*1
tion is called upon
prove
to make a
admissible. To admit
against
evidence
prima facie case.
accused in a eriminal case where the lack of
2. This same conviction while old
relevancy
is demonstrable would be unfair
stale and remote does tend
prove
and a denial of due process. To me it is
lack of credibility as a witness at the
inconceivable that knowledge of a thirty
present time, and is completely relevant
year old conviction for rape, standing alone
and admissible for purpose of impeach-
in the youth of a person, without proof of a
ment if the defendant testifies in his own continuation
misconduct,
fur-
defense.
thers the credibility determining goal of the
It would appear logical to me that if
trier of
this
fact one iota. There is more to
old conviction is not probative evidence of
thirty years of
person's
life than simply
appellant's present inclination to put his
the lapse
Hall,
of time.
supra; People v.
sexual self-interest before the rights of oth- Henneman, (1944)
inclination place his self-interest above tion would be prohibited from using appel- his duty to others to tell the truth while a prior lant's conviction for impeachment. witness on the stand. Indeed a persuasive argument can be made that these two PRENTICE, J., concurs. threads of relevance, while tenuous in any event, are not equal strength, and that the first would be more resistive of dissolu-
tion through the action of time than the
second.
There is reason in the record to believe
that the trial court was of the opinion that
he had no discretion at all to bar the use of
this
convictionfor impeachment. Hall
McCANN, Appellant,
John W.
State,
(1976)
however cannot be considered mandatory in
the sense that it binds the hands of a sitting
judge so as preclude him from declaring
a particular conviction for an infamous
crime inadmissible on the basis of individual
circumstances. A'judge in the conduct of a
particular trial and in judi- execution of his power, cial must have the authority to
screen evidence. He must be the final arbi-
ter of whether there is a rational basis for
the admission particular of a piece of evi-
dence in the context of an actual trial even
though Legislature may have declared that type of evidenceto be relevant and
Susan K. Carpenter, Public Defender, Jo- Oddo, seph Deputy Defender, Public Indian- apolis, appellant.
Linley Pearson, E. Atty. Gen., Aimee L. Kolze, Deputy Gen., Atty. Indianapolis, for appellee.
DeBRULER, Justice. This is appeal from an order denying a petition relief seeking withdrawal of a guilty plea.
Appellant, twenty-nine years age, was 4, arrested on upon March 1980 three counts of dealing in a controlled substance under Ind.Code 35-48-4-2(1) § alleging sales on separate two occasionsto a detective of the Allen County Police Department. Three 6, months later 1980, on June appellant, after being brought to the court house for trial, start of his joined was by his trial counsel who told him that the State was prepared to file a recommendation on plea of guilty. The recommendation of the State would be that appellant receive a fifteen year sentence a plea of guilty to Count II which alleged a delivery of cocaine to run consecutive to a pa- current role revocation term being him, by served return for which the State would dismiss Counts I and agreed II. He and with coun- sel appeared judge before the for further arraignment and plea entered a of guilty to Count II. The court did not accept plea but took it under advisement and ordered a pre-sentence investigation. Thereafter on 25, June 1980appellant appeared with coun- sel, plea agreement openly discussed and reaffirmed both sides. plea was accepted and he was sen- years II, tenced to fifteen on Count to run consecutively with a resulting sentence parole from a violation and granted jail time credit of thirty-four days. 14,
On August 1980appellant by the same trial counsel filed a praecipe for transcript plea proceedings. 25,
On August 1980appellant by his same trial counsel filed a petition for return of personalty granted. which was time, engaged he and the were 27, pro filed his this April appellant On of the provisions an active discussion seeking impeach petition se conveyed the These statements agreement. May 1981he grounds. on several On bargain- had not been a idea that the court pro of law se. lengthy filed a memorandum commit- he had made no er and that examined 1981the trial court May On such, satisfied the statute. they As ments. petition and answer of State hearing. without a petition denied the TH. a new chosen On June rejected made and The claim was appel- appearance entered his June, sentence year 1980 fifteen Through a motion for reconsideration lant. it was ordered erroneous wherein recon- convinced the court to new counsel imposed to a sentence consecutively served grant and to sider the denial of the violation for probation 1980for April hearing hearing was held at a on it. The In 1977 a March 1977 conviction. denying in an order resulting later date *4 criminal conduct appellant's time of earlier relief, The Defender has filed State Public conviction, imprisonment a term appellant's brief. the date the upon required to commence under certain imposed except sentence was I. here. 1976 applicable not cireumstances rejected The claim was made and 8, When there p. 788. Public Law § had judge accepting guilty plea that the fore, imposed 1980 the court April of Ind. comply failed to with the mandate conviction, ap upon that executed sentence the accused be 35-4.1-1-3(b) that