*1 An would serve to increase risk of and conviction. would increase decision arrest serve to this risk. charge grand in-
prosecutor jury indict would and the addressed risk. The command of this crease this statute public perform enforcement to all officials who duties law light sweep term and the courts. In broad en- statute mechanism its the absence from agree purposes, limit I forcement serve to its which would legis- majority that intended as a statute was with proposition that at this time lative re-affirmance right history of self-defense remains inviolate ancient every person. Reported at 325 173. N.E.2d Note. — D. Lamb Indiana.
Jearl State 374S52; April 4, 1975.] 174S1. Filed [Nos. *2 Conn, Bailey Indiana,
Harriette Public Defender of appellant. *3 Watson, Sendak, General, Attorney Harry
Theodore L. John III, General, Deputy Attorney appellee. for appeal is a consolidated belated on J. This
Prentice, by petitions and post-conviction relief two of denial urged following issues: are we review which (1) denied effective assistance the defendant Was hearing guilty plea ? prior to at his of counsel summarily dismissing err the de- (2) in Did the court petition for relief? fendant’s con- defendant was (3) under which Is the statute providing of for alterna- reason unconstitutional victed penalties ? tive degree charged first with (petitioner) was defendant proper request provided with counsel. murder, was and at his arraigned, a abatement, entered Following plea he was plea of jury filed requested trial and guilty, plea not filing Following the appointed. Physicians were insanity. physicians’ reports by counsel, and their examination insanity plea retaining was withdrawn. While guilty plea degree on the first charge, murder defendant arraigned degree was on the lesser included offense of second duly murder. He was advised rights, constitutional proper made, which a record plea and he then entered a guilty degree charge. to the second Thereupon, State presented prima case, facie and the defendant was found guilty imprisonment and sentenced to for not less than twenty-five years. fifteen nor more than Following the commencement sentence, of his pro filed his first se for relief. pertinent allegations thereof were as follows: “8(a) of the 14th Violation Constitutional Amendment and Sixth Amendment of the Constitution; United States also Article Section of the Indiana Constitu-
tion. “ (b) Speedy Denial of and Public Trial. í¡: # # “ (d) appointed Petitioner’s Court Counsel lack shown by advising interest Guilty. Petitioner to Plead “(9) Petitioner rights contends that his Constitutional gravely been violated, specifically, the Sixth Amend- provides ment which ‘Speedy for a and Public Trial’ and Suprem(sic) Indiana 1-4D-Discharge Court’s Rule delay in Criminal Trials also the Fourteenth Amendment to the United States provides Constitution which for Due Equal Process of Law and was threated Protection of Law. Petitioner (sic), promises tricked and false were made McCain, to him David H. Attorney, who was Petitioner’s get Petitioner Guilty; order to to Plead Petitioner Plead Guilty Penalty to Avoid Death or Life Prison. This (sic) in-deed under the Fourteenth read violates the Rights Petitioner’s Constitutional States; Amendment of the United opinion by, Henry Petition C. Alford vs. North Carolina, *4 Appeals Court of United States (4th for the Circuit, 1970) Thereafter, 23, 1971, hearing on March upon was had petition for the first relief. The defendant hearing, De- appeared person by in the Public at said and fender, motion to petition and the was denied. A belated subsequently correct and overruled. errors was filed pro August 6, se 1971, On filed second styled petition post-conviction relief, With- for “Petition to August 16, Guilty Judgment,” Plea draw and Vacate and on 1971, petition upon authority this second was denied the 8, requires 1, grounds for R. P.C. which all available § original petition. relief in to be raised the pro 24j 1972, se On the a third October defendant filed petition styled relief, a Petition this one Corpus. petition grounds Habeas This the was denied presented previously all matters therein deter- had been petition; 5, January mined the 1973, the first and on permitted filing pro court the of a se belated cor- motion to (habeas rect corpus in the errors denial of the third petition) proceeded again upon motion, overrule the authority 1, observing 8, of Ind. R. P.C. that all § including conviction, matters collateral presented to the those petition (habeas the third corpus petition) could been presented petition. in the first (habeas corpus petition) as
The third follows: alleges that “1. statute under Petitioner which he sentenced, Burns’ Indiana was convicted tated, Anno- Statutes (Acts 10-3404, 1905, 350, p. 1969, 95, 584; ch. Sec. § Statutes, p. 214) as found Annotated Burns Volume § pocket supplement page 66, 1969 cumulative at 4, Part unconstitutional, that, multiple penalty patently its equal protection provisions violates clause of the XIV the United Amendment States Constitution and effect of said statute violates the un- force coercive infringes right jury, such, and as restrained the Amendment of the protections of Constitution VI as well as Constitution of the United States Indiana.” State correct errors was as The motion to follows: summarily denying erred “1. That Court making the determination in what manner Petition without *5 142 Respondent proceed proper to therefore the Court as it relates to the precluded answer to Petition con-
