Kindle v. State, 372A151

Citation161 Ind.App. 14,313 N.E.2d 721
Decision Date24 July 1974
Docket NumberNo. 372A151,372A151
PartiesBenny KINDLE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtCourt of Appeals of Indiana

James H. Kelly, Mooresville, for appellant.

Theodore L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

Defendant-appellant Kindle was convicted of malicious trespass and assault and battery. His appeal from the overruling of his Belated Motion to Correct Errors raises the following issues:

(1) Whether appellant was denied effective assistance of counsel;

(2) Whether appellant knowingly and voluntarily waived his right to trial by jury; and (3) Whether the trial court erred in overruling appellant's Belated Motion to Correct Errors without first conducting an evidentiary hearing.

Kindle was tried without a jury, found guilty as charged, and sentenced for a period of 90 days. Thereafter, his trial counsel filed a timely Motion to Correct Errors, which was overruled.

Three months later, with new counsel, Kindle obtained a change of judge pursuant to Ind.Rules of Procedure, Post-Conviction Remedy Rule 1(4)(B), and filed a petition for permission to file a Belated Motion to Correct Errors pursuant to PCR 2(1). Permission was granted by Special Judge Robert W. Neal in compliance with an order by this court. Kindle then filed his Belated Motion to Correct Errors. Judge Neal deferred the consideration of this motion to the trial judge. Without benefit of a hearing, the motion was overruled.

ISSUE I.

Kindle first contneds that he was not given effective assistance of counsel.

In Indiana, there is a presumption that an attorney has discharged his duty fully, effectively, and competently. Robbins v. State (1971), 257 Ind. 273, 274 N.E.2d 255; Blackburn v. State (1973), Ind.,291 N.E.2d 686. To overcome this presumption, appellant has the burden of presenting strong and convincing proof that what his attorney did or did not do made the entire proceedings a mockery and shocking to the conscience of the court. Robbins v. State, supra. Further, when presented with a claim of denial of effective assistance of counsel, a reviewing court must look to the totality of the circumstances to determine whether trial counsel was competent. Isolated instances of poor strategy, bad tactics, carelessness, mistakes, or inexperience does not necessarily amount to ineffective assistance of counsel unless, taken as a whole, the trial was a mockery of justice. Blackburn v. State, supra.

With the above standards in mind, an examination of Kindle's arguments in support of his claim of ineffective counsel resolves this issue in favor of appellee.

Kindle cites four specific grounds upon which his claim is based:

(1) Conflict of interests of defense counsel;

(2) Failure of counsel to request a change of venue from judge;

(3) Failure of counsel to introduce evidence important to the defense; and

(4) Failure of counsel to file an adequate Motion to Correct Errors.

Kindle analogizes this case with Wilson v. Phend (7th Cir. 1969), 417 F.2d 1197. In Wilson the court assumed petitioner's allegations to be true, and held that taken together, they were sufficient to indicate that Wilson was convicted without benefit of effective assistance of counsel. These allegations were:

'(1) The conflict of interest between Bangs' (Wilson's retained attorney) position as counsel and his ownership and active participation in the publication of a local newspaper;

(2) The prejudicial publicity in Bangs' and other newspapers and the failure of counsel to make any attempt to protect Wilson from the prejudice caused by such publicity at trial;

(3) The change of petitioner's plea without his prior knowledge or consent;

(4) The refusal of counsel to present the alibi witnesses and other exculpatory evidence; and

(5) The failure of counsel to file a timely motion for a new trial.'

Kindle argues that four of the above five criteria are present in this case, and that he should be granted a new trial. We do not agree.

From a separate analysis of each of the four grounds propounded by Kindle, it is apparent that Wilson is distinguishable. Kindle's contention that the four grounds he relies upon correspond to the criteria relied upon in Wilson is untenable.

(1) Conflict of interests of defense counsel.

In Wilson the petition alleged that defense counsel owned a local newspaper and actively participated in its publication. Wilson further alleged that his attorney's newspaper and other local newspapers carried front page pictures and accounts of the circumstances surrounding the crime charged and his arrest. He also claimed that his attorney, due to conflicting interests, failed to make an attempt to protect Wilson from the harmful effects of such publicity.

