Penn v. State

• Decision Date: 08 November 1961
• Docket Number: No. 30046,30046
• Parties: Robert Earl PENN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 889

177 N.E.2d 889

242 Ind. 359

Robert Earl PENN, Appellant, v. STATE of Indiana, Appellee.

No. 30046.

Supreme Court of Indiana.

Nov. 8, 1961.

Albert L. Doyle, Mishawaka, for appellant.

Edwin K. Steers, Atty. Gen., Harriette Bailey Conn, Deputy Atty. Gen., Walter J. Bixler, Pros. Atty., Peru, for appellee.

ACHOR, Judge.

This is an appeal from a judgment entered on May 20, 1959, in the Miami Circuit Court, wherein the court denied appellant a writ of error coram nobis. By this action appellant attacks the validity of proceedings in the Miami Circuit Court by which he had previously been convicted upon his plea of guilty of robbery with physical injury inflicted during robbery, under Acts 1941, ch. 148, § 6, p. 447 [§ 10-4101, Burns' 1956 Repl.]. ¹ Appellant here urges that the finding herein is contrary to law for the following reasons:

'One: 'The appellant before and after arrest and prior to sentencing was denied his constitutional rights.'

'Two: 'Prior to sentencing, the appellant was not properly and adequately advised of his constitutional rights.'

Three: 'The appellant was not properly and legally committed.' Brief for Appellant p. 38.

We now consider the arguments advanced by appellant in the order above stated.

One: In support of his contention that his arrest was illegal, appellant relies upon the fact that, in his verified petition for writ of error coram nobis, appellant stated that he was arrested in the state of Michigan on the 30th day of April, 1955; that he waived extradition and voluntarily returned to the state of Indiana; that he was placed in the Miami County jail and there was held in custody by the sheriff until May 10th without having been taken before a magistrate. Because these verified allegations of fact were not denied by any pleading filed by the state, or refused by any direct evidence at the hearing, appellant contends that they must be accepted as true and that the illegality of appellant's arrest is thereby established as a matter of law. ²

The facts which appellant has alleged under oath do not necessarily mean that his arrest in the state of Michigan and his imprisonment in the state of Indiana pending arraignment were contrary to law. Although the facts stated in the affidavit for writ of error coram nobis will, under Rule 2-40A of this court, 'be considered as evidence without the introduction thereof on the trial of the petition,' this does not necessarily mean that the statements therein contained must be accepted as true merely because they are not categorically denied. They may be discredited or contradicted by other facts which are made to appear in the proceedings, and when this circumstance exists it is the duty of the trial court to weigh all the evidence and resolve the apparent conflict in the evidence. Schmittler v. State (1950), 228 Ind. 450, 465, 93 N.E.2d 184. ³

On appeal, all the presumptions are in favor of the regularity of the proceedings in the trial court. Dobson v. State (1961), Ind., 177 N.E.2d 395. Therefore, this court will not disturb the judgment of the trial court except upon proof of error.

In this particular case appellant's verified petition has not stated by whom or under what circumstances or upon what charges, if any, he was arrested in the state of Michigan. For all that appears, his arrest in Michigan may have been 'in hot pursuit' following the crime in Indiana on the same day, or it may have been made for a different crime committed in the state of Michigan. Under either circumstance we must assume that the arrest was legal. It does appear from the record before us that appellant was charged by affidavit in the Miami Circuit Court on May 2, 1955 with the crime with which we are here concerned and that he was arrested on May 4, 1955, with bail set. Under appellant's own statement, he waived extradition and voluntarily returned to the state of Indiana to answer the charges upon which he was convicted in this state. From the record before us we cannot determine that appellant was illegally arrested in the state of Michigan or that he was returned to the state of Indiana in contravention of the laws concerning the rendition and extradition of fugitives.

