Wilhite v. State, 179S6
| Decision Date | 01 April 1980 |
| Docket Number | No. 179S6,179S6 |
| Citation | 402 N.E.2d 1211,273 Ind. 56 |
| Parties | Kenneth G. WILHITE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Harriette Bailey Conn, Public Defender, Susan K. Carpenter, Deputy Public Defender, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., Jeff G. Fihn, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from the trial court's denial of Defendant's (Petitioner's) petition for permission to file a belated motion to correct errors, following dismissal of his pro se petition for post conviction relief filed pursuant to Indiana Post Conviction Remedy Rule 1. Defendant challenges the trial court's finding that he was not diligent 1 in seeking permission to file the belated motion to correct errors.
Defendant was charged by indictment with two counts of first degree murder (traditional murder and felony murder), Burns § 10-3401. On June 4, 1959, defendant pleaded guilty to one count of first degree murder, and the charge of felony murder was dismissed. He was sentenced to life imprisonment.
With regard to defendant's diligence in requesting permission to file a belated motion, the following sequence of events was before the trial court and is pertinent to our consideration:
April 17, 1970: Defendant filed his pro se petition for post conviction relief pursuant to Post Conviction Remedy Rule 1. In it, he alleged ineffective representation by counsel, and requested the assistance of the State Public Defender's office.
September 17, 1970: State filed a motion to dismiss defendant's petition, alleging defendant's failure "to state a claim * * * upon which relief can be granted." The motion was granted, and notice was sent to the office of the State Public Defender.
October 28, 1970: Defendant, by the State Public Defender, filed his "Motion to Reinstate." In it, he alleged the existence of both factual and legal issues, and further stated that Post Conviction Remedy Rule, § 4(f) allows summary disposition of the Petition only when it appears from the pleadings that there is no genuine issue of material fact.
January 26, 1971: Defendant's motion to reinstate was denied without a hearing.
January 27, 1971: The trial court sent notice to the State Public Defender that defendant's motion had been denied.
February 10, 1971: Defendant wrote to the State Public Defender and stated that he had read in the newspaper that his petition for post conviction relief had been denied. He asked for the State Public Defender's assistance in appealing the decision.
September 8, 1971: A deputy public defender wrote to the trial court and requested that the court "render specific Findings of Fact and Conclusions of Law" and send them to the public defender so that an appeal could be perfected.
September 17, 1971: The deputy public defender again wrote to the trial court, requesting its findings and conclusions.
February 21, 1973: Defendant wrote to the trial court and asked that he be provided with a transcript of the proceedings against him.
February 22, 1973: The trial court wrote the defendant and instructed him to contact the State Public Defender.
February 25, 1977: Defendant wrote to the trial court and inquired about the cost of a transcript.
February 8, 1978: The State Public Defender received defendant's letter in which he requested to talk to a deputy public defender regarding "a petition for post conviction relief."
April 7, 1978: Pursuant to Indiana Post Conviction Remedy Rule 2, Defendant, by the State Public Defender, filed his petition for permission to file a belated motion to correct errors.
May 27, 1978: The trial court entered its findings of fact and conclusions of law. Defendant's request for permission to file a belated motion to correct error was denied because the trial court found that he had not been diligent in seeking that permission.
On appeal, Defendant contends that the State Public Defender's office is at fault, and that the above sequence of events indicates that he was, in fact, diligent. At the outset, we note that the decision whether or not a defendant has exercised diligence in seeking permission to file a belated motion to correct errors lies within the sound discretion of the trial court; that decision will not be disturbed unless an abuse of discretion is demonstrated. Jones v. State, (1979) Ind., 387...
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...waited twelve years to do so. See Indiana v. Dobeski, 275 Ind. 662, 419 N.E.2d 753 (1981) (fourteen years too long); Wilhite v. State, 273 Ind. 56, 402 N.E.2d 1211 (1980) (five years too long). The state Court of Appeals affirmed and the Indiana Supreme Court denied a petition for Crank the......
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...what constitutes diligence and what does not, and each case must be determined in the context of its own circumstances. Wilhite v. State, (1980) Ind., 402 N.E.2d 1211. We do not find that petitioner has met her burden of proving the necessary diligence under the circumstances of this case. ......
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