trary to law. summarily denying “2. That erred in Court proceedings Petition without further when an issue of properly fact material before the Court.” The issue before respect I. us with ISSUE to first post-conviction relief concerns the defendant’s of claim ineffective As in counsel. other issues post-conviction proceedings, the burden was prove by pre to his contention a ponderance State, evidence. Haddock v. (1973) 260 593, 418; State, Ind. 298 N.E.2d Childs (1975) v. 262 finding 841. The trial 321 N.E.2d court’s issue this allegation was that such was not substantiated the evidence nothing submitted. We have been referred to in the record compelling finding. to us set aside such In proceedings, judge, the trial as the trier facts, is sole judge weight of the of the evidence credibility and the State, Hoskins (1973) witnesses. 261 Ind. argument, N.E.2d 499. Defendant has alluded to an urged other appeal specifically issue in his the alternative — sentencing provisions provided degree the second mur complains der statute and the defendant had no idea get penalty which he would he when entered the guilty plea. Although directly not argued, position it is from the in the argument brief, section of his we conclude that he attributes knowledge his lack of advance of what his sentence would be lack to the ineffectiveness and of concern of his court- appointed counsel. It immaterial the defendant did penalty not know his would attorney what be. His could given any him have assurance as to alterna which of the impose. is, necessity, pro tives the court would There a judgment fessional to be made in such and a matters calculated impropriety be It an to risk taken. for counsel to would give Although may such assurances. counsel and based will be the sentence opinion as what reasoned client as to a recommendation may thereupon make judg take, what cannot know of action to he course best charges defendant further Counsel ment will be. notwithstanding get trial, jury thought that he would hearing guilty. plea The record many Question times “How out. does not bear this Witness: “Along jury Answer you trial.” you tell him wanted did guilty.” pleaded till I plea, ad prior accepting the the court
Immediately *6 fully. the specifically advised the He monished defendant duty pled guilty it the that if he was defendant the either a life sentence or of court to assess than than fifteen more sentence of not less or twenty-five years. replied understood that he The defendant plea that if a that. court further advised the defendant no guilty question or of was entered there was no trial of acknowledged question jury. of a that he The defendant understood this. hearing, the defendant testified that
theAt guilty. plead When was asked decision to he it his own was wrong thought concerning plea, by he was the court what replied that that he knew he broke the law he believed that his circumstances sen- under the but that if asked he believed the court- excessive. When tence was him, replied help “Yes, he appointed did not he I counsel did. negate coming.” only got record not fails to kick no findings issue, abundantly supports upon this it judge’s them. argument that turn the defendant’s next to We
ISSUE II. dismissing peti summarily his court erred the trial corpus peti (habeas post-conviction relief tion asserting so presented an issue tion), it presented, clearly articulated, nevertheless but by the court. The never upon first ruled 144 thusly
issue the defendant seeks us to have review is constitutionality of the conv statute under which he icted1 under the Fifth Amendments and Fourteenth I, Constitution United Article States and Sections and 23 Constitution of In his brief the de Indiana. fendant “broadly states this contention was stated” “petition relief, parts 9.” Such 8 and portions forth, of the have been hereinabove set one, defendant, arewe confident that no will save the regard charge pro penalty them as the alternative vision unconstitutional, of the denial statute renders it as a equal protection required of the certainty law and the process. due Neither of the record does our review hearing suggestion. seemingly reveal such untenable
It is our intention Remedy our Post-Conviction Rule present every person convicted with full a vehicle for a and fair illegality review bona fide claims of not reviewable appeal. accomplish direct To this, we have liberal, made the rules strive we to review the preclude merits the claim rather than to by invoking procedural review Nevertheless, if technicalities. all, arewe to review at must pro we have a modicum of requirements. cedural reviewing Paramount is that au thority apprised petitioner’s degree claim with *7 specificity that will enable it to focus its attention thereon hopefully thereby and arrive to at correct answer. Ob viously, charge conviction is a process denial of due equal protection, more, and without is of no more assistance charge than would a bald of unconstitutionality be illegality. or connection, recently In this we have said that it is unrealistic suggestion may, by to think one error, mere thrust independently the court the burden of exhausting the liciously, murder the state less than fifteen ch. 1. 169, 10-3404. § in the prison but without 350, p. 584; 1969, second Murder —Second during [15] premeditation, nor degree, and, life, more ch. or shall be 95, than degree. Whoever, purposely § 1, p. on kills twenty-five conviction, imprisoned 214.] — human [25] shall be in the state being, years. imprisoned [Acts prison guilty and ma- 1905, not
145
(1972)
may
State,
possibilities that he
Hitch
correct.
v.
1,
259
We up upon by not been taken the trial court had and ruled proceedings, the first to and extent, upon dismissing entry the court’s made petition (habeas corpus petition) inwas error. ruling, petition however, The correct inasmuch as the was attempt an to an issue available raise to raised, first but not therein and there was under his dismissing petition. summarily Post-Convic no error 1, Remedy Rule 3 8. tion §§ III. The third
ISSUE
relief
(habeas
having
corpus petition)
properly
been
dismissed
court,
thereby attempted
presented
the issue
to be
Further,
is not before this Court.
