Popplewell v. State

Decision Date22 July 1986
Docket NumberNo. 984S336,984S336
Citation495 N.E.2d 189
PartiesDoyle POPPLEWELL, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender, Sheila K. Zwickey, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

Doyle Popplewell was convicted after trial by jury of robbery, a class A felony, Ind. Code Sec. 35-42-5-1 (Burns 1985 Repl.), and he received a life sentence. His conviction was appealed directly to this court and we affirmed. Popplewell v. State (1978), 269 Ind. 323, 381 N.E.2d 79. Thereafter, he petitioned for post-conviction relief. We affirmed the denial of that petition. Popplewell v. State (1981), Ind., 428 N.E.2d 15.

This appeal is from the denial of his second petition for post-conviction relief, in which Popplewell alleged that his attorney in the first post-conviction proceeding was inadequate because she did not include the transcript of the trial in the record of the post-conviction proceedings.

We remand this cause for a new hearing on Popplewell's petition.

I. First Petition

The background of this appeal is complicated. After this Court affirmed his conviction on direct appeal, Popplewell filed pro se his first petition for post-conviction relief, alleging several errors from trial, including that he had received ineffective assistance of counsel. He claimed trial counsel had failed to investigate the facts and had not presented two witnesses Popplewell believed were necessary to his defense.

Popplewell also alleged ineffectiveness of appellate counsel. The attorney who represented Popplewell on direct appeal had expressly waived all but one issue from trial for our review. Popplewell, 381 N.E.2d 79.

At the hearing on the first petition, Popplewell was the only witness who testified in support of his claim that he received ineffective assistance at trial and on appeal. He stated that his trial attorney should have called to the stand or interviewed two potential witnesses whose testimony Popplewell felt would be beneficial. Popplewell denied having agreed with his appellate counsel to waive all but one issue for appeal.

The trial court denied the petition, concluding that Popplewell was not denied effective assistance of counsel at trial and on appeal. The court concluded further that Popplewell's allegation about the sufficiency of the evidence was not a proper issue in post-conviction proceedings and that all other issues from trial were waived because they were available on direct appeal.

On appeal from that denial of the first petition, the public defender argued that Popplewell had met his burden of proof and had shown he was denied effective assistance of counsel at trial and on appeal. Furthermore, the issues relating to the trial itself which had been waived in the first appeal were reasserted on the basis that appellate counsel should not have waived them. We held in Popplewell, 428 N.E.2d 15, that Popplewell had not carried his burden of proving ineffective assistance of trial counsel and affirmed the post-conviction court. In doing so, we upheld the post-conviction judge's determination with respect to Popplewell's claim that certain witnesses should have been called by trial counsel. With respect to the issues raised at trial and waived on appeal, we noted that Linda Waggoner, Popplewell's attorney in his first post-conviction proceeding, had not included a transcript of the trial in the record of the post-conviction proceedings. This Court said:

Perhaps the post-conviction judge did not need to refer to the transcript of the criminal trial in order to reach these conclusions; however, without that transcript we cannot determine whether or not Defendant successfully met his burden of proof with respect to the merits of the claimed errors. Popplewell, 428 N.E.2d at 17.

Thus, the trial court was affirmed on all issues.

II. Second Petition

Because Waggoner did not include the trial transcript in the record for appeal of the denial of his first petition, Popplewell brought a second post-conviction action, claiming she was ineffective in her representation of him.

At the hearing on the second post-conviction action, Waggoner testified that she was retained to represent Popplewell at the hearing on his first petition. There was a delay before she could obtain Popplewell's trial transcript from the clerk of the court, and she recommended to him that they move for a continuance. She informed Popplewell that the trial judge was not likely to grant relief, and that the deputy prosecutor was not responsive to an agreement she had proposed. Waggoner told her client that if a continuance were granted he might have an opportunity later to bargain with a different deputy prosecutor.

Popplewell told Waggoner that his goal was to "get into federal court" and that he wanted to proceed. He gave her his uncertified copy of the trial record for her use in preparation for the hearing.

As to her having not placed the trial transcript into evidence, Waggoner testified that, first, the arguments she had made about ineffective counsel related more to...

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3 cases
  • Smith v. State
    • United States
    • Indiana Appellate Court
    • September 6, 1990
    ...the Record of Proceedings in Cause No. 583 S 168 may be admitted into evidence and thus made a part of this appeal. See Popplewell v. State (1986), Ind., 495 N.E.2d 189 (where trial transcript was not introduced into evidence at post-conviction hearing, appropriate disposition was remand to......
  • Dexter v. State
    • United States
    • Indiana Appellate Court
    • June 18, 2013
    ...claim is without merit, he will simply file another petition for post-conviction relief raising the same claim. He cites Popplewell v. State, 495 N.E.2d 189 (Ind.1986), in support of his claim that he may file multiple petitions for post-conviction relief. In that case, Popplewell filed a s......
  • State v. Lovett
    • United States
    • Indiana Appellate Court
    • February 18, 2011

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