*1
presented
based his
claim coercion. From
all
post-conviction hearing
judge
concluded
allegation.
prove
the Petitioner
failed
At
post-conviction hearing,
is
sole
credibility
evidence and the
Jones
the witnesses.
v.
856;
Hoskins v. State
asking
All Justices concur.
Note.—Reported at
Robert L. Greer of Indiana. January 30, Rehearing [No. 174S16. Filed denied March 1975]. Indianapolis, Samper, Jr., Samper, Sr:, Ferd Ferdinand appellant. Miller, Sendak, Attorney General, Theodore L. David A. *2 Deputy Attorney General, appellee. for Appellant Robert brother, Greer and his
Arterburn, J. by James Greer, jury tried a crimes were and convicted Inflicting Robbery Injuries in the Commission Robbery. They imprisonment. They ap were sentenced life pealed, and the conviction this Greer was affirmed Court. (1970), State 253 255 919. Robert Greer post-conviction petition pursuant then filed a to Rule petition State, The was dismissed appeal from that dismissal has followed. grounds post-conviction alleged As for relief, Appellant follows: law, “As presented a matter the State Indiana, was insufficient to convict. The Court erred denying my motion for directed verdict. presented There was no evidence direct or either circumstantial, which crime. tended to link me with the brother, I feel that I was convicted I because am James’ against sup-
the posedly strong, him was there people robbery.” involved in the argued The evidence was issue not on original appeal although properly direct issue was preserved appeal by Motion Trial New filed attorney. words, Appellant’s retained trial In appointed other appellate attorney, attorney, who was not his trial chose appeal. this issue on posture has in substance the same as Kidwell v.
This case
In
post-conviction petition raised
issues
appellant in a
several
preserved by
but
Motion
Trial
had been
for New
appeal.
post-conviction petition,
pursued on
had not been
case,
explain
petition in this
did not
like
failure
See,
Langley
issues on
direct
raise these
Therefore,
Thus, recognized that a alleges attempts appeal implicitly to raise issues waived on incompetent representation part *3 Furthermore, judicial counsel. in of interests the economy that at than decided issue once rather litigating putting post- all effort a involved to the of procedure incompetent petition alleging conviction a post-conviction representation failure attorney allege incompetent appellate representa- conviction 1(8). previously tion. Rule PC. that We have warned “super appeals.” Langley, remedies are supra, litiga- perpetual 256 at 210. There is Ind. no part tion on of a a defendant in criminal case. suggests McKinley that the case of State v. (1969), 187, requires 420, 252 N.E.2d that issue question litigated by in evidentiary post-conviction hear- ing. However, preserved in that issue had not been Moreover, Trial. reason for the in the Motion for New inadequate apparently motion for new was appointed attorney other trial had than the one been appointment appointed prosecute but this was
625 filing a day prior one to the date for made business Thus, defendant nor Motion for New Trial. neither the attorney responsible waiver could fairness be held case, Greer question. of Robert the issue In the instant stage: appeal, and attorney has had a different for each post-conviction remedy. But, appellate counsel only the appointed. posture think this case as has the same though dis- technically
even though
missed rather than denied and even findings specific no conclusions made fact or recognizing 1(6). law. PC. Justice is served claiming Appellant, essence, this time that failure that the appellate attorney incompetent representation issue amounts to matter of Incompetency counsel law. revolves around particular v. State (1969), each 251 facts of Thomas case. 546, 242 presumption Ind. There is a that counsel competent. 593, v. State (1973), has been Haddock Ind. 260 418; Payne (1973), 261 301 State Ind. 514; Hoskins v. State (1973), N.E.2d Ind. N.E.2d strong requires It convincing to rebut presumption. Blackburn v. 5, 291 686; N.E.2d Robbins attorney made
255. What do must or did not have proceedings shocking mockery justice conscience supra. reviewing Payne, not second- court. doWe guess strategy. Blackburn, supra. tactics or fully out in of this case were set
The facts supra. Greer, reiterate It is sufficient to on the direct shotguns brandishing tavern sawed-off robbed a men escape police rob- making their shot two officers. The *4 clothing they height, by wore, described bers were weight; by approximate but, their faces were hidden neighbor- During they search ski masks which wore. robbery, Robert Greer hood followed shotgun running carrying seen a sawed-off from the rear clothing other of one house another. ski masks and The Greer. worn the robbers of were found the home James apprehended during Robert Greer was course neighborhood circumstances, not these can search. Under we say appellate attorney mockery that the made argue his decision to search issues the difficult and seizure forego which he did and to issue. appeal strategy This matter not do second-guess. dismissing
The the trial court conviction is affirmed.
