MICHAEL ROY BRANAN v. STATE OF INDIANA.
No. 3-573A59
Court of Appeals of Indiana
September 12, 1974
Rehearing denied October 22, 1974
316 N.E.2d 444
Accordingly, the judgment is reversed and this cause is remanded for a new trial.
Reversed.
Robertson, P.J. and Lowdermilk, J., concur.
NOTE.—Reported at 316 N.E.2d 444.
Harriette Bailey Conn, Public Defender of Indiana, for appellant.
Theodore L. Sendak, Attorney General, Stephen M. Sherman, Deputy Attorney General, for appellee.
The State was represented by Deputy Prosecutor William Whitman at Branan‘s sentencing. This is the same William Whitman who had represented Branan at his arraignment and the entry of his not guilty plea. This is the same William Whitman who had met with Branan on at least two occasions outside of court to discuss the charges pending in order to prepare Branan‘s defense. During the sentencing proceedings, Whitman‘s participation was limited to the following exchange with the trial court:
“THE COURT: Mr. Whitman.
“MR. WHITMAN: I have no recommendation, sir.”
Branan contends that the dual defense-state representation in the same case by Whitman represents a conflict of interest and prejudice. An attorney cannot be permitted to represent or assist the State in the prosecution of a criminal defendant whom he has previously represented in the same or in a closely related matter. See People v. Curry (1971), 1 Ill. App. 3d 87, 272 N.E.2d 669. Due
The trial court committed fundamental constitutional error in failing to advise Branan of his constitutional rights before accepting the plea of guilty. Goode v. State (1974), 160 Ind. App. 360, 312 N.E.2d 109. See also, Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; Brimhall v. State (1972), 258 Ind. 153, 279 N.E.2d 557; Bonner v. State (1973), 156 Ind. App. 513, 297 N.E.2d 867; Taylor v. State (1973), 156 Ind. App. 659, 297 N.E.2d 896 and Indiana Rules of Procedure,
The judgment of the trial court should be and the same hereby is reversed with instructions to grant Michael Branan‘s motion to withdraw his plea of guilty.
Garrard, J., concurs; Hoffman, C.J., dissents with opinion.
HOFFMAN, C.J.—Appellant Michael Roy Branan (Branan) petitioned the trial court herein for post-conviction relief after having been convicted of being an accessory before and after the fact to a theft. After a hearing, his petition was denied. On appeal, Branan alleges that the trial court erred in not voiding his guilty plea to the above charges where the same counsel represented both Branan and the State at different stages of the criminal proceedings which resulted in his conviction.
The evidence most favorable to the appellee State of Indiana contained in the record of the post-conviction proceeding in the trial court shows that Branan was charged by affidavit with being an accessory before and after the fact to a robbery in Mishawaka, Indiana. Because Branan stated he could not afford an attorney but desired one, William Whitman, then a St. Joseph County Public Defender, was appointed as Branan‘s counsel. Mr. Whitman discussed the case with Branan and represented him at a hearing where he waived arraignment and entered a plea of not guilty to both charges. Shortly thereafter Branan retained private counsel who represented him for the balance of the criminal proceedings.
Upon the advice of his private counsel, Branan withdrew his pleas of not guilty and pleaded guilty to the lesser offenses of accessory before and after the fact to a theft. These pleas were accepted by the trial court and, at a later hearing, Branan was sentenced by the trial court.
At the sentencing hearing, the State was represented by the same William Whitman who had originally been appointed as a Public Defender to represent Branan. Mr. Whitman‘s participation in this hearing was limited to a single statement that the State had no recommendation as to sentencing.
Due process of law and the precepts of professional ethics forbid the participation of an attorney in the prosecution of a defendant whom he has previously represented in the same
However, regardless of the propriety of this attorney‘s conduct under the Code of Ethics, the only question germane to the case at bar is whether the events described hereinabove resulted in prejudice to the defendant‘s right to due process of law. It must be remembered that the case at bar is an appeal from a trial court‘s determination that Branan is not entitled to relief on his post-conviction petition. Furthermore, the burden is upon a petitioner such as Branan to establish his grounds for relief by a preponderance of the evidence in the trial court. Ind. Rules of Procedure,
In the case at bar there was simply no evidence of prejudice to the defendant by reason of Mr. Whitman‘s acts presented at the hearing on Branan‘s petition. Indeed, the evidence presented at that hearing overwhelmingly supports the determination of the trial court herein. Mr. Whitman testified that he never divulged to any fellow prosecutor any information obtained by reason of his attorney-client relationship with Branan. Moreover, Mr. Whitman never actively participated in the prosecution of Branan. Rather, he only appeared at Branan‘s sentencing and informed the trial court that the general policy of the St. Joseph County Prosecutor‘s office is to not recommend sentences to criminal trial courts. There could be no prejudice to Branan‘s rights upon these facts.
However, the majority‘s review of such error results from a misapplication of the rules of law surrounding such review on appeal. The following statement and citation in the majority opinion give rise to this misapplication:
“We will not ignore such a transgression of a defendant‘s fundamental rights. Kleinrichert v. State (1973), 260 Ind. 537, 297 N.E.2d 822.”
The rules concerning appellate review of allegations of fundamental error are properly stated in Ervin v. State (1973), 158 Ind. App. 594, 303 N.E.2d 835, at 838, 39 Ind. Dec. 660:
“Issues inherently revealed by the record in a criminal case may be considered on appeal even when not raised below, ***. [Citations omitted.] However, the court may consider such issues only ‘when *** they are clearly and adequately presented in appellant‘s brief with supporting bill of exceptions.’ Wilson v. State, supra, at 78 of 222 Ind., at 854 of 51 N.E.2d. However, not every case where a defendant‘s attorney carelessly or ignorantly fails to preserve error for appeal calls for review. A substantial infringement of a defendant‘s [constitutional rights] *** must be shown to invoke the plain error principle.” (Emphasis supplied.)
The case cited in the quotation from the majority opinion hereinabove set forth does not hold that a court of review may scrutinize the record in a criminal case for possible fundamental errors not advanced by a defendant-appellant. Indeed, Kleinrichert indicates, as do the other cases dealing with this subject, that the issue deemed to be fundamental error was presented to the court in the appellant‘s brief:
“Normally, this Court will not consider an issue which is first raised on appeal, but a court of review cannot ignore a fundamental error which is apparent on the face of the
record, such as an incorrect sentence.” (Emphasis supplied.) 297 N.E.2d 826.
Based on the foregoing, it is apparent that the majority opinion unnecessarily decides an uncontroverted issue, and declines to decide the issue which was argued by the parties, and which may be readily resolved upon the record now before the court.
The decision of the trial court should be affirmed.
NOTE.—Reported at 316 N.E.2d 406.