Sawyers v. State

• Decision Date: 19 February 1976
• Docket Number: No. 2--174A43,2--174A43
• Citation: 168 Ind.App. 149,341 N.E.2d 810
• Parties: Andrew SAWYERS, III, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 810

341 N.E.2d 810

168 Ind.App. 149

Andrew SAWYERS, III, Appellant, v. STATE of Indiana, Appellee.

No. 2--174A43.

Court of Appeals of Indiana, Second District.

Feb. 19, 1976.

Jerry W. Newman, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., John E. Meyer, Deputy Atty. Gen., Indianapolis, for appellee.

WHITE, Judge.

Defendant-appellant Andrew Sawyers, III (Andrew), a juvenile waived by the Juvenile Court of Marion County to the Criminal Court of Marion County, brings this belated appeal from a sentence imprisoning him for not less than ten, nor more than twenty-five years adjudged against him upon a jury verdict finding him guilty of robbery (Count I) and not guilty of inflicting injury in the commission of robbery (Count II).

ISSUE I.

Double Jeopardy

As his arraignment on November 3, 1972, Andrew orally pleaded not guilty. No special plea was filed. Thereafter, on February 21, 1973, he filed a motion to dismiss in which his trial attorney ¹ made the following unverified allegations relative to his defense of double jeopardy:

'1. Andrew was charged under cause number 7694 in the Johnson Circuit Court with first degree murder, which charge was dismissed following the impaneling and commencement of trial in that cause. A certified, complete transcript of the trial of cause number 7694 is in the possession of Andrew's counsel, and will be offered as evidence on this motion, will be made available to the prosecution for inspection, but is not attached hereto.

'3. Andrew previously entered a plea of guilty to the same offense (robbery) charged against him in Count One of the above entitled proceedings. Pursuant to that plea, he was convicted and sentenced, but the plea and proceedings in connection therewith were vacated on May 26, 1972. Certified, complete transcripts of the proceedings are in the possession of Andrew's counsel, will be tendered to the Court as evidence in support of this motion, will be made available to the prosecution for inspection and copying, but are not attached hereto.

'5. . . . Count Two (inflicting injury in the commission of robbery), said charge being retaliatory and punitive as a result of Andrew's refusal to abide by plea bargaining reflected in the complete transcript of the trial of April 26, 1972, . . .'

In the memorandum attached to the motion it is alleged:

'. . . (T)he more severe charge (Count II, inflicting injury in the commission of a robbery) was filed in retaliation against the defendant's refusal to continue with a bargained plea after he had fully complied with such bargain, but it was vacated because of technical defects not attributable to him in any way. His subjection to the inflicting charge came after he had finally determined not to acquiesce in another round of proceedings following the nullification of the first.'

Also filed with the motion was a copy of a memorandum which had been filed in Juvenile Court prior to waiver to Criminal Court. It includes the following unverified allegations and implications of extrinsic fact relevant to the claim of double jeopardy:

'The proceedings under this cause number (J72--230 in the Juvenile Court of Marion County) allege that the respondent committed a robbery. The state, in turn, seeks waiver to adult jurisdiction where he would be tried for that felony. The respondent was previously on trial for the same offense in the Johnson Circuit Court as reflected by the record herein. It shows that in an Official Notice dated April 26, 1972, Andrew Sawyers, III entered a guilty plea to the offense of robbery . . .. The record shows that he was subsequently sentenced to a term of commitment of from ten to twenty-five years, and that he was transferred to the Youth Diagnostic Center to begin serving his sentence.

'The only basis upon which the state apparently hopes to succeed despite the Double Jeopardy clauses is that the Johnson Circuit Court lacked jurisdiction over the person of the respondent at the time he entered his guilty plea and it was accepted by that Court. Indiana has traditionally held that a person is not put in second jeopardy unless his prior acquittal or conviction was by a court having jurisdiction to try him for the offense charged . . .. Research has disclosed no Indiana cases in which the individual placed on trial was a juvenile in the first instance and was subsequently tried by the appropriate tribunal.

'The principle has been recently affirmed in Indiana that an adult criminal court can not go forward and place a juvenile on trial in most cases unless there has first been an appropriate waiver.'

The record of the Criminal Court of Marion County, Division III, which is properly before us, disclosed that on March 12, 1973:

'This cause came on for Hearing on Motion for Discovery and Motion to Dismiss.

'Court takes Defendant's Motion to Dismiss under advisement.'

Thereafter, on March 15, 1973, the record reads: 'Court overrules Defendant's Motion to Dismiss'.

