Lindley v. State, No. 880S338

Docket NºNo. 880S338
Citation426 N.E.2d 398
Case DateOctober 07, 1981
CourtSupreme Court of Indiana

Page 398

426 N.E.2d 398
Larry Lee LINDLEY, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 880S338.
Supreme Court of Indiana.
Oct. 7, 1981.

Page 399

Charles H. Scruggs, Kokomo, for appellant.

Linley E. Pearson, Atty. Gen., Carolyn M. Brawner, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The petitioner, Larry Lee Lindley, is before this Court appealing from the denial of his petition for relief under Post-Conviction Relief, Rule 1. He was convicted by a jury of second-degree murder and was sentenced to a term of fifteen to twenty-five years in prison. His conviction was affirmed by this Court in Lindley v. State, (1978) 268 Ind. 83, 373 N.E.2d 886. He now raises four issues in this petition:

Page 400

1. Whether the state is denied the defense of waiver on the issues raised by this petition since they only filed an answer in general denial without specifically asserting the defense of waiver;

2. Whether defendant was denied his constitutional right to employ counsel of his own choice and the right to effective assistance of counsel;

3. Whether defendant was denied his right to be free from illegal search and seizure; and

4. Whether defendant was denied due process of law at his original trial due to errors the court made in denying a complete cross-examination of one witness and in giving an erroneous instruction.

A summary of the facts relevant to these issues shows that petitioner was charged and convicted of the murder of Michael Pavlik. Petitioner and two companions had been driving around and drinking beer in petitioner's car late one night. When petitioner saw Pavlik's car stopped by the side of the road, he stopped his car beside it. A fight ensued between Pavlik and petitioner. Eventually petitioner's two companions joined in the fight. They testified that petitioner had a knife and stabbed Pavlik several times. After Pavlik fell to the ground, the three got back into the car and drove off. Petitioner was arrested at his home later that night.

I.

The state filed an answer in general denial to defendant's petition without asserting a defense of waiver. While it is true that the burden to raise the defense of waiver in post-conviction proceedings is normally on the state, a post-conviction court may judicially notice a prior opinion and the fact that certain appealable issues have been waived because they were not properly raised on the direct appeal. Rinard v. State, (1979) Ind., 394 N.E.2d 160; Winston v. State, (1978) 267 Ind. 587, 372 N.E.2d 183; Langley v. State, (1971) 256 Ind. 199, 267 N.E.2d 538. In this case, the trial court did hold a hearing on this petition and all the issues were addressed on their merits. Therefore, no issue as to the defense of waiver is presented to us.

II.

Defendant next argues that he was denied his right to effective assistance of counsel. We first note that in post-conviction proceedings the burden of proof rests with the petitioner to establish his grounds for relief by a preponderance of the evidence. Ind.R.P.C. 1 § 5; Laird v. State, (1979) Ind., 385 N.E.2d 452. The judge hearing the petition is the sole judge of the weight of the evidence and the credibility of the witnesses. His decision will be reversed only where the evidence is without conflict and leads unerringly to a result not reached by the trial court. Johnson v. State, (1980) Ind., 406 N.E.2d 1170; Cottingham v. State, (1978) 269 Ind. 261, 379 N.E.2d 984; Davis v. State, (1975) 263 Ind. 327, 330 N.E.2d 738.

It is clear that a defendant in a criminal trial has the right to an attorney of his own choice if he is financially able to employ such attorney, and if he is not able to do so, it is the duty of the court to select a competent attorney for him at public expense. Art. 1, § 13, Constitution of Indiana; Moore v. State, (1980) Ind., 401 N.E.2d 676; Fitzgerald v. State, (1970) 254 Ind. 39, 257 N.E.2d 305; State v. Minton, (1955) 234 Ind. 578, 130 N.E.2d 226.

In this case, defendant first argues that he was not able to employ counsel of his own choice. We do not agree. The record shows that at the time of the instant crime, defendant was seventeen years of age. His father made all the decisions regarding the hiring of attorneys and also made all the payments to them. Evidence shows that five different attorneys were hired in succession prior to defendant's trial. However, there is no evidence that defendant ever complained to his father or to the court about his counsel or...

