Payne v. State, 1070S239

• Decision Date: 04 October 1973
• Docket Number: No. 1070S239,1070S239
• Citation: 261 Ind. 221,38 Ind.Dec. 732,301 N.E.2d 514
• Parties: Robert PAYNE, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Supreme Court

Page 514

301 N.E.2d 514

261 Ind. 221

Robert PAYNE, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 1070S239.

Supreme Court of Indiana.

Oct. 4, 1973.

Ronald C. Smith, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

This is an appeal from a denial of post-conviction relief ordered by the Lake Criminal Court. In August, 1962, appellant was charged by affidavit with the crime of inflicting an injury in the perpetration of a robbery. The cause was set for trial and pauper counsel was appointed for appellant. In September, 1962, appellant entered a plea of guilty, and was sentenced to life imprisonment. In May, 1970, appellant filed his petition for post-conviction relief pursuant to PCR 1 with the Lake Criminal Court. A full hearing was had on the petition, at the conclusion of which the trial court denied relief. A motion to correct errors was timely filed and denied. This appeal followed.

The appellant, both in his petition for post-conviction relief and on appeal, argues that his sentence should be modified and/or vacated for the following reasons:

1. Appellant was denied his right to effective counsel.

2. Appellant was held incommunicado in a hospital and prohibited from being seen by his family or by counsel for twenty-four (24) days after his arrest. During this period of time, statements were allegedly taken from him by police officers, which were subsequently used to induce his guilty plea.

3. Appellant's guilty plea was not knowingly and voluntarily given.

4. Appellant was not engaged in the robbery when the shooting occurred and, hence, cannot be guilty of the crime charged.

PCR 1 § 5 provides that the 'petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence.' The trial court, after a full hearing, concluded that the appellant had failed to satisfy the above-stated assigned burden. We, therefore, must review the evidence adduced at the post-conviction proceeding and determine whether such a finding is sufficiently supported by the evidence.

The trial court made the following findings of fact:

'1. That in Lake County Criminal Court on September 7, 1962, the defendant and petitioner was sentenced to imprisonment for life by the Honorable John H. McKenna, Judge of said court. That after an examination and review of the transcript of the defendant's plea entered in said cause, the court finds that the defendant and petitioner's allegations under 7--a--1 not to be based on fact, and that the defendant had the benefit of, and was accorded, effective, competent counsel prior to and at the time of the entry of his plea of guilty in said cause.

'2. With respect to the allegations of 7--a--2 of the defendant and petitioner's petition, the court finds that the same is not based on fact. That due to the defendant's physical condition he was kept under police guard at St. Catherine's Hospital for medical treatment for a period of approximately twenty-four days, but that defendant was not denied the right to have the benefit of the services of an attorney during said period of time; that as a necessary precautionary measure, the defendant's privilege of having visits from members of his family was restricted and held to a minimum by police order.

'3. That after a review of the transcript of the defendant's plea, the court finds that the defendant's allegations under 7--a--3 not to be based on fact, that the defendant was fully and properly advised of his constitutional rights and entered his plea freely, knowledgeably and without coercion, and with full knowledge of the consequences thereof.

'4. That a review of the record shows that the defendant's allegations under 7--b not to be based on fact, and that at the time of the infliction of the injury which defendant was convicted of, said robbery was still in progress, and that the defendant was at said time attempting to flee from the scene of said crime, which by his own admission under oath he had participated in.'

Section 13 of the Indiana Constitution guarantees a criminal defendant the right to counsel. Furthermore, this Court has long held that an accused has the right to be effectively represented by counsel. Castro v. State (1925), 196 Ind. 385, 147 N.E. 321; Wilson v. State (1943), 222 Ind. 63, 51 N.E.2d 848; Thomas v. State (1969), 251 Ind. 546, 242 N.E.2d 919. An accused is entitled to an adequate defense whether the attorney is appointed by the court or retained by the accused. Wilson, supra.

The issue, therefore, in the case at bar, is whether or not the accused was afforded competent, effective counsel.

There are no precise rules regarding the adequacy of legal representation; each case must be judged on the basis of the facts attendant thereto. Thomas v. State, supra. However, there are some general procedural principles which guide a reviewing court.

Trial counsel is presumed to be competent. Haddock v. State (1973), Ind., 298 N.E.2d 418. This presumption can be overcome only if it can be established that what the attorney did or failed to do made the proceedings a mockery and shocking to the conscience of the court. Haddock v. State, supra.

The record discloses the following facts:

Appellant testified that counsel conferred with him for approximately ten minutes on the morning of September 10, 1962, for approximately ten to fifteen minutes that afternoon, and for five to ten minutes on September 11, 1962, prior to sentencing. The attorney testified that he was appointed September 6, 1972, and conferred with the appellant for approximately twenty minutes on September 7, 1962. He also conferred with the other two participants in the robbery. Appellant told his lawyer that he felt he was not guilty of inflicting an injury in the perpetration of a robbery. Counsel discussed the case with one of the police officers involved and learned the results of the police investigation. The prosecutor's office opened their files to him and he discussed the case with a deputy prosecutor for more than an hour. He researched the legal question involved in the...