Harris v. State
427 N.E.2d 658
Ind.
1981
Check Treatment

*1 HARRIS, Appellant, Leo Indiana, Appellee.

STATE of

No. 780S211.

Supreme Court of Indiana.

Nov.

where he money Randolph took the from and told him to wait outside while he went get tapes. appellant inside to When did emerge building not from period after a minutes, Delaplane of about ten and Ran- dolph began They a search for the men. appellant located but were unable to obtain money tapes. complaint their or the Their Department to the Anderson Police resulted appellant. in the arrest of the Appellant claims the trial court erred in denying the motion of his court counsel withdraw from the said having morning motion been made on the Appellant of the trial. claims this denial deprived right him of his to effective coun- guaranteed by sel as the Sixth Amendment to the United States Constitution and Arti- cle 13 of the Section Indiana Constitu- tion. motion, making

At the time of his attorney stated to court that he was Conn, Defender, Bailey Harriette Public thoroughly prepared ready and for trial but Freund, Defender, Deputy David P. Public that irreconcilable differences had arisen Indianapolis, for appellant concerning between and himself conducting the manner of the trial. The Sendak, Gen., Atty. Theodore L. Freder- attorney appellant stated that had accused Kopec, Gen., Deputy Atty. Indianap- ick N. morning properly him that of not investi- olis, appellee. for gating making an alibi defense and not an effort to locate alibi witnesses. The attor- GIVAN, Chief Justice. court, however, ney stated to the that in Appellant charged with theft and prior appellant, with conferences he had being with an habitual criminal. Trial be- been told that had no alibi and guilty fore a resulted in a on had no witnesses he wanted to call. The separate proceeding, the theft In a attorney then reiterated his statement that appellant was found to be an habitual of- ready go he was to trial. (2) years’ fender. He was sentenced to two questioned The trial court imprisonment charge, by on the theft directly; appellant deny telling his reason of his status as an habitual offender attorney that he had no alibi and wanted the sentence was enhanced with an addi- witnesses called in his behalf. He could not thirty year imprison- tional term of any supposed name alibi witnesses nor did ment. any explanations he offer as to the nature following The record shows the facts. of his alibi. told the trial court 4, 1979, May the afternoon of Don Dela- private he wanted to hire a counsel but plane Randolph approached and Dan were family neither he nor his had been able to Anderson, Indiana, men two outside the attorney, locate -an nor determine the Randolph furniture store where worked. pay private source of funds with which to Delaplane The two asked if he was interest- counsel. He claimed he was not aware he purchasing ed in two hundred used would ever to trial and had been told tapes seventy-five cassette dollars attorney probably plea there would be a ($75.00). accompanied appellant Randolph bargain agreement reducing made the theft apartment building to an two to a misdemeanor. away blocks attorney requestioned abuse its and ad- discretion when denied the thought mitted he told he request.” at Id. 291 N.E.2d at 74. plea bargain arranged could be but said at Appellant both argues fact that he and any prior time unaware appointment wanted re- record, appellant’s appel- convictions on as distinguishes Irvin, scinded from this case *3 any prior lant had not told him of convic- supra. questioning tions. Further revealed that bar, attorney In the at case the stated his rejected bargain plea had a of- proceed readiness to with but trial days prior fered to him four to trial. merely presenting his client’s dissatisfaction right The to counsel in a criminal representation with his trial to the court for proceeding does not mean the defendant the court’s consideration. We have often right represented has an to by absolute be stated of approval our of denial defendant’s choosing. appoint counsel of his own during motion replace to his counsel or im pauper ment of counsel the is within discre mediately before trial and we do not with tion of the court be trial and will reviewed See, position draw Keys from that now. v. only for an abuse of that discretion. Dun Ind., 148; State, (1979) 390 N.E.2d Wombles State, (1980) Ind., 770; can v. 412 N.E.2d Ind., 1037; v. 383 N.E.2d Ger State, (1978) 538, Shoulders Ind. v. 267 372 67, man v. 268 Ind. 168; Irvin, (1973) N.E.2d State v. 259 Ind. 880. 610, 291 N.E.2d 70. State, (1956) 628, Page In Ind. 235 137 Appellant quotes language from the Irvin N.E.2d this Court held it was not error case the ap- to effect that a court for compel the trial court to an accused to pointed attorney may not be forced on a accept appointed court when counsel he has defendant; pauper however, he misapplies advantage failed to take opportunity of an holding the in Irvin. In that case this employ private to counsel. Court stated: bar, case In the at had the attorney appointed

