Tillman v. State
| Decision Date | 22 March 1982 |
| Docket Number | No. 1181S321,1181S321 |
| Citation | 432 N.E.2d 407 |
| Parties | L. V. TILLMAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, Carr L. Darden, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Aimee L. Kolze, Deputy Atty. Gen., Indianapolis, for appellee.
The petitioner, L. V. Tillman, is appealing from the denial of his petition for relief under Post-Conviction Relief, Rule 1. He was convicted by a jury of armed rape and sentenced to a term of thirty years. His conviction was affirmed by this Court on direct appeal in Tillman v. State, (1980) Ind., 408 N.E.2d 1250. His petition raises the single issue of the incompetency of his trial counsel.
A summary of the facts relevant to this issue shows that the victim's testimony at the trial established the main elements of the crime. Three other witnesses described the victim's demeanor and statements made after the incident. Petitioner and three other witnesses testified that he was at another place playing cards at the time of the crime. Petitioner denied knowing or having met the victim prior to the incident.
At the post-conviction relief hearing, petitioner changed his testimony. He stated that his attorney had prevented him from testifying truthfully to the facts and circumstances surrounding the alleged crime. He said his attorney had advised him to fabricate an alibi defense because the state's case was so weak. He testified that he had not been at a card party on the night of the crime and that he did have sexual intercourse with the victim but that it had been with her consent. He further stated he did not have any weapon and did not use any force. He said he realized this testimony was different from his testimony at trial.
Petitioner also testified that his attorney failed to convey the correct terms of an offered plea agreement to him and told him that the trial judge had said he would have been found not guilty at a bench trial. Petitioner's attorney testified at the hearing and contradicted petitioner's testimony. The trial court subsequently denied post-conviction relief.
It is well settled that in post-conviction proceedings the burden of proof rests with the petitioner to establish his grounds for relief by a preponderance of the evidence. Ind.R.P.C. 1 § 5; Laird v. State, (1979) Ind., 385 N.E.2d 452. The judge hearing the petition is the sole judge of the weight of the evidence and the credibility of the witnesses. His decision will be reversed only where the evidence is without conflict and leads unerringly to a result not reached by the trial court. Johnson v. State, (1980) Ind., 406 N.E.2d 1170; Cottingham v. State, (1978) 269 Ind. 261, 379 N.E.2d 984.
Regarding the issue of the competency of counsel, it has been more than frequently stated by this Court that there is a presumption that counsel is competent and that strong and convincing evidence is required to rebut the presumption. Lindley v. State, (1981) Ind., 426 N.E.2d 398; Rinard v. State, (1979) Ind., 394 N.E.2d 160; Jones v. State, (1978) Ind., 387 N.E.2d 440. Incompetency of counsel revolves around the particular facts of each case and the standard of review on this issue is the mockery of justice test as modified by the adequate legal representation standard. Crisp v. State, (1979) Ind., 394 N.E.2d 115; Cottingham v. State, supra. This Court will not speculate as to what may have been the most advantageous strategy in a particular case. Isolated poor strategy, bad tactics, or inexperience does not necessarily amount to ineffective counsel. Hollon v. State, (1980) Ind., 398 N.E.2d 1273; Smith v. State, (1979) Ind., 396 N.E.2d 898; Crisp v. State, supra.
In this case, petitioner makes several unsupported allegations about what his attorney advised him to do. He alleges that because of his attorney's ineffectiveness, he was prevented from presenting evidence and testifying truthfully at his original trial. He claims that he was afraid to testify truthfully after his attorney informed him that he would be convicted and sentenced to a prison term of sixty years if he told the truth. He testified in detail at the post-conviction hearing about the consensual nature of the sexual intercourse. Although this testimony contradicted that given by petitioner at his original trial, petitioner explained the reasons for the contradiction in the following testimony:
Q. "Could you explain to the Court why you are testifying differently now?"
A. ...
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...be reversed only where the evidence is without conflict and leads unerringly to a result not reached by the trial court. Tillman v. State, (1982) Ind., 432 N.E.2d 407; Johnson v. State, (1980) Ind., 406 N.E.2d 1170; Cottingham v. State, (1978) 269 Ind. 261, 379 N.E.2d Next, it has long been......
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...297 N.E.2d 856 (1973)). As such, resolution of the issue revolves around the particular facts of each case. Id. (quoting Tillman v. State, 432 N.E.2d 407, 408 (Ind.1982)). When, as here, failure of counsel is based on apparent ignorance of the law, counsel's nonfeasance is not deemed a mere......
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...Isolated poor strategy, bad tactics or inexperience of trial counsel does not necessarily amount to ineffectiveness. Tillman v. State, (1982) Ind., 432 N.E.2d 407. Among his contentions are that counsel failed to timely and properly insist that the court make rulings on the motions to dismi......
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...presumption exists that defense counsel is competent and only strong and convincing evidence will rebut that presumption. Tillman v. State, (1982) Ind., 432 N.E.2d 407. Isolated poor strategy, bad tactics or inexperience does not necessarily amount to ineffective counsel. Hollonquest, supra......