Summary
In Lindsey the coram nobis petitioner had pled guilty to murder in 1933, and applied for the writ in 1951, challenging the validity of the guilty plea.
Summary of this case from Ray v. StateOpinion
No. 28,870.
Filed June 3, 1952. Rehearing denied September 30, 1952.
1. CRIMINAL LAW — Writ of Error Coram Nobis — Appeal — Evidence — Weight and Sufficiency — Supreme Court Will Not Weigh Evidence or Determine Credibility of Witnesses. — On appeal from judgment granting relief on petition for writ of error coram nobis, the Supreme Court will not weigh conflicting evidence or determine the credibility of witnesses, but that is for the trial court. p. 131.
2. CRIMINAL LAW — Writ of Error Coram Nobis — Due Diligence by Petitioner in Asserting Remedy — Question of Fact for Trial Court. — Whether the petitioners for a writ of error coram nobis had used due diligence in asserting their remedy was a question of fact for the trial court. p. 132.
3. CRIMINAL LAW — Trial — Judgment, Sentence and Final Commitment — Constitutional rights Violated — Judgment Void. — If the constitutional rights of the defendants in a criminal prosecution were violated and they had not waived their rights the judgments of conviction were void from the time of violation. p. 132.
4. CRIMINAL LAW — Trial — Judgment, Sentence and Final Commitment — Opening or Vacating Judgment — Laches Does Not Preclude Vacating Void Judgment. — Laches does not operate to preclude the opening or vacating of a void judgment, for the reason that no amount of acquiescence can make it valid. p. 132.
5. CRIMINAL LAW — Counsel for Accused — Constitutional Right To Be Represented by Counsel — Trial Without Counsel — Judgment Void. — Under the Indiana Constitution, there can be no valid trial of a criminal case unless a defendant is defended by counsel, if he desires counsel; therefore, a judgment rendered where counsel has been denied is void. Indiana Constitution, Art. 1, § 13. p. 132.
6. CRIMINAL LAW — Trial — Judgment, Sentence and Final Commitment — Void Judgment Remains Void Forever. — When a judgment is void, it remains void forever. p. 132.
7. CRIMINAL LAW — Writ of Error Coram Nobis — Nature of Proceedings — Validity of Judgment of Conviction on Its Face Conceded. — A petition for coram nobis is not based upon a contention that the judgment attacked is void, but concedes that it is valid on its face, and there is no error upon the face of the record. p. 133.
8. CRIMINAL LAW — Writ of Error Coram Nobis — Nature of Proceedings — Finding That Petitioner's Constitutional Rights Violated — Judgment of Conviction Void Ab Initio. — Though a petition for writ of error coram nobis concedes that the judgment of conviction is valid on its face, where the petitioner alleges a violation of constitutional rights to be represented by counsel, and sustains the burden of overcoming the presumption that the judgment is valid, and the court finds a violation of constitutional rights, then all facts thereafter are void and the judgment is void ab initio. p. 133.
9. CRIMINAL LAW — Counsel for Accused — Constitutional Right To Be Represented by Counsel — Failure To Permit Accused To Have Counsel — Denial of Due Process of Law. — A failure to permit a defendant in a criminal case to have counsel amounts to a denial of due process of law. p. 133.
10. CRIMINAL LAW — Counsel for Accused — Constitutional Right To Be Represented by Counsel at All Stages of Proceedings. — It is as important to have counsel at all steps of the proceeding, where an accused must decide whether or not to plead guilty, as it is to have a lawyer when an accused stands trial. p. 133.
11. CRIMINAL LAW — Trial — Judgment, Sentence and Final Commitment — Void Judgment May Be Directly or Collaterally Attacked at Anytime. — When a void judgment is entered it can be attacked at any time, directly or collaterally, whenever the question is raised. p. 133.
