State ex rel. McManamon v. Blackford Circuit Court

• Citation: 229 Ind. 3,95 N.E.2d 556
• Decision Date: 07 December 1950
• Docket Number: No. 28717,28717
• Parties: . Supreme Court of Indiana. Concurring Opinion
• Court: Supreme Court of Indiana

Page 556

95 N.E.2d 556

229 Ind. 3

STATE ex rel. McMANAMON et al. v. BLACKFORD CIRCUIT COURT et al.

No. 28717.

Supreme Court of Indiana.

Concurring Opinion Dec. 7, 1950.

Dissenting Dec. 13, 1950.

J. Emmett McManamon, Atty. Gen., Merl M. Wall, George W. Hand, Jr., Charles F. O'Connor, Deputy Attys. Gen., Alfred R. Hollander, Pros. Atty., 71st Judicial Circuit, Hartford City, for relators.

Max C. Peterson, Judge, Blackford Circuit Court, Hartford City, for respondents.

YOUNG, Chief Judge.

On August 31, 1943, Robert L. Furnish and Henry Glancey were charged by affidavit with the crime of larceny in the Blackford Circuit Court. On the same day, the defendant Furnish was convicted upon his plea of guilty and given a suspended sentence, the terms of which were violated by the defendant, which violation resulted in his sentence on June 9, 1944, for a term of one to ten years in the Indiana State Reformatory.

The defendant was released on parole from the reformatory on July 9, 1945, and was returned on June 21, 1949, as a result of another parole violation and, on April 27, 1950, the defendant filed a pleading in the Blackford Circuit Court entitled a 'Motion to Vacate Judgment.'

On May 19, 1950, the State of Indiana filed a demurrer to this motion on the ground that the Blackford Circuit Court had no jurisdiction to entertain this motion because more than five years had elapsed since the time of judgment and that, consequently, the defendant had lost his right to review of the judgment by writ of error coram nobis.

On July 26, 1950, the Blackford Circuit Court overruled the State's demurrer. On July 31, 1950, the State filed a motion to reconsider the ruling of the Blackford Circuit Court on said demurrer and, on August 5, 1950, the motion to reconsider was overruled and the State of Indiana was fuled to answer on or before September 1, 1950.

Thereafter, on August 28, 1950, this proceeding was commenced as an original action for a writ of prohibition against the Blackford Circuit Court and Max C. Peterson, as Judge of said Court. On said August 28, 1950, a temporary writ of prohibition was issued returnable on September 25. On August 30, 1950, the said Max C. Peterson, as Judge of the Blackford Circuit Court, filed his response herein, from which it appears that said temporary writ of prohibition was served upon him on August 29, and that on August 30, said respondent showed such service of said order on the entry book of his court, and that, after having made such entry, but on the same day, said respondent duly resigned from the office of Judge of the Blackford Circuit Court, comprising the 71st Judicial Circuit of the State of Indiana, and delivered such resignation to the Governor of the State of Indiana.

The real party in interest here is the Blackford Circuit Court, which has been served. Subsequently, the Judge of said Court has resigned and the Honorable James R. Emshwiller has been appointed Judge of said Court, with a record upon the minutes of his court of the filing of said petition. The said James R. Emshwiller has likewise filed a response to said petition, the effect of which is to admit most of the facts set out, but he denies the allegations that the Blackford Circuit Court has no jurisdiction to hear and determine issues raised by defendant's motion and that it does not have jurisdiction to afford the relief prayed for by the defendant.

The petition herein is based upon § 9-3301, Burns' 1942 Repl., 1949 Cum.Pkt. Supp., Acts of 1947 Ch. 189. This statute provides that any defendant shall be presumed to have waived his right to institute any proceeding for a writ of error coram nobis after the lapse of five years from the time of judgment or conviction, and no court shall have jurisdiction to entertain any such proceeding for writ of error coram nobis after said lapse of time and any court attempting to entertain jurisdiction in violation of this section may be prohibited by a writ of prohibition from so assuming jurisdiction, with the provision, however, that if any defendant shall have been prevented by the state, or by any officer or employee of the state where such defendant may be confined, from instituting such proceeding, or such defendant shall have been insane during such five year period, the time such defendant shall have been temporarily prevented from instituting such proceeding shall be extended accordingly.

It is the petitioner's position that the record shows that more than five years have expired since the said Robert F. Furnish was convicted and that, accordingly, the Blackford Circuit Court is without jurisdiction in said matter.

