Langley v. State, 30893

• Docket Nº: No. 30893
• Citation: 250 Ind. 29, 12 Ind.Dec. 419, 232 N.E.2d 611
• Case Date: January 09, 1968
• Court: Supreme Court of Indiana

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.

[250 Ind. 31]

Page 612

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.

[250 Ind. 32] 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

Page 613

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 [250 Ind. 33] 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...