Pedigo v. State
| Decision Date | 13 November 1980 |
| Docket Number | No. 2-379-A-72,2-379-A-72 |
| Citation | 412 N.E.2d 132 |
| Parties | Michael PEDIGO, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Ferd Samper, Jr., Grant Hawkins, Samper, Hawkins & Atz, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Michael Pedigo (Pedigo) appeals the decision of the Marion Criminal Court which denied his petition for post-conviction relief, claiming the trial court erred in finding that (1) he had not sustained his burden of proof, and (2) he had not been denied his fundamental right to counsel of choice.
We affirm.
The evidence most favorable to the State, which is necessary for our determination of this appeal, is as follows:
In March 1975, Pedigo retained Owen Mullin (Mullin) to represent him on a charge of first degree burglary; Mullin subsequently filed an appearance on behalf Gilroy represented Pedigo prior to trial (1) at an appearance before the court on April 2, 1975, at which time the trial court told Pedigo to be ready for trial on April 9, 1975; (2) in filing a petition for psychiatric examination of a co-defendant on April 3, 1975; and (3) at the hearing on the petition for psychiatric examination on April 8, 1975.
of Pedigo. However, on several occasions prior to trial Pedigo was represented by Richard Gilroy (Gilroy), who was not associated with Mullin but shared office space with him. At no time did Gilroy enter an appearance for Pedigo nor was he appointed by the court to represent Pedigo.
Gilroy also represented Pedigo at the jury trial held on April 9, 1975, the jury finding Pedigo guilty of first degree burglary. Gilroy again represented him at the sentencing held on May 1, 1975. Pedigo's Motion to Correct Errors was filed by Gilroy on June 3, 1975, and Gilroy was with Pedigo on July 11, 1975, at the hearing on the Motion to Correct Errors. (The record indicates that Mullin also was present at this hearing.)
Pedigo's direct appeal of his conviction was affirmed by this court on April 20, 1977. On March 27, 1978, a petition for post-conviction relief was filed in which Pedigo alleged that the trial judge improperly denied a continuance requested before trial by both Pedigo and Gilroy. The alleged request for continuance was made because Mullin, Pedigo's counsel of choice, was in trial elsewhere and could not appear for Pedigo at the time of his trial. After two hearings were held on the petition, it was denied by the trial court. Pedigo now appeals the denial of that petition.
1. Did the trial court err in finding that neither Pedigo nor Gilroy had objected at trial to representation by Gilroy? and
2. Did the trial court err in holding that the right to choice of counsel is a fundamental right, but that a timely objection is required to preserve the issue for appeal?
ISSUE ONE -Did the trial court err in finding that neither Pedigo nor Gilroy had objected at trial to representation by Gilroy?
PARTIES' CONTENTIONS -The essence of Pedigo's appeal is that the trial court denied him the right to counsel of choice by forcing him to trial with Gilroy as his legal representative. Pedigo maintains that Gilroy was present in court the morning of trial solely to request a continuance because Mullin was in court elsewhere and hence unavailable to try Pedigo's case. 1 He contends that the uncontradicted evidence shows he timely objected either before or at trial to representation by Gilroy. The State alleges that Pedigo did not meet his burden of proof.
CONCLUSION -The trial court properly found that neither Pedigo nor Gilroy objected at trial to representation by Gilroy.
Pedigo, in appealing from the denial of his petition for post-conviction relief, has the burden of proving grounds for relief by a preponderance of the evidence. Carroll v. State, (1976) 265 Ind. 423, 355 N.E.2d 408. A post-conviction relief hearing is in the nature of a civil action, and an appeal from the denial of post-conviction relief is equivalent to an appeal from a negative judgment. Only if the evidence is without conflict and leads to but one conclusion when the trial court has reached the opposite conclusion will Pedigo prevail. Walker v. State, (1978) 267 Ind. 649, 372 N.E.2d 739; Roberts v. State, (1975) 263 Ind. 53, 324 N.E.2d 265.
The trial court obviously was not persuaded by Pedigo's evidence, finding:
(e) That the Petitioner makes no comment about the effectiveness of Mr. Gilroy's representation ...;
(f) That the Petitioner failed to object on the record to proceeding to trial without his counsel of choice;
(g) That Mr. Gilroy failed to object on the record to proceeding to trial.
Record, at 192 (Findings of Fact).
