Jones v. State, No. 27S00-8701-CR-59

Docket NºNo. 27S00-8701-CR-59
Citation544 N.E.2d 492
Case DateOctober 11, 1989
CourtSupreme Court of Indiana

Page 492

544 N.E.2d 492
Irvin JONES, Appellant,
v.
STATE of Indiana, Appellee.
No. 27S00-8701-CR-59.
Supreme Court of Indiana.
Oct. 11, 1989.

Page 493

Susan K. Carpenter, Public Defender and John Pinnow, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. and Cheryl Lynn Greiner, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant, Irvin Jones, was convicted of Child Molesting, a Class B felony, in a trial to the Grant Circuit Court. He was sentenced to a term of twenty (20) years and the judgment was affirmed on his direct appeal. Jones v. State (1983), Ind., 445 N.E.2d 98.

The current proceeding involves Jones' appeal from the denial of his Petition for Post-Conviction Relief and denial of his Motion to Correct Erroneous Sentence. The following issues are raised on appeal:

1. whether Jones was denied the effective assistance of counsel;

2. whether Jones' waiver of his right to trial by jury was knowing, intelligent, and voluntary;

3. whether Jones was denied due process of law; and

4. whether the trial court erred in denying Jones' Motion to Correct Erroneous Sentence because two prior convictions were set aside.

We first note that Jones has the burden of proving his grounds for relief in a post-conviction proceeding by a preponderance

Page 494

of the evidence. Music v. State (1986), Ind., 489 N.E.2d 949, 950. This Court will not reweigh the evidence nor judge the credibility of the witnesses and will not set aside the post-conviction judgment unless the evidence is without conflict and leads to but one reasonable conclusion contrary to that of the trial court. Id.
I

Appellant was represented by a public defender at trial. At the hearing on post-conviction relief, Jones testified that trial counsel consulted with him only two or three times in person and only twice on the telephone before the trial. The longest conversation was approximately ninety (90) minutes, while the other two conversations in person lasted twenty (20) to thirty (30) minutes. Jones testified that he was not satisfied with counsel's investigation or preparation, that he had requested counsel to personally contact the witnesses rather than contact them through letters, and that he did not like the way counsel questioned the witnesses. Jones also believed that counsel acted ineffectively by not objecting when Jones was charged with a Class A felony, but was convicted of a Class B felony.

The State argues that this issue has been waived because Jones failed to argue this alleged error on his direct appeal. Jones argues that waiver is not applicable here because both the State and post-conviction court addressed the issues on the merits and any waiver defense has itself been essentially waived. The State contends that all of the witnesses Jones asked counsel to contact appeared at trial and testified. The State also points out that Jones conceded that counsel asked all the questions Jones would have asked, albeit not in the order or manner Jones would have desired. Counsel testified that any confusion over the class of felony facing Jones had been resolved prior to trial and Jones was aware of the possible sentence if convicted. Jones admitted he did not know how he would have prepared differently had he known the charge was a Class B felony.

A defendant must overcome, with strong and compelling evidence, the presumption that his counsel was competent. McCraney v. State (1987), Ind., 508 N.E.2d 798, 799; Bailey v. State (1985), Ind., 472 N.E.2d 1260, 1264. This Court stated in Hestand v. State (1986), Ind., 491 N.E.2d 976, 978:

The guidelines for determining competency of counsel require deciding (1) whether counsel's performance was so deficient that he was not functioning as counsel as guaranteed by the Constitution, and if so, (2) whether this failure to function as counsel was so prejudicial as to deprive the defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692-693, U.S. reh. denied (1984) 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864; Bieghler v. State (1985), Ind., 481 N.E.2d 78, 96; Elliott v. State (1984), Ind., 465 N.E.2d 707, 710. Both poor performance and prejudice must be shown. Id.

The acts of trial counsel here do not show a lack of reasonable professional judgment nor do they show that Jones was prejudiced by unreasonable acts or omissions of his attorney. Strickland v. Washington, supra. What they do tend to show is that trial counsel's strategy differed from that of Jones. There will be no reversal due to choice of strategy where it appears that counsel exercised professional judgment. Ingram v. State (1987), Ind., 508 N.E.2d 805, 808. Jones does not show how counsel acted unprofessionally, nor how the outcome would have changed. Appellant has failed to meet his burden on this issue.

