*1 Ind., (1985), Dr. David testimony of Wagner cites the lant mitigating factors that we held exam- who Frank, psychologist a clinical in sen- mandatory consideration not a that he did testified Dr. Frank ined him. not judge was tencing. Certainly the trial should consider a court that not believe appellant's perceived accept all of bound needed sentenced person to be whether also Brown See mitigating circumstances. treatment in or rehabilitative correctional (1987), Ind., N.E.2d 29. The accom- could not be such treatment that by conclud- no error trial court facility. penal plished outweighed aggravating factors ing that very opinion that it was his He stated mitigating factors. people is rendered any if treatment little "get they if penal institutions maximum Appellant contends generally it's institution penal in a better (20) manifestly twenty years is sentence than rather spite of the institutionalization noted, it is with already As unreasonable. his observations it." He based to determine discretion in the trial court's years of association upon 15 to 20 sentence will be presumptive toAs Department of Correction. Indiana aggra decreased because increased or had doctor testified appellant, the If the sen mitigating factors. vating or incarcerated him he was treated while statutory lim within the imposed is tence be the of the MMPI would results "the its, aside or alter will not set were expect if treatment one would kind a man the record indicates unless sentence treated some and he were successful Anderson of discretion. ifest abuse place." 27. We can record that the trial say from the the wisdom of hardly debate One can sentencing appel discretion on its abused legis- observations. doctor's error. find no lant. We provision to to add this has seen fit lature is affirmed. The trial court aggravat- in their definition weight give full If we ing circumstances. KRAHULIK, JJ., DeBRULER him testimony and concede Frank's to Dr. correct, find a series nevertheless to be we judge given by the reasons of valid DICKSON, SHEPARD, C.J., and the sentence. We the enhancement separate in result without concur aggravating one previously held support an necessary to cireumstance Owens, In the supra. sentence.
enhanced bar, ample reason there is find no error. sentence. We
trial court's erred the trial court contends
Appellant circum- mitigating disregarding the were in his view stances which KORFF, Appellant, Michael S. recur, victim of unlikely to crime was offense, facilitated crime induced or to excuse evidence which there was offense, acted un- appellant justify the
or likely and would strong provocation, der impris- short term probation or respond to imprison- 19, claimed that He further onment. hardship due to in undue result ment would above, did judge, as noted The trial
illness. did cireumstances but mitigating set forth furnishes appellant now the list
not include
us. *2 appeal, namely, wheth- interlocutory attorney-client is a violation of
er it privilege for an time, date, client of the told his transfer, accept client's trial. We districts, the conflict between resolve that it is not a violation and hold a privilege for attorney-client his client of the testify that he informed client's trial. date charged with Michael Korff was deadly weapon. battery with a 8, 1988, and February Trial was set by having posted a bail Korff was trial. His He failed bond. him, stated to the attorney, appearing for told Korff of the that he had that he had of his trial and place and date needed to be there. told him that he February attorney, on prosecuting probable of filed an affidavit of upon the in court statement based being attorney, resulting in Korff's Korff's appear. Prior charged failure to charge, Korff's new the trial on the supress the ney a motion to filed attorney on the previous of Korff's grounds of supress, hearing the motion to on After interlocutory appeal followed. Appeals, in a memorandum The Court decision, reach the did not interlocutory appeal but presented by which Korff the statute under decided that Carpenter, Carpenter, Mefford & Kirk D. charged with failure Auburn, P.C., appellant. because to Korff's situation inapplicable Pearson, Gen., Atty. Danielle Linley E. 35-44-3-6(a), statute, ac- Ind.Code § Gen., Indianapolis, for Sheff, Atty. Deputy applied Appeals, cording to Court appellee. upon their own persons Korff was released recognizance, whereas TRANSFER PETITION TO ON reasoning of 486. The on bail. Appeals is KRAHULIK, Justice. forth the (supp.1989) sets accept transfer asks us The State one is utilized when cedure to be between to resolve a conflict this case Appeals reasoned Ap the Court of decision of memorandum on that, Korff was the cases of Haskett peals and court to proper procedure was Ind.App. to the bondsman its attentions address (1985), Ind. and Abdul-Musawwir charge Korff with not to and to answer App., 483 to the Court of question presented under defining the attor any statute pursuant to Applicable Is Statute I. Which States privilege. United opinion 411 F.2d Bourassa name prior with two in conflict 235, 24 Ind.App. ly Haskett v. Freeman *3 1012, Abdul-Musaw and 655, N.E.2d 386 68-69; 67, re In F.2d (9th 519 (1985), Ind.App., 483 wir Moines, Proceedings, Des Jury Grand con was Haskett, defendant the In 464. 