“The services of an employ private opportunity to counsel. For may the pau- court not be forced a two to months trial he had failed per to but if defendant the defendant refus- any progress make toward an attor represented es appointed to be the ney. counsel, He also failed to demonstrate that a he must find some method to grant any of more time employ would make more proceed his own counsel or in propria (Cit. omitted.) likely that persona. anyone he would be able to find The de- represent to may arbitrarily compel fendant him. We trial not a tri- hold the court discharge requiring appellant proceed al did not err competent appointed court to in 615-616, with appointed counsel.” Id. at 291 with his court N.E.2d at trial counsel. assignment error, In a related of bar, As in case the at the defendants in claims court also the trial erred in Irvin, supra, register did not their dissatis- denying pro se motion for a continuance. faction with the court In his he motion stated he needed more until the time for trial was imminent. unnamed, alleged, time to locate his but Also, case, as in Irvin the here court private alibi witnesses and to locate appointed attorney had been on the case out, attorney he wanted. set As above he inception competence since its and his showing made no to the trial court that a suspect. not This Court further stated in productive continuance would be as to ei Irvin, supra: ther situation. imminent, ap- “Since trial was the court governs

pointed Trial Rule counsel was with Indiana 53.4 familiar appellants’ granting puts and of continuances and reason the re- quest merely granting a lack of confidence in of such motions within discre attorney, their court tionary the trial of the trial court. Denial realm Ind. 363 N.E.2d 978. Thus the issue is is reversible motion for a continuance preserved is abused. for review. We hold the trial only where that discretion not error permitting where the the identifi- is shown court did not err in Abuse of discretion prejudiced defendant was record shows the cation of the motion. Dorton v. by the denial of the Appellant claims the trial court erred in 1289; N.E.2d Whita denying his motion to dismiss habitual cre motion, appellant offender count. State, (1978) Vaughn 269 Ind. be dismissed contended the count should the trial court did not N.E.2d 859. We hold “acquitted” of an ha- because refusing grant appellant’s pro se in err prior proceeding. offender count in a bitual continuance. motion for a jeop- reprosecution Thus constituted double claims the trial court next readjudication ardy attempt and was an at refusing suppress the identifica- erred in judicata. of a matter which was res Randolph. testimony Delaplane tion *4 Appellant asks us to reconsider our testimony should have He contends their State, (1980) Ind., earlier decision in Hall v. suppressed product because it was the 530, 405 N.E.2d in which we held the double unduly suggestive pretrial identifica- of an jeopardy prohibition apply to re- pho- shows the procedure. tion The record prosecution of an accused as an habitual prepared by police tographic display consist- We deviate from criminal. see no reason to photos relatively of of black men of ed six Hall, supra. decision in We also held our age particularly with no dis- the same issue in a against appellant on this same tinguishing disparity features. We see very recently down from this case handed appellant’s fea- significant or difference in See, State, Ind., (1981) 425 Baker v. Court. photograph tures that serve to make his 98, lengthy treatment of N.E.2d for a more others. stand out from the The trial court did not err in the issue. improperly Appellant police claims denying appellant’s motion to dismiss the display, photos of men with included in the habitual offender count. description despite the witnesses’ of beards trial court Appellant next claims the We fail to un the thief as clean-shaven. bring permitting the the erred in State unduly derstand how that is to be viewed as day charge on the habitual offender person suggestive, long as more than one so v. trial commenced. He cites Howard display clean-shaven. There is in the 628, State, (1978) 268 Ind. 377 N.E.2d police record that the no evidence in this proposition the that amendment of the suggested that to the witness habitual of- charging instrument to add an policeman testify he display. in the A did arraignment on the un- fender count after suspect in mind as a when he felony permissible, only is if the However, derlying is no up display. made there rights are not substantial of the defendant mind was indication the officer’s state of State, prejudiced. He also cites Mitchell v. relayed the crime. to the victims of Ind., (1979) for the addi- also shows that at The record premise arraignment that on habitual tional witnesses identified No trial the charges underly- offender after trial on objection made to that identification at ing felony permissible only is where the Although appellant moved to time. He rights prejudiced. are not defendant’s suppress testimony prior to the time it this rights prejudiced by vir- contends his were jury, clearly the law was offered to the provided thus tue of the brief notice objection when the requires an additional bring the of its intent habitual State testimony is offered as evi identification offender Ind., Evey 419 dence. Mitchell, 971; State, (1981) Ind., this Court held ar- 415 In Duvall v. N.E.2d charges is 718; raignment on habitual offender N.E.2d Drake v. the defendant is ad- permissible where N.E.2d Stowers equately prepared against to defend them. claims the trial court However, reaching after that conclusion erred granting in not his motion for an this Court further stated: evidentiary hearing on the Motion to Cor rect Errors. He contends he desired to request “[Although appellant himself did present concerning evidence competence point, request a continuance at this representation his court he had was based on the same reason nothing counsel. We find in the rules of beginning

