Langley v. State

• Citation: 256 Ind. 199,267 N.E.2d 538
• Decision Date: 22 March 1971
• Docket Number: Nos. 970S199,s. 970S199
• Parties: Ernest Clifton LANGLEY, Appellant, v. STATE of Indiana, Appellee. Rudolph Roger RICHARDSON, Appellant, v. STATE of Indiana, Appellee. & 470S97.
• Court: Supreme Court of Indiana

Page 538

267 N.E.2d 538

256 Ind. 199

Ernest Clifton LANGLEY, Appellant, v. STATE of Indiana, Appellee.

Rudolph Roger RICHARDSON, Appellant, v. STATE of Indiana, Appellee.

Nos. 970S199 & 470S97.

Supreme Court of Indiana.

March 22, 1971.

William C. Erbecker, Herbert W. Johnson, Jr., Indianapolis, Ind., for Ernest Clifton Langley.

Gil I. Berry, Jr., Indianapolis, Ind., for Rudolph Roger Richardson.

Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Robert F. Colker, Deputy Attys. Gen., Indianapolis, Ind., for appellee.

HUNTER, Judge.

To facilitate our consideration of the above captioned cases, we have consolidated them for purposes of discussion. The two cases involve questions of substantial import relating to post conviction relief, both procedural and substantive. We will commence by briefly outlining the nature and status of Richardson's and Langley's appeals.

Richardson was originally charged by affidavit with the crime of robbery by putting in fear. Upon a plea of not guilty, the case was tried before a jury which ultimately found him guilty of theft of property; a fine of five hundred dollars ($500) was assessed and Richardson was sentenced to the Indiana Reformatory for a period of not less than one (1) nor more than ten (10) years. No timely motion for new trial was filed nor has Richardson in any manner previously sought appellate review of his conviction.

Approximately a year after his conviction in November of 1968, Richardson filed a petition for post conviction relief pursuant to Rule P.C. 1; a denial of relief by the trial court has occasioned his appeal. In his brief, Richardson argues two points raised by his P.C. 1 petition, namely: (1) that the trial court erred in its handling of a verdict first returned by the jury and in its acceptance of a second verdict subsequently returned; and (2) that he was prejudiced by improper pretrial line-up procedures.

Langley, on the other hand, has been before this court previously by way of a direct appeal. He was originally charged by affidavit with the crimes of robbery and a violation of the 1935 Firearms Act. Trial by jury resulted in a conviction of robbery and Langley was sentenced to the Indiana State Prison for a term of not less than ten (10) nor more than twenty-five (25) years. Following his conviction, Langley filed an appeal before this court where his conviction was affirmed. 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. In that appeal this court specifically decided that: (1) the evidence was sufficient to support Langley's conviction; (2) the trial court was not in error wherein it refused Langley permission to file a belated motion for new trial; and (3) the question of the timeliness of the trial court's ruling on his motion for new trial was not preserved to provide a basis of attack on appeal. As a collateral matter, this court had occasion to consider the effectiveness of trial counsel's assistance, that question being of pertinence in determining the propriety of the trial court's action in refusing to entertain the belated motion for new trial.

Thereafter, Langley filed an action for post conviction relief in the trial court pursuant to Rule P.C. 1. Upon an adverse ruling there rendered, he brings this appeal, alleging essentially that the trial court erred in finding that he had failed to meet the necessary burden of proof qualifying him for relief on two asserted particulars: (1) a denial of his constitutional right to the effective assistance of trial counsel; and (2) wrongful suppression of evidence at trial favorable to appellant.

Due to the nature of and the manner in which the issues are here raised for our consideration in these two appeals, we feel compelled to briefly outline the office or function our post conviction remedy rules were designed to play in Indiana's scheme of criminal appellate practice. As will be seen, serious question may be raised as to the right of a criminal defendant to indefinitely prolong litigation on his case.

In the name of justice and fair play this court, through its promulgation of our post conviction remedy rules and by case decision, has sought to insure that each defendant will have an avenue avilable by which he may challenge on appeal the correctness of his conviction. It was not our intent, however, to provide a means whereby one convicted could repeatedly re-litigate claims of improper conviction, or could unqualifiedly, upon a legitimate waiver of the right to appeal either expressly made or to be inferred through application of appropriate legal principles, raise an untimely challenge directed at some aspect of the proceedings against him. In attempting then to correlate the role of the post conviction remedy rules with those afforded by direct appeal and to define their appropriate use in a challenge directed at a criminal proceeding, it would seem obvious that this court has a vested interest in guarding against a perversion of the rules through improper invocation of their protections or a prostitution of the spirit of criminal justice through sanctioned 'multi-appeals' thought to be afforded.