Defendant
us
has cited
authority supportive
position.
no
to
however,
passing,
note in
We
that should there be merit
apparently
proposition,
the defendant’s
untenable
in
firmity
respect
is with
the sentence
involved
go
validity
does
Gordy
conviction.
State,
(1974)
275,
262 Ind.
315 N.E.2d
at
362
v.
defendant, having
been
366.
under the lower
sentenced
statute,
of the two
made available under
alternatives
open only
cannot
been
are
have
hurt. Courts
to those
who
injured,
party
been
and a
who seeks to
a statute
overthrow
thereby.
affirmatively
prejudiced
must
show
he
been
has
State,
(1899)
616,
123;
Gustavel v.
54
Ind. 613 at
N.E.
Elliott,
(1895)
et al. v.
at
Currier
Givan, concur; Arterburn C.J. and De- Bruler, J., opinion. dissents with
Dissenting Opinion here, possibly frustrated trial court J. The DeBruler, petitions a defendant post-conviction a series from of very sentence, made appears fair to be a received what who petition denying the defendant’s an immediate order adjudica- grounds former post-conviction relief, for on the of certainly at the time intention tion. It was not this Court’s judge place trial adopted to the burden the rule was pro give complete petitions (1) construction se to to filing, then, peti- (2) that formulate defense to their and tion, (3) final then submit the case himself for a and judge adjudication. would in- the trial be Such a burden on legal wrong. provided necessary the and We tolerable machinery rationally litigate these cases judge responsibility the trial of assum- to relieve the ing the role an advocate. provided the structure to be invoked
We have the trial upon receipt petition relief. court the for writ If denominated of habeas writ, corpus trial or common law the court should make a it preliminary as to whether should decision be treated aas Rule, Post-Conviction petition under the Court’s Remedies and, treated, that if it is then to be so should ordered be transferred court of should conviction. case 1(c). proper jurisdic- 1, R. Once in the court Ind. P.C. § adversary proceeding. an tion, the is to be treated as case Defender, indigency peti- in event Public The Prosecuting petitioner, tioner, will be counsel and the against petition. R. P.C. 9. Attorney will defend § provided Attorney Prosecuting should have in this case petition, be proper defenses to trial court with merits. waiver, prior adjudication, or on those defenses It 538. was State, Langley 256 Ind. 267 N.E.2d (1971) the burdens which trial court assume intended require judge should this case. it did Prosecuting Attorney fulfill Defender, Public petitioner, obligations post-conviction proceedings, order their *9 final with the reach the court for consideration case legal developed supported positions. fully and recognized 1, that (e) in 4 It of course R. P.C. is of Ind. § judge might post- immediately deny petition a trial a system. invoking adversary conviction the relief without full However, extremely for- Where, here, such are rare. as cases adjudication probable defense, a mer the such or waiver is appropriate, denial would not the determination of be since the likely be in such would rest matter not defenses to petition require comparison for relief and between would a adjudi- petition formerly the issues in issues raised the Presenting prior proceedings. prior cated in the defense of adjudication Prosecuting Attorney. joba or waiver is for the appeal,
Turning the merits of it is be noted next to this to post-conviction petition, defendant, third the his first that corpus, raises a for habeas denominated which was degree defining namely, argument, that the second legal statute being 10-3404, “pat- 35-1-54-1, Burns murder, is Code § § unconstitutional, provisions multiple penalty its ently Amend- protection of the Fourteenth equal clause violate the petition itself The Constitution.” United States to the ment legal previously argument, not recognizes this is new pro the petition, the defendant states that se In his raised. previously to were not known presented in his issues argues petition, to attached he the memorandum In him. granted by trial court authority choose between to that the twenty-five years imprsionment, to life of fifteen sentences arbitrary offense, and too broad to is too for the same penalty to make the fit rationally supported need rather than crime. individual duty trial court is under no majority concludes that the post-conviction petition, of a the merits
to consider in a former arguments been raised in it could have since here, the error raised Where, proceeding. as holding dimension, this tantamount constitutional is to voluntarily and knowingly, this Court right equal intelligently protection raise waived to during prior post-conviction proceedings. issue The waiver litigated. pleaded issue has not been or burden is on prosecution prove prior to raise the defense waiver or adjudication. presume We should waiver on the state of this record. precipitated by de- petition was a denial of
This third
petition,
corpus
habeas
based
federal
fendant’s
should
remedies. We
to exhaust State
failure
proceedings
for further
encom-
the trial court
to
remand
and, in the
pass
event
State fails
the issue
waiver
petitioner’s
prior adjudication,
or
merits of
waiver
show
lighten
procedures
of the rule
will
claim. Adherence
judge and,
time,
at the
serve
the trial
same
the burden of
*10
post-
open
that occasional
door
meritorius
to leave the
claim.
conviction
Reported
Note. — Swope
Leon State Indiana. April 4, 174S15. Filed 1975.]
[No.