Peterson v. State, 30521

Citation206 N.E.2d 371,246 Ind. 452
Decision Date28 April 1965
Docket NumberNo. 30521,30521
PartiesWayne Marlin PETERSON, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Barrie C. Tremper, Meyers & Tremper, Ft. Wayne, for appellant.

Edwin K. Steers, Atty. Gen., Carl E. Van Dorn, Asst. Atty. Gen., for appellee.

MYERS, Judge.

Appellant was charged by indictment in Allen County, Indiana, with the offense of robbery. A trial by jury was held on June 3, 1958, and a verdict of guilty as charged was rendered. He was sentenced to be imprisoned in the Indiana State Prison for an indeterminate term of not less than ten nor more than twenty-five years.

On October 28, 1960, appellant filed a petition for a writ of coram nobis in the Allen Circuit Court. In this, he alleges grounds which are usually included in a motion for new trial, such as that there were multiple errors of law and fact in the record of the trial, that there was insufficient evidence to convict him, that the verdict was contrary to law, and that there were numerous erroneous rulings by the court. He further alleges that he had employed certain members of the bar in Fort Wayne to represent him at the trial of his case, which they did; that upon receiving an adverse decision, they promptly filed a motion for new trial which was overruled; that appellant desired to appeal to the Supreme Court of Indiana, but had expended all his property and funds in the trial of his case and thereafter was a pauper; that his attorneys said they would file proper proceedings with the trial court in order for him to perfect an appeal in forma pauperis; that petitions were filed for him to take an appeal as a pauper, for the appointment of counsel to represent him, and for a transcript of the record at public expense; that the court overruled these petitions; that he was deprived of his rights as granted him by Article 1, Sections 12 and 13, of the Constitution of Indiana, and the Fourteenth Amendment to the Constitution of the United States; that he requested a new trial and other appropriate relief. Notice of the petition for the writ was filed with the office of the Attorney General.

On June 7, 1961, a second paragraph of 'complaint' was filed in which appellant alleges that he had moved for the appointment of a Special Judge pursuant to the then existing Supreme Court Rule 2-40 which pertained to writs of error coram nobis (since that time, this court has abolished these writs and all proceedings in connection with them and has substituted new Rules 2-40 and 2-40A which provide for belated motions for new trial with right of review in the Supreme Court by writs of certiorari). Appellant claims that no action was taken on his petition for over a period of seven months, and that, therefore, he was denied justice speedily and without delay as guaranteed by the Indiana Constitution.

Thereafter several attempts were made to select a Special Judge to hear the cause, finally resulting in the qualification of a Special Judge on January 3, 1962, selected from the third panel appointed by the Regular Judge. On February 19, 1962, the Special Judge denied appellant's motions as follows:

'Defendant's motion to proceed, being moot, is now by the Court denied.

'Defendant's request for leave to appeal and defendant's application for writ of error coram nobis are now by the Court denied.

'Defendant's motion for subpoena for Norbert Wyss, being moot, is now denied, and defendant's motion to appear in person, being moot, is now by the Court denied.'

Appellant applied for a writ of mandate to this court to supply him with counsel and a transcript in order to appeal the above decision by the Special Judge. This was denied. He then made application to the Supreme Court of the United States and obtained a writ of certiorari which resulted in the following order:



'On Petition for Writ of Certiorari to the Supreme Court of Indiana.

No. 415, Misc. Decided March 25, 1963.


'The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded for further consideration in light of Lane v. Brown [372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892], No. 283, October Term, 1962, decided March 18, 1963.' [372 U.S. 596, 83 S.Ct. 948, 9 L.Ed.2d 976]

On July 12, 1963, we directed the Allen Circuit Court to furnish appellant with a transcript and counsel for the purpose of 'appealing' the denial of his petition for writ of error coram nobis. Counsel was consequently appointed on September 4, 1963, and on September 17, 1963, a praecipe for a complete transcript of the entire record in the coram nobis proceedings was directed to the Clerk of the allen Circuit Court. Such transcript was prepared and filed.

It is apparent from this record that appellant has confused the remedy that he is seeking. What he wants now, and what he his wanted all along, is an appeal of his conviction of robbery to this court. He is entitled to this as a matter of constitutional right. His lawyers...

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2 cases
  • Woods v. State, 1-281A63
    • United States
    • Indiana Court of Appeals of Indiana
    • 29 Septiembre 1981
    ...constitutional rights. Woods correctly asserts that a convicted defendant has a constitutional right to appeal. Peterson v. State, (1965) 246 Ind. 452, 206 N.E.2d 371. However, the method and procedure is generally a matter conferred by statute. In re Pisello, (1973) 155 Ind.App. 484, 293 N......
  • Peterson v. State, 31125
    • United States
    • Indiana Supreme Court of Indiana
    • 6 Marzo 1968
    ...overruled, which brings about this appeal. It should be understood that this is the second appeal. See: Peterson v. State (1965) Ind., 206 N.E.2d 371. A fair statement of the evidentiary facts indicates the following: Appellant was arrested in Kalamazoo, Michigan; he was handcuffed and take......

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