556-57, 555, Cir.1977), 568 F.2d (8th Towa for failing to victed 1656, 999, 56 denied, 435 U.S. con rape. Haskett conviction after his 90; Uptain v. statute to failure that the 1108, 1109, cert. Cir.1977),552 F.2d presented the situation embrace does not 142; LEd.2d S.Ct. 54 98 sen pending is on bail (1978), Or.App. v. Bilton State held that Appeals tencing. (1984), 297 Or. 50; Ogle v. P.2d State the conviction. affirmed and incorrect was Breazeale P.2d State 682 Kan.App.2d the Court Later, in Abdul-Musawwir 974-76; 713 P.2d conviction 10 the defendant's Appeals upheld (1978), Mo.App., 564 Fingers where to failure 579-82; and Watkins S.W.2d The issue had been The rea (1987), Fla.App., 516 So.2d per applicable was the statute support of cases in stated above sons specifically was not on bail sons many, the holdings are unanimous court. by the Abdul-Musawwir addressed courts cannot collapse if the system will Haskett, the defendant's clients of notify their attorneys to rely on did not deter on bail release. re the information dates; relating affirming the defendant's from and necessi place of trial time and garding convictions. a counsellor's appear is client to ty for a believe We court; the attor duty as an officer who are apply to defendants does accessi relating information merely ney is are released those who as to as well on bail all of Underlying public records. from ble who fail Those recognizance. own on their however, simple obser is the re- court, been after appear in public a client relating to vation enjoy an advan- should leased on place of and client's time information failure-to- from the being immune tage of communi simply is not a confidential in the statute. found penalties protec thus, is not afforded cation failure to us reasonable privilege. tion of regulat- and the statutes statute to-appear compatible, protecting and insurers Indiana statute
ing bondsmen be- 84-1-14-5, intended no distinction and that privilege, and be- released on communications protect all defendants tween clients, recognizance. those own attorneys on their and those tween made to communications "confidential The Communication II. Was of their in the course (attorneys) them Confidential? given business, as to advice and fessional addressed communica- that a We hold cases." in such an has not been interlocutory appeal relating client attorney to his from an tion in this state. appellate court by any swered the client's date, time of place and of other to the law look Consequently, we com- privileged is not appearance court cor reaching the us in to aid jurisdictions concerning and that munication leads us to Our research rect decision. is admissible. notification such what conclude The memorandum accepted. viz., Transfer concluded, the com unanimously vacated, of the Court decision client of attorney to his of an munication the trial is remanded and this hearing is not date, place of a time proceedings. for further law or common under the either privileged client, proposed by prosecu- to his as is SHEPARD, C.J., and GIVAN Having DICKSON, JJ., in this case. been unable to tor validity convince DeBRULER, dissents with propositions, I turn to consider above Justice, DeBRULER, dissenting. question of Pennington given renders advice The Indiana statute 85- construed 1.C. privileged. his client by a crime of 44-8-6, professional 34-1-14-5. The rules of con- apply appear, lawyers revealing infor- enjoin duct from lawful detention release from whose representation mation appearance speci- upon his conditioned Ind. Professional Conduct Rule 1.6. client. place. This construction fied time *4 According to the Affidavit of Probable a matter of stare statute forecloses as Cause, at which in the trial record the statute ar- construction of decisis the prosecution proposed to call page The re- majority opinion. inat rived defense to tes- appellant's former detention on from lawful lease tify "he Mr. Korff of the told upon appearance is not conditioned date of his trial further told is instead conditioned specified my him that he needed to be there." appear according to agreement to upon an opinion, proposed of the law- bond, recognizance which terms of the suppressed yer should be on the basis here, according to the at bar in the case legal is appellant's claim of information, required appearance charging rep- "advice" and "information court is necessary times. trial at all nothing I in the reason- resentation." see give notice of required then in other ing of the courts surety, and a hearing dates to the significantly from this con- detracts which ap- thereafter of the defendant to respectfully dissent. clusion. I therefore required is declared be pear undertaking. breach of the of the statute purpose purpose
crime of failure to upon the un- permitting release same,
dertaking are the of sureties of the de- and secure attendance
motivate The eriminal statute ful-
fendant in court. purpose fills the when AVANCE, Appellant, R. Donald recognizance. The un- on his own pur- dertaking by surety fulfills this is released on the pose of another. As construed recognizance of failure to Pennington, the crime circumstances de- apply to the charge against appellant scribed
Korff. 21, 1991. creating the crime
When the statute properly restricted prima facie makes a
scope, prosecution proof presenting a time and at defendant did his specified to him on which In that detention. from lawful release prosecution
event, need for the there is no lawyer as a defendant's former
to call the having given notice about
witness