Powell v. State

• Decision Date: 25 October 1982
• Docket Number: No. 181S16,181S16
• Citation: 440 N.E.2d 1114
• Parties: Frank POWELL, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1114

440 N.E.2d 1114

Frank POWELL, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 181S16.

Supreme Court of Indiana.

Oct. 25, 1982.

John J. Rochford, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Frank Powell, Jr., was convicted of Rape, Ind.Code Sec. 35-42-4-1 (Burns Repl. 1979), Robbery, Ind.Code Sec. 35-42-5-1 (Burns Repl. 1979), Criminal Confinement, Ind.Code Sec. 35-42-3-3 (Burns Supp. 1982), and Theft, Ind.Code Sec. 35-43-4-2 (Burns Supp. 1982), at the conclusion of a jury trial in Marion Superior Court, Criminal Division II, on June 12, 1980. Powell received a term of twenty (20) years for the rape, eight (8) years for the robbery, twenty (20) years for the confinement, and four (4) years for the theft. The sentences were ordered to be served consecutively. Powell now appeals.

Appellant raises five errors on appeal, concerning:

1) whether the special judge had jurisdiction to preside over the cause; 2) whether there was incompetent representation of counsel; 3) whether the trial court failed to act properly upon Appellant's Suggestion of Insanity; 4) whether there was sufficient evidence to convict Appellant; and, 5) whether there was error in sentencing Appellant.

The evidence most favorable to the State shows that on November 24, 1979, the victim, P.B., arrived at her apartment shortly before 9:00 p.m., with her three year-old daughter. As P.B. took her daughter from her car, Appellant Powell approached and asked the victim if she knew where he could find Theresa Green, who had babysat for the victim. The victim said she did not know and Appellant left. Appellant later returned to the victim's apartment and asked if he could use her phone. She refused and he then forced open the door and entered the apartment. He slapped the three year old-child to the floor and told her to shut up. The victim calmed her daughter and asked Appellant not to hurt her daughter and asked what he wanted. Appellant asked if she had money and told her that was all he wanted, that he would leave and not hurt the two of them if she gave him the money. She gave him some money, hoping he would leave but he then said, "I need sex. I need sex bad," and began to tug at her and told her to strip. During the exchange, Appellant threatened to harm her if she did not follow his orders. He said "Don't try anything, because if you do I'm going to hurt you." The victim said her daughter was trembling with fear. The victim put her daughter in her bedroom and she and Appellant went to the daughter's room where she disrobed at Appellant's command. He then threatened her again and raped her. Afterwards, the victim emptied her purse for Appellant, who inspected the contents. The Appellant then forced the victim to go to the bathroom where he ordered her to wash her vagina with her fingers. He stated that he had done this before and he wanted to make sure a hospital test would not reveal that he had raped her. He then pulled the victim into her daughter's bedroom and raped her again. Appellant then yanked the telephone cord out of the wall. He spotted someone outside the apartment so he took a knife from the kitchen drawer and said he would kill the victim if she ran or made any noise. He pulled her down the stairs to her automobile and ordered her, at knifepoint, into her automobile. After a short ride Appellant released the victim but took her automobile. P.B. testified that at one point Appellant slapped her, and during the entire encounter she feared for her safety and that of her daughter.

I

The prosecution of Appellant began on November 28, 1979, with the filing of a four count information before the Honorable Webster Brewer, regular Judge of the Superior Court of Marion County, Criminal Division II. On February 21, 1980, the day the cause was set for trial, the regular Judge orally appointed the Honorable Sam Blum as Special Judge in this cause, due to the congestion of the court's calendar. It is admitted that the regular Judge did not follow the procedures required under Ind.R.Crim.P. 13 in making the appointment of a special judge. It is also admitted that Ind.Code Sec. 33-9-4-1 gave authority for a presiding judge of a criminal court to appoint a special judge sua sponte when the business of such court became congested. This statute was repealed, however, effective January 1, 1979, Acts 1978, P.L. 2 Sec. 3309.

When Judge Brewer made the appointment of the special judge, the following took place:

"THE COURT: .... Is there any objection to Sam Blum acting as Special Judge in this matter?

MR. HARROLD [Defense Counsel]: Judge, ...