The evidence does not unequivocally show that either Pedigo or Gilroy timely or properly objected to proceeding to trial. The testimony given at the hearing on the petition for post-conviction relief indicated that the tapes recording the testimony at the original trial were out of order and contained gaps and skips. 2 However, no objection appears in the record of the original trial, which was filed in the direct appeal.
Further, Gilroy, who testified at the hearing, did not state without qualification that he objected to proceeding to trial under these circumstances:
Q. Did Judge Tranberg ... indicate it would go to trial regardless of who was there, indicate that the case would go to trial whether Mr. Mullin was there or whether you had to do it in his stead, do you remember how far Judge Tranberg's statement went?
A. No I don't for sure, I really don't.
Q. Do you remember whether or not Mr. Pedigo, on the record, ever objected to your trying the case instead of Mr. Mullin?
A. I can't remember whether he did or not.
Q. Do you remember if you did?
A. Well, I'll state that, of course the record speaks for itself, but I'll state that I thought I did, and if it's, if there are parts of the record that are not available, fine, if the record shows that I didn't, then obviously I didn't, but I thought I did, I thought we asked for a continuance either at the pre-trial before, directly before that trial, or the day of trial.
Record, at 245 (emphasis added). Finally, Gilroy implied that Pedigo did not object:
Q. O.K. To your knowledge, did Mr. Pedigo ever make his objections known to the Court that he didn't want you to represent him?
A. Well I would have done that.
Q. O.K., you would have done that, but to your knowledge, he didn't, of his own accord, on questions by the Court say that, did he?
A. I don't believe he was ever questioned about it.
Id. at 247 (emphasis added).
We believe that from a review of the evidence presented at the hearing there is considerable doubt whether Pedigo or Gilroy objected to proceeding to trial. Pedigo has not sustained his burden of showing the trial court erred: the evidence is conflicting, and thus the conclusion of the trial court is not contrary to the evidence. See Walker v. State, supra.
ISSUE TWO -Did the trial court err in holding that the right to choice of counsel is a fundamental right, but that timely objection is required to preserve the issue for appeal?
PARTIES' CONTENTIONS -Pedigo contends that denial of the choice of counsel is fundamental error which can be raised on appeal without an objection at trial. The State counters that while denial of the right to counsel is fundamental error, denial of the right to choice of counsel is not.
CONCLUSION -Unreasonable denial of the right to choice of counsel is fundamental error, but Pedigo has not shown that his right to choice of counsel was denied.
Our conclusion in Issue One that the trial court properly found that neither Pedigo or attorney Gilroy objected at trial to Gilroy's representation is tantamount to saying that the right was never asserted and therefore was waived. Thus the stage is set to consider Pedigo's assertion that it was fundamental error to require him to go to trial without counsel of his choice.
Pedigo places great reliance on Fitzgerald v. State, (1970) 254 Ind. 39, 257 N.E.2d 305, for the proposition that the denial of the right to choice of counsel is fundamental error. The State distinguishes Fitzgerald because that case involved only the right to counsel.
In Fitzgerald, the supreme court reversed the conviction because the defendant had been tried without an attorney despite a clear request for counsel. Although the defendant in that case had attempted to thwart the trial court from proceeding to trial, it was improper to force him to trial without counsel. Id. at 48-49, 257 N.E.2d at 312.
Although Fitzgerald dealt with the right to counsel, the court also discussed the right to choice of counsel:
It is a well settled principle of law that a defendant charged with a crime is entitled to be represented by counsel. Art. 1, § 13, Constitution of Indiana; State v. Minton, (1955) 234 Ind. 578, 130 N.E.2d 226; Hoy v. State, (1947) 225 Ind. 428, 75 N.E.2d 915. It is further settled that a defendant in a criminal trial has a right to have an attorney of his own choice if he is financially able to employ such an attorney.
The court did not go further, so we review some of the cases involving fundamental error.
Fundamental error has been described by this court as a doctrine that "permits a reviewing court to consider the merits of an improperly raised error if the reviewing court finds that 'the record reveals error so prejudicial to the rights of the Appellant that he could not have had a fair trial.' " Winston v. State, (1973) 165 Ind.App. 369, 373, 332 N.E.2d 229, 231 (citing Grier v. State, (1968) 251 Ind. 214, 216-17, 240 N.E.2d 494, 496).
Nelson v. State, 409 N.E.2d 637 (1980) Ind., is instructive. In rejecting the contention that the right to have certain...
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