Code § conformity being treated in pellant was admitting is the truth of informed that he at the in effect in 1977 with the statute judgment and charge facts in the and that conduct and con prior time of his plea. follow the The record shows sentence viction. told that the court expressly that he was the of committed By appellant the time he was in fact must determine whether guilty and pleaded to which he fense the factual guilty explain and was asked to year fifteen present received the which he guilty plea, proceeded of his which he basis case, Law 8 Public § sentence in this to do described how he sold cocaine long no and courts were amended had been sentencing He was told that detective. require terms of a mandate to er under plea. requirement would follow the This upon imposi to commence imprisonment was satisfied. for an offense tion, the sanction was where At the time probation. while on committed IL. already on appellant was of this offense and re Therefore, re The claim was also made when probation. him jected judge that the failed to inform sen challenged year fifteen ceived the new party that the court was not a conformity tence, treated in being he was it as agreement and was not bound the time of his in effect at with the statute 35-4.1-1-8(e). The Ind.Code required by § conviction. conduct and new criminal in the statute need not be language exact the new sentence requirement Ind., State, (1979) employed, Laird v. be already the one consecutively to served yet compliance N.E.2d strict with of his consequence ing penal served is v. required, of the statute is German of 1980law terms conduct reason 1980criminal Ind., State, (1981) Appel 234. notice) have {(of is presumed which he told that the more onerous complains lant that he was not enhanced or and is not an vio crime or "party'". Appellant was not a of his penal consequence cannot be plea bargain probation was not terms of expressly told lation of prohi post the ex facto agree binding judge on the and that no deemed violative Dolan v. Cf. him, of the constitutions. bition ment between 420 N.E.2d State, Ind.App., (1981) At binding on the court. prosecutor was Appellant relies Young State, stances buttressing it. A rational review of (1980) Ind.App., 413 N.E.2d 1088in support this order cannot be made. of this claim. There the court imposed a y
sentence following revocation probation, but delayed commencement of that sen next contends that he was tence pending completion erroneously of a new sentenced for dealing sen in heroin tence. There was no rather statute than authorizing dealing cocaine as charged in that postponement II, Count pleaded time of the to which he guilty. crime At and conviction that had formal sentencing, resulted in proba tion, and that postponement verbal was therefore reference stated: error. Such a postponement is present not now, "COURT: . I must upon your ed here. The court correctly ordered the plea of guilty and a finding of new fifteen year sentence to be served con the crime dealing in heroin [sic] secutively to the previously imposed sen charged, you sentence custody tence. Department Indiana of Corrections
for confinement for a period of fifteen IV. years....
After post-convic Appellant argues that he stands convicted tion was denied in the order to which this of an charged offense not and that his appeal directed, is appellant filed proa se conviction cannot process withstand due Ind.App., motion requesting the court to modify serutiny. State, McFarland (1979) *5 sentence by granting additional credit to his N. E.2d 1104. We agree. cannot 384 new year fifteen sentence for spent time in All other references the by trial court in his jail pending disposition of these charges. eolloquiesin open court and in all necessary The trial court denied the upon motion con papers court correctly and refer accurately sideration of the record "and other factual to appellant's conviction as dealing one for circumstances." There nothing is in the in length cocaine. The of the term of im record to reflect what may prisonment cireumstances plea agreement. conforms to the considered, have been objection no Appellant stands convicted dealing in lack of specificity in ruling, the II, and no cocaine as charged in Count and not challenge to the ruling in the pro se motion dealing in heroin. The judge simply mis to correct errors. This ruling, like all trial spoke as he talked extemporaneously, and rulings, court appeal on is considered pre no adverse consequences appel flowed to correct, sumptively and the burden upon is lant therefrom. There is no basis here upon the complaining party to demonstrate incor permit which to the withdrawal of the rectness. In N.Y. Ry. Central Co. v. guilty plea. Milhis er, (1952) 180, 231 Ind. 453, we VIL.
stated: The primary basis for appellant's petition "It has been held many times that all relief is that his accept- reasonable presumptions are indulged on ance plea agreement of the subsequent and appeal in favor of the rulings judg- and plea of guilty were not knowingly and intel- court, ments of a trial that the record ligently given. predi- This basis is in turn must exhibit the errors for which the cated the claim that his counsel had sought,
reversal is
and that a court of
been ineffective in advising
accept
him to
appeals
presume
will not
anything in fa-
the agreement
plead
and
guilty.
vor of
alleged
sustain his
189,
error."
federal
sentencing proceeding
in
formal
and is fundamental
of the
lawyer
a
ices of
thirty-one
was
25,
1980.
