Smith v. State, 1--276A12

Docket NºNo. 1--276A12
Citation353 N.E.2d 470, 170 Ind.App. 479
Case DateAugust 31, 1976
CourtCourt of Appeals of Indiana

Page 470

353 N.E.2d 470
170 Ind.App. 479
Kenneth P. SMITH, Appellant (Defendant below),
STATE of Indiana, Appellee (Plaintiff below).
No. 1--276A12.
Court of Appeals of Indiana, First District.
Aug. 31, 1976.
Rehearing Denied Oct. 5, 1976.

[170 Ind.App. 480]

Page 471

Harriette Bailey Conn, Public Defender; Darrel F. Ellis, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., John P. Avery, Deputy Atty. Gen., Indianapolis, for appellant.



Defendant-appellant, Kenneth P. Smith (Smith) appeals from a final judgment denying his Petition for Post-Conviction Relief.

We affirm.


On April 5, 1973, Smith, age 17, was the lookout while three of his friends held up a service station in Jeffersonville, Indiana.

At his hearing on a waiver from the juvenile court to the Clark Circuit Court, the court appointed Clark County Public Defender Robert R. Riggle to serve as pauper attorney for Smith. Riggle was again appointed to represent Smith at his arraignment where a plea of not guilty was entered to the charge of Commission of a Crime While Armed with a Deadly [170 Ind.App. 481] Weapon. 1 On February 26, 1974, the State amended the charge to Theft, 2 at which time Smith entered a plea of guilty to the new charge.

The court accepted his plea after a thorough advisement of the constitutional rights waived by the plea, the crime charged and the possible punishment.

During this procedure Smith denied that anyone had coerced him to plead guilty or had induced his plea by threat or promise. He testified that he was satisfied with Riggle's representation.

But his testimony at the hearing on his P.C.R. petition was that he became dissatisfied with Riggle's representation after pleading guilty. Smith testified that Riggle had conferred with him only twice, both times in a courtroom.

He also testified that although he was aware of what he was doing when he pleaded guilty, the plea was a result of threats of more beatings in the jail.

Riggle testified at the P.C.R. hearing that he had conferred with Smith twice at the jail in addition to the courtroom meetings.


Smith raised the following issues to the trial court:

1. Was Smith's counsel ineffective?

2. Was Smith's guilty plea knowingly and intelligently entered?

Page 472

3. Was Smith's guilty plea voluntarily entered?


An indigent defendant who desires counsel must be provided with counsel, or there can be no valid conviction of the [170 Ind.App. 482] defendant under the Indiana and United States Constitutions. Knox County Council v. McCormick (1940), 217 Ind. 493, 29 N.E.2d 405, 130 A.L.R. 1427.

A competent attorney must be provided for such a defendant. State ex rel. White v. Hilgemann (1941), 218 Ind. 572, 34 N.E.2d 129.

Smith had the burden to show that the number of conferences with Riggle 'must have caused a situation which can fairly be described as a 'mockery of justice' which is 'shocking to the conscience' of the reviewing court.' Bucci v. State (1975), Ind., 332 N.E.2d 94, 95. There is a strong presumption that Riggle discharged his duty fully, effectively, and completely, which presumption may only be overcome by 'strong and convincing proof'. Davis v. State (1975), Ind., 330 N.E.2d 738, 741.

Our Supreme Court has declined to draw a line between competency and incompetency of counsel. Wilson v. State (1943), 222 Ind. 63, 51 N.E.2d 848. The court also found that it would be impossible to fix guidelines as to the requisite number of hours an attorney should spend in preparation and what is adequate preparation, and instead concluded that each case stands on its own facts. Shack v. State (1967), 249 Ind. 67, 231 N.E.2d 36; Thomas v. State (1969), 251 Ind. 546, 242 N.E.2d 919. This court, in Daniels v. State (1974), Ind.App., 312 N.E.2d 890, 893, held:

'Minimal consultation with the client does not of itself render the representation merely perfunctory. Each case must be judged upon its own facts. . . .'

Smith raises only the number of visits by Riggle as the basis for his incompetency claim. He did not show that Riggle failed to obtain the information he needed in the conferences, that meetings constituted the sum total of Riggle's preparation (Wynn v. State (1976), Ind., 352 N.E.2d 493), that [170 Ind.App. 483] Riggle refused to present any defense (Bucci v. State, supra, dissent by Justice DeBruler), that he failed to find a witness on Smith's behalf (Wright v....

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3 cases
  • Adoption of Hewitt, Matter of, 2-977A361
    • United States
    • Indiana Court of Appeals of Indiana
    • November 27, 1979
    ...issue in an appeal from a negative judgment. The proper challenge is the judgment is contrary to law. Smith v. State, (1976) Ind.App., 353 N.E.2d 470; Mandle v. Owens, (1975) 164 Ind.App. 607, 330 N.E.2d 362. Properly, this specification of error is waived. However, due to the sensitive nat......
  • Duvall v. State, 2--375A77
    • United States
    • Indiana Court of Appeals of Indiana
    • August 31, 1976
    ...which the Court of Appeals fashioned in Black, supra, we do not consider it appropriate to grant this drastic relief. Accordingly,[170 Ind.App. 479] we vacate the order of the Court of Appeals and the judgment of the District Court and remand the case to the District Court for hearing de no......
  • Jackson v. State, 1-677A121
    • United States
    • Indiana Court of Appeals of Indiana
    • August 7, 1978
    ...leads to only one reasonable conclusion which is opposite to that conclusion reached by the trial court. Smith v. State (1976), Ind.App., 353 N.E.2d 470. The defendant-appellant has the burden of establishing grounds for relief and must sustain that burden by a preponderance of the evidence......

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