Lenoir v. State
| Decision Date | 10 November 1977 |
| Docket Number | No. 476S130,476S130 |
| Citation | 267 Ind. 212,368 N.E.2d 1356 |
| Parties | Kenneth LENOIR, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Dennis J. Stanton, Crown Point, for appellant.
Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant Lenoir was convicted in Lake Superior Court on December 16, 1975, of commission of a felony while armed. He was sentenced to fifteen years imprisonment. A hearing was held on appellant's motion for post-conviction relief under Ind.R.P.C. 2 in February 1977. This motion was denied in May 1977, and the present appeal follows.
The sole issue presented is whether appellant's trial counsel was competent. Appellant alleges incompetency based on his counsel's failure to call either Albert Winston or Raymond Baxter as witnesses at trial. Albert Winston pleaded guilty to armed robbery in February 1976, which plea was based on the same incident as the present case. At trial, appellant testified that he did not commit the robbery in question, but that Winston had appeared at his residence shortly after the time of the robbery stating that Baxter was also on his way over. Three eyewitnesses at appellant's trial, however, identified appellant as one of the two perpetrators of the robbery.
Appellant, Winston, and Baxter all filed affidavits subsequent to appellant's conviction, stating that appellant did not participate in the robbery. Winston's affidavit stated that Baxter was his partner, and Baxter stated in his affidavit that he was in fact the other robber along with Winston. Winston's testimony at the post-conviction hearing was to the same effect as his affidavit. Baxter, however, refused to answer any questions about his knowledge of or involvement in the robbery at the post-conviction hearing, repeatedly pleading the Fifth Amendment. Appellant's trial counsel was not called to testify at the post-conviction hearing.
In a post-conviction hearing, the petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence. Roberts v. State, (1975) 263 Ind. 53, 54, 324 N.E.2d 265, 266; Ind.R.P.C. 1, § 5. Further, when incompetency of counsel is alleged, there is a presumption that an attorney has discharged his duty fully, and it requires strong and convincing proof to overcome this presumption. Blackburn v. State, (1973) 260 Ind. 5, 22, 291 N.E.2d 686, 696. The presumption of competency is overcome only by showing that what the attorney did, or did not do, made the proceedings a mockery and shocking to the conscience of the court. Allegations which are merely critiques of trial tactics and strategy are not proper elements of incompetency of counsel. Roberts, supra. Kelly v. State, (1972) 259 Ind. 414, 416-17, 287 N.E.2d 872, 874. Finally, in cases...
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Tatham v. Rogers
...fails to at least attempt to obtain evidence from the attorney. Van Evey v. State, 499 N.E.2d 245, 248 (Ind.1986); Lenoir v. State, 267 Ind. 212, 214, 368 N.E.2d 1356 (1977). 6. The statement should be read in the context of Mr. Rogers' bias argument and should not be read as an indication ......
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Davis v. State
...acts and omissions which led to the alleged inadequate representation. Cobbs v. State, (1982) Ind., 434 N.E.2d 883; Lenoir v. State, (1977) 267 Ind. 212, 368 N.E.2d 1356. The record shows that petitioner's trial attorney was well prepared for trial and that the trial as a whole was not a mo......
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Davis v. State
...the attorney did, or failed to do, "made the proceedings a mockery and shocking to the conscience of the court." Lenoir v. State (1977), 267 Ind. 212, 368 N.E.2d 1356, 1357-58. See also Duncan v. State (1980), Ind., 400 N.E.2d 1112; Ottman v. State (1979), Ind., 397 N.E.2d The record reveal......
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Kimble v. State
...all post-conviction hearings, the burden of proof is on the petitioner by a preponderance of the evidence. Lenoir v. State, (1977) 267 Ind. 212, 213-14, 368 N.E.2d 1356, 1357; Perkins v. State, (1975) 263 Ind. 270, 271, 329 N.E.2d 572, 573. The trial court is the trier of fact and sole judg......