*1 hereby heretofore made alternative writ issued permanent. J., Achor, Landis, JJ.,
Emmert, Arterburn C. concur.
Note.—Reported E. in 130 N. 2d of Indiana Minton. 29,259. Filed 1955.] November
[No. *2 Steers, Attorney General, Spen- Edwin K. Frank E. cer, Deputy Attorney General, Laupus, L. James Prosecuting Attorney, Seymour, appellant. of for
Henry Montgomery, Seymour, appellee. H. of for appeal by J. This isan of the Indiana Landis, setting from a conviction, appellee’s aside upon judgment, his motion vacate of in the nature petition for a writ of error coram nobis.
Appellee’s judgment alleges motion to appellee vacate arraigned was issuing on a of fraudulent check; that at such time he was without financial means attorney; to hire an any that he received no from advice consequences as plea; to the of his that he plea refused counsel and entered a of on the consequences plea correctly belief that the of his were by represented court; to him prior that entering by he his was advised the court that charged penalty for the crime was a fine of not less $1,000, imprisonment nor more than than $10 Prison for less than two nor more than four- years; only that said teen advice was the advice consequences plea. to the of his court as receiving says: that, upon Appellee’s further motion guilty, for a term his of sentenced him the court years of two to Prison fourteen in the Indiana State costs; fined him that after he was committed to $10 the Prison he was called before Indiana State Prison and com- Board of and informed his sentence Trustees being abeyance mitment held in until such time were years fully as he an assessment two had satisfied Reformatory parole viola- Indiana commitment for tion; arraigned in that when lower case, penalty about he did not understand advised the lower court was which he had been subject action the Prison Board Trustees holding completion abeyance until said thought servitude; contrary, previous that on the begin immediately and was not his servitude would subject postponement; a mis- he was under punishment apprehension as to the element of the *3 charged consequence of and as to serious the crime consequences of plea; had he understood the that his accepted guilty, counsel and plea of he would have his court; presented to the defense be his to caused effect, to counsel. denied the he was attorney, by prosecuting Indiana of The State motion, appellee’s which appellant, filed demurrer overruled, appellant and filed answer. was demurrer vacate, and appellee’s on motion to formed The issues court, to the were submitted appellant’s answer defendant-appellee on to vacate his motion found for adjudged that the and decreed judgment, and vacated, defendant-appellee be be of conviction plead and anew. his of to withdraw allowed by the decision, appeal been taken State has From court. to this of Indiana appeal is whether the presented on this question
The case, counsel who has refused and a criminal accused in arraignment properly is advised the trial court on his charged of the for the crime with which he is guilty, convicted, may, upon his of later com happened parolee plain nobis, if a at coram arraignment, the time of of the failure of the court his relating deferring him statute1 to the of advise of the parole sentence for violators. principle a defendant
It is a well settled of law that charged represented crime is entitled to be with Indiana; 1, §13, of
counsel. Art. Constitution 18; (1854), 13, Hendryx 6 Ind. v. Baird Webb v. 269, (1892), 265, 130 Ind. 29 N. E. The State 78, 83, 1131; (1943), 51 N. Wilson State 848; (1947), Hoy E. 2d 225 Ind. N. E. v. 2d 915. Supreme of the has held that Court United States permit a amounts
a failure to
defendant
have counsel
process
of due
of law in violation of the
a denial
federal constitution. Powell v. Alabama
158;
84 A.
U. S.
S. Ct.
77 L. Ed.
L. R. 527.
attorney
A defendant has
to have an
his
financially
employ such
own
if he is
able to
choice
financially
employ
attorney.
If
able
he is
choice,
duty
it
his own
competent
him
court to select
requests
not. There
it or
public expense whether he
at
a defend-
case unless
trial
a criminal
can be no valid
counsel,
counsel.
if he desires
represented
ant
is.
