Sargeant v. State

• Decision Date: 31 July 1973
• Docket Number: No. 2--1172A99,2--1172A99
• Parties: Richard G. SARGEANT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 219

299 N.E.2d 219

157 Ind.App. 173

Richard G. SARGEANT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2--1172A99.

Court of Appeals of Indiana, Third District.

July 31, 1973.

Harriette Bailey Conn, Public Defender, Carr L. Darden, Sr., Deputy Public Defender, Indianapolis, for appellant (defendant below)

Theodore L. Sendak, Atty. Gen., Robert A. Zaban, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

SHARP, Judge.

The Appellant, Richard G. Sargeant, was charged with the offense of robbery by affidavit filed on January 15, 1968. The Appellant entered a plea of not guilty, and the Appellant was found guilty by the jury and sentenced by the trial court to a term of ten to twenty-five years. This sentence was reviewed by our Supreme Court in Sargeant v. State, 255 Ind. 252, 263 N.E.2d 525 (1970). Said conviction was affirmed but the Supreme Court ordered the sentence corrected to a term of ten to twenty years, which was accordingly done by the trial court.

This present case was commenced when the Appellant filed this Petition for Post-Conviction Relief on December 28, 1971, which petition was heard by the trial court on February 9, 1972 and on June 9, 1972 the trial court entered the following Findings of Fact and Conclusions of Law:

'FINDINGS OF FACT AND CONCLUSIONS OF LAW

This cause came on to be heard by the Court on the Petition of Richard G. Sargeant, Petitioner, for Post Conviction Relief, and the evidence having been heard, and the Court being duly advised in the premises, now makes its findings of fact and conclusions of law in accordance with Rule P.C. 1(F) of the Indiana Rules of Procedure.

FINDINGS OF FACT

1. Petitioner was convicted for the crime of Robbery on a plea of not guilty, after a trial, on July 2, 1969.

2. Petitioner was sentenced to an indeterminate term of ten to twenty-five years on July 10, 1969.

3. Petitioner initiated proceedings for Post Conviction Relief in this Court on July 8, 1971.

4. Petitioner has not shown by a preponderance of the evidence that his conviction was obtained in violation of the Constitution of the United States or the Constitution or Laws of the State of Indiana.

5. Petitioner has not shown by a preponderance of the evidence that counsel representing Petitioner at his trial incompetently or inadequately represented him at that time or at any time during the prior proceedings.

6. On January 6, 1971, Petitioner's ten to twenty-five year sentence imposed on July 10, 1969, was corrected nunc pro tunc as of July 10, 1969, to an indeterminate sentence of not less than ten nor more than twenty years and a corrected commitment was issued at that time.

CONCLUSIONS OF LAW

1. The law is with the State of Indiana and against Petitioner.

2. Trial counsel competently and adequately represented Petitioner at this trial.

3. On January 6, 1971, Petitioner's ten to twenty-five year sentence imposed on July 10, 1969, was corrected nunc pro tunc as of July 10, 1969 to an indeterminate sentence of not less than ten nor more than twenty years and a corrected commitment was issued at that time.'

A Motion to Correct Errors was duly filed and overruled and this appeal has been duly perfected.

The issue raised in this appeal relates to whether or not the defendant had a fair trial and narrows to the question of whether his attorney was competent and whether he received adequate representation.

It is necessary to summarize certain parts of the record in order to determine the issue presented here. The Appellant waived formal arraignment and entered a plea of not guilty to the offense of robbery in the trial court on January 17, 1968. On March 15, 1968 an Indianapolis attorney entered his appearance for the Appellant. Thereafter, the record discloses that said attorney requested and was granted several continuances. Appellant failed to appear in Court on April 21, 1969, and a bond forfeiture and rearrested warrant were ordered. On April 25, 1969, a second Indianapolis attorney surrendered Appellant in court. On May 12, 1969 this second Indianapolis attorney requested another continuance of the Appellant's case on behalf of the first Indianapolis attorney who was still attorney of record in this case for the Appellant. The trial of this robbery charge was set for June 30, 1969 and on that day the first Indianapolis attorney withdrew and the second Indianapolis attorney who had previously taken the above action in the case formally entered his appearance for the defendant on the morning that the trial commenced. It should be noted that during this period of time the First Indianapolis attorney had suffered a heart attack. A part of the proceedings occurring in the trial court on the morning of June 30, 1969 is relevant:

'THE COURT: I do want the record to show that at approximately ten thirty this morning I called a recess until approximately eleven o'clock, and then at eleven o'clock I granted the defendant's request for a continuance until two o'clock this afternoon and it is exactly two o'clock now. I want the record also to further show that, Mr. Erbecker, if you want any intercession on my part by the Sheriff to service (sic) those subpoenas . . .

MR. ERBECKER: We have three here I would like . . .

THE COURT: . . . I will be more than happy to do so, also if you need any extra time for interview of these witnesses or anything like that, don't hesitate to ask.

MR. ERBECKER: Thank you, Your Honor.

THE COURT: All right, the record will so show.'

On June 30, 1969 after the prosecuting attorney had...