Richardson v. State
| Decision Date | 19 December 2003 |
| Docket Number | No. 49A02-0303-PC-195.,49A02-0303-PC-195. |
| Citation | 800 N.E.2d 639 |
| Parties | Robert RICHARDSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender of Indiana, Tracy A. Nelson, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Robert Richardson appeals the post-conviction court's denial of his petition for post-conviction relief. Richardson raises four issues, which we consolidate and restate as:
I. Whether Richardson knowingly, intelligently, and voluntarily entered his guilty plea; and
II. Whether Richardson received ineffective assistance of trial counsel.1
We affirm. The relevant facts follow. On March 16, 1978, the Link Belt Credit Union in Marion County, Indiana was robbed. Men took money and blank credit union checks at gunpoint from Martha Watts, a Link Belt Credit Union employee. On March 27, 1978, Richardson was arrested for forgery when he attempted to cash one of the checks stolen from the Link Belt Credit Union at another bank.2
On May 5, 1978, Richardson was arrested in Kentucky on unrelated controlled substances and stolen property charges. On May 23, 1978, while Richardson was in jail in Kentucky, a hold was placed on him regarding the Link Belt Credit Union robbery. On November 2, 1978, while Richardson was being held in the Marion County Jail on another charge, a line-up for the robbery case occurred. Richard did not have counsel present during the line-up, although a legal intern from the Public Defender's office was present during the proceeding. Watts, the employee victim from the credit union, identified Richardson in the line-up as the man who robbed her at gunpoint.
On December 12, 1978, the State charged Richardson with robbery, a class A felony.3 On April 18, 1979, Richardson filed a motion to suppress Watts's identification of him at the line-up as the man who robbed the Link Belt Credit Union. At the hearing on the motion to suppress, Richardson's counsel, Merle Rose, presented evidence that Richardson did not have counsel present during the line-up. Rose argued that Watts's identification of Richardson, after she had undergone hypnosis twice, should have been suppressed because the line-up was conducted without Richardson being represented by counsel. Marion County Sheriff's Detective Baker also testified at the suppression hearing that Richardson was being held at the Marion County Jail at the time of the line-up on a theft charge. The trial court denied the motion to suppress.
On June 6, 1979, Richardson pleaded guilty to the lesser offense of robbery as a class C felony with an agreed-upon sentence of five years to be served concurrently with his forgery sentence. At the guilty plea and sentencing hearing, Richardson was fully informed of his rights. Richardson acknowledged the factual basis for the offense and stated that he was pleading guilty voluntarily and that he was satisfied with his counsel's representation. Richardson acknowledged his understanding that he was waiving his rights by pleading guilty.
In 1992, Richardson filed a pro-se petition for post-conviction relief and requested and received representation. In 1999, Richardson by counsel filed an amended petition for post-conviction relief. The amended petition for post-conviction relief alleged the following: (1) Richardson was deprived of counsel at the line-up; (2) Richardson's guilty plea was not knowingly and voluntarily made because prosecution of the charge would have been barred as a successive prosecution; and (3) Richardson received ineffective assistance of trial counsel.
The post-conviction court held evidentiary hearings where Richardson testified that when he was in the Marion County Jail, he was being held on a forgery charge and that the forgery charge was related to the robbery charge because he was using the stolen checks from Watts. Richardson further testified that he did not commit the robbery and would not have pleaded guilty "[h]ad the State been barred from prosecuting this robbery charge." PCR Transcript at 28.
The post-conviction court denied Richardson's petition for post-conviction relief concluding that: (1) Richardson was not entitled to relief on his claim that he was deprived his right to counsel at the identification line-up; (2) the forgery and robbery charges were not related; and (3) Richardson received effective assistance of counsel.
