Jаmes Rufus HOLLINESS, Appellant, v. STATE of Indiana, Appellee.
No. 985 S 386
Supreme Court of Indiana
June 25, 1986
496 N.E.2d 305
The trial сourt is in all things affirmed regarding the conviction of Defendant and in the imposition of the death penalty. We accordingly remand this cause to the trial court for the purpose of sеtting a date for the death sentence to be carried out.
GIVAN, C.J., and DeBRULER, SHEPARD and DICKSON, JJ., concur.
Susan K. Carpenter, Public Defender, Linda Rodriguez-Torrent, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant James Rufus Holliness was convicted at the conclusion of a jury trial in the Allen Superior Court of rape, a class A felony; robbery, a class B felony; and of being an habitual offender. He was sentenced to forty (40) years for rape, enhanced by thirty (30) years for being found an habitual offender, and ten (10) years for robbery, to be served concurrently. This Court affirmed his conviction on direct appeal. Holliness v. State (1984), Ind., 467 N.E.2d 4. Appellant filed a petitiоn for post-conviction relief which was denied. He now appeals that denial, and raises the following issues:
- whether the trial court erred in summarily denying Appellant‘s position; and
- whethеr the denial of the petition without hearing denied Appellant his right to counsel and his right to amend his petition.
I
Appellant alleges the trial court erred in summarily denying his petition for post-сonviction relief.
“If the pleadings conclusively show that petitioner is entitled to no relief, the court may deny the petition without further proceedings.”
Despite Appellant‘s reliance on the language of § 4(f), the present case is not governed by that rule; § 4(f) controls only upon “motion by either party for summary disposition of the petition.” Here, the trial court summаrily denied the petition sua sponte.
In a post-conviction proceeding, the burden rests with the petitioner to establish his grounds for relief by a preponderance of the evidеnce. The trial court‘s decision will be reversed only where the evidence is without conflict and leads unerringly to a result not reached by the trial court. McHugh v. State (1984), Ind., 471 N.E.2d 293, 294-295;
The present petition alleged the following as grounds for relief; 1) arrest without cause, warrant, or proper advisement of rights; 2) ineffective assistance of counsel; 3) reduction of the jury panel to eleven pеople; 4) denial of a speedy trial; 5) sufficiency of the evidence; and 6) pending criminal investigation of trial counsel. Each of these allegations was known and available tо Appellant at trial and on direct appeal. In fact, the issues pertaining to the eleven member jury and the sufficiency of evidence were disposed of on direct appeal to this court. Therefore, all of Appellant‘s allegations were clearly improper subject matter for the present petition.
Appellant argues that, liberаlly construed, his allegation of ineffective counsel can be read as pertaining to both trial and appellate counsel. We disagree. Appellant‘s allegation read:
“8(b) Ineffective assistance of counsel. The verdict of the jury is not supported by sufficient evidence and is therefore contrary to law.”
Reading this allegation, it is not clear thаt it was directed to appellate counsel. Appellant argues that since his sufficiency argument was dismissed on appeal due to lack of cogent argument, the allegаtion must be read ipso facto to pertain to appellate counsel. While it is true that we mentioned in our opinion the lack of cogent argument, we proceeded to address the issue on its merits, set forth the evidence supporting the verdict, and found it to be
Appеllant also maintains that because the State‘s answer denied the allegations of the petition and raised certain affirmative defenses, factual issues were automaticаlly created which precluded the court from summarily disposing of the petition. There is no merit to the argument that the State, simply by answering the allegations with general denials, as they arе required to do, precludes the trial court from summarily denying the petition. To so hold would strip
II
Appellant also alleges the denial of his рetition without hearing denied him his right to counsel and his right to amend his petition. The present petition was filed on January 9, 1985, and the public defender entered an appearance оn January 25. Sixty-one days later, on March 27, the trial court entered its judgment.
Appellant relies heavily on Ferrier v. State (1979), 270 Ind. 279, 385 N.E.2d 422, and Sanders v. State (1980), 273 Ind. 30, 401 N.E.2d 694, for the proposition that the court denied him his right to “meaningful” counsel by denying his petition “only” two months after counsel еntered an appearance. These cases do not stand for such a proposition, and are distinguished from the present case. Ferrier and Sanders both held that a defendant is denied his right to сounsel where the trial court failed to refer a petition to the Public Defender‘s office. Sanders, 273 Ind. at 32, 401 N.E.2d at 696. In the present case, counsel entered an appearance and represented Appellant for sixty-one days before a judgment was rendered. We fail to see how the trial court‘s actions denied Appellant his right to counsel or to amend his petition.
The trial court is affirmed.
GIVAN, C.J., and DICKSON, J., concur.
DeBRULER, J., dissents with opinion in which SHEPARD, J., concurs.
DeBRULER, Justice, dissenting.
Sections 2, 3, and 4 of Rule PC 1, provide respectively for the automatic referral of pro se petitions to the Public Defender, incorpоration in the petition of a statement of fact under oath that all grounds for relief known to petitioner have been included, and the grant of leave to amend the petition at least once as a matter of right. The purpose of these provisions is to afford at least one post-conviction petition to prisoners having claims and to make thаt one as fully developed and complete as is reasonably and humanly possible. Success in achieving this purpose is the best way of rendering subsequent petitions unnecessary. Summаry dismissal of a first pro se petition before amendment by the Public Defender quite to the contrary frustrates this important goal. Furthermore, I do not consider a delay of sixty-one days by the Publiс Defender in cases like this to be at all unreasonable, since in order to draft an amended petition, that office must arrange an interview with the prisoner, make investigation of thе record, and complete the legal work. I would therefore reverse this judgment holding that dismissal after the Public Defender has made an appearance on behalf of the pro se petitioner and before an amended petition has been filed can be made only after an order to show cause
SHEPARD, J., concur.