Hutchinson v. State, 540 N.E.2d 109, 110-11 (Ind. Ct. App. 1989) (concluding that an allegation that counsel "only put on a pro forma defense on my behalf to satisfy the requiremen......