This question leads to whether or not the 'Motion to Vacate Judgment' is, in effect, a motion for a writ of error coram nobis. In our opinion it is that or nothing. There is no procedure in this state for vacating a judgment by the court after the expiration of the term of said court at which said judgment was entered, but on the contrary, all of the cases in Indiana seem to hold that such a proceeding as this is, and must be treated and considered as, a motion for a writ of error coram nobis. Irwin v. State, 1942, 220 Ind. 228, 239, 41 N.E.2d 809; Sharp v. State, 1938, 215 Ind. 505, 509, 19 N.E.2d 942; Lobaugh v. State, 1948, 226 Ind. 548, 82 N.E.2d 247; Vonderschmidt v. State, 1948, 226 Ind. 439, 81 N.E.2d 782; Sanders v. State, 1882, 85 Ind. 318.

The question now presented to the court is whether or not the statute of limitations is applicable after the passage of five years. There is no provision for relief from judgments after term in our criminal code. This leaves the question as to whether or not a writ of error coram nobis may be applied for after five years have passed during which the defendant had opportunity to learn of his rights.

It is alleged in the defendant's motion that, on August 31, 1943, there was filed in said court an affidavit against the defendants, charging them with larceny. On the same day this defendant was arraigned and plead guilty to the charge in said affidavit and the court immediately passed sentence upon this defendant and suspended such sentence; that the defendant was about 19 years of age and was without financial means; that he was in a dazed and subnormal condition and did not realize the charge and facts placed against him and the law applicable thereto; that he had no opportunity to discuss the case with legal counsel and that he was not advised of his constitutional right to be represented by counsel, and that the trial judge did not advise him of the consequences to follow a plea of guilty, nor the nature of the punishment that could be placed against him. He says that he has only recently learned that he was entitled to be represented by counsel when said charge was placed against him and that he was entitled to have legal counsel furnished for him and to represent him at said hearing and that he was entitled to be heard himself and was entitled to face the witnesses in the trial of said cause and now, with due diligence, he presents the matters of fact occurring at the time of said conviction, all at his earliest opportunity after learning what his constitutional rights were at the time of said hearing.

It was also alleged in said petition that the affidavit, filed against defendant at the time, was signed by one Albert L. Merkel and that the names of witnesses endorsed on the back of said affidavit were Albert L. Merkel, Isaac Cook and Roscoe Markin; that all of said witnesses were living and available and that said Dan Kinney, whose goods were alleged to have been stolen, is living and available and that his co-defendant is still living and is available in said matter. It is upon these grounds that he asks to have the judgment against him set aside and that he be permitted to withdraw his plea of guilty and to enter a plea of not guilty and to have a trial as to his guilt or innocence.

It seems, however, to be pretty well established that a petition for a writ of error coram nobis asks for a new trial, but is in the nature of a civil action. State ex rel. Emmert v. Gentry, 1945, 223 Ind. 535, 538, 62 N.E.2d 860, 161 A.L.R. 532; McDowell v. State, 1947, 225 Ind. 495, 76 N.E.2d 249; State ex rel. Barnes v. Howard, 1946, 224 Ind. 107, 110, 65 N.E.2d 55; State ex rel. Sawa v. Criminal Court of Lake Co., 1942, 220 Ind. 4, 5, 40 N.E.2d 971; State ex rel. Jones v. Smith (Hornaday), 1942, 220 Ind. 645, 647, 648, 45 N.E.2d 203, 46 N.E.2d 199; State ex rel. Cutsinger v. Spencer, 1941, 219 Ind. 148, 155, 41 N.E.2d 601. The case of State ex rel. Sawa v. Criminal Court of Lake Co., supra, involved a petition for a writ of error coram nobis and then, quoting from State ex rel. Cutsinger v. Spencer, supra, the court said: "A petition for coram nobis is not based upon a contention that the judgment attacked is void. It concedes that it is valid upon its face, and that there is no error apparent upon the face of the record. No longer is the state seeking to deprive the defendant of his life, liberty, or property. He is not now 'the accused' in a 'criminal prosecution.' It is he who is now seeking to deprive the State of Indiana of rights concerning his liberty which have vested in it by a judgment which must be presumed to have been procured by due course of law until he sustains the burden of overcoming the presumption. The petitioner is asking that the taxpayers, the state, be required to bear the expense of furnishing him with a certified record of the proceedings in the criminal case. We know of no constitutional provision that requires that the public shall bear any of the expense of the preparation or prosecution of the petitioner's action seeking to overthrow the judgment nor of any statute requiring or authorizing the expenditure of public funds for such a purpose."

In the case of State ex rel. Emmert v. Gentry, supra, this court said, 223 Ind. at page 538, 62 N.E.2d at page 861, as...