Johnson v. State, 974S185
| Citation | 263 Ind. 667,337 N.E.2d 483 |
| Decision Date | 24 November 1975 |
| Docket Number | No. 974S185,974S185 |
| Court | Supreme Court of Indiana |
| Parties | William G. JOHNSON, Appellant, v. STATE of Indiana, Appellee. |
Harriette Bailey Conn, Public Defender, Darrell F. Ellis, Deputy Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Douglas W. Meyer, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from a denial of Appellant's postconviction relief wherein he attacked his conviction for first degree murder upon which a life sentence was imposed.
The record shows the following facts: On December 6, 1957, indictment was filed against Appellant for the first degree murder of Ruth Johnson. On December 9, 1957, Barrie C. Tremper was appointed counsel for defendant. On December 16, 1957, Appellant waived arraignment and plead not guilty. On February 20, 1958, Appellant appeared in person and by counsel and withdrew his plea of not guilty, was arraigned and entered a plea of guilty as charged. The trial court heard evidence and found defendant guilty as charged and sentenced him to the Indiana State Prison for life.
Appellant presents 3 issues for review: (1) The competency of trial counsel; (2) the alleged failure of the trial court to establish a factual basis for the acceptance of the guilty plea; and (3) the form of the arraignment.
At the hearing Appellant testified that his court-appointed attorney visited him only 2 or 3 times prior to his change of plea. He stated that the first visit was approximately thirty to forty minutes. Another was ten to fifteen minutes. He was uncertain about Mr. Tremper's third visit with him. Appellant testified that during Mr. Tremper's visits 'I told him as much about my case as I could tell him.'
In an action under Indiana Rules of Procedure, Rule P.C. 1, the petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence. Rule P.C. 1, § 5; Hoskins v. State (1973), Ind., 302 N.E.2d 499, 39 Ind.Dec. 388.
In cases challenging the competency of counsel, each case will stand on its own merits. Shack v. State (1967), 249 Ind. 67, 231 N.E.2d 36, 11 Ind.Dec. 713. There is, in every case, a rebuttable presumption that the trial counsel was competent. Haddock v. State (1973), Ind., 298 N.E.2d 418, 37 Ind.Dec. 400. It is Appellant's position that this presumption was negated by evidence that his attorney only conferred with him 2 or 3 times and entered into plea negotiations. The record contains a transcript of the arraignment of the Appellant, showing he was specifically questioned concerning Mr. Tremper's consultation with him and was questioned as to whether or not he was satisfied with Mr. Tremper's representation, to which he answered in the affirmative. There is would indicate Mr. Tremper's conduct to be such that the proceedings were a mockery and shocking to the conscience of the court. Payne v. State (1973), Ind., 301 N.E.2d 514, 38 Ind.Dec. 732; Haddock v. State, supra. We hold that the Appellant failed in his burden of proof to demonstrate any incompetency on the part of Mr. Tremper.
Appellant next claims the trial court failed to establish a factual basis of guilt before accepting his plea of guilty. In support of his position he cites the case of Thacker v. State (1970), 254 Ind. 665, 262 N.E.2d 189, 22 Ind.Dec. 668. In the Thacker case there was no transcript of the evidence received on the plea of guilty nor was there any evidence submitted by the State to rebut the petitioner's allegations. The only matter appearing in the record in the Thacker case was an order book entry merely reciting that upon arraignment the defendant had waived his right to be represented by counsel and that his constitutional rights were explained before he entered his plea of guilty. In the case at bar, there is a complete record of the arraignment before the trial court. That record is complete in that it shows a statement that the Appellant had conferred with his attorney, Barrie Tremper, that he had reviewed the indictment against him with Mr. Tremper, the indictment was then read to the Appellant in open court, which indictment succinctly states the facts leading to the charge. After the reading of this indictment, the Appellant stated that he wished to enter a plea of guilty to the charges read. The record also recites the fact that the judge heard additional evidence as to Appellant's guilt before receiving the plea. However, there is no transcript of such additional evidence; but the record which is before us does indicate the trial court made diligent and reasonable inquiry into the facts of the case, the competence of the Appellant at that time and the voluntary nature of his plea of guilty after first receiving counsel from his court -appointed attorney. We, therefore, hold that at the time of sentencing the trial court, in every way, complied with the then Rule 1--11 of this Court and that the Appellant has wholly failed in his burden of proof of his allegations to the contrary.
Appellant's final contention is that the form used in obtaining the plea of guilty was improper. The procedure used in the case at bar was that the prosecuting attorney asked the defendant questions from a prepared form, and that the defendant's answers to those questions were filled in on the form in a space provided. Appellant here urges that this procedure did not conform strictly to the then Rule 1--11, and that it allowed the avoidance of procedural safeguards. In the recent case of Williams v. State (1975), Ind., 325 N.E.2d 827, 46 Ind.Dec. 455, this Court stated:
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Maleck v. State
...a sole reasonable conclusion contrary to that reached by the trial court. Jackson v. State (1975), Ind., 339 N.E.2d 557; Johnson v. State (1975), Ind., 337 N.E.2d 483. Since Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and Brimhall v. State (1972), 258 Ind. 153, 27......