Priest v. State
Decision Date | 17 June 1983 |
Docket Number | No. 382S82,382S82 |
Parties | Darryl PRIEST, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender of Indiana, Paul Levy, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen. of Indiana, Aimee L. Kolze, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was convicted of robbery and committing injury in the perpetration of a robbery. He was sentenced to life imprisonment. His conviction was affirmed in Priest v. State, (1979) 270 Ind. 449, 386 N.E.2d 686. Appellant petitioned for post-conviction relief which was denied. He now appeals from the denial of his petition.
Appellant claims the post-conviction court erred in determining his trial counsel provided adequate legal representation. He argues his counsel's failure to timely file a notice of alibi in accordance with I.C. Sec. 35-5-1-1 [Burns 1979 Repl.] and I.C. Sec. 35-5-1-3 [Burns 1979 Repl.] and present an alibi witness, appellant's girlfriend, demonstrates his incompetency.
There is a strong presumption that counsel is competent. A showing of strong and convincing evidence is required to rebut that presumption. The standard of review of an issue of inadequacy of counsel is the mockery of justice test as modified by the legal representation standard. Williams v. State, (1983) Ind., 445 N.E.2d 101; Lindley v. State, (1981) Ind., 426 N.E.2d 398. While incompetency of counsel evolves from the particular facts of each case, this Court will not speculate about strategy. We will, however, seek to determine if and how a defense counsel's inadequacies have harmed the appellant at trial. Williams, supra; Smith v. State, (1979) Ind., 396 N.E.2d 898.
The petitioner bears the burden of establishing his grounds for relief by a preponderance of the evidence. Ind.P.C.R. 1, Sec. 5. The judge is the sole judge of the weight of the evidence. Only where the evidence is without conflict and leads unerringly to a result different from the trial court's conclusion will the decision be set aside. Gosnell v. State, (1982) Ind., 439 N.E.2d 1153.
The trial court entered findings of fact and conclusions of law pursuant to Ind.P.C.R. 1, Sec. 6 with respect to this issue;
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Terry v. State
...presumption of competence on the part of counsel. This presumption is overcome only by strong and convincing evidence. Priest v. State, (1983) Ind., 449 N.E.2d 602. The requirement is one of adequate legal representation. Dillon v. State, (1983) Ind., 448 N.E.2d 21. Isolated poor strategy, ......
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Terry v. State
... ... There is a strong presumption of competence on the part of counsel. This presumption is overcome only by strong and convincing evidence. Priest v. State, ... (1983) Ind., 449 N.E.2d 602. The requirement is one of adequate legal representation. Dillin v. State, (1983) Ind., 448 N.E.2d 21. Isolated poor strategy, bad tactics, a mistake, carelessness or inexperience do not necessarily amount to ineffective counsel unless, taken as a ... ...
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Williams v. State
...what we would presume absent compelling proof that counsel's omission was so grievous as to deny Appellant a fair trial. Priest v. State, (1983) Ind., 449 N.E.2d 602; Helton v. State, (1980) 273 Ind. 211, 402 N.E.2d 1263. Appellant has failed to overcome the presumption that he was adequate......