LeFlore v. State

Citation157 Ind.App. 291,38 Ind.Dec. 43,299 N.E.2d 871
Decision Date09 August 1973
Docket NumberNo. 572A225,572A225
PartiesJames O. LeFLORE, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
CourtCourt of Appeals of Indiana

Harriette Bailey Conn, Public Defender, Indianapolis, for appellant (petitioner below).

Theodore L. Sendak, Atty. Gen., John McArdle, Deputy Atty. Gen., Indianapolis, for appellee (respondent below).

WHITE, Judge.

Petitioner (LeFlore) appeals from a judgment denying him post conviction relief. He was sentenced February 18, 1971, to imprisonment for an indeterminate period of not less than ten years nor more than twenty-five years pursuant to a robbery conviction. At the time he filed his petition for post conviction relief on July 14, 1971, and at the time it was heard on September 8, 1971, his direct appeal was pending in the Indiana Supreme Court. 1 On May 8, 1972, the Supreme Court handed down an opinion affirming the judgment. See LeFlore v. State (1972) Ind., 281 N.E.2d 876, 30 Ind.Dec. 578.

The petition for post conviction relief was prepared pro se, but at the hearing thereon LeFlore was represented by a deputy to the State Public Defender who called petitioner to the witness stand where he refused to testify. His verified petition was thereupon offered and received in evidence and is the only relevant evidence in the record. 2 The relevant factual statements therein we quote as follows (omitting legal arguments, citations, and case quotations):

'1. Petitioner alleges that he was arrested on July 13, 1970, for an armed robbery of the Penn Liquor Store, located in the 2200 block of North Meridian Street, Indianapolis. He complains that he was accosted and held illegally by a city's patrolman at 23rd and Pennsylvania Street, for the purpose of having witnesses participate in an extra-judicial identification process while he remained seated in a patrol car.

'a. It is now the contention of the Petitioner that the 'extra-judicial proceedings' could not have been more unreasonable, or more unjustifiable from the standpoint of necessity. Instead of arresting Petitioner on whatever information the officials would have deamed probable, and than place him in a 'line-up' the witnesses were summoned to the said area on Pennsylvania Street where of which the Petitioner was individually displayed to them in an automobile, On the basis of whatever grounds the investigation officer had for holding your Petitioner, there was nothing to prevent the officer from directly carring Petitioner straight to jail and conducting a proper line-up after summoning the prosecuting witnesses to police headquarter. The prosecuting witnesses were not on the brink of death as would have been a striking simularity in the case of Stovall v. Denno 388 U.S. 243 (293), (87 S.Ct. 1967) 18 L.Ed.2d 1199 (1967).

'2. Recognizing the above said, and realizing that the arrest by the patrolman that effected such, based upon information supplied him by the robbed victum, the same or that simular in effect had to be offered to Detective Harry Dunn--of the Robbery Division, who succeedingly entertained action in the matter. Detective Dunn had a right to expect that the information received from the investigating officer was reliable in content, but, being based upon such assumed reliability, said Detective commenced to conduct his investigation of the accused by interrogation of him. For a period of around some (8) hours your Petitioner was subjected to vigorous interrogation by said Detective, and in the 'absence of counsel;' and only about midway through this period was Petitioner ever offered opportunity to see or sign the Indiana Standard Waiver regarding a freedom to question a suspect. Petitioner complied. With the aforesaid, and the information supplied by the aresting officer, absent of all reasonable caution, the arrest and detantion is clearly illegal, supported by nothing more than suspicion,

'3. At Petitioner's trial he was put at direct disadvantage by being furtherly pushed in an aura of suspicion and innuendo by the State's illegal use of evidence against him; namely, an obtained short-gun, clothing ect, non of which was taken from Petitioner pocession at the time of his detention and arrest. Failure of Petitioner's own attorney to object to the introduction of this evidence refored to above, and failure of Petitioner's attorney to file motion to suppress evidence, proves an ineffectiveness in representation. The unconstitutional character did much to add more thrust to the prosecution's case, and could have very well proved to have been a futile attempt to erase what the jurors had viewed from their minds; thereby, said evidence caused jurors to reach their improper verdict.'

After the rendition of the judgment denying relief, the State Public Defender filed the following motion to correct errors, which is appellant's assignment of errors for this appeal: 3

'Comes now James Otis LeFlore, petitioner in the Petition for Post-Conviction Relief filed in the above cause and moves that the decision of the court entitled FINDINGS OF FACT AND CONCLUISONS OF LAW filed December 15, 1971, be set aside, that the error herein specified be corrected therein and a new trial be granted to the petitioner for the following reason:

'Specification 1

'The court erred in holding said Finding of Fact numbered 5:

'Petitioner has failed to prove by a preponderance of the evidence that he was convicted or sentenced in violation of the Constitution of the United States or the Constitution or Laws of the State of Indiana.'

'For as much as petitioner presented evidence tending to show that he was not advised of his right to counsel prior to line-up in absence of same, nor advised of his right to remain silent prior to any questioning which facts defense counsel knew but he did not object to evidenc presented during trial which might have been excluded on these bases. At times, there was either no counsel or ineffective representation.'

