Smith v. State

Decision Date06 September 1990
Docket NumberNo. 79A02-8712-PC-513,79A02-8712-PC-513
PartiesRichard Dean SMITH, Appellant (Petitioner Below), v. STATE of Indiana, Appellee.
CourtIndiana Appellate Court

Susan K. Carpenter, Public Defender, Hope Fey, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Richard Dean Smith (Smith) appeals the denial of his Petition for Post-Conviction Relief.

We affirm.

Smith presents the following issues for our review, which we restate:

I. Whether Smith was denied the effective assistance of trial and appellate counsel;

II. Whether the post-conviction court erred by failing to vacate the jury's habitual offender finding on the basis of insufficient evidence to support the determination;

III. Whether Smith was denied a fundamentally fair trial and fair sentencing due to the trial judge's conflict of interest;

IV. A. Whether the post-conviction court erred by denying Smith's petition for post-conviction relief because his sentences for burglary and attempted theft were enhanced by reason of the same predicate felonies which were used to support the habitual offender finding.

B. Whether the post-conviction court erred by enhancing by thirty years Smith's sentence for Burglary rather than his sentence for Attempted Theft;

On October 22, 1982, Smith was convicted of burglary and attempted theft. On November 11, 1982, he received a sentence of 20 years for the burglary, four years for the attempted theft and thirty years for being an habitual offender. On May 14, 1985, Smith's conviction was affirmed by the Indiana Supreme Court in Smith v. State (1985) Ind., 477 N.E.2d 857.

Our resolution of this case requires a rather detailed review of the various procedural events occurring between the time of Smith's direct appeal and this appeal. Smith filed a pro se petition for post-conviction relief August 6, 1985, alleging that his conviction was in violation of the United States Constitution on the following bases: (a) denial of speedy trial; (b) conflict of interest on the part of the trial judge; (c) failure to grant instructions; (d) double jeopardy; and (e) denial of due process.

On February 5, 1986, Smith, pro se, filed an amended petition for post-conviction relief adding a claim of ineffective assistance of trial counsel. On June 3, 1986, while the amended post-conviction petition was pending, Smith, pro se, filed a motion to correct erroneous sentence which was denied on June 6, 1986.

An evidentiary hearing was held June 16, 1986. Smith appeared pro se at the hearing and testified regarding ineffective assistance of both trial and appellate counsel. At this hearing, Smith failed to offer the record of his original trial into evidence.

On June 18, 1986, the court denied Smith's petition for post-conviction relief finding that the ineffective assistance of trial counsel claim was waived for failure to raise the issue on direct appeal and that Smith had failed to present sufficient evidence of ineffective assistance of appellate counsel.

On June 26, 1986, Smith petitioned for the appointment of counsel which the court granted on November 13, 1986. On February 25, 1987, George Wilder filed his appearance and petitioned for permission to file a belated motion to correct errors under Ind. Post-Conviction Rule 2. The court granted the petition, and Smith, by counsel, filed his belated motion to correct errors.

On the issue of ineffective assistance of counsel, the belated motion to correct errors challenged only the post-conviction court's determination regarding the effectiveness of trial counsel. Smith's belated motion to correct errors did not challenge the court's finding concerning appellate counsel. The court overruled the belated motion to correct errors without an evidentiary hearing.

The State Public Defender's office was appointed to perfect Smith's appeal, and on October 22, 1987, Deputy Public Defender Hope Fey entered her appearance.

While pursuing this appeal, Smith, by counsel, filed with the trial court a "Combined Verified Motion for Relief from Judgment and Petition to File Belated Motion to Correct Error." One goal of this motion was to enable Smith to re-open the case and offer the transcript of his original trial into evidence. The State was ordered to respond to Smith's motion and did so alleging that since the court held that all issues raised in the post-conviction petition had either been adjudicated or waived, the court's viewing of the record would not serve any purpose. The trial court, without hearing, denied Smith's motion. Smith, by counsel, filed a motion to correct errors addressed to the denial of his motion. This motion to correct errors was denied.

