Smith v. State
| Decision Date | 28 June 1977 |
| Docket Number | No. 3--176A20,3--176A20 |
| Citation | 363 N.E.2d 1295,173 Ind.App. 433 |
| Court | Indiana Appellate Court |
| Parties | Cleveland SMITH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
Herbert E. Boase, LaGrange, Wm. T. Enslen, McHie, Enslen & Moran, Hammond, for appellant.
Theodore L. Sendak, Atty. Gen., James N. Shumacker, Deputy Atty. Gen., Indianapolis, for appellee.
Cleveland Smith was charged with one count of kidnapping, IC 1971, 35--1--55--1 (Burns Code Ed.), and one count of pointing and aiming a firearm, IC 1971, 35--1--79--5 (Burns Code Ed.). Pauper counsel was appointed. After a trial by jury, Smith was acquitted on the kidnapping charge and found guilty on the charge of aiming a firearm. Judgment was entered on the verdict, and, on October 2, 1975, Smith was sentenced to a term of not less than one (1) year nor more than three (3) years. Smith's trial attorney timely filed a motion to correct errors, which was denied. Herbert E. Boase was then appointed pauper attorney for the purpose of perfecting and conducting an appeal for Smith. The appeal was timely perfected.
Boase, as Smith's appellate counsel, filed an Appellant's Brief on March 19, 1976. On the same day, Boase filed a petition for leave to withdraw as counsel, which read as follows:
'Come now Herbert E. Boase and William T. Enslen, counsel appointed for the purpose of perfecting an appeal for the Defendant-Appellant, and request leave to withdraw as counsel, and show the Court of appeals:
'1. That they have searched the Record of Proceedings in this cause in depth, and cannot find error meriting a reversal or new trial.
'2. That counsel have corresponded with the Defendant and Defendant has been unable to point to any new evidence or any matter outside the Record which would merit a reversal or new trial.
'3. That counsel William T. Enslen has discussed this matter with Defendant's trial counsel, Charles Graddick, who has informed counsel that he knows of no error in the Record or outside of the Record which would merit a reversal or new trial.
'4. Counsel have not found or been apprised of any Indiana procedure concerning a situation as in this cause, but have found a federal procedure outlined in Anders v. California (1967), 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396. In Anders, appellate counsel have the duty of writing a brief outlining all arguable points which could possibly be raised on appeal and move to withdraw. Under Anders the appellate court proceeds to decide whether the appeal is wholly frivolous or whether any of the points noted in the brief are arguable on their merits.
'5. Counsel have followed the procedure outlined in Anders, submit a Brief in conjunction with this motion raising and presenting the law on all of the points enumerated in the motion to correct errors, and raising any other points which might have been raised even if not contained in the motion to correct errors.
'6. Defendant has been notified of the conclusions of counsel and is being served a copy of this motion and the Brief.
'7. That counsel request to be allowed to withdraw as counsel for Defendant in accordance with the procedures of Anders.
WHEREFORE, appointed counsel for Defendant request leave to withdraw as counsel, and request the Court of Appeals to determine whether this appeal is frivolous or whether any arguable legal point exists.'
On March 24, 1976, the Court of Appeals ordered that the petition for leave to withdraw as counsel be 'held in abeyance pending either the final decision of the Court in this case or further order of the Court on said petition.' We now deny that petition for leave to withdraw. 1
The motion to correct errors in the instant case was filed by Smith's trial counsel and stated the following errors:
'1. That the verdict of the jury is contrary to law and is not sustained by sufficient evidence.
We have reviewed the entire record, and we conclude that there is ample evidence to sustain Smith's conviction of aiming a firearm. We may not weigh the evidence or judge the credibility of the witnesses. We must look only to the evidence and the reasonable inferences therefrom which support the finding of the trial court, and, if there is evidence of probative value from which the trier of fact could have found the defendant guilty beyond a reasonable doubt, we must affirm the conviction. In the present case, Jerome Tryon, the prosecuting witness, testified that, after he dropped off a passenger at the Nova Lounge, he got back in his car and Tryon identified the gun and stated:
'Q. Have you ever seen this deringer (sic) before?
'A. It looks like the same gun that was pointed towards me.
'Q. Is this in connection with the events you described earlier today?
'A....
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