McHugh v. State, No. 584S210

• Docket Nº: No. 584S210
• Citation: 471 N.E.2d 293
• Case Date: December 07, 1984
• Court: Supreme Court of Indiana

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471 N.E.2d 293 Gary McHUGH, Appellant,
v.
STATE of Indiana, Appellee. No. 584S210. Supreme Court of Indiana. Dec. 7, 1984.

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Susan K. Carpenter, Public Defender, Sheila K. Zwickey, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Petitioner Gary McHugh appeared in person and by counsel before the Marion Superior Court on September 15, 1981, and pleaded guilty to class B felony voluntary manslaughter. At that time, sixteen-year-old Petitioner admitted that on March 2, 1981, he went to the Indianapolis home of his seventeen-year-old girlfriend, argued about the demise of their relationship and stabbed her to death. Having determined that a factual basis for Petitioner's plea existed, the trial court accepted the plea agreement Petitioner negotiated with the State and accordingly sentenced Petitioner to fifteen years imprisonment. On August 3, 1983, Petitioner filed a petition for post-conviction relief which was denied by the Marion Superior Court. Petitioner now appeals and raises the following two issues:

1. whether Petitioner received ineffective assistance of counsel at trial since Petitioner's trial counsel allegedly misadvised him about "shock probation"; and

2. whether Petitioner's guilty plea was knowingly, intelligently and voluntarily made.

I

Petitioner first argues that he was misadvised by his trial counsel and thereby denied of his constitutional right to the effective assistance of counsel. Specifically, Petitioner alleges that he was coerced into pleading guilty by his trial counsel's misadvice that he would be eligible for "shock probation" notwithstanding his acceptance of the State's proposed plea agreement which stipulated a sentence of fifteen years imprisonment. We first note, as we have repeatedly, that a post-conviction action under Ind.R.P.C. 1 is a special quasi-civil remedy whereby a party can present an error which, for various reasons, was not available or known at the time of the original trial or appeal. Phillips v. State, (1982) Ind., 441 N.E.2d 201. As such, the petitioner in a post-conviction proceeding bears the burden to prove any grounds for relief by a preponderance of the evidence. The judge who presides over the post-conviction hearing possesses exclusive authority to weigh the evidence and to determine the credibility of witnesses. The reviewing court therefore will not set aside

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the trial court's ruling on a post-conviction petition unless the evidence is without conflict and leads solely to a result different from that reached by the trial court. Metcalf v. State, (1983) Ind., 451 N.E.2d 321.

The facts adduced during Petitioner's post-conviction relief proceeding show that Attorney Stephen Burns was retained by Petitioner's mother to represent Petitioner when he initially was charged with murder. Burns previously had represented Petitioner's mother in several civil matters. Because Burns was not experienced in handling major criminal cases, he advised Petitioner and Petitioner's mother to retain a lawyer experienced in criminal matters as lead counsel. Attorney Thomas Alsip subsequently was hired to be responsible for the "technicalities" of Petitioner's case while Burns was retained to serve as a "go-between to discuss with [Petitioner] and to elicit his cooperation and to make him feel comfortable with what was going on, since [Burns] had been a friend of the family's for sometime". [Direct testimony of Stephen Burns in Record at page 161].

The instant issue of course rests on Petitioner's claim that his trial counsel misadvised him about his eligibility for "shock probation," Ind.Code Sec. 35-4.1-4-18 [Sec. 35-50-1A-18 (Burns 1979) (repealed effective September 1, 1983) ]. The record indicates that Petitioner testified as follows during his post-conviction relief hearing:

"[Petitioner] I didn't quite understand the plea agreement and if that was the exact time I was getting and he had said, yeah, that is the time they are talking about but--and I said, well, that isn't, you know, I got to do all that I said, do I have any chances for anything and he says that you are eligible for a shock probation and that he told me....

[Petitioner's Counsel] When you say he, who do you mean?

[Petitioner] Thomas Alsip.

[Petitioner's Counsel] All right.

[Petitioner] And he told me that this--he said this was some kind of technicality that Judge Brewer could still do what he wanted, sentence me to anything he still wanted.

[Petitioner's Counsel] What did that mean to you when Mr. Alsip told you that?

[Petitioner] That I wondered what this was. I didn't understand it all and, uh, I thought then that I had a chance to get out before seven and a half years.

[Petitioner's Counsel] Okay. Did you know exactly how much longer before seven and a half years that you might have a chance to get out at that time?

[Petitioner] Within a year.

[Petitioner's Counsel] Within a year?

[Petitioner] Something like that.

[Petitioner's Counsel] Who told you that?

[Petitioner] Well, he mentioned that it was six months for shock probation that you had to file or something and that they decide within six months to a year or something.

[Petitioner's Counsel] Did those assurances given to you by Mr. Alsip influence you personally, Gary, in any way causing you to sign the plea agreement?

[Petitioner] Yes." Record at Page 214.

"[Prosecutor] Gary, who explained the term shock probation to you?

[Petitioner] I think Tom did.

[Prosecutor] Tom Alsip did? And he told you directly that you were eligible for it the morning of your sentencing?

[Petitioner] Yes.

[Prosecutor] And Steve Burns was present, wasn't he?

[Petitioner] Yes.

[Prosecutor] So Steve should have overheard that conversation then, right?

[Petitioner] Yes." Record at Page 221.

Contrary to Petitioner's assertions, however, the record indicates that Attorneys Burns and Alsip both testified that they never discussed "shock probation" with Petitioner. Specifically, Burns testified on direct examination as follows:

"[Petitioner's Counsel] At the time you represented Mr. McHugh, Mr. Burns,

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were you familiar with what--were you familiar with the term, shock probation?

[Mr. Burns] No.

[Petitioner's Counsel] Were you familiar with what the requirements and the various perimeters of that remedy for defendants were?

[Mr. Burns] No.

[Petitioner's Counsel] Were you familiar at all with the parole system?

[Mr. Burns] Vaguely.

[Petitioner's Counsel] Okay. At the time you represented Mr. McHugh, did you know whether or not he would ever actually be eligible for parole?

[Mr. Burns] Could you repeat the question, please?

[Petitioner's...