Joseph v. State, No. 77A01-9207-PC-229

Docket NºNo. 77A01-9207-PC-229
Citation603 N.E.2d 873
Case DateNovember 23, 1992
CourtCourt of Appeals of Indiana

Page 873

603 N.E.2d 873
Richard B. JOSEPH, Appellant-Petitioner,
v.
STATE of Indiana, Appellee-Respondent.
No. 77A01-9207-PC-229.
Court of Appeals of Indiana,
First District.
Nov. 23, 1992.

Page 874

Susan K. Carpenter, Public Defender, John T. Ribble, Deputy Public Defender, Indianapolis, for appellant-petitioner.

Linley E. Pearson, Atty. Gen., Julie Zandstra Frazee, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-respondent.

BAKER, Judge.

Defendant-appellant Richard B. Joseph appeals the post-conviction court's summary denial of his post-conviction relief petition. Joseph claims the post-conviction court's summary denial was erroneous for three reasons: 1) because the post-conviction court did not allow his public defender adequate time to investigate and possibly amend the petition; 2) because the post-conviction court did not first issue a show cause order pursuant to Ind.Trial Rule 41(E); and 3) because his petition raised disputed factual matters making the denial inappropriate without a hearing. Joseph also contends the post-conviction court erred when it found the doctrine of laches barred his claim without first holding a hearing on the issue.

FACTS

In 1980, Joseph pled guilty without the benefit of counsel to charges of kidnapping, 1 robbery, 2 and theft. 3 He received a 30-year sentence.

Page 875

On March 22, 1992, Joseph filed a pro se petition for post-conviction relief claiming, among other things, that "I entered the plea bargain blindly, for I lacked an attorney to advise me of my rights that I waved [sic] when I accepted the plea bargain." Record at 22. His petition included a request for a public defender and an affidavit of indigency. The post-conviction court forwarded the petition to the public defender's office the next day.

On April 8, 1992, the state public defender entered an appearance on Joseph's behalf and filed a motion for jail time credit. On April 9, 1992, the post-conviction court granted the jail time credit motion but denied Joseph's petition without a hearing. It found Joseph knowingly and intelligently waived his right to counsel and that Joseph was prohibited from obtaining relief by the doctrine of laches. Joseph appeals.

DISCUSSION AND DECISION

The post-conviction rules specifically provide for the appointment and participation of counsel on behalf of indigent petitioners in post-conviction actions. Ind. Post-Conviction Rule 1 Sec. 2 requires the post-conviction court to refer a copy of the petition to the public defender's office upon a finding of the petitioner's indigency. This rule helps insure representation of indigent petitioners and promotes judicial economy by presenting all known allegations of error in the original petition and in proper form, so far "as is reasonably and humanly possible." Holliness v. State (1986), Ind., 496 N.E.2d 1281, 1282.

The rules require more than the petition's mere referral to the public defender, however. The public defender must be afforded time to interview the client, interview the trial and appellate attorneys, read the appropriate records of proceedings, and investigate all relevant legal and factual matters. Id. at 1281. The summary disposition of a post-conviction relief petition prior to the public defender's office having an opportunity to consult with the petitioner and amend the petition prevents the fulfillment of the mission assigned to the post-conviction rules and, accordingly, constitutes error. Russell v. State (1987), Ind., 510 N.E.2d 1339 (error to dismiss petition summarily 21 days after petition's receipt in public defender's office). See also Bailey v. State (1983), Ind., 447 N.E.2d 1088 (error to deny petition summarily when public defender had "less than a month" to evaluate petition); Jordan v. State (1987), Ind.App., 512 N.E.2d 236 (error to deny petition summarily on the same day public defender received it).

In this case, Joseph filed his pro se petition on March 22, 1992. The public defender received the petition on March 23, 1992, and entered an appearance on April 8, 1992. The next day, April 9, 1992, the post-conviction court summarily denied the petition. This was error. "Our supreme court has recognized that summary denial of a pro se petition for post-conviction relief is inappropriate when ... the petition has been referred to the public defender but is denied less than one month after filing[.]" Jordan, supra, at 238 (citing Bailey, supra ).

Error of even constitutional dimension does not necessarily require reversal, however; in addition to error, a party must also make some showing of injury or prejudice resulting from the error. See White v. State (1986), Ind., 497 N.E.2d 893; McKrill v. State (1983), Ind., 452 N.E.2d 946. Joseph...

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10 practice notes
  • Wine v. State, No. 85A04-9311-PC-415
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 Julio 1994
    ...trans. denied. On appeal, we will not reweigh the evidence or judge the credibility of the witnesses. Joseph v. State (1992), Ind.App., 603 N.E.2d 873, 876. To prevail on appeal from the denial of post-conviction relief, the petitioner must satisfy the reviewing court that the evidence is w......
  • Robertson v. State, No. 22A05-9403-PC-120
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Mayo 1995
    ...of post-conviction relief, we neither reweigh the evidence nor judge witness credibility. Page 1181 Joseph v. State (1992), Ind.App., 603 N.E.2d 873, The State contends that Robertson has waived many of the issues which he now presents to this court because he failed to raise them in his di......
  • Johnson-El v. Superintendent, CAUSE NO.: 3:15-CV-210-TLS
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 15 Marzo 2017
    ...if necessary, to include all possible theories in a single petition, thereby rendering future petitions unnecessary." Joseph v. State, 603 N.E.2d 873, 876 (Ind. Ct. App. 1992).Here, however, we do not have such concerns because Johnson-El was not represented by a public defender that needed......
  • Montano v. State, No. 45A04-9408-PC-335
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 Abril 1995
    ...from a denial of post-conviction relief, we neither reweigh the evidence nor judge witness credibility. Joseph v. State (1992), Ind.App., 603 N.E.2d 873, 876 (citations omitted). To prevail on appeal, the petitioner must satisfy the reviewing court that the evidence, without conflict, leads......
  • Request a trial to view additional results
10 cases
  • Wine v. State, No. 85A04-9311-PC-415
    • United States
    • Indiana Court of Appeals of Indiana
    • 28 Julio 1994
    ...trans. denied. On appeal, we will not reweigh the evidence or judge the credibility of the witnesses. Joseph v. State (1992), Ind.App., 603 N.E.2d 873, 876. To prevail on appeal from the denial of post-conviction relief, the petitioner must satisfy the reviewing court that the evidence is w......
  • Robertson v. State, No. 22A05-9403-PC-120
    • United States
    • Indiana Court of Appeals of Indiana
    • 30 Mayo 1995
    ...of post-conviction relief, we neither reweigh the evidence nor judge witness credibility. Page 1181 Joseph v. State (1992), Ind.App., 603 N.E.2d 873, The State contends that Robertson has waived many of the issues which he now presents to this court because he failed to raise them in his di......
  • Johnson-El v. Superintendent, CAUSE NO.: 3:15-CV-210-TLS
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 15 Marzo 2017
    ...if necessary, to include all possible theories in a single petition, thereby rendering future petitions unnecessary." Joseph v. State, 603 N.E.2d 873, 876 (Ind. Ct. App. 1992).Here, however, we do not have such concerns because Johnson-El was not represented by a public defender that needed......
  • Montano v. State, No. 45A04-9408-PC-335
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 Abril 1995
    ...from a denial of post-conviction relief, we neither reweigh the evidence nor judge witness credibility. Joseph v. State (1992), Ind.App., 603 N.E.2d 873, 876 (citations omitted). To prevail on appeal, the petitioner must satisfy the reviewing court that the evidence, without conflict, leads......
  • Request a trial to view additional results

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