Rice v. State
| Decision Date | 15 October 1981 |
| Docket Number | No. 680S174,680S174 |
| Parties | Henry RICE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Harriette Bailey Conn, Public Defender, Carr L. Darden, Deputy Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from a denial of post-conviction relief. Rice's convictions for kidnapping, rape, and rape while armed were affirmed by this Court in Rice v. State, (1976) 265 Ind. 454, 355 N.E.2d 238. Appellant unsuccessfully sought relief from his life sentence for kidnapping on the basis of the lesser sentence provided for by the newer statutes on kidnapping and confinement, and also challenged the sufficiency of his legal representation at trial and on his first appeal.
Appellant's conduct, comprising the offense of kidnapping of which he was convicted and sentenced to life imprisonment in 1976, took place in 1973. The kidnapping statute in effect at those times provided for life imprisonment. Ind.Code § 35-1-55-1. Appellant lays claim to a reduction of that sentence because, effective October 1, 1977, the kidnapping statute was repealed and new statutes defining the offenses of kidnapping and confinement providing for only lesser sentences, came into being. Ind.Code §§ 35-42-3-2 and 35-42-3-3. On several occasions we have held that this claim is properly rejected upon the basis of the express legislative pronouncement in the savings clause in the Acts of 1977, P.L. 340, that offenses committed before October 1, 1977, remain punishable under the repealed law.
Appellant argues however that to apply the savings clause in this manner is contrary to Art. I, § 18, of the Indiana Constitution which provides:
"The penal code shall be founded on the principles of reformation, and not of vindictive justice."
He contends that the legislative decision to reduce a sentence and to apply that decision prospectively only is to rob the penal code of its reformative purpose and to demonstrate a vindictiveness.
The sentence of life imprisonment does not render the code violative of Art. I, § 18. Lynk v. State, (1979) Ind., 393 N.E.2d 751; Owens v. State, (1981) Ind., 419 N.E.2d 969; Cooper v. State, (1980) Ind., 403 N.E.2d 826. The legislative decision to reduce that sentence in the case of kidnapping and to apply the reduction prospectively only is based upon the belief that the punishment to be given to one who violates the law is the one which exists and is legislatively mandated at the time of the violation. Parsley v. State, (1980) Ind., 401 N.E.2d 1360. That is the expectation of the society and the offender. The trial court did not err in rejecting this claim.
Appellant also sought post-conviction relief upon the claim that his counsel at his trial, and appellate counsel in his first and direct appeal were constitutionally deficient in their legal representation of him. This claim is based upon the decision of defense counsel to waive any objection to the announced decision of the trial court not to read final instructions aloud to the jury, which counsel expressly did, and the failure of appellate counsel to include in a motion to correct errors or on appeal the failure of the trial judge to read the final instructions to the jury.
The claim of ineffective representation is to be resolved upon evaluation of discrete maneuvers by counsel alleged to be mistaken, as parts within the whole of the representation provided. The standard of review remains the "mockery of justice" standard modified by the "adequate legal representation" standard. Crisp v. State, (1979) Ind., 394 N.E.2d 115. Perfunctory representation is insufficient but isolated mistakes and poor strategy are not.
The right of the accused to have the final instructions read aloud to the jury was given its first clear statement in Purdy v. State, (1978) 267 Ind. 282, 369 N.E.2d 633. The right exists in order to provide an assurance that each of the jurors receives the instructions at least once from the...
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Kimble v. Duckworth
...conclusion because he always discussed these matters with his clients before making such a decision. Regardless, we find Rice v. State (1981) Ind., 426 N.E.2d 680, to be controlling. As found here, the defense counsel in Rice waived the reading of the final instructions. This Court held tha......
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Kimble v. State
...conclusion because he always discussed these matters with his clients before making such a decision. Regardless, we find Rice v. State, (1981) Ind., 426 N.E.2d 680, to be controlling. As found here, the defense counsel in Rice waived the reading of the final instructions. This Court held th......
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