Furthermore, appellant's complaint, with respect to his arrest, that he was not promptly brought before a magistrate pursuant to the provisions of Acts 1939, ch. 137, § 1, p. 671 [§ 9-704, Burns' 1956 Repl.], is without merit. The statute upon which appellant relies has no application in this case. It is applicable only under circumstances where the warrant of arrest is issued by a magistrate, justice of the peace or city judge. However, in the case at bar appellant was arrested on authority of a bench warrant issued by and pursuant to an affidavit filed in the Miami Circuit Court, under authority of §§ 9-908 ⁴ and 9-1001, ⁵ Burns' 1956 Repl. Under this procedure appellant had no right to a preliminary hearing before a magistrate, but only to be arraigned and to be let to bail in the Circuit Court. See: Sisk v. State (1953), 232 Ind. 214, 222, 110 N.E.2d 627. This procedure was followed.

In contradition to appellant's general contention that his constitutional rights were violated with regard to the manner of his arrest and the time of his arraignment, it appears of record that he was formally charged with the crime for which he was arrested on affidavit filed in the Miami Circuit Court on May 2; that he was arrested under authority of a warrant on May 4, with bail set on that day; and that he was arraigned on May 10, six days after his arrest under the warrant issued by reason of the offense committed.

Under the facts above presented, it does not appear that any of appellant's constitutional rights were violated with respect to the time and manner of his arrest or of his retention prior to arraignment.

Two: Appellant contends that he was not properly and adequately advised of his constitutional rights prior to the entering of his plea of guilty and sentencing. Although we agree that the record does not demonstrate in clear and unequivocal language that appellant was specifically informed regarding all his constitutional rights, or that he understood all of such rights before entering his plea of guilty nevertheless we are not able to say from all the record as it appears before us that appellant was not fully informed regarding his constitutional rights prior to his entering a plea of guilty.

It should be noted that appellant had been provided with counsel at public expense and we must assume that the counsel discharged his duty by informing his client regarding the nature of the crime with which he was charged, the penalty imposed, and appellant's constitutional rights to trial by jury, to subpoena and be confronted by witnesses, etc., and this presumption will prevail until overcome by strong and convincing proof. Dowling et al. v. State (1954), 233 Ind. 426, 431, 118 N.E.2d 801.

Furthermore, the record discloses that the court instructed other defendants regarding their constitutional rights in the presence of the defendant and when he interrogated the defendant the latter stated that he had heard and understood his constitutional rights as they had been explained to other defendants.

Also, it is to be noted that in this case, although appellant alleged in his affidavit and stated on the witness stand that he was not fully informed as to his constitutional rights either by his court-appointed counsel or by the court itself, an examination of his affidavit and testimony upon this subject discloses that the only specific matter regarding which he asserts that he was not fully informed is the fact that the offense with which he was charged and to which he pleaded guilty carried a sentence of life imprisonment. However, there is serious conflict even upon this issue. The record clearly shows that the court, before accepting appellant's plea of guilty, read the affidavit by which appellant was charged. Furthermore, according to the record at p. 32, the court read the controlling statute which, by clear and concise language, provided that for the crime the accused 'shall, upon conviction, be imprisoned in the state prison for life.' ⁶ And, according to appellant's own testimony, the court tried to explain the penalty which the crime imposed. Thus it appears, as a matter of record, that the appellant was informed regarding the penalty prescribed by the statute which defined the offense to which he pleaded guilty.

We next give attention to several contradictions in appellant's testimony which the trial court was required to consider in evaluating appellant's testimony. In appellant's verified petition he stated:

'[I]t is true petitioner entered a plea of not guilty on May 10th 1955, and only through inducements by the prosecuting attorney and the sheriff of said county, was this courts petitioner induced to change his plea, on the presumptions that the court would impose a maximum term which would not exceed 10 years.' Record, p. 27. [Emphasis added.]

This is a serious accusation, made with respect to public officers. However, at the hearing appellant concedes that no such representations were made by the prosecuting attorney. Appellant testified that the representation was made only by the sheriff. This contradiction could not be ignored by the trial court, nor will we do so.

A further contradiction to appellant's statement that his plea of guilty was the result of a false inducement made by the sheriff is found in the record, made at the time of appellant's commitment. At that time he stated that in order to exonerate his companion from any responsibility with respect to the crime he accepted full responsibility of the crime of robbing and bludgeoning the owner of a car with whom he and the companion were hitchhiking. At the hearing on coram nobis the appellant changed his story to the effect that he beat the owner of the automobile in a fit of rage...