12. CRIMINAL LAW — Writ of Error Coram Nobis — Petitioner's Constitutional Rights Violated — Not Necessary To Prove Petitioner Used Due Diligence. — In a proceeding on a petition for a writ of error coram nobis, due diligence of the petitioners in asserting their remedy is not a necessary fact to be proven when it is alleged and proved that the petitioner's constitutional rights have been violated. p. 133.
13. CRIMINAL LAW — Writ of Error Coram Nobis — Petitioner's Constitutional Rights Violated — Not Necessary To Prove Petitioners Had Good Defense and Were Innocent. — Where constitutional rights are violated, the filing of a petition for a writ of error coram nobis need not allege a good defense or that the petitioner is innocent of the charge of which he then stands convicted, as the safe guards erected by the Constitution are intended to protect the rights of all citizens alike, the guilty as well as the innocent. Indiana Constitution, Art. 1, § 13. p. 134.
14. CRIMINAL LAW — Writ of Error Coram Nobis — Evidence — Weight and Sufficiency — Substantial Evidence That Petitioner Denied Constitutional Right To Be Represented by Counsel — Decision of Trial Court Not Disturbed. — In a proceeding on a petition for writ of error coram nobis, where the petitioners testified that they had no funds with which to employ counsel, that they never talked or conferred with any lawyer, and that one lawyer was kept from seeing them, there was substantial evidence of probative value that the accused were denied the right to adequate counsel, and therefore, the judgment of the trial court granting the petitioners writs of error coram nobis would not be disturbed on appeal. p. 135.
15. CRIMINAL LAW — Trial — Plea of Guilty — Withdrawal — Discretionary With Trial Court — Rule Not Applicable Where Constitutional Rights Have Been Violated. — The rule that a proceeding to vacate a judgment rendered on a plea of guilty and to permit a withdrawal of the plea is addressed to the sound discretion of the trial court, does not prevail where the defendant's constitutional rights have been violated, because when these rights have been denied, all procedural rules that would prevent their consideration or leave them to the discretion of the trial court must yield to the fundamental principles of due process and due course of law. U.S. Constitution, 14th Amendment, § 1; Indiana Constitution, Art. 1, §§ 12, 13. p. 135.
16. CONSTITUTIONAL LAW — Due Process of Law — Criminal Prosecutions — Violation of Due Process — All Subsequent Proceedings Are Void. — In a criminal proceeding when the constitutional requirements for due process or due course of law are denied or ignored, all proceedings in the case thereafter are clearly void. U.S. Constitution, 14th Amendment, § 1; Indiana Constitution, Art. 1, §§ 12, 13. p. 135.
17. CRIMINAL LAW — Writ of Error Coram Nobis — Evidence — Presumptions — Record of Criminal Prosecution — Carries No Presumption Against Verified Charges of Denial of Constitutional Rights. — That the intrinsic record in a criminal prosecution showed that the defendant at his arraignment, was advised of his constitutional rights carries no presumptions as against a later verified petition for a writ of error coram nobis which directly and specifically charges a denial of constitutional rights, and as against this petition the Supreme Court on appeal can indulge in no presumptions that the accused was ever offered counsel or informed of his right to have counsel and a jury trial. U.S. Constitution, 14th Amendment, § 1; Indiana Constitution, Art. 1, §§ 12, 13. p. 135.
18. CRIMINAL LAW — Writ of Error Coram Nobis — Record and Judgment of Conviction Valid on Their Face — Presumption That Judgment Procured by Due Course of Law — Burden on Petitioners To Overcome Presumption. — Where judgments of conviction attacked by coram nobis petitions and the court's intrinsic record upon which they were based, were valid upon their face, the presumption is that the judgments were procured by due course of law, and the burden was upon the petitioners to overcome this presumption, by a fair preponderance of the evidence, in order to maintain their actions. p. 136.
19. CRIMINAL LAW — Writ of Error Coram Nobis — Evidence Dehors the Record Admissible To Overcome Presumption Judgment of Conviction Procured by Due Course of Law. — In a proceeding upon a petition for writ of error coram nobis, evidence dehors the record is admissible to sustain the burden of overcoming the presumption that the judgment attacked by the petition, being valid on its face, was procured by due course of law. p. 136.
