Lawrence v. State

Decision Date02 July 1984
Docket NumberNo. 283S63,283S63
Citation464 N.E.2d 1291
PartiesRodney LAWRENCE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender, Carolyn J. Fitch, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Defendant, Rodney Lawrence, was convicted by a jury in 1978 of entering to commit a felony, Ind.Code Sec. 35-13-4-5 (Burns 1975) (repealed Acts 1976, P.L. 148) and of fleeing a police officer, Ind.Code Sec. 35-21-2-1 (Burns 1975) (repealed Acts 1976, P.L. 148). He was also found to be a habitual offender, Ind.Code Sec. 35-8-8-1 (Burns 1975) (repealed Acts 1976, P.L. 148) and thus received a life sentence. Defendant has raised the following five issues in this belated direct appeal:

1. Whether defendant was denied his right to effective assistance of counsel;

2. Whether trial court erred in denying a motion for a continuance made by defendant;

3. Whether the evidence was sufficient to support the conviction for entering to commit a felony;

4. Whether the life sentence constituted cruel and unusual punishment; and

5. Whether the finding that defendant was a habitual offender must be vacated since three of four prior convictions were allegedly void.

A review of the facts most favorable to the state shows that on July 19, 1977, Loretta Jones observed two men walking quickly back and forth several times from a neighbor's house to a car parked in the neighbor's drive. Jones also heard a loud pounding noise coming from the house. Jones was not able to see the faces of the men and her view was partially obscured by the shadow of a large tree. She eventually called the Marion Police Department and then continued to watch the car. Jones testified that she saw a man run from the neighbor's house and jump into the car as it left the drive.

Officer Jerry Herring arrived on the scene as the car was leaving the drive. Herring also saw a man run and jump into a car. Herring aimed the beam of his spotlight through the back window of the car and observed two men turn and look at him. The two men then attempted to flee in the car and were pursued by Officer Herring. A few blocks away the car hit a bump and came to a stop. Herring identified the driver of the car as defendant and the passenger as Major Stephany, defendant's nephew. Herring found two shotguns, two television sets, and a stereo system in the car. The victim, Donna Barbour, identified these as being the same items that were taken from her house.


Defendant has raised a claim of ineffective assistance of counsel. Before examining the particular facts of the issue, however, we must re-examine our traditional standard of review. This re-examination is necessary because of the United States Supreme Court's decision in Strickland v. Washington, (1984) --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674, in which the Court for the first time established guidelines to determine ineffective counsel claims.

The Supreme Court in Strickland developed a two-step analysis. Under the first step, the "performance component," the focus is on the actual performance of the attorney in rendering assistance to his client. In order for there to be ineffective assistance, there must be a showing that counsel acted unreasonably. A "strong presumption" exists, however, that counsel rendered adequate legal assistance. To overcome this strong presumption:

"[a] convicted defendant ... must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."

Id., --- U.S. at ----, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.

The second step of the Strickland test, the "prejudice component," focuses on the prejudice to the client resulting from the attorney's unreasonable acts. Both step one and step two must be passed before there can be a finding of ineffective counsel:

"An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.... The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution."

Id., --- U.S. at ----, 104 S.Ct. at 2067, 80 L.Ed.2d at 696 (citation omitted). Except in certain situations where prejudice will be presumed, 1 a defendant must affirmatively prove he was prejudiced by his counsel's conduct by showing there is a reasonable probability that, but for the unprofessional errors, the result of the proceedings would have been different. A court in making its determination on the issue must consider the totality of the evidence to ascertain whether the defendant has met the "burden of showing that the decision reached would reasonably likely have been different absent the errors." Id. --- U.S. at ----, 104 S.Ct. at 2069, 80 L.Ed.2d at 699.

With these new rules in mind, we find that defendant has failed to establish that he received ineffective assistance of counsel. 2 Defendant points to six errors which he apparently claims amount, either individually or collectively, to ineffective assistance of counsel. Defendant first contends that his trial counsel failed to adequately explain the terms of a plea agreement offered to defendant under which defendant would have received a one-year suspended sentence. Defendant contends that his first attorney, Anne Wilcox, misinformed him of the possible penalties for two of the charged offenses. In addition, defendant asserts that Wilcox misadvised him about the possibility that the trial court might reject the plea.

The record here shows that on February 13, 1978, Wilcox sent defendant a lengthy letter explaining the consequences of pleading guilty and the rights defendant would be foregoing. While this letter did inadvertently state penalties under the new penal code rather than the old, we cannot say that this resulted in defendant receiving ineffective counsel. The test is one of reasonableness; this does not require perfection. Just as before, isolated mistakes, poor strategy, or bad tactics do not necessarily amount to ineffective assistance of counsel. Hollon v. State, (1980) 272 Ind. 439, 398 N.E.2d 1273; Lowe v. State, (1973) 260 Ind. 610, 298 N.E.2d 421.

Furthermore, it appears from the record that defendant's refusal of the plea bargain was as much the result of a steadfast desire to establish his innocence at a trial as it was of any misunderstanding about the plea. At the hearing on the plea defendant stated:

"That's why I couldn't accept it because number one I would like for the record to show that every ... on every occasion that I have been guilty, I pleaded guilty. On every occasion regardless of what it was. And in this case I'm not guilty and I'm not going to plead guilty to this because I'm not guilty."

Defendant also stated that he understood the plea agreement. Although defendant did appear to be confused about whether the trial judge was bound by the plea agreement, we cannot say that Wilcox's failure to more fully explain the situation constituted ineffective assistance.

Defendant next asserts that he was denied effective assistance of counsel when neither Wilcox nor the subsequent trial attorney, Charles Scruggs, failed to timely move for dismissal of an allegedly defective information. This information, charging defendant with being a habitual offender, listed prior felonies from 1954, 1958, and 1960. The 1958 felony, however, failed to mention the court and county from which the conviction was obtained. Defendant now claims that his attorneys should have made a motion to dismiss prior to arraignment, on the ground that the information failed to state the crime with sufficient certainty. See Shutt v. State, (1954) 233 Ind. 120, 117 N.E.2d 268. We cannot say that the failure to raise the motion was unreasonable. The other two felonies listed both contained the county and court and were sufficient to support a habitual offender charge. It was well within the range of professionally reasonable judgment for counsel not to have raised a motion to dismiss.

Defendant's third allegation concerns the failure of Scruggs to properly request a continuance to secure the attendance at trial of Major Stephany. Scruggs did not request a continuance until the day of the trial and did not set forth any reasons for the late filing. See Ind.Code Sec. 35-1-26-1 (Burns 1975) (repealed Acts 1981, P.L. 298). Scruggs also did not publish Stephany's deposition in which Stephany testified that he had committed the burglary and that the defendant had no knowledge of Stephany's activity.

In this instance, even if we were to find counsel's actions unreasonable, defendant has failed to show sufficient prejudice for us to find ineffective assistance. The substance of Stephany's testimony about defendant's lack of knowledge was introduced through other defense witnesses. The jury was given the opportunity to hear both sides of the story. Stephany's testimony might possibly have bolstered the defense's case, but we cannot say, with a...

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