June
Alabama,
(1982)
287 U.S.
Powell v.
nature.
158;
hearing and
v.
55,
Gideon
time of
77 L.Ed.
45,
years old
53 S.Ct.
335,
On
plea.
83 S.Ct.
(1963) 372 U.S.
the time of
Wainwright,
twenty-nine
trial,
in
same time
he was
morning
At the
LEd.2d 799.
June
a form
was
provide
when he
duty
building
a
are under
the court
lockup
courts
a
a
accepting
before
he had
By
to the accused
this time
lawyer.
of advice
by his
met
charges
drug
Alabama,
(1969)
these three
facing
Boykin
been
plea
guilty.
1709,
had been by counsel for two of those Appellant months. was a mature seeks a new man twenty-nine years age. On June 6 hearing grounds on the that legal repre- when he appeared judge before the he un- sentation by counsel was equivocally entered his and evidenced a not effective adequate presenting and clear understanding of the nature of the post-conviction claims. This final conten- charges, potential sentences he would tion predicated upon is the failure of the avoid by pleading guilty, the actual sen- post-conviction counsel to call the former tence he would by pleading receive guilty, trial counsel as a post-convie- witness at the and freely admitted delivery of the con- tion hearing to establish the claim that for- trolled charged. substances as On June mer trial counsel had been deficient in ad- while still in a posture to express a relue- vising accepting him on the plea agreement. tance and lack of understanding, appellant general As a proposition the de reaffirmed that which he previously de- cision whether or particular not to call a clared even though asked him witness is left up lawyer in mapping whether he still desired to plead guilty. action, his course of and absent a clear There are suggestions further in the rec- showing injury prejudice the court ord that defense counsel had at least once would not feel in declaring confident coun before day of trial conferred with ap- sel ineffective for failure call a witness. pellant subject on the of plea bargaining. State, (1968) Johnson 251 Ind. He sought discovery. He had taken action 651; State, (1974) Robertson v. depose Prince, Neal and he had caused a Ind. Appellant points N.E.2d 833. subpoena to issue to a defense witness for out point hearing, that at one in the . trial. letters of rejected trial counsel were
On the basis of presented that which was court, counsel was we are say unable to that the evidence was urged to call trial purpose such that it led unerringly to the conclusion identifying them. Post-conviction counsel that counsel inadequate was ineffective or told the he did not want to do so in the manner in which he carried out his putting because "we're a man the spot duties to his client advising him on just I don't think that's whether to accept reject plea agree- appropriate." He did then call former *7 ment. There is strong indeed cireumstan- counsel but limited iden questioning his to tial evidence that appellant knew and fully tifying the letters. Obviously what counsel appreciated the risks going attendant to entirely said here was and intolera wrong trial rather than pleading guilty, and that lawyer ble. A is under a gained he had appreciation this through duty vigorously prosecute constitutional past experience in justice the criminal sys- his client's claim of ineffectiveness of coun tem and the sel, efforts of this lawyer. His an point embarrassing even to the of However, awareness of circumstances relevant to the other what lawyer, necessary. if choices he pleading guilty here, made in were distinguished he did as from what his sufficient. The concern over lack of appre- were, stated motives cannot be characteriz clation appears which in appellant's presen- legal representation. as ineffective This ed tation at the post-conviction hearing ap- is, occurring it reflects events record pears to hearing, fall within the of category post-conviction replete difficult to the HUNTER, Justice, dissenting. trial that former suggestions
with with working relationship appel- good had a from the ma- respectfully dissent I must lant, simple appel- that the cases were VII. These Issues VI and jority opinion on assistance of knowledge of with the effective working had a issues deal already lant plea hearing and counsel at the that former tri- justice system, hearing respec- relief post-conviction investigation of the made a full al counsel of effective I feel that the issue tively. taking deposition facts which included guilty plea of counsel at assistance allegedly pur- of the undercover officer who adequately be determined hearing cannot having discussions with drugs, chased the new remanded for a unless the cause is having drugs, the chemist who tested for the fol- hearing relief examining appellant, discussions with lowing reasons. of discovery made hospital records. He had that reveals A review of the record a defense subpoenaed case and the State's which culminat- throughout proceedings trial. It is more pending witness of entry guilt in ed his appellant was en- probable than not that thereon, sentencing petition- judgment and representation he tirely satisfied with aby represented retained and was er had employed for he former being provided, referred to as attorney, hereinafter private the court to return petition trial counsel to his sentenc- Following attorney." his "trial commencing personal property some after Re- at the Pendleton ing and incarceration his sentence. He continued service of re- engaged legal petitioner formatory, se, file, a during pro peti- that correspond with trial counsel which led him search relief. Simulta- tion for period. - his dissatisfac- neously, he communicated of indications in strongest There are the copy attorney and sent tion to his trial trial counsel as this record that former at- to the relief case appellant's have done