Owen v. State, 1--275A32

CourtCourt of Appeals of Indiana
Citation167 Ind.App. 258,338 N.E.2d 715
Docket NumberNo. 1--275A32,1--275A32
PartiesRichard L. OWEN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
Decision Date16 December 1975

Harriette Bailey Conn, Public Defender, Darrell F. Ellis, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellee.

LOWDERMILK, Judge.

Defendant-appellant Richard L. Owen (Owen) brings this appeal from a denial of his petition for post-conviction relief.

FACTS.

In October, 1970, Owen was charged with the crime of robbery while armed. However, after negotiations between Owen's trial attorney and the prosecutor, the original charge was dismissed and Owen pled guilty to a charge of theft.

The record discloses no further action with regard to the theft conviction until October, 1971, at which time the trial court received a petition for post-conviction relief, which alleged that the guilty plea was 'obtained by trick,' and that Owen's counsel was 'ineffective.' Owen's name appears on the petition, and the body of the petition makes it clear that it was directed to the theft conviction. This petition, however, was not signed by Owen, nor was it notarized.

Nonetheless, upon receiving the petition, the court forwarded a copy to the prosecutor and appointed a public defender for Owen. Although the State filed an answer to the petition it does not appear that a hearing was held. On December 7, 1971, the court denied the petition, and Owen received word of the same sometime shortly thereafter. No appeal was taken from this denial.

Next, on November 20, 1973, a second, pro se, petition for post-conviction relief was filed by Owen; this one generally alleging that the court violated rights under the Indiana and United States Constitutions. The facts set out in the petition in support of the alleged error establish that the 'violations' were a failure to advise Owen of certain constitutional rights (i.e., self-incrimination, confronting accusers, cross-examination) before his guilty plea was accepted.

Again the trial court appointed a public defender for Owen, and the State filed answers to the original petition and an amended petition filed by Owen's appointed counsel. A hearing was subsequently held and the trial court denied the petition, specifically finding that a prior petition had been filed and denied, and that Owen had failed to establish the allegations of error contained in the second petition.

ISSUES.

The only issue presented by Owen is whether his guilty plea was knowingly and intelligently entered. 1 Before considering this issue, however, we must address two preliminary questions raised by the State, namely:

1) Whether Owen has waived the present question by failure to include it in the first petition.

2) Whether Owen is estopped to deny his plea bargain with the State.

I.

The State's first argument is based on Indiana Rules of Procedure, Post-Conviction Rule 1, Sec. 8, which states:

'Waiver of or failure to assert claims. All grounds for relief available to a petitioner under this rule must be raised in his original petition. Any ground finally adjudicated on the merits or not so raised and knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the petitioner has taken to secure relief, may not be the basis for a subsequent petition, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original petition.'

The State contends that Owen had an opportunity to raise the present allegations in the original petition and that the failure to do so amounts to a waiver of the same. Further, the State asserts that Owen could have appealed the prior denial, but that he did not. Therefore, the State urges the trial court was correct in denying relief on the basis of waiver.

Initially, we find the State's formulation of waiver under P.C.R. 1, Sec. 8 is essentially correct. See, McKinley v. State (1975), Ind.App., 325 N.E.2d 470, and cases cited. However, before deciding this issue we must consider additional facts and other sections of P.C.R. 1.

P.C.R. 1, Sec. 2, states that

'A proceeding under this rule is commenced by filing three (3) copies of a verified petition with the clerk of the court in which the conviction took place. No deposit or filing fee shall be required.'

Further, Sec. 3 provides that

'The petition shall be made under oath and the petitioner shall verify the correctness of the petition, the authenticity of all documents and exhibits attached to the petition, and the fact that he has included every ground for relief under Sec. 1 known to the petitioner.'

We also note the following testimony by Owen given at the hearing on the second petition:

'Q. Mr. Owen, are you familiar with a Petition for Post Conviction Relief that was filed in October of 1971?