The evidence in this case, which we have recited in full, certainly rises to no higher level of cogency than 'tending to show'. That is miles short of proof by a preponderance. And by no means can we say that such 'evidence . . . can lead to but one conclusion and that the trial court has reached an opposite conclusion', which we would have to say were we to reverse. Pokraka v. Lummus Co. (1952), 230 Ind. 523, 532, 104 N.E.2d 669, 673.

The foregoing would be a sufficient statement of our reasons for affirming the judgment had we not improvidently granted LeFlore's preliminary motion requesting 'leave to refer to the Record of the earlier direct appeal.'

Our granting of that petition has been treated as having caused the evidence at the criminal trial to become a part of the evidence at the post conviction relief hearing. The net result is that this appeal is little more than an attempted second direct appeal of the criminal case. That is definitely not the purpose of the Rules of Procedure for Post-Conviction Remedies. PC 1(A), Ind.Ann.Stat. (Burns Code Ed. 1973), Court Rules, Book 2, p. 634. Langley v. State (1971), Ind., 267 N.E.2d 538, 25 Ind.Dec. 118, Kidwell v. State (1973), Ind., 295 N.E.2d 362, 36 Ind.Dec. 247. The State, however, has failed to argue waiver and has elected to argue the merits of the issues petitioner-appellant contends are presented by this appeal. Apparently, Langley, supra, 267 N.E.2d at 542, 25 Ind.Dec. at 124 requires us to do likewise.

Those issues are:

1. Whether the term of petitioner's sentence is contrary to law.

2. Whether it was reversible error for the petitioner to be interrogated by the police before he signed a waiver.

3. Whether it was reversible error to admit identification testimony allegedly 'tainted by the custodial identification proceedings, which were (allegedly) impermissively suggestive', and at which petitioner was without counsel.

I.

LeFlore was sentenced to the Indiana State Reformatory for not less than ten nor more than twenty-five years, as expressly provided in the robbery statute. Ind.Ann.Stat. § 10--4101 (Burns 1956 Repl.); IC 1971, 35--13--4--6.

Appellant contends that because the crime was committed, the trial had, and the sentence imposed all while the 1969 version of the armed robbery statute was in effect, his minimum sentence for the lesser included offense of robbery should be no longer that the minimum sentence for armed robbery (the greater offense in which it is included). The so-called armed robbery statute was originally enacted as Ind. Acts 1929, Ch. 55, § 1. It prescribed a penalty of imprisonment 'for a determinate period of not less than ten years nor more than twenty years to be fixed by the court'. After a 1965 amendment it was re-written to make it a crime to commit any felony when armed (and when certain other conditions pertained) and to provide a penalty of imprisonment 'for a determinate period of not less than one (1) nor more than fifteen (15) years if the penalty imposed upon the said felony is ten (10) years or less or; shall be imprisoned for a determinate period of not less than five (5) nor more than thirty (30) years, if the penalty imposed upon the said felony is more than ten (10) years.'

All the while the robbery statute (Ind.Ann.Stat. § 10--4101 (Burns 1956 Repl.)) has remained unchanged in prescribing imprisonment for an indeterminate term of ten to twenty-five years. Thus the five to thirty year feature of the 1969 armed felony sentence would apply to a conviction of robbery while armed.

The 1969 amendment was effective August 18, 1969, and remained in effect until the Acts of 1971 became effective September 2, 1971.

DeWeese v. State (1972), Ind., 282 N.E.2d 828, 31 Ind.Dec. 47, decided some three weeks after LeFlore's direct appeal was decided, fully supports his contention. Furthermore Vawter v. State (1972), Ind., 279 N.E.2d 805, 807, 29 Ind.Dec. 568, and Kleinrichert v. State (1973), Ind., 297...

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5 cases
  • Tibbs v. State, 472A196
    • United States
    • Indiana Appellate Court
    • November 15, 1973
    ...these issues raised by Tibbs' Motion To Correct Errors. Langley v. State (1971), 256 Ind. 199, 267 N.E.2d 538; LeFlore v. State (1973), Ind.Ct.App., 299 N.E.2d 871.4 Tibbs does not specify in his Motion to Correct Errors or argue in his brief that failue to provide counsel at the preliminar......
  • Dowdell v. State
    • United States
    • Indiana Appellate Court
    • November 5, 1975
    ...less than five (5) years nor more than twenty-five (25) years. 3 DeWeese v. State (1972), 258 Ind. 520, 282 N.E.2d 828; LeFlore v. State (1973), Ind.App., 299 N.E.2d 871. Dowdell now contends that his minimum sentence should have been reduced to a term of five (5) years because the minimum ......
  • Casterlow v. State
    • United States
    • Indiana Appellate Court
    • November 20, 1973
    ...court in the case appealed. Davidson v. Davidson (1950), 120 Ind.App. 253, 90 N.E.2d 821, 91 N.E.2d 796. In LeFlore v. State (1973), Ind.App., 299 N.E.2d 871, 874, 38 Ind.Dec. 43, 47, in an opinion handed down only a few days before we denied, in this case, the petition to refer to the reco......
  • Knight v. State
    • United States
    • Indiana Appellate Court
    • November 28, 1973
    ...sentence for the greater offense of armed robbery while the 1969 version of the armed robbery statute was in effect. LeFlore v. State (1973), Ind.Ct.App., 299 N.E.2d 871; Vawter v. State (1972), Ind., 279 N.E.2d 805. Therefore, this cause is remanded to the trial court for a correction of K......
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