From the LaGrange Circuit Court, Donald H. Hunter, Judge.
Charles LeRoy Lindsey and Francis Carroll were convicted of first degree murder and subsequently filed their separate petitions for writs of error coram nobis. From orders and judgments granting the writs of error coram nobis, the state appeals.
Affirmed.
Emmert, J., concurs in result.
J. Emmett McManamon, Attorney General; William T. McClain and John Ready O'Connor, Deputy Attorneys General; and Richard F. DeTar, Prosecuting Attorney of the 35th Judicial Circuit, for appellant.
James C. Cooper and Harold P. Fiely, Public Defenders of Indiana, for appellees.
This is an appeal from orders and judgments granting appellees writs of error coram nobis on their separate petitions.
On April 22, 1933, appellee, Charles LeRoy Lindsey, was indicted for first degree murder, which cause was docketed in the LaGrange Circuit Court as No. 1938. On May 1, 1933, on showing that appellee had no money or means with which to employ an attorney, the trial court appointed an attorney to represent him. Appellee, appearing by attorney, was arraigned and pleaded guilty. Judgment was entered and appellee was sentenced to the Indiana State Prison for and during his natural life. He was delivered to the prison on the same day. On April 13, 1951, the Public Defender, representing appellee, filed his amended petition for writ of error coram nobis. On November 16, 1951, an answer was filed by appellant, under our Rule 1-3, and a further paragraph alleging lack of due diligence by appellee.
On April 22, 1933, appellee, Francis Carroll, was indicted for first degree murder, which cause was docketed in the LaGrange Circuit Court as No. 1940. On May 1, 1933, on showing that appellee had no money or means with which to employ an attorney, the trial court appointed an attorney to represent him. Appellee, appearing by attorney, was arraigned and pleaded guilty. Judgment was entered and appellee was sentenced to the Indiana State Prison for and during his natural life. He was delivered to the prison on the same day. On November 19, 1951, the Public Defender, representing appellee, filed his amended petition for writ of error coram nobis. An answer was filed by appellant, under our Rule 1-3, and a further answer alleging lack of due diligence by appellee.
The trial court consolidated for hearing the two causes of action.
On December 22, 1951, the trial court entered its findings and judgments granting appellees' petitions for writs of error coram nobis.
Appellant assigns as error that the orders made and entered by the court on December 22, 1951, are contrary to law.
Appellees' petitions allege that their constitutional rights were violated in that they did not knowingly, freely, and understandingly enter their pleas of guilty, and that they never intentionally or knowingly waived any of their constitutional rights to counsel, and that they were never informed of their constitutional rights; that although the record shows that, on the day they pleaded guilty, counsel was appointed for them, they never knew counsel had been so appointed, and that the attorney never consulted or talked with them regarding the charge, and that they were coerced into entering a plea of guilty; that they were ignorant of their constitutional rights, and did not understand the consequence of their plea of guilty.
For "Due Course of Law," see Art. 1, § 12, Constitution of Indiana.
For "Rights of Accused," see Art. 1, § 13, Constitution of Indiana.
Two and one-half days were consumed in trying the case. It is unnecessary to set the evidence out in detail. Evidence was introduced to support each allegation of the petitions. 1. However, all of the evidence was disputed and is conflicting. This court has often said that, upon review, we do not weigh conflicting evidence or determine the credibility of witnesses. That is for the trial court. Abraham v. State (1950), 228 Ind. 179, 91 N.E.2d 358; Garrett v. State (1939), 216 Ind. 52, 22 N.E.2d 981; Sessler v. State (1944), 222 Ind. 608, 609, 56 N.E.2d 851.
