*1 day June, All is ordered this 20th of which Givan, JJ., J., Jack- DeBruler, Arterburn and C. concur. son, J., in result. concurs Reported in 243 N. E.
Note. — of Indiana.
Graham rehearing petition filed.] 1969. No for [No. 1268-S-202. Filed June Manaham, Erbecker, Indianapolis, C. James William appellant. Sendak, Attorney General, Murray West,
Theodore L. Deputy Attorney General, appellee. by the J . This action instituted is a criminal
Hunter, charging filing of an affidavit in the Madison Circuit Court Degree Burglary. Ap- appellant crime Second arraigned plea Guilty. pellant and entered a Not The without was tried intervention cause finding appellant guilty. jury which resulted appellant motion for a July 23, filed his On grounds have been only new trial which trial. The urged “(T)hat finding are of the court is con- trary finding to law” and “that of the court sus- tained sufficient evidence.” supporting did not file memorandum these *2 with
contentions his motion for a new trial. provides:
Rule 1-14B
requested
ground
“Whenever a new trial
on
or
grounds ‘that
by
the verdict or
is not
decision
sustained
law,’
is contrary
moving
sufficient evidence or
party
stating specifically
shall file a memorandum
under such
cause wherein
itemized
such evidence is
or the
insufficient
party filing
verdict
is contrary
decision
to law. The
ground,
motion shall be deemed to have
not
waived
specified
(Adopted
13, 1967,
in the memorandum.
ef-
Jan.
1,1967.)”
fective March
eighteen
adopted
rule
prior
filing
was
months
to the
requires
the motion for a new trial
in the case at
It
bar.
alleged
party present
that a
an
reversible error to the trial
degree
court
specificity prior
presenting
some
appeal.
to this court on
The rule
was intended
allow
opportunity
trial
some
court
to review and correct
own
its
and, thereby,
errors
in some instances avoid the extra travail
expense
of an
specifications
presented
The above
“were
not
the Trial Court and
not be
on
here.”
will
considered
Lynch
v. State
252 Ind.
Judgment affirmed. Arterburn, Jackson, JJ., DeBruler, Givan concur. J., opinion. C. dissents with
Dissenting Opinion argued appellant’s C. errors J . The DeBruler, finding brief are that of the trial court is not sus- contrary tained sufficient evidence and law. These appellant’s were included new trial but accompanied by memorandum, required the motion not was by Supreme 1-14B, specifying finding wherein the was not sustained contrary sufficient evidence or was law. refuses to determine on the merits the errors appellant’s grounds
raised brief on present counsel did those the trial errors to properly prepared ain trial, motion for new in accordance point with the above repre- Rule. We out counsel senting appellant way are responsible in no for the motion for new trial in this case.
The non-compliance with this Rule also issued in Lynch v. State 245 N. E. 2d authority cited as majority opinion. I concurred in that case but I then longer since have decided I can application concur in the court’s Rule in criminal cases. disagree
I purpose do not of this Rule as the *3 that, it. I states In addition to is believe there an- other reason for the a Rule. Too often of reversal a trial judge judge. has an adverse effect his career as a deplored First, effect is to be for reasons: two reversals are quality judge’s work; seldom of an indication the of the trial second, public and the amount of inordinate comment on the picture job rare of a reversals distorts the the trial true judge long doing. present system selecting is So of as the judges justification trial in Indiana there is exists some judge alleged permits apprised a rule of which trial to be the a system might If of errors for reversed. this which be changed selecting judges be I would favor trial were to presentation mandatory abolishing makes the the which precedent judges alleged condition of to trial a system a motion example, there is appeals. in the federal As precedent mandatory condition it is not but simpler, process Therefore, appeal. the federal in this problems discussed type of waiver it eliminates the gives opinion, appellate it the and federal court more com- plete appellate process. control the over
Although purpose sound, of the Rule may be the method serving purpose acceptable chosen is not I believe that fundamental, violation of the me. constitutional law State for this this to hold appeal, a criminal in case has waived an error on error, solely no matter how and fundamental serious be- present cause trial counsel did not the error in a motion new trial. to the trial court long in Indiana that an been settled It has case has to an a criminal provides Indiana that: Constitution jurisdiction, “The shall have coextensive State, and restrictions as appeals and writs of error with the limits under such regulations may prescribed be original jurisdiction also have law. shall such It Assembly may confer.” Art. General § discussing section, Court in Warren v. Indiana Telephone 93, 26 N. E. 2d 217 Ind. said: Co. jurisdiction . . be of this It is to noted absolute, quite appeals which writs error is provided if different than the Constitution had that such jurisdiction Legis- exercised be cases as might only power of As- direct. The the General lature sembly jurisdiction regulate and restrict over such tois ‘regulate restrict,’ in the Consti- it. as used The words long meaning. They
