*1 Costs of these proceedings are assessed pleadings It is from the tendered obvious fully by Respondent that he does not un- against Respondent. proceeding
derstand the nature of the he is confronting. purpose now here is not Our SHEPARD, J., not participating. fault, liability to find assess or diminish his DeBRULER, J., dissenting. honesty notary. adjudication as a This is merely a determination of whethеr or not Respondent qualified perform acts practice See,
which constitute the of law.
State ex rel. Indiana State Bar Associa- (1968),
tion v. Moritz Ind. Accordingly
N.E.2d 21. we now find that
Respondent's affirmative defenses are
without proceeding. merit this OWENS, Stephan Appellant A. Based findings above noted (Petitioner Below), might reasonable inferences which ema- cireumstances, nate from these appears to Respondent's this Court that the Indiana, Appellee. STATE of representation сonduct constitutes No. 2-885-A-257. ongoing interests of the Schnees' in the bankruptcy cases and proceedings related Appeals Court of representation federal court. This Second District. federal court is conduct to this jurisdiction Court's proceedings. these Nov. (1979),
In re Perrello
N.E.2d 174. Respondent In that is not a
duly state, attorney licensed in this accordingly now finds that he has engage continues to in the unautho- practice
rized of law.
This authority Court's to set standards supervise practice of law is based protect
on the need to from
those not properly licensed or otherwise
qualified attorneys. to act as ex rel. (1986),
Disciplinary Commission v. Owen
Ind., 486 N.E.2d presents 1012. This case very example clear where the character tribunal, the interests at stake and potential ineptness in the course of
representation create a real hazard for the
public. Cf. State ex
rel. Pearson
Gould
(1982), Ind.,
now further finds that due cause exists for permanent injunction issuance of a
that the Disciplinary Commission's granted.
should be
IT IS BY THEREFORE ORDERED Respondent,
THIS COURT that the Dennis Crofts,
N. hereby permanently enjoined
from the practice unauthorized of law. *2 Judge.
SULLIVAN, April On (Ow- Stephan A. Owens ens) charged with robbery. prior Just to commencement of August 22, trial on 1973, Owens withdrew guilty his not agreed plead guilty to theft of over in exchange $100 for the State's recommen- dation of indeterminate, an suspended sen- tence years, of one plus to ten restitution agreement $500. was oral. At guilty plea hearing, August 7, 1978, advisements, received numerous ex- ecuted а trial, written jury waiver of entered his guilty. appeals from a post-con- denial of presents relief and several multi-
faceted issues which we have distilled into the following: (1) Whether the judge's failure to advise Owens that his sentence could be enhanced reason con- viections constitutes fundamental er- ror, permits which presentation of the issue for thе appeal. first time on (2) Whether erred in denying Owens' motion to amend petition af- ter on the merits but judgment. (8) Whether in the from denial of his first peti- tion rendered ineffective assistance in failing to assert concerning error advisement of speedy. jury trial. (4) Whether the cumulative effect of the alleged errors rendered plea involuntary, unknowing and un- intelligent. outset,
At the we deem necessary address Owens' contention that the failure parrot statute constitutes Carpenter, Susan K. Defender, Public fundamental error. It is not the omitted Ranucei, Richard Sp. Asst. to Public De- error, advisement which constitutes fender, Indianapolis, appellant. impact rather the of the omission knowing, intelligent voluntary charac- Linley Peаrson, Gen., E. Atty. Joseph N. Stevenson, Deputy Gen., Atty. Blankenship ter of the Office of Atty. Gen., Indianapolis, appellee. labeling of error as raise, ("a petitioner estopped
The indiscriminate in a subsequent petition, an issue available used and misused has been "fundamental" previous petition mis review of issues him when he filed a attempts to obtain eаrlier omitted from takenly negligently 'every or he verified that he had raised originally relief"). con ground As requests for relief. known' See also Rob inson is error that is so ceived, fundamental *3 due it denies the defendant
egregious that
767, (the
dictum,
Court,
in
stated that
an affront to the
not
process and constitutes
would "not review an issue that
is
system.
v.
judicial
argued
Roberts
in the brief
integrity
specifically
raisеd
post-conviction appeal").
