Swinehart v. State

• Decision Date: 01 June 1978
• Docket Number: No. 1076S351,1076S351
• Citation: 268 Ind. 460,376 N.E.2d 486
• Parties: Floyd L. SWINEHART and Harrison Eugene Wells, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 486

376 N.E.2d 486

268 Ind. 460

Floyd L. SWINEHART and Harrison Eugene Wells, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1076S351.

Supreme Court of Indiana.

June 1, 1978.

Harriette Bailey Conn, Public Defender, Bobby Jay Small, David P. Freund, Deputy Public Defenders, Indianapolis, Jerrilee P. Sutherlin, Research Asst., for appellants.

Theodore L. Sendak, Atty. Gen., Jack R. O'Neill, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendants (Appellants) were jointly charged with two counts of safe burglary, Ind.Code § 35-1-61-1 (Burns 1975), and two counts of theft of more than one hundred dollars, Ind.Code § 35-17-5-1 et seq. (Burns 1975). In addition, the defendant Wells was charged with being an habitual criminal, Ind.Code § 35-8-8-1 (Burns 1975). After a trial by jury, both defendants were found guilty upon all charges of burglary and theft, a bifurcated trial was had and Wells was judged to be an habitual criminal. Both defendants were sentenced to imprisonment for not less than five nor more than ten years upon each burglary conviction and to terms of not less than one nor more than ten years upon each theft conviction. Defendant, Wells, was further sentenced to life imprisonment upon the habitual criminal verdict. This joint appeal presents the following issues:

(1) Are the judgments void for want of jurisdiction of the trial judge who presided?

(2) Did the trial court err by denying the defendants' motion to dismiss the indictment?

(3) Did the trial court err in sentencing the defendant Wells upon the robbery and theft verdicts in addition to the sentence upon the habitual criminal verdict?

(4) Did the trial court err by refusing to grant an in-trial motion for a continuance or, in the alternative, to appoint counsel other than the lawyer then representing the defendant?

(5) Was the defendant denied his constitutional rights to a fair trial?

ISSUES I & II

Defendants had been previously charged by an indictment that was defective as to two counts. They had been arraigned, perfected a change from the regular judge and entered pleas of not guilty. Upon discovering the defect, the State procured a new indictment for the same offenses, filed it before the regular judge and on the same day filed a motion to dismiss the prior indictment. Thereafter, the defendants filed objections to the dismissal of the prior indictment pursuant to Ind.Code § 35-3.1-1-4 (Burns 1975), and followed such action with a motion filed before the regular judge to dismiss the new indictment because of the pendency of the causes of action under the first indictment. In this connection, it is noted that the motion to dismiss the first indictment had not been ruled upon. Nor does the record indicate that either it or the objection to dismissal had ever been called to the attention of the special judge. This appears to be immaterial, however, inasmuch as the special judge had no alternative under the statute, Ind.Code § 35-3.1-1-13 (Burns 1975), but was required to dismiss the indictments; Maxey v. State, (1976) Ind., 353 N.E.2d 457; and the basis alleged for the dismissal of the second indictment was not a proper ground for dismissal. Causes for dismissal are enumerated in Ind.Code § 35-3.1-1-4 (Burns 1975) and the pendency of another action, where jeopardy has not attached, is not among them.

The defendants' pleading denominated "Objection to Motion to Dismiss" and filed in response to the State's motion to dismiss the first indictment was a nullity in this case. Such objections are inappropriate except where jeopardy has attached, and the right to protest a subsequent prosecution for the same crime would, otherwise, be waived.

The claim of the defendants that the regular judge was without jurisdiction to proceed in the case following his initial removal is premised upon our holding in Lucas v. State, (1968) 249 Ind. 637, 233 N.E.2d 770. In that case, however, the removed judge had purported to act in the case with respect to which the change motion had been filed. In the matter before us, although the second indictment was for the same offenses as the first, it, nevertheless, constituted a different case, "a new prosecution." This is in accord with the holding in State ex rel. Meloy v. Barger, (1949) 227 Ind. 678, 88 N.E.2d 392; although it appears to be at odds with our holding in State ex rel. Hert v. Niblack, Special Judge, etc., (1963) 244 Ind. 338, 192 N.E.2d 737.

Of greater significance than either of the aforesaid cases, however, is the defendants' failure to object in any manner to proceeding before Judge Tolen, the regular judge. In fact, they expressly subjected themselves to his jurisdiction by filing the aforementioned motion to dismiss before him. Their reliance upon authorities cited in support of this argument that Judge Tolen was without jurisdiction relate to issues of "subject matter" jurisdiction and are misplaced here. We have consistently held that when his authority is not questioned at the time a judge sits in a cause, all objections thereto are deemed waived. Gordy v. State, (1974) 262 Ind. 275, 315 N.E.2d 362 and cases there cited. If we deem the second indictment a new case, the defendants were entitled to their optional change of judge. If we deem the second indictment and following proceedings to be but a continuance of the proceedings under the first indictment, it was incumbent upon the defendants to object when Judge Tolen reappeared after having been removed which they did not do. Under either hypothesis, the right to object has been waived.

ISSUE III

Following the return of the guilty verdicts upon the safe burglary and theft counts, a trial to the jury was had upon the habitual criminal count against the defendant, Wells, and it was determined that he had been twice previously convicted, sentenced and imprisoned, as charged. Thereupon, he was sentenced to life imprisonment, which was a sentence in addition to those imposed upon the burglary and theft convictions.

In this, the trial court was in error. The life sentence provided by the habitual criminal statute is an enhanced punishment for the underlying offense committed by those who have been twice previously convicted, sentenced and imprisoned for felonies. Eldridge v. State, (1977) Ind., 361 N.E.2d 155.

ISSUE IV

On the day the trial proceeded to the presentation of evidence of Wells' prior felony convictions, sentences and imprisonments, he stated his desire to discharge his retained counsel, requested permission to proceed to trial pro se and then qualified his request by moving the court to appoint an attorney as "co-counsel." In the alternative, Wells requested a continuance to retain new counsel to act in an advisory capacity. The judge stated that his full request would not be granted but ordered Wells' retained counsel to remain before the bar and allowed Wells to act as his own co-counsel with his previously retained counsel. Defendant now argues that the trial court violated his rights as guaranteed by the Sixth Amendment to the Constitution of the United States.

It is clear that an indigent defendant has a constitutional right to be represented by counsel at state expense. State ex rel. Grecco v. Allen Circuit Court, et al., (1958) 238 Ind. 571, 153 N.E.2d 914. It is equally clear that a criminal defendant has a constitutional right to proceed pro se if he wishes to do so and if he understands the risk involved. Faretta v. California, (1975) ...