Rowley v. State, 582S198

• Decision Date: 03 December 1982
• Docket Number: No. 582S198,582S198
• Citation: 442 N.E.2d 343
• Parties: Paul O. ROWLEY, Jr., Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
• Court: Indiana Supreme Court

Page 343

442 N.E.2d 343

Paul O. ROWLEY, Jr., Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).

No. 582S198.

Supreme Court of Indiana.

Dec. 3, 1982.

Susan K. Carpenter, Public Defender, Carr L. Darden, Sp. Asst. Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The petitioner, Paul O. Rowley, Jr., is before this Court appealing from the denial of his petition for Post-Conviction Relief, Rule 1. His convictions and sentences for two counts of robbery as Class B felonies were affirmed by this Court on direct appeal. Rowley v. State, (1979) Ind., 394 N.E.2d 928.

In his appeal from the denial of his petition for post-conviction relief, he presents the following issues for our review:

1. Whether the post-conviction court erred when it concluded that petitioner knowingly and intelligently waived his right to have the court read aloud the final instructions to the jury; and

2. Whether the trial court committed fundamental error by failing to read aloud the final instructions to the jury.

We note at the outset that when this Court is confronted with an appeal from the denial of post-conviction relief, it is not our prerogative to weigh the evidence or judge the credibility of witnesses. Only when the evidence is without conflict and leads inalterably to a conclusion contrary to that reached by the finder of fact will the decision be reversed as contrary to law. Weaver v. State, (1982) Ind., 432 N.E.2d 5; Henson v. State, (1979) Ind., 392 N.E.2d 478.

I.

Petitioner maintains the post-conviction court erred when it concluded that at trial, he had knowingly and intelligently waived his right to have the trial court read aloud the final instructions to the jury. The transcript of the trial proceedings reveals that both petitioner and his counsel expressly waived the right to have the instructions read to the jury:

Court: "All right, I understand and I don't blame you, so I'm rejecting your request to include those various lessor included offenses on the basis of Hash versus State, Hitch, Hester and Harris versus State, decided within a period of approximately six years. O.K., anything further? How about waiving the reading of the finals? I would do it if I thought it would help, because that's the first thing they do when they go back, I tell them to get the Foreman, get them together and go over them among themselves, so they have a tendency not to listen to somebody reading those things, but I'll certainly do it if you want me to."

Mr. Samper: "Oh, we'll waive reading of the finals."

Court: "Is that all right, Mr. Rowley?"

Mr. Rowley: "Yes."

Miss McDowell: "The state will waive."

Notwithstanding his express waiver of the right, as well as his attorney's waiver, he asserts that it was not knowingly rendered; in support of his contention, he points to his post-conviction hearing testimony where he stated that at the time of trial, he did not understand the meaning of the word "waiver."

We recently explained that while a defendant in a criminal proceeding has a right to have final instructions read to the jury, the right "is not of constitutional import." Rice v. State, (1981) Ind., 426 N.E.2d 680, 682. In Rice, as here, the petitioner had expressly waived the right at trial; the post-conviction court rejected petitioner's contention that the waiver reflected the inadequacy of his representation at trial. This Court affirmed the trial court's ruling, holding both that the right could be expressly waived and that circumstances indicated the waiver was a tactical maneuver by counsel.

In Rice, we also found that in view of the fact that defense counsel had been "called upon to respond to the judge's suggestion immediately during ongoing trial proceedings ... he need not have consulted with his client in making the decision." Id. Our analysis points up the misconception in petitioner's claim that his own waiver was invalid because it was not "knowingly" made. The right to have instructions read to the jury, although significant, is not constitutionally-based; it does not require a knowing waiver by a defendant to forego the right, but rather is amongst those matters which are entrusted to the expertise and discernment of counsel. Indeed, it is because the attorney understands the meaning and effect of such terms as "waiver" that trained representation is constitutionally guaranteed. For that reason, as well as the nature of the right at issue, petitioner's argument that his own waiver was not "knowingly made" is without merit. Rice v. State, supra.

Petitioner attempts to distinguish Rice, however, on the basis that there is nothing in the instant case to suggest that his attorney's waiver was the product of trial strategy. We note that the post-conviction court rejected petitioner's assertion that the representation afforded him at trial denied him the effective assistance of counsel. Petitioner has not challenged that conclusion here; his appeal is limited to the issues stated.

We have frequently acknowledged the presumption that the representation afforded any defendant was accomplished in a competent manner. Hollonquest v. State, (1982) Ind., 432 N.E.2d 37; Lindley v. State, (1981) Ind., 426 N.E.2d 398. The post-conviction court did not find otherwise here. In light of that ruling and defendant's failure to challenge its propriety, we will not second-guess the rationale of counsel in waiving the right. He may have concluded that in the wake of the trial court's adverse ruling on his tendered instructions on lesser included offenses, a subtle tactical gain in the minds of the jurors might evolve if the reading of the final instructions was forsaken. Consequently, the waiver by petitioner's counsel constituted a valid relinquishment of the right to have the instructions read to the jury. Rice v. State, supra.

II.

Petitioner also...