310;
The Robinson
on
(1986) Ind.,
Terry
N.E.2d
492
State
Ind.,
A
(1984)
Ind. 759 amend, subsequent motions to filed after court failed to advise a defendant concern judgment, ing if, the effect of convictions fact, pursuant the sentence denied. Inasmuch as Owens' chal lenges virtually every required advisement agreement was not to enhance given by (repealed),2 to be I.C. 35-4.1-1-8 ment. The Court stated that omission of including disposed of in the some earlier this advisement did not affect the character appeal, presume we will so bold as to be because the "trial court had no litiga that this decision will end all further power to enlarge diminish or an indeter tion with to Owens' 1973 minate sentence." 490 N.E.2d at Ind., See White v. State quoting Stonebreaker N.E.2d 8938.3 pleaded guilty to a crime I. calling for an indeterminate sentence of *4 argues Owens first the that years, one to ten only the penalty provided required to advise him that his sen- statute, by exchange for the State's rec tence prior could be increased reason of ommendation that suspend the sentence be convictions. Owens contends that the fail- ed. Wright, As in supra, 490 N.E.2d ure to so advise constitutes fundamental Owens' sentence could not be enhanced or error and guilty plea renders his unknow- enlarged. Supreme holdings Our Court's ing, unintelligent involuntary. Stonebreaker, in Wright and supra, 476 Judge Judge Shields and Chief Buchanan indicate that at least with re spect pre-German to reject appellant's argument guilty pleas, with the ad- respect to visements upon grounds strictly required this issue appellant only that has clearly applicable where waived it. The to the opinion author of this plea. I would therefore dispose would not of hold that Owens the issue on that adequately respect. advised in this Rather, basis. would determine that the advisement which Owens received was ade- II.
quate and purpose fulfilled the of the stat- Hence, ute. my approach, under argues Owens next that error oc contention that the error was respect "fundamen- curred with post-conviction tal," and, therefore, permit claim court's refusal to Owens to amend of waiver need petition not be addressed. hearing upon the after the prior entry judgment but to of thereon.
At the time pleaded guilty to year nor theft of over terminate term of "not less than one [1] provided for a fine not to exceed five thou- sand dollars, more than ten or $100, imprisonment the statutory penalty [10] for an inde- years, or the the given Post Conviction Rule "At petition, leave to amend the time and the grant petitioner leave tо withdraw § 4(c) of judgment provides shall be as a (Burns both." 10-3039(8) Ind.Ann.Stat. § right." matter of - Supp.1975). Langley See also v. State 4(c) provisions are severable and § (1971) require petitioner do not that a first ask In Wright petition, "grants leave withdraw the petitioner the an absolute to amend a Court held that a guilty plea is not present petition vitiated because the trial law, 35-35-1-2, (Burns 2. For willingness current see I.C. -3 has indicated to consider a subse- Ed.RepI.1985). Code quent post-conviction petition. King v. State Ind., 213; (1986) Holliday 499 N.E.2d v. State note, opinion 3. The writer of this would how- 1239; Reid v. State ever, that to White subsequent supra, Ind., 207; (1986) Simpson strictly applied post-con- waiver has not been Ind., 499 light change viction relief claimants. White, Supreme of law enunciated in our judgment." Neеley, supra, 382 mendation have become the law of the "This is consistent with the N.E.2d at 716. case. purpose total rules holding of this court as set forth in simplification post-
which envisions separate opinion Judge Shields, by requiring petition- procedure conviction Buchanan, joined by Judge Chief is that present all of his reviewable issues in er to concerning Owens has waived his claim petition, multiplicity one in order to avoid a failure the trial court to advise him that petitions." Id. constituted admission of the facts alleged judgment and that sentencing However, although the trial court erred proceed acceptance plea. after would amendment, refusing Ow- I, supra, As with to Issue guilty plea ens is not entitled to have the opinion author of prefers this to consider set aside. The trial court's refusal did not the merits of the contentions. most, impact upon At presented entitled to review of the- issues The assertion of Owens that he was argues the amendment. Owens that the not advised the guilty that constitued trial court failed to advise him admission of the facts is belied guilty plea hearing: therecord of the charge, of the nature of the constituted ad- "Q. entering You are alleged, property mission of the facts offense of theft of over the value of and it $100 sentencing based on the facts contained *5 guilty plea, ceed after the and against affidavit which was filed party that the court not a you, in you charged which plea agreement. says Robbery. with It that on or may successfully not now June, about the 28th of 1972 here in County, you Marion that assert error which have occurred unlawfully feloneously, and force- respect with to the advisements numbered ' ably by putting 1 and 4. In the Memorandum violence and Decision 28, July rendered McCollum, our Fourth District on H.R. did take from the person possession of HR. 1982, it was determined that the trial court money McCollum of the value of (a) "informed him the nature of [Owens] $1500, property H.R. which McCol- crime, (d) the ... the court was not holding lawfully pos- lum was in his accept bound the State's recommenda session, at That factual property tion." Record 131. the was the of the you 7-11 Do Food Stores. under- conclusory determinations аre nature stand those are the facts specifics and do not recite the of the actual you basing your plea? which are advisements does not detract from the binding effect of determinations. those A. Yes I Record at 49. do." Callahan v. Lovelace Truck Service