King v. State
| Decision Date | 19 April 1989 |
| Docket Number | No. 49A02-8805-PC-188,49A02-8805-PC-188 |
| Citation | 537 N.E.2d 503 |
| Court | Indiana Appellate Court |
| Parties | David W. KING, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
Richard Kammen, McClure, McClure & Kammen, Indianapolis, for defendant-appellant.
Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., for plaintiff-appellee.
David King appeals the denial of his petition for post-conviction relief from a guilty plea and the resulting concurrent sentences of forty years for burglary, rape, robbery and criminal deviate conduct, and twenty years for confinement. We affirm.
This case presents the following issues:
1. Whether King had the effective assistance of counsel;
2. Whether the trial court erred in denying King's motion for a continuance;
3. Whether King entered his guilty plea knowingly, intelligently and voluntarily; and
4. Whether a proper factual basis was established for the trial court's acceptance of King's guilty plea.
On July 19, 1982, David King and two co-defendants were arrested and charged with burglary, rape, robbery, criminal deviate conduct and confinement. On July 21st, attorney Craig Turner, who was retained by King's mother to represent her son, entered his initial appearance for King.
The evidence regarding the extent to which Turner prepared King's case for trial is disputed. King contends that Turner neglected to interview potential defense witnesses at Dave and Doc's Tavern and at a Village Pantry store, as well as state's witnesses who were incarcerated in the Marion County Jail during the months preceding King's trial date. He also maintains that Turner neglected to request from the Morgan County trial court a copy of either the record of King's 1980 guilty plea or of his sentencing hearings, and that Turner also failed to file a petition for post-conviction relief in that case. Setting aside that conviction would allegedly have removed the threat of an habitual offender proceeding in this case.
The state responds that Turner did interview defense witnesses, the state's witnesses and the victim, and that he adequately investigated King's 1980 Morgan County conviction and subsequent probation violation.
David King's trial was scheduled to begin on September 22, 1982. On September 13th, the state furnished Craig Turner with forty-three discovery items, causing him to orally move for a continuance on September 14th and to file a written motion for continuance on September 17th.
The written motion stated that Turner had been unable to examine the recently received discovery materials because he had participated in complex litigation the previous week and because he was scheduled to begin another trial on the same day that King's trial was due to commence. Nonetheless, the trial court denied Turner's motion on September 20th.
On September 21st, King agreed to plead guilty in exchange for a reduced sentence and subsequently entered a guilty plea. The trial court accepted the plea and imposed sentence.
Nearly two years later, on August 3, 1984, King filed a petition for post-conviction relief, which he subsequently moved to withdraw. The motion for withdrawal was granted on February 14, 1985.
On August 18, 1986, King filed a second petition for post-conviction relief, which asserted that King had not entered his guilty plea knowingly, intelligently and voluntarily, that an adequate factual basis for that plea had not been established and that King had been deprived of the effective assistance of counsel.
On September 8, 1987, a hearing was held on King's petition. That petition was subsequently denied, whereupon King filed a motion to correct errors. After the motion was denied, King filed this appeal.
King's arguments and our analyses of those arguments are as follows:
1. King was denied the effective assistance of counsel because Turner failed to: a) investigate, interview or take depositions from the state's witnesses; b) interview potential alibi and other defense witnesses; c) take notes of, record or have witnesses present at the interviews he claims to have conducted and d) investigate King's 1980 conviction in Morgan County in order to preclude the filing of an habitual offender charge against him.
In 1984, in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, the United States Supreme Court articulated a two-pronged test by which claims of ineffective assistance of counsel are to be judged. The Supreme Court stated:
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.
The following year in Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 the Court determined that the Strickland test also provided the standard by which ineffective assistance claims are to be judged when a guilty plea is challenged.
Quoting from Strickland as applicable in guilty plea cases the Court observed:
Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial.... Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.
The Court bolstered the necessity of showing prejudice in guilty plea cases with the fundamental interest in the finality of guilty pleas identified in United States v. Timmreck (1979), 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634.
The Court said that in order to satisfy the prejudice requirement "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." 106 S.Ct. at 370. The Court then illustrated its meaning with the following:
For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error 'prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the 'prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. See, e.g., Evans v. Meyer, 742 F.2d 371, 375 (CA7 1984) (). As we explained in Strickland v. Washington, supra, these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the 'idiosyncrasies of the particular decisionmaker.' 466 U.S. at 695, 104 S.Ct. at 2068.
King contends that had his attorney performed as he contends the attorney should have performed, King would have preferred to go to trial. That, of course, is an easy thing for any defendant to say once he has become dissatisfied with the consequences of his guilty plea. He has made no showing whatever of the evidence that would have been produced had the alleged deficiencies not occurred, and has therefore necessarily failed to establish the likelihood that it would have changed the result at a trial and would have led counsel to change his recommendation. Hill, supra.
By King's own admission, if he had gone to trial and been convicted of all counts, he faced a sentencing potential of 300 years. As the consequence of the plea bargain he was sentenced to 40 years each on the burglary, rape, robbery and deviate conduct counts and 20 years on the confinement count, with all sentences to run concurrently. He claims prejudice from counsel's failure to investigate and attempt to set aside a prior felony conviction so that habitual offender status might be avoided, but no such count was ever filed in this case.
King has not demonstrated a reasonable probability that had he proceeded to trial represented by an attorney who was unquestionably well prepared, he would likely have been acquitted of some of the charges. On the contrary, the evidence indicates that King went to the victim's home to commit burglary and larceny and that he was present when the rape and criminal deviate conduct occurred. Moreover, it is well established that an accomplice is criminally liable for any offense committed by his confederates that was a natural and probable consequence of their common plan, even though he did not personally participate in that offense. Kizer v. State (1979), 271 Ind. 277, 392 N.E.2d 466; Dozier v. State (1976), 264 Ind. 329, 343 N.E.2d 783. Under these circumstances, even if King had gone to trial...
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State v. Van Cleave
...with prior Indiana cases (both before and after Fretwell ) on ineffective assistance of counsel. For example, in King v. State, 537 N.E.2d 503 (Ind.Ct.App.1989), trans. denied, the Court of Appeals rejected a claim of ineffective assistance in the guilty plea setting, reasoning that the def......