MR. CONWAY [Counsel for the State]: None by ... go ahead.

THE COURT: All right, then let ...

MR. HARROLD: ... the defendant has no objection. Excuse me, Mr. Conway.

THE COURT: All right. The record shows that the defendant and the State has no objection.

MR. CONWAY: State has no objection."

At this point, the State and Appellant had entered into a plea agreement in which Appellant had agreed to plead guilty to two of the four charges and the State had agreed to dismiss the remaining two charges. This plea agreement was then submitted to the court and the court insisted that the appellant must admit the facts of all four charges with which he was charged before he would accept the plea of guilty to the two charges. Appellant insisted he needed only to admit to the truth of the facts of the confinement and the robbery to which he was pleading guilty and the State agreed they would be satisfied with that. Special Judge Blum, however, would not accept that. At this point, Defense Counsel Harrold moved to have the cause remanded to the regular judge to hear the case but Special Judge Blum overruled his motion as untimely. The Special Judge then reserved his acceptance of the guilty plea until March 14, 1980, and no more objection was raised for Sam Blum's role as Special Judge at this point. The plea agreement was later withdrawn and the cause set for trial. Appellant made no further objection to the service of Attorney Blum as Special Judge until after his conviction. He did not raise the issue in his Motion to Correct Errors as originally filed. He later, on October 31, 1980, filed a belated and amended Motion to Correct Errors in which he made reference to the method of selection of Special Judge, which was overruled by the trial court.

Clearly, the appointment of Special Judge Blum was procedurally improper in many ways but we need not consider those issues as Appellant has waived any objection he might have to the appointment of Judge Blum and raised no question about the procedures used in appointing him. He accepted his jurisdiction and agreed to submit matters to him, one of which was the plea bargain. After he found he was dissatisfied with the way in which the special judge handled the plea bargain, he then moved to remand the cause back to the regular judge. He still raised no question nor made any objection to the manner in which the special judge was appointed, nor did he question his jurisdiction in any way. The motion to remand was made orally, was not argued and was not accompanied by citation of any authority. Even though the method of selection of a special judge was irregular, the appellant waived the irregularity by accepting the appointment and submitting to the jurisdiction of the special judge, with full knowledge of the irregularity. Marts v. State, (1982) Ind., 432 N.E.2d 18; Pruitt v. State, (1978) 269 Ind. 559, 382 N.E.2d 150; Gears v. State, (1932) 203 Ind. 400, 180 N.E. 592. Appellant's claim that the entire proceeding was void since the special judge was not properly qualified, must also fail. Both parties submitted to his authority as a judge and neither questioned his authority until this appeal was initiated. Thus, he was operating under color of authority and served as a judge de facto even if it could arguably be said that he was not acting as a judge de jure. State ex rel Smith v. Starke Circuit Court, (1981) Ind., 417 N.E.2d 1115, 1123; Gordy v. State, (1974) 262 Ind. 275, 283, 315 N.E.2d 362, 367.

II

Appellant claims he was denied his right to competent counsel. At the time of his arraignment, the regular judge appointed trial counsel for appellant. Counsel appointed was a regular public defender in the court and was experienced in criminal trial matters. Appellant seems to base his complaint on the fact that he had written letters to the judge on two different occasions complaining that he was not getting proper and diligent representation from his attorney. His first such complaint was on February 11, 1980, and the trial court set a hearing on said matter for February 21, 1980. The record shows that on February 21, 1980, there was a hearing and it was on that date that the plea bargain was submitted to Special Judge Blum. The record shows that the judge questioned Appellant at length and advised him of his constitutional rights and the matters he was waiving by pleading guilty. Powell was then asked by the judge if he was satisfied with his attorney and Powell said that he was. The judge asked Powell if he had conferred with his attorney and he said he had conferred with him on three or four occasions and expressed satisfaction with the representation he was receiving from his attorney. This was in spite of the fact that the February 11th letter previously sent had said that he saw his attorney only one time and was dissatisfied with him. The record showed that while they were in the court for the plea bargain hearing, Appellant consulted with his attorney on several occasions regarding questions asked by the trial judge. At no time did he tell the judge he was dissatisfied in any way with the representation he was receiving, or ask for any relief in any way. Rather, he expressly indicated he was receiving good...