Love v. State

• Decision Date: 31 January 1974
• Docket Number: No. 572A221,572A221
• Citation: 159 Ind.App. 270,306 N.E.2d 142
• Parties: Willie Harold LOVE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 142

306 N.E.2d 142

159 Ind.App. 270

Willie Harold LOVE, Appellant, v. STATE of Indiana, Appellee.

No. 572A221.

Court of Appeals of Indiana, Second District.

Jan. 31, 1974.

Harriette Bailey Conn, Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Harry L. Sauce, III, Deputy Atty. Gen., Indianapolis, for appellee.

WHITE, Judge.

This is the fourth opinion to be handed down in two appeals from a judgment denying petitioner-appellant Love's petition for post conviction relief from a determinate sentence of ten years for robbery.

The first appeal was to the Supreme Court of Indiana. At that time it was the only appellate court in the State with jurisdiction of appeals in criminal cases and in post conviction relief proceedings. That appeal was premised on the overruling of a motion to correct errors which contended (as the sole error) that the trial court had erred in making no finding on the issue raised by the following allegation in the petition for post conviction relief:

'This petitioner was grossly denied his constitutional rights when Indianapolis police held him 24 hours without advising him of his rights and without counsel of an attorney.'

The Supreme Court remanded saying:

'Appellant claimed in his petition for post-conviction relief that he was denied his constitutional rights when the Indianapolis police held him twenty-four (24) hours without advising him of his rights and without the counsel of an attorney. The court's specific findings of fact on this issue, if indeed there were any, were as follows:

"3(C) There was no illegality in the guilty plea proceedings or in the evidence adduced at said proceedings.'

'Clearly the court was required to make specific findings in this case, but we are able to discern no specific findings concerning what happened during appellant's first twenty-four (24) hours after arrest. We therefore remand this case to the court below to make specific findings of fact and conclusions of law on the issue of whether appellant's constitutional rights were violated during the first twenty -four (24) hours of his incarceration, namely whether he was properly advised of his rights per Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 and whether he was informed of his right to counsel during the line-up per United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.' (Ind., 272 N.E.2d 456, 457, 458.)

On petition for rehearing (which was denied), the Supreme Court agreed that Miranda and Wade are not directly material but could

'not agree with petitioner that the trial court's findings sufficiently answer . . . ('the ultimate fact to be ascertained . . . whether the plea of guilty was knowingly and voluntarily given'). We thus still maintain that the cause must be remanded to make specific findings of fact and conclusions of law on the issue of whether the plea of guilty was voluntarily, knowingly, and freely given.' (Ind., 274 N.E.2d 238, 239.) (Original emphasis.)

The trial court thereafter filed what it denominated 'Supplemental Specific Findings of Fact' which read:

'In accordance with the mandate of the Supreme Court of Indiana in the certified opinion dated October 20, 1971, under No. 1070 S 249, this Court makes the following supplemental specific findings of fact:

'1. The defendant's plea of guilty was voluntarily, knowingly, and freely given.

'2. The defendant was specifically and fully advised of his rights by this Court, before acceptance of his plea, as shown by the transcript on plea of guilty.

'3. The defendant did not plead guilty because of any threats or promises that had been made to him.

'4. That after consultation with his attorney and after being advised of his rights by the Court, the defendant pleaded guilty because he believed such plea to be in his own best interests.'

The appellant then filed a motion to correct errors in that supplemental finding, specifying the following errors:

'1. It was error to find, in rhetorical paragraph numbered '1.' that 'the defendant's plea of guilty was voluntarily, knowingly and freely given,' inasmuch as the record heretofore filed makes it clear that the defendant's guilty plea was tainted by events in the first twenty-four hours after his arrest when he was subjected to line-up in absence of counsel and also made statements to police in absence of waiver of his rights to counsel, as more specifically detailed in the attached Affidavit of Willie Harold Love, marked as Exhibit 'A'.