Appellant contends that appellees failed to prove that they had used due diligence in asserting their remedy. Due diligence is a question of fact for the trial court. However, in the 2-6. case at bar, appellees assert that certain of their constitutional rights had been violated. If this is true, and they did not waive their rights, the judgments were void from the time of the violation. Bradley v. State; Taylor v. State (1949), 227 Ind. 131, 84 N.E.2d 580; Slack v. Grigsby (1951), 229 Ind. 335, 97 N.E.2d 145. In the last-cited case we said that where a judgment is void, laches does not operate to preclude the opening or vacating of a void judgment, for the reason that no amount of acquiescence can make it valid. Under our Constitution, there can be no valid trial of a criminal case unless a defendant is defended by counsel, if he desires counsel. A judgment rendered where counsel has been denied is void. Bradley v. State; Taylor v. State, supra; Knox County Council v. State ex rel. McCormick (1940), 217 Ind. 493, 29 N.E.2d 405, 130 A.L.R. 1427. There can be no question that when a judgment is void, it remains void forever.
The constitutional right to representation by counsel is one that may be waived by an accused. Hoelscher v. State (1944), 223 Ind. 62, 57 N.E.2d 770.
For "Right to Counsel in Indiana," see Indiana Law Journal, Vol. 26, p. 234.
A coram nobis is not based upon a contention that the judgment is void. It concedes that it is valid on its face, and that there is no error upon the face of 7-10. the record. State ex rel. Cutsinger v. Spencer, Judge (1941), 219 Ind. 148, 41 N.E.2d 601. When, however, the petitioner alleges a violation of constitutional rights to be represented by counsel, and the accused sustains the burden of overcoming the presumption that the judgment is valid, and the court finds a violation of constitutional rights, then all facts thereafter are void. The judgment is void ab initio. The Supreme Court of the United States has held that a failure to permit a defendant to have counsel amounts to a denial of due process of law. Powell v. Alabama (1932), 287 U.S. 45, 53 S. Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527. It is as important to have counsel at all steps of the proceeding, where an accused must decide whether or not to plead guilty, as it is to have a lawyer when an accused stands trial. Von Moltke v. Gillies (1948), 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; Foster v. Illinois (1947), 332 U.S. 134, 67 S.Ct. 1716, 91 L.Ed. 1955; Glasser v. United States (1942), 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. In the case at bar there was evidence that appellees had been denied counsel and had not freely and voluntarily waived their constitutional rights.
This court has further held that when a void judgment is entered it can be attacked at any time, directly or collaterally, whenever the question is raised. Slack v. Grigsby, 11, 12. supra. The rule therefore is that due diligence is not a necessary fact to be proven when it is alleged and proved that the petitioner's constitutional rights have been violated. In so far as State ex rel. McManamon v. Blackford C. Ct. (1950), 229 Ind. 3, 95 N.E.2d 556, and Irwin v. State (1942), 220 Ind. 228, 41 N.E.2d 809, are in conflict here with, they are overruled. It was not necessary for appellees to prove that due diligence was used in filing their petitions.
Appellant further contends that appellees failed to prove that they had a good defense and were innocent. Where constitutional rights are violated, the filing of a 13. petition for a writ of error coram nobis need not allege a good defense or that the petitioner is innocent of the charge of which he then stands convicted. Abraham v. State, supra; Beard v. State (1949), 227 Ind. 717, 88 N.E.2d 769. As was said in Abraham v. State, supra (p. 185 of 228 Ind., p. 360 of 91 N.E.2d):
For a discussion of the necessity to allege innocence, see "Habeas Corpus and Coram Nobis in Indiana," Indiana Law Journal, Vol. 26, p. 529.
"The right to be heard by counsel provided by § 13 of Article 1 of the Constitution of Indiana, as well as the due process clause of the Fourteenth Amendment cannot be nullified by the appointment of incompetent counsel who give merely perfunctory or casual representation. . . .
"This right is not defeated merely because an accused himself employs incompetent counsel who affords inadequate representation. . . . Nor is this constitutional protection waived because the accused may in fact be guilty. 'The safeguards erected by the Constitution are intended to protect the rights of all citizens alike. They protect the rights of the guilty as well as those of the innocent.'" . . .
