Young v. State

• Decision Date: 09 November 1984
• Docket Number: No. 383S93,383S93
• Citation: 470 N.E.2d 70
• Parties: John M. YOUNG, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Supreme Court

Page 70

470 N.E.2d 70

John M. YOUNG, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 383S93.

Supreme Court of Indiana.

Nov. 9, 1984.

Susan K. Carpenter, Public Defender of Ind., Sheila K. Zwickey, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Following a trial by jury, Petitioner (Appellant) was convicted of first degree murder, Ind.Code Sec. 35-13-4-1 (Burns 1976) (since repealed) and was sentenced to life imprisonment. His conviction was affirmed on direct appeal by this Court on December 30, 1977. Young v. State, (1977) 267 Ind. 434, 370 N.E.2d 903. In 1981, Petitioner filed his petition for post conviction relief. A hearing thereon was held, and the petition was subsequently denied. Defendant's appeal from the denial of his petition raises two (2) issues for our review:

(1) Whether he was denied the effective assistance of counsel;

(2) Whether the post-conviction court failed to make specific findings of fact as required by Post Conviction Rule 1, Section 6.

ISSUE I

Petitioner alleges that there was an offer of a plea agreement from the prosecutor's office which was not communicated to him by his attorney. We agree with the Petitioner that if his attorney failed to advise him of a plea offer made by the State, he was denied the effective assistance of counsel. Whitacre v. State, (1982) Ind., 442 N.E.2d 1085, 1086-87; Harris v. State, (1982) Ind., 437 N.E.2d 44, 45-46; Curl v. State, (1980) 272 Ind. 605, 607-08, 400 N.E.2d 775, 777; Lyles v. State, (1978) 178 Ind.App. 398, 402, 382 N.E.2d 991, 994.

Our standard of review in appeals from the denial of post conviction relief is as follows:

"Petitioner ha[s] the burden of proof and stands in the shoes of one appealing from a negative judgment. The trial judge, as trier of the facts, is the sole judge of the weight of the evidence and the credibility of the witnesses. It is only where the evidence is without conflict and leads to but one conclusion, and the trial court has reached an opposite conclusion, that the decision will be disturbed Neville v. State, (1982) Ind., 439 N.E.2d 1358, 1360. Hence, the question is whether Petitioner sustained his burden of proving that a plea offer was made by the State and that his attorney failed to communicate such offer to him. We find that he did not.

as being contrary to law." (citations omitted).

At the hearing upon the issue, Bernard P. Morley testified that he had known the Petitioner for 30 or 40 years and that Petitioner had been his employee at one time. He stated that he had had a conversation with David Millen, the deputy prosecutor who had represented the State at Petitioner's trial, in the hallway of the City-County Building in Indianapolis some time in 1981 and had asked Millen if he could recall any plea bargaining prior to Petitioner's trial, to which Millen replied that he wasn't positive and would have to check his records. When Morley was asked whether Millen had told him that an offer was made, he responded that that was what he "derived" from Millen's statement.

The Petitioner testified that Morley had visited him in prison and had told him that Millen had told him that "John would not have a life sentence if he would have accepted the plea bargain the morning before the trial started." Morley, however, did not testify to making such statement to Petitioner. Petitioner further testified that his attorney had never offered a plea bargain to him, but that he would have accepted a plea bargain if it had been offered to him. On rebuttal, however, Petitioner testified that his attorney had told him that there would possibly be a plea bargain brought on the morning before the trial was to start. He then stated that on the first morning of his trial he saw his attorney and Millen talking, although he did not know what they were discussing.

David Millen testified that he did not recall that there was ever a specific offer for a plea agreement made and that, in preparing for his testimony at the hearing on the post conviction petition, he had examined the file in the prosecutor's office on Petitioner's case and had found no information to indicate that there had been an offer made. Millen did recall having been approached by Morley in the City-County Building in the summer of 1981 and testified that he told Morley that he could not say one way or the other whether he had offered a plea agreement and that he would have to look in the file. When he did so, however, he found nothing concerning conversations regarding a plea agreement. He further testified that it was usual practice to explore the possibility of a plea agreement in the interest of judicial economy, but that Petitioner's attorney had told him that Petitioner wanted a trial. He further testified that the case was "obvious" and "strong" and that there was no necessity of a plea offer. On cross-examination he was asked, "But you're not saying there wasn't [a plea offer]?" Millen responded, "Yeah, I think I'd be willing to say that there wasn't a plea offer based upon Mr. Good's [Petitioner's attorney's] statement that there was no...