witness would torney. he good. As a witness more harm than letters which four The record contains multiple the content of would have revealed petitioner subse- attorney the trial sent Each undoubt- appellant. discussions with his decision to sentencing and quent to his appel- served to increase edly would have relief motion. With the post-conviction file relevant of cireumstances lant's awareness were handwrit- the letters exception, one judgment of making the difficult to his message ten; was the only two instances plea agree- accept reject whether letters, the In the letterhead. placed on cireumstances, post-con- such ment. Under willingness his attorney expressed trial taking this case viction counsel's action in pe- insofar as petitioner with cooperate appellant's on the basis concerned, under- as well as his tition was include the need to standing petitioner's the letters of former testimony, and representation allegation of ineffective suggestion that counsel which contain a petition. might there be a basis relief, work, not dem- based does communications, the trial In the series concern attorney justifiably expressed or ineffectiveness. incompetence onstrate while petitioner, that possibility over the to a new is therefore not entitled inadequate, alleging representation post-conviction hearing on this basis. to liti- might expect or desire court is af- judgment of the trial with other conjunction claim in gate firmed. Ulti- petition. raised in allegations *8 cooperation pledging while
mately, peti- informed the petitioner, GIVAN, C.J., PI- and PRENTICE and members of he nor that neither tioner VARNIK, JJ., concur. litigate post- be able firm would law conflict due to the relief conviction HUNTER, J., opinion. with dissents of interest such representation in- would "One other thing, [MR. WILSON:] volve. Petitioner then retained Judge. Now, course, a second the very best attorney, hereinafter referred to evidence "post- person would be the himself." counsel," conviction to represent him COURT: "Precisely." throughout relief pro- MR. WILSON: "Mr. Avery." ceedings. COURT: "And he could have been sub- poenaed although-"
At hearing, relief MR. counsel called WILSON: "He could petitioner to have been sub- poenaed, testify Judge." regarding allegations contained petition. Petitioner testified that COURT: "Sure." only five minutes prior to the time when his MR. WILSON: "But like I say, I think trial was begin, scheduled to his trial attor- that there is some kinds of times when ney lockup came to and informed him that evidence, the second best and this is the the state had offered a plea bargain. He second best signature, because it's his he testified that his trial attorney recognizes it, advised him it, he received I think that it would be in his best interests to under cause, circumstances accept the offer. According petitioner, very nature proceedings, of these his attorney then upstairs went best evidence probably to the would be not pre- courtroom. ferable Petitioner because we're putting testified that he did a man on not copy see a plea agreement spot as a just until and I don't thirty later, minutes think appropriate." when he that's was taken to the courtroom accept There, plea. The trial court ultimately sustained the according petitioner, he acted on the objection state's to the admission of the assumption that his attorney knew what letters; he ruled that the letters lacked the was best and answered affirmatively to the authentication necessary to them qualify questions him, asked of thereby pleading for admission under the business records guilty to the crime for which the fifteen- exception. year sentence was ultimately imposed. He In response-and with the permis- court's testified that due to the lack of consultation sion-post-conviction counsel sent word to with his attorney, together with the effects the trial attorney, whose office was located of medication, he did not understand the courthouse, across the street from the plea bargain; he stated that immediately come arrived, to the courtroom. When he following entry plea, which was he was asked to take the witness stand. taken under advisement by court, he There, post-conviction counsel him asked informed his attorney that agree he did not three questions; questions pertained those with it. His attorney did not respond, ac- name, to his occupation it whether cording to petitioner; he also testified that signature was his which appeared on the due to his incarceration, he was unaware letters. The state then cross-examined the whether the attorney investigated had and trial attorney regarding conversations be- researched his case and considered alterna- tween the attorney petitioner which approaches tive charges to the facing him. occurred subsequent entry and sentencing. The trial attorney was In the petitioner's course of testimony, then excused from the witness stand. sought counsel to introduce the letters which the trial attorney had sent Petitioner maintains he was denied con- to petitioner. The state objected to the stitutionally adequate representation at the admission of the documents on the basis of post-convictionhearing by virtue of his hearsay. Post-conviction argued post-conviction counsel's decision not that the letters were admissible under the question his trial attorney because it would business exception records to the hearsay put him "on spot professional." as a rule, and then engaged in the following We have found that under certain circum- colloquy with the ignorance stances an of the applicable court: law *9 the law that the failure to misperception majority suggests
or a
of the state of
assistance of coun
inadequate
attorney
can result
the trial
was one of strat-
question
by
State,
Ind.,
of statements made
egy because
(1979)
sel.
