Murphy v. State
Decision Date | 01 May 1985 |
Docket Number | No. 883S310,883S310 |
Citation | 477 N.E.2d 266 |
Parties | Willie MURPHY, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below). |
Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender of Ind., Carolyn J. Fitch, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen. of Ind., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for appellee.
The petitioner, Willie Murphy, is before this Court appealing from the denial of his petition for relief under Post-Conviction Relief, Rule 1. He pled guilty to rape and criminal deviate conduct on March 22, 1982, under a plea agreement in which he was sentenced to a term of imprisonment of twenty years. On September 16, 1982, petitioner filed his pro se petition for post-conviction relief alleging that the plea was not voluntarily entered because the state used the possibility of a habitual offender charge as a threat to force him to enter the guilty plea. He also alleged that there had been an improper lineup, insufficient evidence to prove that he was guilty, and ineffective assistance of counsel before the guilty plea was entered.
On October 25, 1982, the court appointed local pauper counsel for petitioner, in lieu of contacting the state public defender's office. A hearing on the petition for post-conviction relief was held on December 28, 1982, and the petition was subsequently denied. A deputy public defender was then appointed to continue the appeal. He filed a motion to correct errors alleging that the trial court erred by appointing counsel other than the state public defender to represent petitioner in the post-conviction proceedings and that petitioner was denied his right to effective assistance of counsel during the post-conviction proceedings.
At the outset it is recognized that petitioner had the burden of proving his grounds for relief by a preponderance of the evidence at the post-conviction relief proceeding. Ind.R.P.C. 1 Sec. 5; Turman v. State, (1979) 271 Ind. 332, 392 N.E.2d 483. In our review of the denial of a petition for post-conviction relief, this Court does not weigh the evidence or judge the credibility of witnesses. Only when the evidence is without conflict and leads to but one reasonable coclusion contrary to that reached by the trier of fact will the decision be reversed as contrary to law. Henson v. State, (1979) 271 Ind. 325, 392 N.E.2d 478.
Our Post-Conviction Rules clearly provide that the State Public Defender shall serve as counsel for a petitioner in all post-conviction proceedings in which the petitioner is indigent and is not proceeding pro se. Ind.Code Sec. 33-1-7-2 (Burns 1985 Repl.); Ind.P.C.R. 1 Sec. 9(a); Majors v. State, (1982) Ind., 441 N.E.2d 1375; Ferrier v. State, (1979) 270 Ind. 279, 385 N.E.2d 422. The trial court therefore erred in appointing local pauper counsel rather than notifying the public defender's office. However, we find the trial court's action would only constitute reversible error if petitioner could demonstrate that he was denied the effective assistance of counsel.
The standard of review pertaining to ineffective assistance of counsel claims is well settled in Indiana. There is a strong presumption that counsel is competent. Incompetency of counsel revolves around the particular facts of each case; the requirement is one of reasonably effective assistance under prevailing professional norms as set forth by the United States Supreme Court in Strickland v. Washington, (1984) --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674; Elliott v. State, (1984) Ind., 465 N.E.2d 707; Lawrence v. State, (1984) Ind., 464 N.E.2d 1291. This Court will not speculate as to what may have been the most advantageous strategy in a particular case. Isolated poor strategy, inexperience, or bad tactics do not necessarily amount to ineffective counsel. Hollon v. State, (1980) 272 Ind. 439, 398 N.E.2d 1273. A petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, --- U.S. at ----, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
Defendant contends that there are several examples of the ineffectiveness of his post-conviction counsel. First he alleges that ineffectiveness is shown because the counsel failed to call trial counsel as a witness at the post-conviction hearing. We considered a similar claim in McCann v. State, (1983) Ind., 446 N.E.2d 1293, where we stated:
The record here shows that trial counsel entered his appearance for petitioner three months prior to the guilty plea hearing. He filed numerous pretrial motions, including a lengthy objection to the state's petition to produce hair samples, and motions to suppress and to take depositions of the state's witnesses. The record shows a very adequate preparation for a possible trial by counsel. The record further shows that the trial court carefully followed all the statutory procedures at the guilty plea hearing when petitioner knowingly entered his plea of guilty to rape and criminal deviate conduct.
Petitioner does not allege that his trial counsel did not see him or talk to him but only that the counsel didn't really explain the effect of the plea agreement to him in words he could understand. The post-conviction court found no merit to this argument since the petitioner prepared his own pro se petition in his own handwriting and therefore obviously understands the English language. In short, we find nothing in the record or in petitioner's arguments to indicate that calling petitioner's trial counsel as a witness would have been beneficial to petitioner's case at the post-conviction hearing. The trial counsel apparently was well prepared and could not have supported petitioner's claim that he did not understand the consequences of entering the guilty plea. Under the circumstances of this case, the post-conviction counsel's decision not to call the trial counsel as a witness does not demonstrate incompetence or ineffectiveness.
Petitioner next contends that his post-conviction counsel was ineffective because he failed to present several issues to the post-conviction court and therefore waived these issues. One of these issues concerned the allegedly improper lineup procedure. After the guilty plea hearing, the petitioner learned that the victim had seen him at the police station prior to identifying him in a photographic lineup. Apparently petitioner learned this information from...
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