Before discussing Richardson's allegations of error, we note the general standard under which we review a post-conviction court's denial of a petition for post-conviction relief. Post-conviction procedures do not afford petitioners an opportunity for a "super appeal." Matheney v. State, 688 N.E.2d 883, 890 (Ind.1997), reh'g denied, cert. denied, 525 U.S. 1148, 119 S.Ct. 1046, 143 L.Ed.2d 53 (1999). Rather, they create a narrow remedy for subsequent collateral challenges to convictions. Id. Those collateral challenges must be based upon grounds enumerated in the post-conviction rules. Id.; see also Ind. Post Conviction Rule 1(1). Petitioners bear the burden of establishing their grounds for relief by a preponderance of the evidence. Matheney, 688 N.E.2d at 890; see also P-C.R. 1(5). When petitioners appeal from a denial of post-conviction relief, they appeal a negative judgment. Miller v. State, 702 N.E.2d 1053, 1058 (Ind.1998), reh'g denied, cert. denied, 528 U.S. 1083, 120 S.Ct. 806, 145 L.Ed.2d 679 (2000). Therefore, on appeal, a petitioner must show that the evidence, when taken as a whole, "leads unerringly and unmistakably to a conclusion opposite to that reached by the [post-conviction] court." Matheney, 688 N.E.2d at 890-891. We will disturb the post-conviction court's decision only if the evidence is without conflict and leads to but one conclusion and the post-conviction court has reached the opposite conclusion. Emerson v. State, 695 N.E.2d 912, 915 (Ind.1998), reh'g denied.
The first issue is whether Richardson knowingly, intelligently, and voluntarily entered his guilty plea. A post-conviction petitioner must be allowed to withdraw his previous guilty plea whenever the withdrawal "is necessary to correct manifest injustice" that occurred because "the plea was not knowingly and voluntarily made." Lineberry v. State, 747 N.E.2d 1151, 1156 (Ind.Ct.App.2001). A trial court should not accept a plea of guilty unless it has determined that the plea is voluntary. Id.; Ind.Code § 35-35-1-3. Before accepting a guilty plea, a trial court judge is required to take steps to insure that a defendant's plea is voluntary. See Ind.Code §§ 35-35-1-2; XX-XX-X-X. Generally speaking, if a trial court undertakes these steps, a post-conviction petitioner will have a difficult time overturning his guilty plea on collateral attack. State v. Moore, 678 N.E.2d 1258, 1265 (Ind.1997), reh'g denied.
Richardson argues that his guilty plea was not entered into knowingly, intelligently, or voluntarily because he did not know that the prosecution of the robbery charge was barred by his previous conviction of a related charge, i.e. his forgery conviction.4 The State maintains that the prosecution of the robbery charge was not barred by Richardson's prior forgery conviction because the two events were sufficiently separated by time and place that joinder of the charges was not required and subsequent prosecution was permissible. The post-conviction court found that Richardson knowingly, intelligently, and voluntarily plead guilty. Specifically, the trial court found Appellant's Appendix at 197. We agree.
Ind.Code § 35-41-4-4(a) (1998) provides:
A prosecution is barred if all of the following exist:
(1) There was a former prosecution of the defendant for a different offense or for the same offense based upon different facts.
(2) The former prosecution resulted in an acquittal or a conviction of the defendant or in an improper termination under section 3 [IC XX-XX-X-X] of this chapter.
(3) The instant prosecution is for an offense with which the defendant should have been charged in the former prosecution.
Richardson's circumstances satisfy the first two statutory provisions of Ind.Code § 35-41-4-4(a). Richardson was convicted in a former prosecution for forgery as a result of his arrest on March 27, 1978. Thus, the outcome of this case centers on whether the instant prosecution is for an offense with which Richardson should have been charged in the previous prosecution.
The words "should have been charged" must be read in conjunction with Indiana's joinder statute. Williams v. State, 762 N.E.2d 1216, 1219 (Ind.2002) (citing Sharp v. State, 569 N.E.2d 962, 967 (Ind.Ct.App.1991)). The joinder statute, in relevant part, provides:
A defendant who has been tried for one (1) offense may thereafter move to dismiss an indictment or information for an offense which could have been joined for trial with the prior offenses under section 9 of this chapter. The motion to dismiss shall be made prior to the second trial, and shall be granted if the prosecution is barred by reason of the former pros...
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