Sotelo v. State

Decision Date21 August 1980
Docket NumberNo. 779S205,779S205
Citation408 N.E.2d 1215,273 Ind. 694
PartiesRaul Rudi SOTELO, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Nile Stanton, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, Raul Rudi Sotelo, was convicted of murder in a 1974 trial by jury in the Superior Court of Lake County. He received a life sentence, and his conviction was affirmed on direct appeal to this Court. See Sotelo v. State, (1976) 264 Ind. 298, 342 N.E.2d 844.

Following a hearing upon a subsequently filed petition for post-conviction relief, the trial court below entered its findings of fact and conclusions of law for the State in 1979. Therein the trial court concluded that petitioner had not been denied the adequate assistance of counsel at his 1974 trial. From this judgment Sotelo has prosecuted this appeal.

At the post-conviction hearing the burden was with appellant, the petitioner, to establish his grounds for relief by a preponderance of the evidence. Ind.R.P.C. 1, § 5. In appealing from the judgment of the trial court against him appellant must satisfy this Court that the evidence as a whole was such that it leads unerringly and unmistakably to a decision in his favor; that is, one opposite to that reached by the trial court. Only then can appellant prevail here.

Appellant, at age eighteen, was convicted of killing a girl twelve years of age whom he had been unable to convince to have sexual relations with him. He did so by running over her repeatedly with his automobile. The defense at trial was insanity. Appellant concedes that trial counsel prepared extensively for trial, took depositions and attempted to zealously defend him at trial; but nonetheless complains that trial counsel was not adequate because "(1) the interests of justice truly militate strongly in favor of setting aside Sotelo's conviction, and (2) trial counsel could have produced for the jury's consideration additional and significantly substantial material evidence" in the form of lay opinion testimony on the issue of insanity and his own testimony in support of the defense of insanity.

The Sixth Amendment to the United States Constitution provides in pertinent part:

"In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense."

The Indiana Constitution in Art. I, § 13, provides in part:

"In all criminal prosecutions, the accused shall have the right . . . to be heard by . . . counsel . . . ."

Both constitutions guarantee defense counsel who will actually provide professional legal assistance and be heard from.

In Magley v. State, (1975) 263 Ind. 618, 335 N.E.2d 811, the appellate approach in dealing with this issue was presented:

"Counsel is presumed to have prepared and executed his client's defense effectively. State v. Irvin (1973), 259 Ind. 610, 291 N.E.2d 70; Robbins v. State (1971), 257 Ind. 273, 274 N.E.2d 255. This presumption is rationally grounded in the educational and other requirements for admission to the practice of law, but is rebuttable by strong and convincing proof. Robbins v. State, supra. In resolving the issue, a court should consider the totality of the circumstances surrounding counsel's pre-trial preparation and the actual conduct of the trial. Lowe v. State (1973) 260 Ind. 610, 298 N.E.2d 421; Blackburn v. State (1973) 260 Ind. 5, 291 N.E.2d 686; Sargeant v. State (1973) 157 Ind.App. 173, 299 N.E.2d 219. Perfunctory representation is not enough. Wilson v. State (1943), 222 Ind. 63, 51 N.E.2d 848; Castro v. State (1925), 196 Ind. 385, 147 N.E. 321. Counsel must have reasonable time for pre-trial preparation. Hartman v. State (1973) 155 Ind.App. 199, 292 N.E.2d 293. Deliberate choices made by counsel for some contemplated tactical or strategic reason which turn out to be detrimental to the client's cause do not establish ineffective representation. Henry v. Mississippi (1965), 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408; Lowe v. State, supra." 263 Ind. at 621, 335 N.E.2d at 814.

The trial court made special findings on point. He found that defense counsel had engaged in extensive research and preparation for the trial of this case, and did cause appellant's mother and wife to testify at trial, but did not elicit their opinions as to appellant's insanity. The court further found that appellant in pre-trial conference with his lawyer admitted that he had in fact killed the young girl, and that counsel consciously decided not to call lay witnesses for the purposes of eliciting opinion on insanity because he deemed them to be not credible, and for the further reason that four experts did testify favorably to the defendant's special plea of not guilty by reason of insanity.

Counsel's manner of prosecuting the defense of insanity is described in detail in this Court's opinion on appellant's direct appeal. Sotelo v. State, supra.

"The Appellant presented six witnesses in support of his plea of not guilty by reason of insanity. Called by the trial court to testify were two physicians appointed to examine the Appellant pursuant to Ind.Code § 35-5-2-2 (Burns 1975). These witnesses presented the evidence upon which the Appellant's sufficiency argument is based.

Lay testimony by four witnesses the Appellant's mother, sister, wife, and a former school classmate established a pattern of emotional distress following the death of the Appellant's father when the Appellant was nine years old. The Appellant was subject to frequent outbursts of anger and a desire to be alone much of the time. The Appellant on occasions beat his mother, sister, and wife.

Two expert witnesses were also called by the Appellant to testify. The first, a psychologist, testified regarding psychological tests he administered to the Appellant. Indicated, he concluded, was a diagnosis of paranoid schizophrenia. The second expert, a psychiatrist, testified that he examined the Appellant and concluded that on September 27 the Appellant was suffering from a mental disorder which made him unable to determine the wrongfulness of his act. The disorder was diagnosed as chronic and differentiated schizophrenia. It was his opinion that the Appellant's psychotic condition at the time of the crime also rendered him unable to conform his conduct to the requirements of the law.

The two psychiatrists appointed by the court did not go so far as to diagnose the Appellant's precise mental disorder. It was the conclusion of each physician, however, that the Appellant was at the time of the crime, unable to conform his conduct to the requirements of the law and was therefore legally insane." 264 Ind. at 305, 342 N.E.2d at 848-49.

The general rule which prevails on this point is that defense counsel is...

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27 cases
  • Sotelo v. Indiana State Prison
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • June 29, 1988
    ...We can therefore find no error in the admission of the Appellant's confession into evidence.342 N.E.2d at 848.2 In Sotelo v. State, 273 Ind. 694, 408 N.E.2d 1215 (1980), (Sotelo's appeal of the denial of post-conviction relief) the court held that Sotelo was not denied effective assistance ......
  • Shull v. State
    • United States
    • Indiana Appellate Court
    • March 17, 1981
    ...(1965) 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408; Lowe v. State, supra." 263 Ind. at 621, 335 N.E.2d at 814. Sotelo v. State, (1980) Ind., 408 N.E.2d 1215, 1216. We initially note that each error of counsel individually may not be sufficient to prove ineffective representation; however, th......
  • Lowe v. State
    • United States
    • Indiana Supreme Court
    • November 23, 1983
    ...unerringly and unmistakably to a decision in his favor; that is, one opposite to that reached by the trial court." Sotelo v. State, (1980) Ind., 408 N.E.2d 1215, 1216. I. Lowe first contends that the trial court erred by not entering specific written findings of fact and conclusions of law ......
  • Williams v. State
    • United States
    • Indiana Supreme Court
    • June 16, 1987
    ...adequate or effective when he fails to produce any evidence at all from available sources in support of a defense. Sotelo v. State (1980), 273 Ind. 694, 408 N.E.2d 1215. Trial counsel should have brought the financial handicaps inherent in the case to the attention of the trial court long b......
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