State ex rel. Ruetz v. LaGrange Circuit Court, 172S12

• Decision Date: 18 April 1972
• Docket Number: No. 172S12,172S12
• Parties: STATE of Indiana on the RELATION of Neal RUETZ, Relator, v. The LaGRANGE CIRCUIT COURT, Jack P. Dunten, Judge of the LaGrange Circuit Court, Respondents.
• Court: Indiana Supreme Court

Page 106

281 N.E.2d 106

258 Ind. 354

STATE of Indiana on the RELATION of Neal RUETZ, Relator, v. The LaGRANGE CIRCUIT COURT, Jack P. Dunten, Judge of the LaGrange Circuit Court, Respondents.

No. 172S12.

Supreme Court of Indiana.

April 18, 1972.

Howard E. Petersen, LaGrange, for relator.

Edward A. Chapleau, South Bend, for respondents.

GIVAN, Justice.

This is an original action filed by the relator asking this Court to issue a writ of mandate to the respondent court ordering the court to strike an order book entry to the effect that relator had waived his right to an appeal. Relator further asks that the trial court be mandated to grant an extension of time and the appointment of pauper counsel to perfect his appeal. This Court previously refused to grant the relief prayed by the relator.

The relator was tried in the respondent court on the charge of first degree murder. Jury trial resulted a verdict of guilty on June 3, 1971. After being sentenced to the Indiana State Prison for life, the relator informed the respondent court that he desired to file a motion to correct errors. Sometime shortly after he had been sentenced, the relator escaped from the LaGrange County Jail and remained a fugitive from justice until September 27, 1971, when after having been captured he was brought back into the jurisdiction of the respondent court. During the time he was a fugitive, namely: on August 2, 1971, relator's attorney filed a motion to correct errors. This motion was overruled by the trial court on the ground that during the period in which the motion to correct errors could be filed under the rules of this Court the relator had escaped and absented himself from the jurisdiction of the court. On November 22, 1971, relator filed a motion to set aside the ruling or in the alternative to modify it. This motion was overruled by the respondent court.

It is relator's contention that he has a right to an appeal, which right cannot be waived. With this we do not agree. The right to appeal may certainly be waived and in many cases in fact those convicted do specifically waive their right to an appeal. In the case before us it is true the relator specifically stated immediately following his conviction that he desired to file a motion to correct errors, thus indicating to the trial court that he desired to take the preliminary steps required for the taking of an appeal. However, almost immediately after so informing the trial court the relator deliberately and unlawfully absented himself from the court's jurisdiction. This question was handled by this Court in the case of Irvin v. State (1956), 236 Ind. 384, at page 391, 139 N.E.2d 898, at page 901 this Court stated:

'Most of the cases on the question which we have examined, base their decisions on waiver or estoppel.

'They deal with situations where the appellant and defendant were still at large pending an appeal which apparently had been perfected, and errors properly assigned while he was still in custody. But be this as it may, the principle is the same whether the cause is pending on appeal or in the trial court during the absence of the defendant as a fugitive from its custody. If a prisoner escapes he is not entitled during the period he is a fugitive to any standing in court or to file any plea or ask any consideration from such court.'

Following the above quote this Court cited numerous decisions from various jurisdictions, including Indiana, to support this proposition of law.

In the case at bar the relator was not within the jurisdiction of the court at the time his motion to correct errors was filed. The time permitted by the rules of this Court for the filing of such a motion had long expired at the time the relator was captured and returned to the jurisdiction of the court. Under the above authority, the relator had no standing in court during the period in which the motion to correct errors could be filed. By so voluntarily absenting himself from the court's jurisdiction, the relator has effectively and knowingly waived his right to a timely appeal to this Court.

Relator classifies the holding of the respondent court as cruel and unusual judicial punishment for an act of escape. It is nothing of the kind. The ruling of the respondent court was merely a correct observation of the effect which relator's voluntary act of escape had upon his standing in court.

We hold the trial court was correct in so holding. The action of this Court heretofore taken denying the relator the relief prayed is, therefore, confirmed.

ARTERBURN, C.J., and HUNTER and PRENTICE, JJ., concur.

DeBRULER, J., dissents with opinion.

DeBRULER, Justice (dissenting).

The appeal of Neal Ruetz will not be heard. He was convicted of First Degree Murder. On June 3, 1971, he was sentenced to life imprisonment. On June 5, 1971, he walked away from the LaGrange County Jail through an open garage door. He was captured and returned to the LaGrange County Jail on September 27, 1971. On August 2, 1971, during the absence of his client from custody, Neal Ruetz's lawyer filed a lengthy and timely motion to correct errors. On September 30, 1971, after Neal Ruetz had been returned to the Sheriff's custody in LaGrange County, the trial judge held an evidentiary hearing on the motion to correct errors, heard oral arguments, overruled the motion to correct errors and further ordered as follows:

'Court now finds...