v.
396 N.E.2d
Smith
hearing. The
attorney
guilty plea
at the
hearing
transcript of that
was admitted
Here, notwithstanding the trial attor-
There,
hearing.
the tri-
hearing, post-convic-
at the
ney's presence
that he based his
attorney
al
had stated
question
not
him about the
tion counsel did
petitioner
plead
should
conclusion
coun-
allegations
inadequate
substantive
of
which included a
investigation
on an
Instead, post-conviction
sel at issue.
coun-
officer,
deposition
police
of a
discussions
attorney only
sel asked the trial
to authen-
petition-
petitioner,
with a chemist and
exam-
ticate the letters he had written to
er.
the trial attor-
These state-
question
hospital
This failure
ination of
records.
ney
ipso
would not
facto establish that the ments,
however,
neither made under
were
post-conviction representation was inade-
cross-examination;
subject to
oath nor were
quate.
might,
any partic-
That omission
summary
statement of the trial attor-
instance,
product
strategy
ular
or
petitioner's
ney only concerns one basis
trial tactics.
representation
afforded him
claim that
The lack of evidence solic-
inadequate.
counsel, however,
ex
Post-conviction
prod-
not the
petitioner's
behalf was
ited
not consider it
pressly stated that he did
tactics;
rather,
question
attorney
the trial
it
appropriate to
strategy or trial
uct of
counsel's
on the
the result of
put
spot
because it would
the "man
misunderstanding of his
professional."
approach
as a
That
defies
expressly-stated
"independent professional
the concepts of
In the cir-
petitioner.
responsibilities
representation"
judgment" and "zealous
here,
peti-
I find that
present
cumstances
our
embodied in Canons 5 and of
Code of
effective assistance of
tioner was denied the
Likewise, it
Responsibility.
Professional
relief hear-
rule of
flies in the face of a well-settled
State, supra.
ing. Smith
proceedings;
relief
cases
reasons,
I believe
For all of these
produce
where no effort is made
denying post-
court
judgment of the trial
counsel,
orally
either
testimony of trial
should be reversed
conviction relief
affidavit,
law that the
it is a rule of
a new hear-
should be remanded for
cause
would
may presume
ing
proper
where a
determination
testi
petitioner's
not have corroborated the
counsel at
assistance of
issue of effective
allegations
incompe
mony regarding the
can be made.
hearing
guilty plea
Ind.,
State,
(1982)
tency. Cobbs
883;
State, (1977)267 Ind.
Lenoir v.
1356;
State,
Vernor v.
368 N.E.2d
(1975)
cognizance misplaced of this rule and status of the
deference to the para- in a attorney placed petitioner of Robert D. In the Matter Although the trial attor- position. doxical ROACHE, II. witness, only testi- ney was called as a allegations
mony regarding the substantive No. 1078S239. occurred dur- inadequate representation of Indiana. Supreme Court the state. Inas- ing cross-examination April11,1983. tangentially only as that evidence much allega- the factual
concerned the merits of
tions, that the trial attor- presumption petitioner's would have contravened
ney in force.
testimony remained