Givan, C.J., Hunter, J., Prentice, JJ., concur; DeBruler, opinion. dissents with
Dissenting Opinion I. Rights any
DeBruler, One will Bill of J. find recognition economy” judicial permit the “interests of any ignore rights or this other court to the fundamental litigants. Appellant right, ap- has the constitutional when pearing Court, before be heard counsel. Article 13, Indiana The Constitution. Sixth Amendment § guarantees United States Constitution to this same appellant. subjected insufficiency This Court has a claim of appellate representa- and a claim of ineffective tion, litigation it erected of appellant, behalf judicial decision, having without afforded been legal present opportunity to briefs on the or issues any manner. To entertain heard in the merits of a claim manner, palpable process is a violation of due of law.
II. Following of his conviction affirmance on direct this, Court, appellant filed his first petition upon dismissed petition. trial court motion *5 dismiss, the hearing. State without a In its motion to the fully and that State contended the issue had been finally adjudicated resulting at trial conviction and the in judgment appeal, that that was affirmed on direct and there petition upon fore did not state a claim which relief the granted. (f).1 could PC. to §4(e) The motion jury trial, correct filed after the as well errors as the appeal, of this on Court the direct were in the record before post-conviction proceeding the trial at the which re sulted ques in this dismissal. The documents disclose without allegation tion that motion to correct the errors contained an support that the evidence was insufficient to the the verdict jury, and that merits of this issue not considered were original appeal. this Court in The State concedes this specific Upon its brief. consideration of documents, these tersely petition. court dismissed the trial allegation
Appellant’s that evidence adduced jury’s insufficient to warrant not verdict appellant’s appeal considered this Court in direct argument support allegation that reason no of this appellant’s correct errors was motion to included in brief. Appellant contends in AP. Rule 8.3. his motion to correct to order of dismissal addressed errors well as in his grant hearing that the trial court should brief in petition in accordance our holding McKinley argued McKinley, appellant on In
420. absolutely prove had failed an time to first of which he crime stood element convicted. essential conclusively petitioner pleadings show that “(e) is If the entitled deny may proceedings. without further relief, the court to no may grant party summary either “(f) pleadings, petition interrogatories, appears deposi- when it from the disposition of the admissions, stipulations fact, tions, answers genuine any submitted, is no issue of material there fact affidavits moving as a matter of party is entitled to law. The and court legal argument may If an on issue raised. issue of oral ask for evidentiary hearing raised, shall then the court hold fact material reasonably possible.” as soon as present contention held since he failed could trial court in his motion for Court relegated the appeal, not consider the merits of it appellant under insuffi- to an would serve as avenue review the allegation ciency court denied the event conviction relief. distinguish factor
One serves at bar from McKinley, supra. McKinley In include *6 allegation motion insufficient that the evidence was in his allegation Here, appellant trial. include errors, in his motion to correct trial considered and court doing errors, and denied the motion to correct in so and determined that in his had been suffi- cient to convict.
However, this difference in should cases not serve place advantageous appellant position in a less to achieve appellate allegation. Appellant omitted review should open imposed by have an avenue to avoid AP. waiver 8.3(A),2 just McKinley open as Rule avenue to avoid imposed by 1-14(B). (New 59[G])3 the waiver Rule TR. Appellant. appellant “(A) The brief of the Brief of the 2. shall * * * headings in the appropriate and order here contain under indicated: “ assigned Argument. (7) in the Each error motion to An correct appellant specif- intends raise shall be set forth errors that argument applicable ically substantially thereto. If followed and alleged question two or more errors grouped same is raised the motion the to correct The they may supported argument. errors, be and one argument appellant respect of the shall contain the contentions with support presented, along the reasons the contentions the issues parts authorities, statutes, of the with citations record relied showing upon, of how the issues and support and a clear contentions in particular facts of the case relate to the under review. thereof Any alleged in the motion to correct errors error not treated as “. . . (Emphasis added.) be deemed waived.” herein directed shall (cid:127) “(G) to correct error a condition to Motion In all 3. cases procedure pre- appropriate to correct errors is the in which a motion liminary grounds appeal, specify separately such motion to an shall upon arising up relied however and therefor each error whenever to the filing upon Issues which could be raised time of such motion. upon may errors be considered to correct when included in (Emphasis added.) to correct errors the trial court.” the motion filed judg- I reverse is-provided by 1. would PC. This avenue dismissing appellant’s trial court ment evidentiary conduct of remand the case hearing. already upon trial ruled the merits court
Since the has be insufficiency appellant’s allegation, issue would be again would issue on remand. The court before the appellant be the waiver should bound or not the whether properly be This would imposed by issue AP. Rule 8.3. (1) the nature consideration of: resolved allegation error; (2) effective- right asserted counsel; (3) some appellate whether there exists ness satisfactorily would basis or circumstances which substantial mitigate explain petitioner’s omitted failure to include or argument in his brief. v. State 362; Langley 199, 267 granted If should N.E.2d 538. be no-binding waiver, determination granted appellate should review appropriate fore- For tribunal. § going reason, I dissent.
Note.—Reported
Willie Brown v. State of Indiana. February 10, 174S11.
[No. Filed 1975.]