We therefore hold that it was not necessary for appellees to either allege or prove that they were innocent or had a good defense. In so far as the case of Schmittler v. State (1950), 228 Ind. 450, 93 N.E.2d 184, is in conflict herewith, it is overruled.
Appellant further contends that appellees failed to prove that they were denied the right to be represented by counsel. Appellees testified that they had no funds with 14-17. which to employ counsel, that they never talked or conferred with any lawyer, and that one lawyer was kept from seeing them. This evidence, of course, is all disputed. There was conflicting evidence on each point. However, the trial court was the judge as to the weight and credibility to be given the evidence and the witnesses. We cannot weigh the evidence. The contention was a question of fact for the trial court, and we will not disturb the decision if there is evidence to sustain it. An accused is entitled to be heard by counsel, not only at the time of trial, but also to consult with counsel at all stages of the proceedings. Hoy v. State (1947), 225 Ind. 428, 75 N.E.2d 915. In the case at bar there was substantial evidence of probative value that the accused were denied the right to adequate counsel. As was said in Campbell v. State (1951), 229 Ind. 198, 204, 205, 96 N.E.2d 876, 878, 879:
"The rule that a proceeding to vacate a judgment rendered upon a plea of guilty and permit a withdrawal of the plea is addressed to the sound discretion of the trial court, does not prevail where the defendant has been denied his rights under §§ 12 and 13, Art. 1 of the Constitution of Indiana. Vonderschmidt v. State (1948), 226 Ind. 439, 443, 81 N.E.2d 782, supra; Kuhn v. State (1944), 222 Ind. 179, 193 et seq., 52 N.E.2d 491; Wilson v. State (1943), 222 Ind. 63, 78, 51 N.E.2d 848; Cassidy v. State (1929), 201 Ind. 311, 319, 168 N.E. 18. When these rights have been denied all procedural rules that would prevent their consideration or leave them to the discretion of the trial court must yield to the fundamental principles of 'due process' and 'due course of law.' Vonderschmidt v. State (1948), 226 Ind. 439, 443, 81 N.E.2d 782, supra; Wilson v. State (1943),
222 Ind. 63, 78, 51 N.E.2d 848, supra; Todd v. State (1948), 226 Ind. 496, 508, 81 N.E.2d 784, 786, 82 N.E.2d 407, supra. When the constitutional requirements for 'due process' or 'due course of law' are denied or ignored all proceedings in the case thereafter are clearly void. Johnson v. Zerbst (1938), 304 U.S. 458, 82 L.Ed. 1461, 1468; State ex rel. McManamon et al. v. Blackford Circuit Court (1950), 229 Ind. 3, 95 N.E.2d 556, 563, and cases cited.
"That the intrinsic record in the case may show that at his arraignment appellant was 'advised of his constitutional rights' carries no presumptions as against appellant's verified petition for writ of error coram nobis directly and specifically charging a denial of constitutional rights nor in other proceedings where such rights have been denied. As against this petition this court can indulge no presumptions that appellant was ever offered counsel by the court at any time, nor that his constitutional rights to a jury trial were explained to him or that he had a right to have counsel to represent him."
The judgments attacked by the coram nobis petitions, and the court's intrinsic record upon which they are based, are valid upon their face. The presumption is that the judgments 18, 19. were procured by due course of law. The burden was upon appellees to overcome this presumption, by a fair preponderance of the evidence, in order to maintain their actions. State ex rel. Cutsinger v. Spencer, Judge, supra. On this proposition, evidence dehors the record is admissible. Campbell v. State, supra.
The trial court found that appellees had sustained their burden of proof and had overcome the presumption by a fair preponderance of the evidence. After reviewing the evidence, we find that there was sufficient evidence of probative value to sustain the allegations of appellees' petitions.
The orders and judgments entered by the trial court were not contrary to law.
Judgment affirmed.
Emmert, J., concurs in result.
NOTE. — Reported in 106 N.E.2d 230.