raised at the of the trial con- require this Court that an evidentiary hear cerning the selection of a different attor- ing on Keys such a motion. ney. Appellant’s counsel indicated he we held no charges pre- was aware of the and was evidentiary hearing on the Motion to Cor pared proceedings. ahead with the rect required Errors is or needed when one request Counsel did not a continuance in alleged of the errors incompe therein was prepare allegations order to to meet the tence of trial counsel. We noted in that According- of the amended information. provides “the record a substantial fac ly, we find no error here.” Id. at 1257-58. tual basis for the court’s determination” of In the case at bar the issue. Id. at 151. moved to dismiss the habitual offender We would further observe that in arraignment count prior to and trial on that addition to the record available to the trial charge. Although a motion to dismiss judge concerning competence of coun might reasons, have been valid for other sel, Indiana T.R. 59 and Indiana R.C.P. 17 adequate question was not to raise the *5 permit filing both of affidavits with the filing. proper remedy the late The for the Motion to Correct Errors whenever filing errors late was a motion for a continuance. are 53.4; Mitchell, to be based on matters otherwise out supra. Indiana Trial Rule side the A properly record. verified affida Though appellant pro moved se for a part vit thus becomes of the record under continuance underlying to trial on the State, Merry these rules. 166 Ind. felony charge, ground he did so on the App. Stevenson v. needed the time to hire another State, (1975) Ind.App. and locate his alibi witnesses. At his ar- uncontradicted, 509. If the affidavit is raignment charge on the habitual offender appellate accept court must its contents as he did not renew his motion for continu- Scharbrough true. 249 Ind. requir- ance. The trial court did not err in 316, 232 N.E.2d 592. Thus there is a mech ing appellant to to trial on the habitual anism available to a bring defendant to criminal facts dehors the record before the trial court Appeals. and the Court of argues next the enhance ment of his sentence should be vacated be bar, In the case at an affidavit was filed. statute, cause the habitual offender I.C. However, that, alleges if an eviden- 35-50-2-8 is unconstitutional. [Burns 1979] held, tiary hearing is appellant will testify He claims the statute is unconstitutional allegations incompetent as to his repre- delegation because it is a of “unbridled dis sentation at trial. In the affidavit he prosecutor cretion to the toas when such presentation makes no facts which charge should be filed.” This Court has judgment the court could base a on such an already question treated the of the uncon allegation. stitutionality of the habitual offender stat things trial court is in all affirmed. grounds ute on the by appellant asserted in Eaton v. 408 N.E.2d 1281. GIVAN, J.,C. and HUNTER and PI- We depart see no reason to from our hold VARNIK, JJ., concur. ing in Eaton. We therefore reiterate our holding PRENTICE, J., that the habitual offender statute is opinion dissents with in DeBRULER, J., constitutional. which concurs. PRENTICE, Justice, dissenting. SKINNER, Appellant Kent L. opinion majority from the inso- I dissent (Defendant Below), as that the trial court did not

far it holds denying Appellant’s in motion to dismiss err count, offender for the same the habitual Indiana, Appellee STATE of dissenting opinion expressed my reasons in (Plaintiff Below). State, (1981) in the recent case of Baker v. Ind., 425 N.E.2d 98. No. 880S336. us, Appellant, pre- in the case before Supreme of Indiana. Court

viously acquitted of an habitual crimi- nal count wherein the same convictions uti- Nov. unsuccessfully lized in this case had been support utilized to of habitual

criminality. Again, majority has mis-

applied Hall v. Hall,

N.E.2d 530. there had been no

prior acquittal. As in Baker v. su-

pra, by allowing the State to use those same time, subsequent

two convictions a follow-

ing prior negative finding, support a

finding permits of habitual offender status

the State to refine the evidence of those

convictions, re-litigate the issue before a

different and to obtain a there- contrary prior finding.

in which is to the estoppel operate pre-

Collateral should opportunity just

vent such refine-

ment of the evidence. *6 majority, in Baker v.

proceeded upon prior theory did,

convictions in fact exist and continued exist, notwithstanding jury that a

previously contrary. It found to the must recognized,

be that the same result obtains regard

without to the correctness of the against verdict In other State.

words, decision, under the Baker the State

may charge one with habitual criminal sta- who, status;

tus in fact have such finds, may

and if a so contin- State defendant, re-charge

ue to ultimately contrary,

until it obtains a but Baker, finding.

erroneous Under a defend- remedy.

ant abused so can have majority

I concur with the the other

issues in this case and would affirm the

theft conviction but reverse as the habit-

ual offender sentence.

DeBRULER, J., concurs.