While we concede to no less than a profound concern for the maintenance of strict adherence to the notion of fundamental fairness and due process throughout the course of a criminal proceeding, it might at the same time be admitted that our seemingly over indulgent attitude towards the preservation of a criminal defendant's 'rights' has been prompted by the increasingly liberal manner in which the federal courts have interpreted the extent of their jurisdiction in such matters. A cursory reading of such cases as Townsend v. Sain (1963), 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 and Fay v. Noia (1963), 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 demonstrate the relative ease with which a duly convicted felon may invoke the jurisdiction of the federal courts on a petition for habeas corpus, thereby placing the very integrity of a state's criminal proceeding in question. Clearly, then, it may be said that one of the functions of our post conviction remedy rules is to preserve what sanctity remains to this state's disposition of a criminal charge by allowing a convicted criminal defendant ample opportunity to present claims for relief in the courts of this state before resort must be had to the federal courts.

In the cases before us, we find two petitioners seeking to avail themselves of the remedies thus provided. A determination as to the appropriateness of the trial court denial of relief demands further analysis of each individual case. As we have noted, Richardson has never prosecuted an appeal from his conviction and approximately one year elapsed before he filed his P.C. 1 petition. Both issues which he now is attempting to present are of such a nature that they might have been reviewed upon a direct appeal. An initial cause for concern, therefore, becomes one of waiver.

That a criminal defendant has the right to appeal from a conviction can no longer be doubted. Secondly, it might be said with an equal degree of certainty that the preferred method of seeking appellate review of a criminal conviction is through direct appeal upon the overruling of a motion to correct errors. ¹ See Rule P.C. 1(A)(2). Such a procedure provides an expeditious means by which a trial judge may have an opportunity to first correct his own errors while the circumstances surrounding the alleged error are still fresh in his memory or, where he improperly refuses to do so, a means to permit speedy vindication in this court. Also, the permissible scope of review on direct appeal is well defined and broader than that permitted by collateral attack through post conviction relief, thus insuring a full and timely airing of all complaints of error respecting the conviction. Compare e.g. the grounds for relief under Rule P.C. 1 with those grounds available under Rule TR. 59 on a motion to correct errors. Finally, a criminal defendant is less likely to run into procedural difficulties or questions of waiver under our well defined remedy of direct appeal.

To assure that each convicted defendant is aware of his right to appeal, a trial judge is now required, following sentencing in a felony case, to advise the defendant that: (1) he is entitled to file a motion to correct errors; (2) he is entitled to take an appeal, but to do so a motion to correct errors must be filed; and (3) if he is financially unable to employ counsel for purposes of filing a motion to correct errors and taking an appeal, the court will appoint one at public expense. Rule CR. 11.

Notwithstanding the guarantee of direct appellate review of a criminal proceeding, it is well settled that a defendant, through a variety of circumstances, may waive his right to appeal. We mention this fact since such a waiver may ultimately be dispositive of a petitioner's P.C. 1 petition for relief. This is not to say that a petitioner must first establish the fact that no waiver has occurred in relation to a particular error from which relief is sought in order to obtain a hearing. It would, however be a matter which the state might urge as a basis for denying relief. It is therefore apparent that upon being properly raised, the matter of waiver and the collateral issues necessarily involved should be of initial concern at the P.C. hearing.

Here, for example, no motion for new trial was timely filed nor did Richardson ever attempt to file a belated motion to correct errors as provided for by Rule P.C. 2. It has been held that the right to a direct appeal may essentially be waived where no timely motion to correct errors has been filed, Turner v. State (1968), 249 Ind. 533, 233 N.E.2d 473; State ex rel. Macon v. Orange Circuit Court (1964), 245 Ind. 269, 195 N.E.2d 352, 198 N.E.2d 229; Sutton v. State (1960), 240 Ind. 512, 166 N.E.2d 651; Groover v. State (1959), 239 Ind. 271, 156...