Harshman v. State

451 N.E.2d 46, 1983 Ind. LEXIS 887
CourtIndiana Supreme Court
DecidedJuly 15, 1983
DocketNo. 382S112
StatusPublished

This text of 451 N.E.2d 46 (Harshman v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harshman v. State, 451 N.E.2d 46, 1983 Ind. LEXIS 887 (Ind. 1983).

Opinion

DeBRULER, Justice.

Appellant-petitioner, Thomas R. Harsh-man, was convicted .of murder upon his plea of guilty pursuant to a plea agreement and received a sentence of thirty years imprisonment. One year later he filed a petition for post-conviction relief seeking permission to withdraw his plea. The petition was denied. This is the appeal from that judgment.

The three contentions on appeal are that the post-conviction court was in error in concluding that:

1. defendant received the effective assistance of counsel leading up to his plea of guilty; that
2. defendant knowingly, voluntarily and intelligently made his plea of guilty; and that
8. the initial trial court had committed no error in not holding a hearing on the issue of his competence to stand trial.

H

The right to counsel guaranteed by the Sixth Amendment to the United States Constitution requires much in the nature of care, skill, and even personal sacrifice from lawyers.

"Undivided allegiance and faithful, devoted service to a client are prized traditions of the American lawyer. It is this kind of service for which the Sixth Amendment makes provision. And nowhere is this service deemed more honorable than in case of appointment to represent an accused too poor to hire a lawyer, even though the accused may be a member of an unpopular or hated group, or may be charged with an offense which is peculiarly abhorrent."

Von Moltke v. Gillies, (1948) 332 U.S. 708, 725-26, 68 S.Ct. 316, 324, 92 L.Ed.2d 309. Article I, § 13, of the Indiana Constitution requires no less. When the assistance provided by counsel is subjected to challenge in court, it is presumed to have satisfied the requirements of this professional trust. Such presumption is rationally grounded in the educational and other requirements for admission to the practice of law, Magley v. State, (1975) 263 Ind. 618, 335 N.E.2d 811, but is rebuttable by strong and convincing proof. Robbins v. State, (1971) 257 Ind. 273, 274 N.E.2d 255. In resolving the issue, the court should consider the totality of the circumstances, which, in a case of this type, where the defendant is challenging the work of counsel leading up to the making of a plea of guilty, include the advisement of the judge to the defendant prior to any acceptance of a tendered plea. McCann v. State, (1983) Ind., 446 N.E.2d 1293.

"A plea is an intelligent act if it is 'done with sufficient awareness of the relevant circumstances and likely consequences. Brady v. United States, (1970) 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. The decision to plead guilty and forego a trial involves the making of difficult judgments and is characterized by unavoidable uncertainty. MeMann v. Richardson, (1970) 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763. Obviously the client cannot know all that the lawyer does, and cannot appreciate all that the lawyer appreciates. The client's awareness cannot be expanded so as to equate that of the lawyer. Yet the client is entitled to know how the lawyer evaluates the risks attendant to going to trial."

McCann v. State, supra.

"An intelligent plea is the culmination of a rational decision-making process, in which the accused assesses the numerous factors which bear upon his choice of whether to formally admit his guilt or to put the State to its proof. The plea must [48]*48represent the informed, self-determined choice of the defendant among practicable alternatives."

United States ex rel. Healey v. Cannon, 553 F.2d 1052, 1056 (7th Cir.1977).

In order to demonstrate lack of adequate legal representation before making his plea of guilty, appellant has focused upon the manner in which defense counsel: (1) investigated and pursued possible defenses of insanity and intoxication, (2) investigated and pursued possible suppression of his confession and fruits of a search, (8) investigated and pursued a hearing upon his competence to stand trial, and (4) advised him on the morning of the plea that it would do no good to withdraw from the agreement. f

The findings of the post-conviction judge are detailed and exhaustive. Appellant was represented by Mr. Patterson and later also by Mr. Weldy, who were experienced in criminal defense work. Together they worked a total of approximately one hundred and seventy hours for appellant. Regarding defendant's first point, the findings disclose that defense counsel investigated appellant's wife and others who would have knowledge of his alcoholic consumption. The express finding continues:

"Defendant's attorneys discussed an alcohol related defense or defense of diminished capacity with him and they concluded that such was not a defense in this case; Defense counsel met with and advised the Defendant on a great number of occasions and had lengthy and substantial consultations and discussions with him at County Jail and at the Courtroom.
a * L * * L
Defense Counsel did pursue the psychiatric issue as well as the alcohol defense issue and Defendant's prior history of some treatment when he was age 16 to 18 (some 17 years before the date of the murder) was developed and considered by Counsel and felt not to be an advantage to Defendant at trial and after consultation with the Defendant and with his approval that issue was dropped as a part of trial strategy...."

Such findings decisively refute defendant's first point. Regarding the second point, the court concluded:

"Defendant's confession was knowingly, intelligently and voluntarily given after a full advice of his rights and a proper waiver of his rights ... after being advised of his 4th Amendment right concerning search and seizure knowingly and voluntarily gave the police officers a consent to search his place of residence...."

Absent a challenge to the evidentiary support for this conclusion it decisively refutes defendant's second point. The findings quoted above in relation to the first point, adequately refute the third point, ie., that counsel negligently failed to press for a competency hearing. _

Finally, assuming that defense counsel advised defendant on the morning of the plea that it would do no good to withdraw from the plea agreement, such fact would not indicate a lack of effective counsel. Defendant received a thirty year sentence for murder where sixty years was possible after having confessed and having provided other evidence that he choked the unarmed female victim for two or three minutes, with his thumb on her throat, and that after she stopped struggling, he ran over her body with his car. Advice to stick to the agreement was within the realm of effective counsel. The trial court was clearly correct in adjudging that defense counsel was not shown to have provided constitutionally deficient legal assistance.

II.

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Related

Von Moltke v. Gillies
332 U.S. 708 (Supreme Court, 1948)
Pate v. Robinson
383 U.S. 375 (Supreme Court, 1966)
Brady v. United States
397 U.S. 742 (Supreme Court, 1970)
McMann v. Richardson
397 U.S. 759 (Supreme Court, 1970)
McCann v. State
446 N.E.2d 1293 (Indiana Supreme Court, 1983)
County of Vermilion v. Illinois Labor Relations Board
800 N.E.2d 875 (Appellate Court of Illinois, 2003)
Dragon v. State
383 N.E.2d 1046 (Indiana Supreme Court, 1979)
Robbins v. State
274 N.E.2d 255 (Indiana Supreme Court, 1971)
Magley v. State
335 N.E.2d 811 (Indiana Supreme Court, 1975)
Evans v. State
300 N.E.2d 882 (Indiana Supreme Court, 1973)
Chandler v. State
300 N.E.2d 877 (Indiana Supreme Court, 1973)

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Bluebook (online)
451 N.E.2d 46, 1983 Ind. LEXIS 887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harshman-v-state-ind-1983.