hearing, At a later time the Ow- 162, 164, 2d Ind.App. Dist. 169 346 N.E.2d specifically ens admitted the facts: 623, ("'Thе facts established of record Alright Owens, part "Court: Mr. what gave of the case' are rise to the 'law you did have in this rob- itself"). cognizable as as the law Even an bery? determination, appealed, if not erroneous Mr. Owens: I was one of the robbers. binding upon parties the the same or a actually you But what did do? Court: Laudig related case. See Jensen manager I for the Mr. Owens: asked the 405, Ind.App., 4th 406. Dist. money. The Court of determinations the you gun? Did have a Court: Appeals that Owens had been informed of Mr. Owens: Yes did. the nature crime and that the court gun you have? Court: What kind of did accept was not recom- bound to State's Mr. Owens: A .32." Record at 53. his first petition provided ineffective assistance of counsel failing With allegation the issue of the that he was not informed advisement of judgment that right public and sentencing proceed would trial.4 after accept argues guilty plea, ance of the that I would consider trial court never used the word (1985)Ind., Pharris v. 79, State "public" and that this error renders his dispositive. Pharris, petitioner also plea invalid. contended that the trial court's failure to In reviewing a claim of ineffective assist- advise him according to statute constituted counsel, ance of require we strong and grounds to set aside guilty plea. convincing evidence to rebut the presump- Supreme Court there held: tion that competent and ren- "A defendant who enters a dered effective assistance. Brown v. State will, will of course know a that (1982) Ind., 442 1109, 1117. "To subsequently be entered and sentencing prove ineffective counsel, assistance of pronounced. will be significance defendant 'must show that there is a rea- the advised waivers that he admits were that, sonable probability but for counsel's given by court, was to advise him unprofessional errors, the result of that was all the trial he would rе- ceeding would have been different.'" Di- Although ceive. ... trial court is obli-
gated lon v. 661, inform a defendant result of his will proceed quoting be to with Strickland v. Washington judgment and sentencing, precise 668, 694, statu- 466 U.S. 104 S.Ct. tory language need not be used." 485 80 L.Ed.2d N.E.2d at 80. Pursuant to Wright v. supra, 490 It is clear from the record that Owens was a discussion of the func- well aware of a guilty plea tion make-up jury, of a right would be by judgment followed and sen- compulsory process, and tencing. The trial gave Owens a confront one's accusers adequately conveys explanation detailed of the elements of a meaning of a trial. The trial *6 trial, jury and expressly Owens stated he judge need employ the exact statutory jury aware of procedures. Fur- language or terms. thermore, Owens voluntarily executed a Owens executed a written waiver of his jury waiver of trial. Finally, the trial right jury to a trial and deleted the lan- following indicated that acceptance guage concerning a speedy trial of pre-sentence The investigation hearing waiver occurred after a detailed discussion would be sentencing ordered and a short, set. In function, Owens knew make-up procedures acceptance of of his guilty plea would end proceedings jury trial. The advisement sufficiently except and sentencing. conveyed to Owens the nature of rights sufficiently Owens was apprised to waiver guilty plea. rights waived potential conse- Blankenship, supra, 465 N.E2d 714. quences Thus, of guilty plea. any er- Quite obviously, counsel does not render ror occasioned failing ineffective assistance court's refusal to the amendments an unmeritorious issue. was harmless as a matter of law. IV.
IIL. The next contention of alleges advisements which Owens received attorney that Owens' from denial sufficiently apprised him that a apparently 4. Owеns concedes speedy jury written his trial. jury signed adequately waiver he advised him proce- rights waiver constituted a NEELEY, Appellant tri- Thomas accompany the protections dural (Petitioner Below), conclude, therefore, I would process. al intelligently and knowingly, that Owens statutory his voluntarily relinquished Indiana, Appellee STATE rights. constitutional Below). (Respоndent judgment of 2-1185A362. No. respects. in all affirmed court Appeals District.
Second J., SHIELDS, in result and files concurs Dec. BUCHANAN, in which separate opinion, C.J., concurs.
SHIELDS, concurring. Judge, has waived my opinion, could have raised
issue he raised or previous his
the course of Therefore, he has proceedings. address,
waived, those should not and we involving the trial court's issues in accord properly advise Owens
failure to (repealed). 85-4.1-1-8
ance with Ind.Code § However, did not my opinion, have,
waive, the issue of nor could he post-conviction relief
whether refusing permit him to amend
erred in judgm petition after
his not waive the Similarly,
ent.1 he did ap post-conviction relief previous
claim his assist provided ineffective
pellate counsel Judge fully concur
ance of counsel.2 these issues. opinion on two
Sullivan's Defender, Public Carpenter, K.
Susan Ranucei, Sp. Asst. to Public Richard BUCHANAN, C.J., concurs. Defеnder, Indianapolis, appellant. *7 Gen., Rodia, Pearson, Jay Atty. Linley E. Gen., Gen., Atty. Deputy Atty. Office Indianapolis, appellee. for SHIELDS, Judge. the trial court's Neeley appeals
Thomas petition denial of his relief. We affirm. post-conviction relief was ineffec- have been issue could not 1. The amendment previous post-con- ineffectivenеss issue Owens raised the waived the course tive. proceedings because it arose as relief his second present which the facially result of the manner deficient. He as which was dismissed ceeding was conducted. petition. There- again raised it in the fore, opportu- earliest the issue at the he raised represented asserts the counsel who
2. Owens pursue nity it. and has continued denial of his first on the him