Paneitz v. State, 174S8

• Decision Date: 04 November 1974
• Docket Number: No. 174S8,174S8
• Citation: 318 N.E.2d 353,262 Ind. 473
• Parties: Harold PANEITZ, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 353

318 N.E.2d 353

262 Ind. 473

Harold PANEITZ, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 174S8.

Supreme Court of Indiana.

Nov. 4, 1974.

Rehearing Denied Jan. 2, 1975.

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

Theodore L. Sendak, Atty. Gen., Alan L. Crapo, Jr., Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

This is an appeal from the denial of a petition for post-conviction relief. Appellant, petitioner below, presents two (2) issues in his brief for our consideration:

'(1) Whether the court erred in summarily disposing of the Defendant's Petition for Post-Conviction Relief without a hearing.

'(2) Whether the court erred in not granting the Defendant's Motion for Summary Disposition.'

Appellant was charged by affidavit in the Tippecanoe Circuit Court in 1963, with vehicle taking and being an habitual criminal. Appellant was tried by jury and found guilty upon both counts. He was sentenced to not less than one (1) nor more than ten (10) years for vehicle taking. He was sentenced to life imprisonment as an habitual criminal. Appellant's conviction was affirmed on appeal. See Paneitz v. State (1965), 246 Ind. 418, 204 N.E.2d 350.

Appellant filed his petition for post-conviction relief without the assistance of counsel. One of the grounds advanced by appellant in his pro se petition was inadequacy of his trial counsel. After the filing of his petition, counsel was appointed to assist appellant in presenting his claims. Counsel apparently found appellant's contention on the inadequacy of trial counsel to be without substance. Thus counsel, in his motion for summary disposition pursuant to post-conviction remedy Rule PC 1, § 4(f) stated: '6. The issue of ineffective assistance of counsel is not material to the disposition of this cause.' In the same motion, counsel further stated that: '1. There is no genuine issue of material fact in this cause.' Our post-conviction remedy rule 1 § 4(f) provides that summary disposition is proper:

'. . . when it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submited, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The court may ask for oral argument on the legal issue raised. If an issue of material fact is raised, then then court shall hold an evidentiary hearing as soon as reasonably possible.'

Appellant now argues that the court erred in disposing of his petition without holding a hearing as required by the above stated rule. The rule requires that a hearing be held only when there is an issue of material fact. The only ground for relief advanced by appellant in his petition for post-conviction relief which might have presented an issue of material fact was the competency of counsel. Yet appellant expressly withdrew this issue from the court in his motion for summary disposition. Hence, there was no error in disposing of appellant's motion without an evidentiary hearing.

Appellant next argues that the court erred in failing to grant his motion for summary disposition. The sole issue presented is whether the dictates of Lawrence v. State (1972), Ind., 286 N.E.2d 830, are applicable to appellant. In Lawrence, we held that due process required a bifurcated proceeding where the defendant was charged in a single affidavit with a substantive offense and under the recidivist statute. Since Lawrence was before us on direct appeal, we reversed and ordered a new trial in accordance with the procedure outlined in our opinion. In Enlow v. State (1973), Ind., 303 N.E.2d 658, we were faced with the retroactivity of the Lawrence decision. In Enlow we held that Lawrence was applicable to cases decided on direct appeal after September 11, 1972, the date Lawrence was handed down. The question remaining after Enlow was whether Lawrence would be applicable to all prior convictions which might be challenged under our rules of post-conviction relief. It is...