Sparks v. State

• Decision Date: 11 March 1964
• Docket Number: No. 30430,30430
• Parties: Donald Hurcle SPARKS, Appellant, v. The STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 748

196 N.E.2d 748

245 Ind. 245

Donald Hurcle SPARKS, Appellant, v. The STATE of Indiana, Appellee.

No. 30430.

Supreme Court of Indiana.

March 11, 1964.

Rehearing Denied April 27, 1964.

Warren R. Everett, Terre Haute, for appellant.

Edwin K. Steers, Atty. Gen., for appellee.

ARTERBURN, Judge.

On January 24, 1964 this court, in a 3-2 opinion (Myers and Jackson, JJ. dissenting), affirmed the conviction of the appellant on a charge of murder in the second degree. The appellant, the record shows, at the time of the alleged crime was 17 years of age. He has now filed pro se, without counsel, a petition for rehearing. In this petition, which is not contradicted, he stated that he is entitled to a rehearing for the reason that his court-appointed counsel for him as a pauper failed to properly represent him on appeal and in the trial court below by filing a motion for a new trial.

The appellant pro se alleges under oath:

'That Appellant, an indigent, was representated during the trial of this cause by Warren Everett, an attorney appointed by the Court, but was abandoned by his trial counsel immediately after judgment; that Appellant desired to file a motion for new trial and appeal his conviction and to have assistance of counsel in such endeavor but that, due to his being abandoned by his court-appointed counsel, he was forced to shift for himself in preparing and filing a motion for new trial; that within the 30 day period allowed therefor Petitioner, with the assistance of fellow prisoners, prepared and filed a motion for new trial, a motion for appointment of counsel, and a request for an extension of time to permit Appellant to file a proper motion for new trial after obtaining counsel to assist and advise him; that, on March 21, 1963, the trial court overruled Appellant's self-prepared motion for new trial and his request for extension of time, but did sustain the motion for appointment of counsel and immediately thereafter did re-appoint Warren Everett to represent Appellant in his appeal; that Appellant was thereby denied counsel to represent him during a critical part of the proceedings, that is, in preparing and prosecuting a motion for new trial. That, further, Appellant presents this question to this Court at his first reasonable opportunity, in that he has previously requested his counsel to present in for adjudication, but said counsel has apparently ignored Appellant's request and failed to present same.'

Nothing is filed denying these allegations.

He also asks that counsel be appointed by this court to represent him in his petition for rehearing. However, because of the results which we reach here, this will be unnecessary.

We have held expressly and without equivocation that it is the duty of trial counsel, whether they represent a rich or pauper client, to file a motion for a new trial in a criminal case where meritorious grounds exist therefor. In State ex rel. Macon v. Orange Circuit Court (1962), Ind., 185 N.E.2d 619, 621, we stated:

'Under the law of this state it is part of the duties of trial counsel, whether representing a pauper defendant or not, to file a motion for a new trial if such counsel feels that there are meritorious grounds for a new trial and an appeal. In other words, trial counsel may not, upon the rendition of the verdict or the finding of guilty, walk out of the court room and shed himself of all responsibility with reference to the rights of his client if, in his opinion, the trial court has committed error which may be the basis for a motion for a new trial. We have no right to assume competent counsel would disregard such duty. Willoughby v. State (1961) , Ind. , , 177 N.E.2d 465.' See also: State ex rel. Macon v. Orange Circuit Court (1964), Ind., 195 N.E.2d 352.

In examining the record before us we find that this appellant requested the trial court for counsel to prepare and file his motion for a new trial. This motion was overruled by the trial court. Then the appellant pro se, without counsel, filed a motion for a new trial, which was overruled by the trial court. The trial court did, however, thereafter appoint counsel for the appeal. This was the same attorney who had failed or refused to file a motion for a new trial upon which an appeal could be perfected. It appears that the court-appointed attorney was derelict as trial counsel in performing this duty for his client under the cases above cited. We normally would assume trial counsel could find no merit in an appeal when there is a failure to file a motion for a new trial.

State ex rel. Macon v. Orange Circuit Court, supra. But in this case such counsel has taken the inconsistent position of thereafter accepting an appointment by the same court as counsel for appellant on appeal. If such counsel believed there was sufficient merit for an appeal, he had the obligation and duty to properly prepare and file a motion for a new trial in the trial court. He could not consistently refuse to file a motion for a new trial for the appellant, and thereafter accept the responsibility of perfecting an appeal in the same case. An adequate appeal can generally only be based upon a motion for a new trial, properly prepared.

As stated in State ex rel. Macon v. Orange...