'2. It was error to find that, as stated in rhetorical paragraph '3.' of the said supplemental findings, 'the defendant did not plead guilty because of any threats or promises that had been made to him,' since, as shown by Exhibit 'A' and implications of the record heretofore made, the determination to plead guilty was a direct consequence of the defendant's belief that his attorney and a detective had agreed on a sentence of either one (1) year on the farm or not less than one (1) nor more than ten (10) years, if petitioner cooperated with said detective by making statements admitting culpability in numerous offenses that the police were investigating, whereupon he incurred potential liability for multiple sentences of not less than ten (10) nor more than twenty-five (25) years, without any available defense.

'3. It was error to have entered said Supplemental Specific Findings of Fact without a determination whether there had been denials of rights under Miranda or Wade as factors which, under the circumstances of this case, were material to a determination that the plea of guilty was voluntarily, knowingly, and freely given, or to have avoided additional evidence on said issues in view of the paucity of the record, and the allegations of the Petition for Post-Conviction Relief, together with a previous Motion to Correct Errors, that there had been no advice of rights during the first twenty-four hours in custody when the petitioner's fate was sealed, particularly in view of the showing that he had had little benefit from his retention of counsel in such period, was following his attorney's advice given without more adequate consultation than a telephone call in police headquarters and a brief period in the court-room.'

When that motion was overruled the appellant took a second appeal. By that time the new judicial article (Art. 7, Constitution of Indiana) had become effective, as well as Appellate Rule 4(A) and 4(B) adopted pursuant thereto (Art. 7, §§ 4 and 6) whereby appellate jurisdiction was then in the Court of Appeals. We thus received the second appeal with some of the law of the case already established by the two Supreme Court opinions. It became our unpleasant task to say that the supplemental findings made by the trial court did not comply with the Supreme Court's mandate as to specificity nor as to "what happened during appellant's first twenty-four (24) hours after arrest." Love v. State (Ind.App.1973), 300 N.E.2d 693, 694, 38 Ind.Dec. 299, 301. Instead of remanding, however, we retained jurisdiction and directed the trial court to make and certify to us the findings and conclusions which the Supreme Court had directed.

On October 29, 1973, the trial court filed in this court a 'Second Supplementary Findings of Fact and Conclusions of Law' which covers seventeen pages. The findings, which constitute a substantial compliance with our directive, are findings numbered IV through XI, which read:

'IV. The court finds that, during the first twenty-four (24) hours after the arrest of the defendant-petitioner the defendant-petitioner was not subjected to custodial interrogation nor was he placed in any lineup for the reason that there is no evidence in the record that the defendant-petitioner was placed in any lineup nor is there any evidence in the record believed by the Court that the defendant-petitioner was questioned in custody during the first twenty (24) (sic) hours after his arrest.

'V. The Court finds that four (4) days after his arrest the defendant-petitioner sent for Detective Sergeant Harry Dunn, Indianapolis Police Department, who brought the defendant-petitioner from the Marion County Jail to the Homicide and Robbery office of the Indianapolis Police Department. He was then informed of his Miranda rights in accordance with the Indianapolis Police Department warning and waiver form (commonly known among Indianapolis Policemen as 'a copy of the rights'), which the defendant then signed. Following the warning and waiver Sergeant Dunn then took a statement from the defendant-petitioner.

'VI. That there is no testimony in the record before this Court of the defendant-petitioner other than what has been set out above.

'VII. That there is no evidence in the record before this Court as to any lineup or custodial questioning other than what has been set out above.

'VIII. That there is no evidence in the record before this Court as to anything which occurred in the first twenty-four (24) hours after the arrest of the defendant-petitioner other than what is set out above.

'IX. The Court finds that the defendant-petitioner did not plead guilty because of any unlawfull (sic) interrogation for the reason that there is no evidence that the defendant-petitioner pleaded guilty because of such interrogation.

'X. The Court finds that the defendant-petitioner did not plead guilty because of any unlawful lineup for the reason that there is no evidence that he so pleaded.

'XI. The Court finds that the defendant-petitioner has failed to sustain his burden of proof as to any material allegation of his petition.'

The Public Defender's initial brief, reply brief, and supplemental brief filed after these last findings were filed make arguments, the essence of which we believe can be summarized as follows:

1. The petitioner-appellant's affidavit filed with his second motion to correct errors is evidence which renders erroneous the 'no evidence' findings above...