tution, had a clear and definite have imply prohibit or forbid.” do many cases then and That case been relied since Hilgemann In State ex rel. White v. been overruled. has never E. 2d N. this Court said: *4 Telephone (1940), Ind. v. Indiana Co. 217 “In Warren (2d) 399, concluded, a careful consider- 26 N. E. was it authorities, of Indiana ation of the the Constitution
371 guarantees right an court; absolute to a review Legislature right regulate provide has the and obtaining procedure the review, deny but not or curtail right. Review been statutory has made available right appeal, and, of cases, but the to review is available all statutory appeal inadequate, where the is the writ appropriate or error other may means be resorted to.” Again, Indianapolis Lundquist Ins. (1944), Co. v. Life 222 53 N. E. 2d Ind. the Court said: say by subsequent “. . . It sufficient decision clearly court is committed to the this have doctrine that courts jurisdiction grant beyond new trials the statute (see cases, supra), right and that to an does depend upon Telephone statute. Warren v. Indiana (1940), (2d) Co. Ind. 26 N. E. 399.” referring to the latter case this Court stated: “Although Indianapolis supra, the court in the ease, Life discussing remedies, yet civil reasoning and applies with even more criminal cases where force deprived liberty his or The General life. Assembly clearly recognized of Indiana this constitutional guarantee when it enacted ch. 189 of the 1947 Acts . . . provides: Section 5 of the Act “ may, good ‘The of Indiana cause shown, may adopt under rules it under such may particular case, permit appeals orders make in a judgment original
from a of conviction after the time taking elapsed.’ an Rights “Thus both under our Bill of and placed duty protect the statute are against government.” power by individual abuse of (Emphasis added.) (1948), State ex Lake rel. v. Bain N. E. Ind. City See also State ex rel. Marion v. Grant Circuit 188; 239 Ind. 157 N. E. 2d Bozovichar v. State 358, 103 N. E. 2d However, curtail the effect of 1-14B in effect deny appellant’s appeal. I be- *5 right of a
lieve that
fundamental
criminal
required
indulge
appeal
that
an
means
to
to
a
reaching
appel-
an
presumption
favor
all
raised in
of
deciding
Only
on the
brief and
them
merits.
the
lant’s
appellant
a
case
we find
waiver
an
of
clearest
right
to
constitutional
United States
the
rights
of
discussed waiver
as follows:
petitioner
here
waived this con-
“There is insistence
that
right.
find. It
The District Court did not so
stitutional
indulge every
pointed
reasonable
has been
out that ‘courts
presumption against
of
waiver’
‘do
fundamental
rights
presume acquiescence in
the
and
we
that
rights.’
ordinarily an in-
of
A waiver is
loss
fundamental
right
relinquishment
tentional
or
an
or
of
known
abandonment
privilege.
has been
of whether there
The determination
intelligent
depend,
right
of
to
must
waiver
the
Counsel
particular
case,
in each
surrounding
facts and circumstances
the
experi-
case, including
background,
that
ence,
Zerbst
and
of the accused.” Johnson v.
conduct
458,
304
1461,
U.S.
82 L.Ed.
58 S.Ct.
again
Fay
9
Noia
U.
Ed.
And
372
S.
L.
837, 83 S.
2d
822:
Ct.
in Johnson
“The classic definition of waiver enunciated
Zerbst,
v.
Ct.
L. Ed.
S.
U.S.
relinquishment
Under this we could not from test appellant’s failed to file a motion an trial counsel intelligently knowingly trial, appellant waived his and stake, right appellant’s liberty appeal. It at his an issue, right at it is who must waive appeal if it is be waived. an stronger. attorney- before even Here
The case us is the trial motion for new trial which was defective. It is obvious filed attorney actively seeking review and his were specific possible errors. no to infer way certain There is appellant intelligently from this defective right knowingly these waived his errors. complete by appel- of a addition absence waiver obvious, of his there
lant
clear violation
representation by
to have effective
counsel
*6
stage
proceedings
required
in
where
was
at the
the
he
to
1, §13,
file a motion for new trial. Article
Indiana Constitu-
tion;
638,
(1961),
Wizniuk v. State
241
175 N. E. 2d
Ind.
1;
(1958),
State ex
v.
Court
rel. Grecco Allen Circuit
238
571,
914;
Wainwright
153
(1963),
Ind.