II

Before his trial began, Jones waived his right to a trial by jury. Jones had discussed this matter with his attorney and stated in open court he waived this right in order to spare his daughters' appearance at a trial. The State dropped its request for an habitual offender finding as part of the agreement to waive the jury trial. Jones now alleges that the record was insufficient

Page 495

to show a knowing, intelligent, and voluntary waiver.

On the contrary, as the State correctly points out, the record clearly shows that the trial court questioned Jones about his waiver of a jury trial. The judge determined that Jones had discussed the matter with counsel, that he understood it was a constitutional right, that only he could waive that right, and that by waiving a jury trial, the judge would decide the case and impose sentence if Jones was found guilty. A knowing, intelligent and voluntary waiver of a jury trial may be...

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35 practice notes
  • Bank of New York v. Nally, No. 29S02-0405-CV-214.
    • United States
    • Indiana Supreme Court of Indiana
    • January 4, 2005
    ...however, is disputed. We have said on a number of occasions that a recorded mortgage must be in the "chain of title." Szakaly, 544 N.E.2d at 492; Sinclair v. Gunzenhauser, 179 Ind. 78, at 117, 98 N.E. 37, at 51 (1912) ("when the record [of a mortgage] is not in the chain of title, it is alm......
  • Mitchell v. State, No. 49S00-9803-CR-163.
    • United States
    • April 18, 2000
    ...where the sentence is erroneous on its face and that facial error occurs when the sentence violates express statutory authority. 544 N.E.2d 492, 496 (Ind.1989). If a sentence violating express statutory authority is facially erroneous, a sentence violating double jeopardy is also facially e......
  • Farrell v. State, No. 79A02-9112-CR-560
    • United States
    • Indiana Court of Appeals of Indiana
    • April 5, 1993
    ...541 N.E.2d 944. This presumption may be overcome only by strong and compelling evidence of incompetence. Jones v. State (1989) Ind., 544 N.E.2d 492. During closing argument, after recounting the evidence indicating Farrell's guilt, the prosecutor "It may be my only consistencies [sic] Ladie......
  • Robinson v. State, No. 45S03-0307-PC-314.
    • United States
    • Indiana Supreme Court of Indiana
    • March 10, 2004
    ...remedy. Mitchell v. State, 726 N.E.2d 1228, 1243 (Ind.2000); Reffett v. State, 571 N.E.2d 1227, 1228-29 (Ind.1991); Jones v. State, 544 N.E.2d 492, 496 (Ind. 1989); Gee v. State, 508 N.E.2d 787, 788 (Ind.1987); Thompson, 270 Ind. at 679-80, 389 N.E.2d at 276. A trial court's ruling on a mot......
  • Request a trial to view additional results
35 cases
  • Bank of New York v. Nally, No. 29S02-0405-CV-214.
    • United States
    • Indiana Supreme Court of Indiana
    • January 4, 2005
    ...however, is disputed. We have said on a number of occasions that a recorded mortgage must be in the "chain of title." Szakaly, 544 N.E.2d at 492; Sinclair v. Gunzenhauser, 179 Ind. 78, at 117, 98 N.E. 37, at 51 (1912) ("when the record [of a mortgage] is not in the chain of title, it is alm......
  • Mitchell v. State, No. 49S00-9803-CR-163.
    • United States
    • April 18, 2000
    ...where the sentence is erroneous on its face and that facial error occurs when the sentence violates express statutory authority. 544 N.E.2d 492, 496 (Ind.1989). If a sentence violating express statutory authority is facially erroneous, a sentence violating double jeopardy is also facially e......
  • Farrell v. State, No. 79A02-9112-CR-560
    • United States
    • Indiana Court of Appeals of Indiana
    • April 5, 1993
    ...541 N.E.2d 944. This presumption may be overcome only by strong and compelling evidence of incompetence. Jones v. State (1989) Ind., 544 N.E.2d 492. During closing argument, after recounting the evidence indicating Farrell's guilt, the prosecutor "It may be my only consistencies [sic] Ladie......
  • Robinson v. State, No. 45S03-0307-PC-314.
    • United States
    • Indiana Supreme Court of Indiana
    • March 10, 2004
    ...remedy. Mitchell v. State, 726 N.E.2d 1228, 1243 (Ind.2000); Reffett v. State, 571 N.E.2d 1227, 1228-29 (Ind.1991); Jones v. State, 544 N.E.2d 492, 496 (Ind. 1989); Gee v. State, 508 N.E.2d 787, 788 (Ind.1987); Thompson, 270 Ind. at 679-80, 389 N.E.2d at 276. A trial court's ruling on a mot......
  • Request a trial to view additional results

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