Lee, In re
| Decision Date | 07 May 1964 |
| Docket Number | No. 0-715,0-715 |
| Citation | 246 Ind. 7,198 N.E.2d 231 |
| Parties | In re L. C. LEE, Petitioner. |
| Court | Indiana Supreme Court |
L. C. Lee, pro se.
Edwin K. Steers, Atty. Gen., Robert S. Baker, Public Defender, for appellee.
The petitioner was convicted of 'ACCESSORY AFTER THE FACT TO INFLICTING PHYSICAL INJURY DURING A ROBBERY' on October 5, 1964, and is a prisoner in the Indiana State Prison serving sentence under such conviction. This is the third time his matters have been before this court. He had private counsel during his first trial but claims, however:
1. That counsel failed to procure a jury trial for him.
2. That a confession that was used in the trial was forged by a detective of the police.
3. That his attorney failed to file a motion for a new trial.
4. And finally, this time before us he claims that the legislature of this state, which passed the law fixing his crime in 1941, was improperly apportioned and unconstitutional.
Our record shows in Lee v. State, No. 0-474, that beginning in March, 1957, four separate extensions of time were granted by this court for the filing of a transcript and record herein for an appeal, and that on November 7, 1957 the record was filed; that in a per curiam in December, 1957, a petition for certiorari was denied on the ground that it was not a proper method for an appeal from a proceeding for a writ of error coram nobis. Lee v. Allen Circuit Court (1957), 237 Ind. 704, 146 N.E.2d 551.
In September, 1960, the appellant again petitioned for extension of time to file a transcript in the case of Lee v. Dowd, No. 0-612. A transcript from a judgment against him in the lower court for a writ of habeas corpus was filed, and after a number of extensions of time for the filing of briefs, the judgment of the trial court was affirmed on the ground that habeas corpus could not be used or substituted for an appeal or to collaterally attack a judgment of the trial court. Lee v. Lane (1961), cert. den. (1961), 368 U.S. 858, 82 S.Ct. 98, 7 L.Ed.2d 55.
The petitioner now asks that we cite the Public Defender of this state to show cause why he should not represent him in an appeal to this court.
We can not assume, upon the failure of counsel to file a motion for a new trial in a case, that a defendant against whom judgment has been rendered is prejudiced, and that error occurred in the trial court. The fact of the matter is that presumption is to the contrary, that no error occurs in the trial court unless shown. It is also assumed that counsel, being competent, would file a motion for a new trial if meritorious grounds existed therefor in his opinion. As a matter of fact, for counsel to file a motion for a new trial or any other pleading in this court in which there is no merit and he knows it,...
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