On July 14, 1988, Smith filed a praecipe for the record from the time he filed his Motion for Relief from Judgment. A second appeal was thus instituted.

On August 2, 1988, Smith, by counsel, filed with this court his "Petition for Transmission of Record of Proceedings Filed in Direct Appeal Arising Out of Same Lower Court Cause; or For Remand to the Lower Court." On the same date, Smith also filed with this court his Petition to Consolidate Appeals. The Petition to Consolidate Appeals was granted. With respect to Smith's petition requesting us to either transmit the record from the original trial or to remand to the lower court, this court on October 14, 1988, entered the following order, in relevant part:

"This Court now suspends consideration of this appeal for a period of sixty (60) days from the date of this Order and remands this cause to the Tippecanoe Superior Court, Room 2, with instructions to the Honorable Vincent F. Grogg, Special Judge, to hold a new hearing on the appellant's Petition for Post-Conviction Relief, at which hearing the record of the proceedings from the previous criminal proceedings (Indiana Supreme Court cause number 583-S-168) will be admitted into evidence for consideration by the trial court of the appellant's claim of ineffectiveness of counsel."

Pursuant to that order the Tippecanoe Superior Court held a second evidentiary hearing on Smith's petition for post-conviction relief. The court not only allowed Smith to present the record of his original trial, but also to present evidence on all the issues. The court again denied the petition for post-conviction relief, except to correct the sentence, 1 issuing new Findings of Fact and Conclusions of Law. The court addressed the issues of ineffective assistance of trial and appellate counsel on the merits finding insufficient evidence to prove that either was ineffective. It is from this hearing and judgment that Smith now appeals.

Before addressing the merits of the issues Smith presents, we deem it appropriate to discuss a threshold issue concerning the procedural posture of this appeal.

Our order of remand to the Tippecanoe Superior Court for a hearing at which the record of the original trial was to be admitted for consideration of the claim of ineffectiveness of counsel was granted under the posture of the case presented to us in Smith's petition requesting either transmission of the record or remand. The petition alleged that one aspect of Smith's appeal was whether Smith received the effective assistance of post-conviction counsel in filing the belated motion to correct errors without seeking to reopen the case to get the original trial transcript into evidence. The Petition also contained the following:

"Appellant asserts that transmission of the Record of Proceedings as prayed would best facilitate the sound policy of judicial economy. However, should the Court disagree, Appellant would respectfully suggest that the Court retain jurisdiction over the case and remand it immediately to the lower court so that, in the interests of justice, the Record of Proceedings in Cause No. 583 S 168 may be admitted into evidence and thus made a part of this appeal. See Popplewell v. State (1986), Ind., 495 N.E.2d 189 (where trial transcript was not introduced into evidence at post-conviction hearing, appropriate disposition was remand to trial court in order to avoid further post-conviction proceedings)." Petition for Transmission of Record at 3.

The Popplewell case is similar to the present case in that the defendant in Popplewell alleged that his attorney in the first post-conviction proceeding was inadequate because the attorney did not include the transcript of the trial in the record of the post-conviction proceedings. The court remanded that case to the trial court for hearing at which the record of the original proceedings was to be admitted into evidence. In order to review post-conviction counsel's failure to place the record into evidence, it was necessary to have the transcripts on appeal. Popplewell, supra, 495 N.E.2d at 192. The court further stated:

"While we would be well within the bounds of due process simply to affirm the trial court on the basis that Popplewell did not meet his burden of proving that Wagner [post-conviction counsel] was ineffective, we would fully expect on the horizon another appeal from the denial of another post-conviction petition alleging current counsel ineffective for not placing the record into evidence at the second post-conviction proceeding." Id.

Our order granting a second hearing was based upon our understanding of the status of the proceedings as they were presented to us in Smith's petition. The order indicates a desire to have a simplified resolution of the issues that were viable at the time the petition was filed. However, our analysis of recent cases from our Supreme Court leads to the conclusion that some of the issues which Smith now seeks to present were not viable at the time his petition was filed. Our order granting a second hearing was therefore perhaps improvidently entered. It is understandable...

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