Any prisoner
and committed
who has been sentenced
Prison,
the Indiana
Prison or
the Indiana
Indiana Women’s
upon parole
Reformatory,
therefrom
been released
has
large upon
parole
an-
commit
at
said
shall
while
such
upon
anew
conviction thereof shall be sentenced
other crime
*4
herein,
shall be
named
said
to one
the institutions
subject
after
the first sentence is
the second sentence
to serve
to commence from
annulled and the second sentence is
served or
liability upon the first or former
the termination of his or her
1947,
61, §1, p. 205, being §9-2250, Burns’
sentence. Acts
1942
ch.
Repl. (1953
Supp.).
Cum.
State;
131,
Bradley
Taylor
(1949),
v. State
227 Ind.
v.
580;
Lindsey;
84 N. E. 2d
State v.
Carroll
v.
(1952),
126, 132,
231 Ind.
However, it is the further settled
that
law Indiana
represented by
the constitutional
counsel
may
be
is one
waived
accused. Hoelscherd
(1944),
62,
v
E.
. 223 Ind.
57 N.
2
(Cert.
1087,
denied 325 U.
89 L.
S.
S. Ct.
1975);
Howard,
(1946),
Wood v.
157 F. 2d
Ed.
Cir.
denied,
(Cert.
331 U.
91 L. Ed.
S.
67 S. Ct.
1832) ; Gryger
Burke
334 U.
S.
S. Ct.
1256,
In the case at is a colloquy judge had the defendant- between appellee pursuant appears Rule 1-11 as of this court transcript: from the
“Q. charged by are You before affidavit uttering forged check, crime of with the alleged and the crime is to have been com- day October, 12th mited on the 1951. The charge you you will later be read to will required plead guilty guilty. Do or not be attorney? you have No, “A. sir.-
“Q. you money Do or means have with which attorney? to hire an get Well, necessary. I I could one but don’t think it’s “A. “Q. course, you are entitled have an Of you you appointed if do for not have the money employ or means with one. I that. “A. understand
“Q. you you appointed Do want an you you represent and counsel with before arraigned? you are No, “A. sir. reading you, Before
“JUDGE: you felony I it is a will advise Legis- fixed the law and *5 lature for this $10.00 a not than crime is fine of less $1,000.00 imprison- nor more than Reformatory ment in the State Prison or for period of not less than more than 14 nor years. The of the State of In- Constitution provides: prosecutions, diana Tn all criminal public the accused shall have the to a trial, by impartial county jury, an committed; which the offense shall have been counsel; to be heard himself and de- to mand the nature and cause accusation against him, thereof; a copy to have to face, meet the witnesses face to and to have compulsory process obtaining for witnesses person, any in his favor.’ No criminal prosecution, compelled testify shall be to against himself. “Q. you copy Do awish of the affidavit? necessarily.
“A. Not “Q. any any promises Has one you made or you you plead guilty threatened or not to induce at this time? “A. No.
“Q. you plead guilty, you If are entitled to a hearing quickly and trial as as can be ar- raigned (sic) any without de- unreasonable lay. time? arraigned you ready Are at this Yes, “A. sir. reading “JUDGE: Listen affi- (Prosecuting Attorney affidavit.)
davit. read “Q. you fully Do understand the contained in that affidavit? Yes, “A. sir.
“Q. having you, you The affidavit been read to are ready plead at this time? “A. I am.
“Q. you plead, guilty do guilty? How or not Guilty.” “A.