There is no further record of the Criminal Court of Marion County concerning the motion to dismiss. Thus we know from the record that the motion came on for hearing (the inference is strong that some kind of a hearing was held) but we do not know what happened at that hearing (if, indeed, it was held). For aught that appears in the record, it could be that the motion was overruled because there was no evidence before the court to substantiate any of the unverified allegations of the motion. If any evidence was introduced, or any facts stipulated, at that hearing, it is not in the record before us.

At the time Andrew was charged, arraigned, tried, convicted, and sentenced, the procedure for asserting special defenses (except insanity which requires a special plea ² and alibi which requires a special notice ³) was prescribed by Ind.Ann.Stat. § 9--1132 (Burns 1956 Repl.) as follows:

'9--1132 (2230). Plea of not guilty--Special defenses.--In all criminal prosecutions, except as in the next section provided, the defendant may plead the general issue orally, which shall be entered on the minutes of the court, and under it the defendant may show and prove on the trial that he has before had judgment of acquittal, or been convicted or pardoned for the same offense, or any matter of defense except insanity. But the defendant may plead specially any matter of defense. (Acts 1905, ch. 169, § 198, p. 584.)' ⁴

Under this statute it was held:

'The question of former jeopardy may, prior to the trial, be presented by a plea in bar (Klein v. State (1901), 157 Ind. 146, 60 N.E. 1036; Barker v. State (1919), 188 Ind. 263, 267, 120 N.E. 593), the sufficiency of which is for the court (Harlan v. State (1921), 190 Ind. 322, 336, 130 N.E. 413), or by evidence during the trial under a plea of not guilty (Foran v. State (1924), 195 Ind. 55, 144 N.E. 529; Earle v. State (1924), 194 Ind. 165, 142 N.E. 405).' Mann v. State (1933), 205 Ind. 491, 497, 186 N.E. 283, 187 N.E. 343.

In Kelly v. State (1947), 225 Ind. 577, 578, 75 N.E.2d 537, where the defendant-appellant had unsuccessfully attempted to raise the issue of prior jeopardy by an oral motion, the court said:

'Former jeopardy is a matter of defense. It will be noted from the above quoted statute (also herein the above quoted § 9--1132) that this defense may be pleaded specially as a plan in bar or the same may be shown and proved under the general denial. This statute has no application when the facts showing former jeopardy appear of record in the same case. Under such circumstances this question can be raised by a motion to discharge as here attempted or in any other appropriate manner. 22 C.J.S., Criminal Law, 277. In the case before us, however, extrinsic matters were relied upon in this motion.

'This oral motion cannot be considered as a special plea in bar as such a plea must be in writing.'

Andrew's motion to dismiss also relies upon extrinsic matters, but is in writing and can therefore be considered a special plea in bar. Unfortunately, however, as previously noted, the evidence, if any, by which the appellant may have attempted to prove the extrinsic facts upon which he relies, has not been made a part of the record. We are, therefore, in no position to know whether the trial court committed error in overruling the motion. Since the appellant has failed to sustain his burden of demonstrating by the record that the trial court committed error, the presumption prevails that its ruling was correct. A.S.C. Corporation v. First National Bank of Elwood (1960),241 Ind. 19, 23, 167 N.E.2d 460; Souerdike v. State (1952), 231 Ind. 204, 206, 108 N.E.2d 136; Garrett v. State (1939), 216 Ind. 52, 54, 22 N.E.2d 981.

Furthermore, error, if any, in overruling the motion would be harmless error. The overruling of a like motion was so treated in Ford v. State (1951), 229 Ind. 516, 520, 98 N.E.2d 655, 656, in which the court noted:

'. . . This court has held that no question can be presented as a claimed error in overruling a plea of former jeopardy, because the evidence of former jeopardy may be presented under a plea of not guilty. Holt v. State (1945), 223 Ind. 217, 59 N.E.2d 563; Marks v. State, 1942, 220 Ind. 9, 40 N.E.2d 108; McCoy v. State, 1923, 193 Ind. 353, 139 N.E. 587.'

However, virtually no evidence of prior prosecution was presented at trial on the plea of not guilty, even though Andrew's Belated Motion to Correct Errors alleges that the jury's verdict 'was contrary to law because the Defendant was put in jeopardy twice for the same crime.' In fact, our reading of the transcript of the trial evidence reveals that the few vague references to prior litigation in Johnson County which we found in some testimony, were not purposely elicited by Andrew's trial counsel, and were uttered by witnesses in spite of his counsel's efforts to keep out all evidence of (1) the robbery victim's death and (2) that there had been prior litigation.

At the very least, it was the defendant's duty...