Gideon v.
N. E. 2d
335,
372 U. S.
9
Ed. 2d
83
L.
S. Ct. 792.
Johns v.
(1949),
Ind.
89 N. E. 2d
we
said:
testimony
attorney’s
concerning
“The
taken as whole
thirty
ap-
the fifteen or
minutes
had
conference
pellant
afford the
inescapable
the
conclusion
did
leaves
that he
not
representation required
appellant
by
the
de-
the
of
court under
13 of Article I of our Bill
this
cisions
of
§
representation
Rights.
by
A
perfunctory
counsel
mere
(Omitting citations)
comply
is
the rules laid down
Nor did
insufficient.
by
the United States
Court
right
competent
adequate
on the
the
to
counsel under
process’
Powell
‘due
of the Fourteenth Amendment.
clause
Alabama
L.Ed.
287 U.S.
S.Ct.
(Emphasis added.)
527.”
84 A.L.R.
by
patently
representation
The
uses
ineffective
presume
the
appellant’s
counsel as
to
a basis
right
me to move
This
not seem to
to
does
waived his
said,
spirit
Judge Draper
“Constitutional
of
when
the
v. State
grudgingly
Cook
rights
extended.”
not be
should
E.
695, 110 N.
say
to
is not
should have no
rules
regulating appeals.
procedure
However,
of
the rules should
enlarge
designed
possible
right
to
as much
the
of
be
as
have
review in
on the
of
merits
bury appellant’s
not
his brief. We should
each error raised
labyrinth
procedural
in a
of
review
technicalities.
supra:
State,
Johns v.
said
As
rules,
questions
propriety of
either statu-
“No one
appeals.
made,
of
determination
But
tory
or court
many
years
instances
in recent
has
court
his
refused
oppres-
of
permit
to become the instrument
rules
deprived
has been
constitu-
an accused
Where
sion.
tional
of
permitted
rights, negligence
counsel cannot be
accused where his
prejudice
life
power
liberty
and it
are involved. This court has
should
any given
where, (1) an
duty
rule
accused
be
to waive
its
rights,
deprived
either under
of his constitutional
has been
Amendment,
Rights
the Fourteenth
or under
our Bill of
or, (2)
it
istered.
entire record
an examination
where
justice
been admin-
appears
not
that substantial
present
counsel
mistaken
“The fact that
perfected
be
should
which
the time
here,
record is
and the
when the
prevent a review
by
its own
errors
one raised
defect is
only
transcript
assignment of
was not
in
filed within
required
judgment,
days
thirty
after
adequate
and com-
2-40.
nothing
we
representation
means
petent
counsel
if
prevent
a review
counsel
permit
mistakes
the obvious
*7
added.)
(Emphasis
by
merits.”
this court on the
v.
this Court Wilson
before
similar situation was
A
848,
we
E. 2d
where
51 N.
said:
(1943), 222 Ind.
duty? The
us,
our
what
is
record before
a
“With
for
the motion
to examine
been
easy
would have
course
having
relied
that
the errors
and,
found
trial
new
are not
judgment.
therein,
have affirmed
mentioned
many precedents.
But
are
there
a decision
For such
may
liberty we
not
involving
appellant’s life or
a case
affecting his constitutional
ignore prejudicial errors
they
clearly
when,
here,
adequately
are
presented
supporting
brief
exceptions.
with
bill of
procedural
prevent
would
rules that
their consideration
give way
principles
must
to the
proc-
due
fundamental
precedents.”
this course
there are
ess. For
also
(Emphasis
added.)
(1967),
Ford v. State
See also
E.N.
2d
faulty
also
purely practical
Rule 1-14B is
from the
point
there
support
view. Whether
is
evidence to
a conviction
question. Thompson
court is a
a state
v. Louisville
federal
362 U.
4 L.
S.
Ed. 2d
(1) judge presentation fuller have a much The trial would present system alleged than under the of the legal appel- research have the benefit also would Attorney of the counsel and the staff General. lant’s (2) defendants would receive a Court criminal brief, raised in on merits all errors determination composed benefit unhurriedly been which has transcript. of a questions on
(3) on the merits Disposing of these money expended at the time and reduce the amount will proceedings. post conviction level trial court this, own its a rule such Even without remanding the trial case to order enter an motion could brief which inspection raised in the of the errors for its court presented to the trial were every case I would do what trial. This is problem be eliminated. this, the waiver in order that Reported 249 E. N. Note. — Lonergan. of Indiana rehearing petition filed.] No Filed June 668-S-89.
[No.