In contrast, Kindle asserts that his court appointed attorney was laboring under conflicting interests because he, on one hand, 'had a duty to zealously argue for every right of Defendant . . . but on the other hand was trying to protect a relationship as defense counsel for (presiding) Judge Littell in a separate civil action pending against the judge as well as a favored position as one of those assigned to defend indigent persons . . ..'

We note that Kindle has not substantiated this claim by showing any specific instance where his attorney, instead of attempting to 'zealously argue for every right of defendant', chose to forego such arguments in order to protect his alleged special relationship with Judge Littell. Rather, Kindle merely suggests that because his attorney was also the trial judge's attorney, he was unable to render effective assistance. Kindle does not support this bald allegation with either facts or authority.

Although the right to counsel guaranteed by the Constitution contemplates the services of an attorney devoted solely to the interests of his client, 1 we know of no rule nor has appellant directed our attention to any authority supporting the proposition that an attorney is incapable of rendering effective assistance to a criminal defendant merely because he is representing the trial judge in another matter. We will not speculate that this has occurred. Kindle had an affirmative burden to support his claim of ineffective assistance of counsel. Since he failed to show even one specific instance where his attorney sacrificed his rights in order to placate the court, we can not find that his right to effective assistance of counsel has been infringed.

Further, Kindle's reliance on Wilson is misplaced on this ground. There, petitioner affirmatively demonstrated how his counsel's conflicting interests had contributed to his denial of effective assistance of counsel. Wilson presented sufficient facts to the court to establish that his counsel had opted to protect his interest as publisher rather than his interest in protecting his client from the prejudicial publicity. Kindle has not done this.

(2) Failure of counsel to request a change of venue from judge.

In his brief, Kindle argues that he 'feared that Judge Littell would be prejudicial against him because of the Judge's reputation and therefore asked his attorney to request a change of venue to another judge.' Kindle asserts that his attorney declined to do so. However, the record before us does not support such a claim. Nor has Kindle supported this assertion with appropriate affidavits pursuant to Ind.Rules of Procedure, Trial Rule 59(D).

While Kindle attempts to liken his claim to the second of the five criteria relied upon in Wilson, we are unable to comprehend such a comparison. Again, Kindle has failed to sustain his burden of proof on this claim. It is therefore not necessary that we consider whether such a claim, if properly presented and supported, would be sufficient to justify a finding that defendant was denied effective assistance of counsel.

(3) Failure of counsel to introduce evidence important to the defense.

Kindle contends that his counsel failed to elicit evidence which would have tended to discredit the prosecuting witness. We find this allegation meritless. The record affirmatively shows that during cross examination of the prosecuting witness, Kindle's trial counsel elicited evidence of prior convictions of the witness for traffic violations and assault and battery. It is apparent that the defense counsel did not fail to elicit evidence that would tend to discredit the prosecuting witness.

(4) Failure of counsel to file an adequate Motion to Correct Errors.

Kindle contends that, on its face, the Motion to Correct Errors filed by his trial counsel failed to comply with the requirements of TR 59(B). We agree. Although the motion states the alleged errors with sufficient specificity, these errors are not supported by statements of facts or grounds upon which they are based. We further agree with Kindle's contention that this ground is similar to the fifth criteria relied upon by the Wilson court.

Despite the inadequacy of the motion, Kindle has not met his burden. In the absence of a showing of error occurring at trial, appellant was not prejudiced by the filing of an inadequate motion. Only where reversible error in fact is present, and counsel has failed to present it, could the failure to file an adequate motion bear upon the issue of ineffective assistance of counsel. Kindle has failed to direct our attention to any reversible error occurring at trial which his counsel overlooked to his prejudice.

ISSUE II.

Under this issue, Kindle contends that he did not knowingly and voluntarily waive his right to trial by jury. For reasons hereinafter stated we do not agree.

The record shows that after defendant waived the reading of the affidavit at arraignment, the judge asked Kindle if he wanted a trial by court, or by jury. Defendant's counsel responded by stating that a court...

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