It has been held court that accused who freely understandingly has waived and refused the
services of an be instructed need not concerning judge all the intricacies including of and law, the nature the criminal defenses punishment possible for lesser offenses every Hoelscher of facts. conceivable state State, supra; Bearing required only that be advised It
In the case at court, the court counsel offered was advised pun- and the and nature of the character required plead to therefor, that he would be ishment guilty, guilty and that under the constitution or not jury. right impartial public to a trial he had the judge expected trial could be far as the This was as go advising the accused. in defendant-appellee happened to be fact that the The arraignment of his so as defer parolee at the time running subsequent until he sentence of his or time under first additional had served sentence, by statute, provided was as former defendant-appellee could a circumstance not. upon by court necessarily expect to be advised case at bar. in-the expect the trial court no
Appellee had of the law to the intricacies him as instruct pertaining to his case. of facts every state conceivable nobis, complain therefore, now, in coram He cannot a lecture from the court on the not receive he did parole statutes. significance of the propriety as to the question raised briefs The findings proceeding necessary is not in this special
585 have reached to our decision in of the result we view opinion. accordingly judgment re- of the lower is finding and to enter versed with instructions against herein. petitioner of Indiana and the State Judgment reversed. Arterburn, Bobbitt, JJ.,
Achor, concur. Emmert, J., opinion. C. concurs with
Concurring Opinion presented primarily C. J. The issue not Emmert, concerned with whether the waived his representation by counsel; attempt but he- does present the issue that his was entered freely understandingly. freely If it was not entered understandingly properly a demurrer was over Eagle (1943), ruled. 221 State Ind. 48 E.N. 811; (1943), 2d Kellums v. State 221 Ind. 50 N. E. 662; (1951), 2d Adams v. Ind. N. E. 424; Dobosky (1915), 2d v. State 183 Ind. 109 N. 742; (1920), 69, 76, E. Batchelor v.
N. E. 773. years
For several I have been convinced that some language of the broad Hoelscher v. State *7 62, longer E.N. 2d no stated the law. The case, page Hoelscher at reports 69 of the official states that if a defendant waived the services of an necessary it was not concerning he be instructed the punishment nature and for lesser offenses. The next states, required “It only sentence is that he be advised charge against of the nature of the him and his concerning have to advise him the law charge if he so desires.” This case involved a of murder degree every in the first and law school student who has had a in course criminal law knows that in Indiana such charge charge includes also the of murder in the degree manslaughter. on in-
second and The statute in offenses murder the cluded makes an indictment for degree an in the second first indictment also murder manslaughter. degree, of power It the and is within the jury after a return a under such an trial verdict guilty in defendant is of murder the indictment the degree manslaughter. it be can held second or How logically that has of the a defendant been informed against concerning only him when he is informed higher in If the indictment had been three the offense? certainly separate counts not hold that court could understanding^ plea if his a defendant had made him the of each of the did not of nature inform that a therefor and ver- three offenses and degree murder would be ac- dict of in second degree, that a verdict quittal of in the first murder acquittal on manslaughter guilty would be an of of degree murder charges in the first of murder degree. the second
The record pris- in the Hoelscher case discloses the only years age. oner was of nineteen No record was pursuant present requirements made to the Rule of 1-11. order prisoner book recitals Hoelscher consequences knew the nature the crime charged generalities he was mere not conclusive were against positive petition. statement of facts in his merely advised that he has a
When more, jury constitutional to a trial without thereby sufficiently is not to enter his informed knowingly understandingly. The law on included long has been in the books so and is so offenses well hardly understood that it can be said it is one of the opinion It the law. seems to me that the “intricacies” Mr. Justice Black Von Moltke v. Gillies correctly L. Ed. U. S. S. Ct. for a down test made laid *8 understandingly, as follows: such “To be valid waiver must be apprehension made with an of the nature of charges, statutory them, the the offenses included within range thereunder, punishments the possible allowable charges mitiga- defenses to the and circumstances in thereof, tion and all facts to a other essential broad understanding of the whole matter.” appeal
But in the
I
at bar
concur
the
reversal of
proceedings
the
for the reason that
had
Rule 1-11
show
was informed of the amount
imprisonment
of fine
term of
for the
forgery.
on the
prisoner complains
What
about is the
of the
failure
court on
motion
its own
forgery judgment
begin
inform him when the
would
request
this,
prisoner
be served.
made no
on
and he
parole
knew he was
and had
on
violated it. I know of
precedent
requires
no
a trial court on his own
prisoner
begin
motion to instruct a
as to when he shall
prisoner
asked,
sentence.
If
serve his
had
him,
question
court had misinformed
different
presented.
may
be
The fact
would
misapprehension
have been under
as to the effect of.
parole
did
statutes
not make the
voidable.
judgment.
Therefore, I
concur
reversal of
Note.—Reported in
Rhodes et al. 29,340. Filed October Rehearing [No. denied November 1955.]