Kelly v. State

• Citation: 259 Ind. 414,287 N.E.2d 872
• Decision Date: 19 October 1972
• Docket Number: No. 971S256,971S256
• Parties: Jackie KELLY, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 872

287 N.E.2d 872

259 Ind. 414

Jackie KELLY, Appellant, v. STATE of Indiana, Appellee.

No. 971S256.

Supreme Court of Indiana.

Oct. 19, 1972.

Harriette Bailey Conn, Public Defender of Indiana, David J. Colman, Deputy Public Defender, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. En., for appellee.

GIVAN, Justice.

This is an appeal from a final judgment denying a petition for post-conviction relief. In his petition the appellant alleged three separate claims for relief:

No. 1) The pistol involved was a blank pistol, therefore not within the prohibitions of the 1935 Firearms Act;

No. 2) Appellant's trial counsel was incompetent, and;

No. 3) Appellant's plea of guilty was not intelligently, freely and knowingly entered.

The record in this case discloses the following:

On January 14, 1970, the appellant and one Eugene Carter were charged by affidavit with the offense of robbery, to which they originally entered pleas of not guilty. Robert E. Hughes represented both defendants in his capacity as public defender.

On June 22, 1970, the State filed a second count as to Appellant Kelly alleging a violation of the 1935 Firearms Act. Kelly in the presence of his attorney waived arraignment and entered a plea of guilty to this second count.

Witnesses were sworn and evidence heard prior to the acceptance of appellant's plea of guilty. After hearing the evidence, advising the appellant and ascertaining that the appellant had been properly advised during every stage of the proceedings, the trial court accepted the plea of guilty.

On July 2, 1970, following a pre-commitment investigation, the appellant was sentenced to the Indiana State Reformatory for a determinative period of eight years. On August 14, 1970, the appellant filed his petition for post-conviction relief.

Under the Ind. Rules of Proc. PC. 1(E), the petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence.

Appellant first claims the trial court erred in finding that he failed to prove that the pistol in question was a blank pistol. In an attempt to sustain his allegation, the petitioner testified that the purported firearm involved was a blank gun. There was also testimony by a police officer that although he had not seen the weapon, a police report described it as a 'chrome plated, twenty-two caliber revolver, eight shot blank gun.' The trial court incorporated the transcript of the original proceeding. Included in this transcript was testimony of the arresting officer, who described the weapon as a 'twenty- two caliber, eight shot revolver, serial number B/boy 56592 with four live cartridges in it.' The officer further identified the gun as the one taken from the appellant at the time of his arrest. The trial judge examined the pistol which the appellant acknowledged to be his. It was the trial judge's determination upon the examination of the pistol that it was not a blank revolver. We, therefore, hold that not only did appellant fail in his burden of proving that the gun was a blank gun, but that there is ample evidence in this record to affirmatively establish that it was in fact a gun capable of discharging live ammunition. ¹

Appellant next claims the trial court erred in finding that he had failed to prove that his defense counsel was incompetent and represented him in an inadequate manner. This Court has previously held:

'. . . There is presumption that counsel appointed or accepted by the court to represent the defendant is competent. Hathaway v. State (1968), 251 Ind. 374, 241 N.E.2d 240; Langley v. State (1968), 250 Ind. 29, 232 N.E.2d 611, cert. den. 393 U.S. 835, 89 S.Ct. 110, 21 L.Ed.2d 106. This presumption can be overcome only if it can be shown that what the attorney did, or did not do, made the proceedings a mockery and shocking to the conscience of the court. See, Slawek v. United States, 413 F.2d 957 (8th Cir. 1969).' Robbins v. State (1971), Ind., 274 N.E.2d 255, 258, 27 Ind.Dec. 293.

Appellant testified that his attorney erred in three respects:

1) That he misadvised him as to the possible penalty for conviction of robbery.

2) That Mr. Hughes attempted to solicit a fee for representation as a private attorney after he had been appointed as a public defender.

3) That his attorney assured him that some time subsequent to his plea of guilty to a violation of the 1935 Firearms Act he would be freed because the gun involved was a blank gun.

The appellant testified that Hughes told him the penalty for robbery was five to thirty years when it was actually ten to twenty-five. Mr. Hughes testified that he advised the appellant of the penalty as stated in Burns' Ind.Stat.Ann.

Mr. Hughes further testified that he never approached the appellant in regard to employment as private counsel. He testified that both the appellant and his co-defendant had inquired as to the cost of employment of private counsel. Mr. Hughes quoted the suggested minimum bar fee. Mr. Hughes also denied that he had advised the appellant to plead guilty and then file a...