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58 practice notes
  • Smith v. State, No. 182S19
    • United States
    • Indiana Supreme Court of Indiana
    • July 24, 1984
    ...convincing evidence is required to rebut that presumption. Howell v. State, (1983) Ind., 453 N.E.2d 241; Lindley v. State, (1981) Ind., 426 N.E.2d 398; Rinard v. State, (1979) 271 Ind. 588, 394 N.E.2d 160. Our standard of review is that the representation of counsel must present to us what ......
  • Davis v. State, No. 581S145
    • United States
    • Indiana Supreme Court of Indiana
    • April 13, 1983
    ...evidence is required to rebut the presumption. Hollonquest v. State, (1982) Ind., 432 N.E.2d 37; Lindley v. State, (1981) Ind., 426 N.E.2d 398; Jones v. State, (1978) 270 Ind. 141, 387 N.E.2d 440. Incompetency of counsel revolves around the particular facts of each case and the standard of ......
  • Romack v. State, No. 4-482A89
    • United States
    • Indiana Court of Appeals of Indiana
    • March 31, 1983
    ...within his immediate control. Chimel v. California, (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, Lindley v. State, (1981) Ind., 426 N.E.2d 398; Akins v. State, (1981) Ind., 429 N.E.2d 232; Johnson v. State, (1973) 157 Ind.App. 105, 299 N.E.2d 194; Ramirez v. State, (1972) 153 Ind.App......
  • Brown v. State, No. 181S13
    • United States
    • Indiana Supreme Court of Indiana
    • December 29, 1982
    ...evidence is required to rebut the presumption. Hollonquest v. State, (1982) Ind., 432 N.E.2d 37; Lindley v. State, (1981) Ind., 426 N.E.2d 398; Jones v. State, (1978) 270 Ind. 141, 387 N.E.2d 440. Incompetency of counsel revolves around the particular facts of each case and the standard of ......
  • Request a trial to view additional results
58 cases
  • Smith v. State, No. 182S19
    • United States
    • Indiana Supreme Court of Indiana
    • July 24, 1984
    ...convincing evidence is required to rebut that presumption. Howell v. State, (1983) Ind., 453 N.E.2d 241; Lindley v. State, (1981) Ind., 426 N.E.2d 398; Rinard v. State, (1979) 271 Ind. 588, 394 N.E.2d 160. Our standard of review is that the representation of counsel must present to us what ......
  • Davis v. State, No. 581S145
    • United States
    • Indiana Supreme Court of Indiana
    • April 13, 1983
    ...evidence is required to rebut the presumption. Hollonquest v. State, (1982) Ind., 432 N.E.2d 37; Lindley v. State, (1981) Ind., 426 N.E.2d 398; Jones v. State, (1978) 270 Ind. 141, 387 N.E.2d 440. Incompetency of counsel revolves around the particular facts of each case and the standard of ......
  • Romack v. State, No. 4-482A89
    • United States
    • Indiana Court of Appeals of Indiana
    • March 31, 1983
    ...within his immediate control. Chimel v. California, (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, Lindley v. State, (1981) Ind., 426 N.E.2d 398; Akins v. State, (1981) Ind., 429 N.E.2d 232; Johnson v. State, (1973) 157 Ind.App. 105, 299 N.E.2d 194; Ramirez v. State, (1972) 153 Ind.App......
  • Brown v. State, No. 181S13
    • United States
    • Indiana Supreme Court of Indiana
    • December 29, 1982
    ...evidence is required to rebut the presumption. Hollonquest v. State, (1982) Ind., 432 N.E.2d 37; Lindley v. State, (1981) Ind., 426 N.E.2d 398; Jones v. State, (1978) 270 Ind. 141, 387 N.E.2d 440. Incompetency of counsel revolves around the particular facts of each case and the standard of ......
  • Request a trial to view additional results

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