Langley v. State, 30893

• Decision Date: 09 January 1968
• Docket Number: No. 30893,30893
• Parties: Ernest Clifton LANGLEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 611

232 N.E.2d 611

250 Ind. 29

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

No. 30893.

Supreme Court of Indiana.

Jan. 9, 1968.

William C. Erbecker, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Murray West, Deputy Atty. Gen., for appellee.

LEWIS, Chief Justice.

The appellant was convicted of the crime of robbery in the Criminal Court of Marion County, Indiana, Division 1. Appellant was sentenced to a term of not less than ten (10) years nor more than twenty-five (25) years in the Indiana State Penitentiary.

The trial was before a jury. Thereafter, a motion for new trial was filed claiming the following errors:

(1) The verdict of the jury is not sustained by sufficient evidence.

(2) The verdict of the jury is contrary to law.

The motion for new trial was overruled and appellant filed a motion for the appointment of appellant counsel. The Motion for Appointment of Counsel reads as follows:

'Comes now ERNEST LANGLEY, the defendant in the above cause, and respectfully moves the Court to appoint some competent attorney to aid, assist and represent the defendant in the preparation and prosecution of an appeal to the Indiana Supreme Court from the judgment against defendant in this cause, in all of the following, to-wit:

1. That defendant was tried in the above Court and cause and, on March 30, 1964, was found guilty by a jury of the offense of Robbery, and thereafter, on April 20, 1964, was sentenced to be imprisoned for a term of 10 to 25 years; and that the defendant is presently imprisoned pursuant to said judgment.

2. That defendant desires to perfect an appeal to the Indiana Supreme Court from the judgment against him in this cause, in that he verily believes and avers that the record in this cause manifests multiple denials to defendant of his substantial rights secured by Article 1, Sections 12, 13 and 16, Indiana Constitution, and the 14th Amendment to the United States Constitution, by which said judgment became and now remains void, and that defendant's conviction in this cause will be reversed by the Indiana Supreme Court.

3. That the defendant is without the requisite skill and knowledge to properly prepare and prosecute said appeal, in that he is a mere layman without any training in law and is wholly incapable of perfecting said appeal without the assistance of counsel.

4. That the defendant is without funds, means or credit with which to retain private counsel to represent him in the preparation and prosecution of an appeal in this cause.

WHEREFORE, the defendant respectfully moves the Court to appoint some competent attorney to represent defendant in perfecting his appeal in this cause to the Indiana Supreme Court, said attorney to be compensated therefor at public expense.'

Thereafter, the Court entered the following Order:

'Comes now the defendant in the above-entitled cause (CR 25183--Y) and filed with the Court their joint and several petitions for counsel and a transcript of the record for the purpose of appealing their convictions in forma pauperis.

And the Court having read said petitions and being duly advised the Court now appoints I'almer K. Ward, member of the Bar, as counsel for the purposes of taking said appeal. The Court orders furnished transcript.

All until further order of the Court.

/s/ Eugene M. Fife, Jr.

Eugene M. Fife, Jr.

Dated at Indianapolis, Indiana, this 28th day of Aug., 1964.'

The record fails to indicate that Mr. Ward was ever notified of his appointment as appellate counsel and, consequently, Mr. Ward did not file an appearance or take any steps to perfect an appeal.

Thereafter, on July 9, 1965, the attorney for appellant was privately employed by appellant and filed a petition for permission to file a belated motion for new trial. The petition for belated motion for new trial, in substance, alleged that the motion for new trial previously filed was inadequate; that the appellant was not adequately represented in his trial in the Criminal Court of Marion County; and that the appellant had been diligent in attempting to determine his Constitutional Rights, but that he was without sufficient technical knowledge, pro se, to make an adequate judgment concerning his rights.

The appellant further alleges that the provisions in Rules 2--40 and 2--40A of this Court (Supreme Court Rules, 1964), which require due diligence in asserting and taking advantage of the post-conviction remedies contained therein, is unconstitutional. The Trial Court denied appellant's petition for permission to file his belated motion for new trial and appellant now assigns as errors:

(1) The Trial Court erred in overruling his original Motion for New Trial.

(2) The Trial Court erred in not affording the appellant equal protection of the law by the appointment of competent counsel.

(3) The Trial Court erred in refusing the Appellant permission to file his Tendered Belated Motion for New Trial and in overruling his Verified Petition for Permission to File Belated Motion for New Trial.

(4) The Trial Court erred by failing to rule on the appellant's original Motion for New Trial for more than one year after it was filed.

The evidence most favorable to the State is as follows: A filling-station attendant testified that on the 27th day of December, 1961, he was held up while he was at work; that he was put in fear by one of the holdup men putting a gun in his back and demanding money. One of the other individuals engaged in the holdup took the money from the drawer and then the filling-station attendant was bound and gagged and placed in a backroom.

The statute on robbery, Burns' Indiana Statutes, Anno., § 10--4101, (1956 Repl.), reads, in part, as follows:

'* * * Whoever takes from the person of another any article of value by violence or by putting in fear, is guilty of robbery, and on conviction shall be imprisoned not less than ten (10) years nor more than twenty-five (25) years, and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period. * * *'

The appellant was one of three men involved in the filling-station holdup. The appellant was the driver of a car and the other two men actually committed the physical acts of pulling the gun and taking the money. The police officers testified that shortly after the robbery they stopped the appellant driving the motor vehicle which had been used as the 'get-away' car and the appellant was driving. A search of the car revealed weapons and friction tape. Friction tape had been used to bind the filling-station operator. The appellant admitted to the police officers that he had driven the car at the time of the robbery and gave as his only excuse that he had been drinking with the other two men and appellant's wife and that they had run out of money and liquor and had decided to go get some more money. Later he claimed that when his two 'friends' entered the filling station he didn't know that they were going in for the purpose of robbing the station.

The only essential difference between the State's theory of the commission of this crime and the appellant's theory is the State's contention that all of the appellant's actions before, during and after the actual robbery indicate and prove the substantial evidence that appellant was a participant. The appellant contends that he did not have advance knowledge of the robbery and that he was the innocent victim of the impetuous act of his two companions. Suffice it to say that appellant testified before the jury and gave his whole version of the commission of the happenings on the night in question. The jury chose to adopt the State's arguments concerning the evidence on the happenings at the time of the participating of the appellant in the robbery.

When the question of the sufficiency of the evidence is raised, this Court will consider only that evidence which is more favorable to the State. Wagner v. State (1963), 243 Ind. 570, 188 N.E.2d 914. We have said on a number of occasions that this Court cannot weigh the evidence but will consider only the evidence most favorable to the State, and the reasonable inferences that may be drawn therefrom, to determine whether the jury was warranted in returning a verdict of guilty. Gilmore v. State (1951), 229 Ind. 359, 98 N.E.2d 677. Flowers v. State (1956), 236 Ind. 151, 139 N.E.2d 185.

The uncontradicted evidence shows that appellant was the driver of the car that took the active participants in the holdup to the filling station; that appellant...