A. I know that it was filed.

Q. Now would you please tell the Court how that Petition for Post Conviction Relief, with your name on it, came to be filed?

A. At the prison they have a writ room, which inmates work in, and one of the inmates that was working at the writ room at that time, approached me and asked me to explain to him about my case, which I did. Actually that's all I know, except that I got a letter about two months later from the Court saying that the Petition for Post Conviction had been denied.

Q. What did you do at that time?

A. I wrote to the Public Defender, because in the Petition it said that a Public Defender had been appointed.

Q. Now, prior to receiving the notice of denial, did you know that a petition on your behalf had been filed?

A. No, I didn't.

Q. And did you sign or verify that petition that had been filed?

A. No, I hadn't.'

Finally, we consider the following finding of fact which was made in denying the first post-conviction petition:

'6. That the Petition for Post-Conviction Relief is not made under oath, the correctness is not verified and the Petition and copies are unsigned and not dated, and do not comply with the provisions of P C R 1, Section 3 of the Indiana Rules of Procedure for Post-Conviction Remedies.'

The above facts make it clear that although both Owen and the trial court acknowledge that the first petition was not verified, the matters contained therein were disposed of on their merits. We must now decide whether this action was correct, and thus whether Owen has waived his present allegations.

In light of the proscriptive effect of P.C.R. 1, Sec. 8, and the additional facts set forth above, we conclude that the trial court should not have reached the merits of the first post-conviction petition. It follows, therefore, that the denial of the petition, which we find fatally defective for lack of verification, could not operate as a waiver of the question presently before us.

Section 8, set out above, requires that all grounds for relief be set out in the first petition or be waived. Further, each petition contains a statement that the petitioner has reviewed the petition and that all grounds for relief are stated therein. This statement has the effect of finally closing the door to post-conviction remedies by such a procedure, and, rightfully, there is a requirement that the petitioner sign the petition and have it notarized as evidence that he has reviewed all of the contents and the waiver statement.

We believe that no undue burden is cast upon the trial court to ascertain whether a petition has been properly verified. In cases where the petition is not properly completed, the trial court should return the petition for verification. By such a procedure, trial courts will be assured that they are considering all of a petitioner's allegations, and the petitioner will be denied the issue of lack of verification if he appeals a trial court's adverse decision. We do not consider the requirement of verification a mere technicality, and we believe that insistance on such a requirement implements the finality that P.C.R. 1, Sec. 8 was intended to embody.

We thus move to a consideration of Owen's second petition--actually, his first properly filed petition--and the single argument therein. We note that Owen complied with the verification requirement in the present petition, and thereby swears that no other grounds of relief exist.

II.

The State's second argument is that Owen cannot now repudiate or attack the plea bargain which was obtained.

Whatever the merit of the State's position, we do not believe that such an argument squarely meets the issue here involved. The fact that a lesser crime was exchanged for a greater one does not preclude the defendant from attacking such a bargain where he alleges that he was not adequately advised as to the consequences of such a bargain. We are here confronted with a question of constitutional dimensions. The State must show not only that the defendant has accepted the deal offered, but that the deal was accepted with the knowledge that such acceptance means there will be no trial, no jury and no questioning of witnesses.

The fact that the defendant receives benefit as a result of the plea bargain in terms of a reduction of sentence does not preclude a consideration of the question of whether such a benefit was knowingly accepted as part of a bargain (or exchange) which involves the waiver of several constitutional rights.

III.

The pertinent parts of the arraignment here challenged disclose the following:

'Q. Richard L. Owen, do you have any attorney representing you?

A. Yes sir.

Q. Richard L. Owen and Steven Scott, have you had the opportunity to consult with Mr. Dugan concerning the charge of theft which has been filed in this matter?

A. Yes, Your Honor.

A. Yes, Your Honor.

Q. And do you fully understand the charge, each of you?

A. Yes, Your Honor.

A....

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