Jones v. State

566 N.E.2d 1033, 1991 Ind. LEXIS 19, 1991 WL 22587

• Court: Indiana Supreme Court
• Decided: February 19, 1991
• Docket: No. 03S00-8910-PC-773
• Status: Published

Opinions

GIVAN, Justice.

This is an appeal from the denial of post-conviction relief. A jury trial resulted in appellant’s conviction of First Degree Murder, for which he was sentenced to life imprisonment. We affirmed on direct appeal, Jones v. State (1978), 268 Ind. 640, 377 N.E.2d 1349.

The facts are: In November of 1975, appellant was charged with first degree murder; at the time he was fifteen years of age. Appellant’s first trial resulted in a hung jury. Before the start of the second trial, the prosecutor asked appellant’s attorney whether he thought appellant would be willing to enter a plea of guilty to manslaughter. According to the testimony at the post-conviction relief hearing, there was a misunderstanding between the prosecutor and appellant’s counsel as to the prosecutor’s intent at that time.

Appellant’s attorney claims he understood the prosecutor to be offering a plea bargain to appellant, whereas the prosecuting attorney testified that although he had little recollection of such a conversation, he did not offer a plea bargain but merely asked an exploratory question of appellant’s attorney. Be that as it may, appellant’s attorney advised appellant’s mother that they might consider entering a plea of guilty to manslaughter. However, after discussion, both the attorney and the mother agreed that this should not be done.

Appellant now claims that he was never advised of the possibility of pleading guilty and had he been so advised, he would have accepted the plea of guilty to manslaughter. The somewhat conflicting testimony of the prosecuting attorney and defense counsel at the post-conviction hearing presented Judge DeClue with a fact-finding decision.

In making his decision, the judge stated: “All of the testimony of Mr. Samper and Mr. Childress can be easily reconciled. Mr. Samper’s testimony about the ‘discussion’ reveals that it was informal, off-the-cuff, and in the nature of a ‘would your client be interested’ statement. The words spoken do not indicate a plea offer, but rather an invitation to open discussions. The actions of the parties do not support the idea that a plea offer had been made. After the statement had been made, Mr. Samper and Mr. Chil-dress never again mentioned the matter to each other. It is entirely understandable that Mr. Childress does not remember making a plea offer. The words he spoke were not intended to be and did not constitute a plea offer.”

The judge went on to find that because no plea offer was made it was not necessary to convey the information to the defendant. He thus concluded that this situation did not give rise to a denial of effective assistance of counsel. This Court will not reverse the judgment of the post-conviction court unless the evidence is without conflict and leads unerringly to a contrary result. Schiro v. State (1989), Ind., 533 N.E.2d 1201. We agree with the court below regarding the alleged offer to plea bargain.

Appellant claims he was denied due process and effective assistance of counsel when his attorney failed to object to Instruction No. 18, which instructed the jury on the law of malice and stated in part: “Therefore, malice is implied from any deliberate and cruel act against another however sudden.” Appellant takes the position that this language violates Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. , 61 L.Ed.2d 39. In addressing this issue in his findings below, Judge DeClue correctly analyzed Sandstrom as holding that it was improper to presume one of the elements of a crime merely from the fact that certain acts had taken place which constituted other elements of the crime. He observed that the jury instruction in Sandstrom and like cases had failed to maintain the separate and distinct nature of the elements of the crimes.

He pointed out that:

“In the case at hand, Final Instruction No. 18 does not merge what must remain separate and distinct elements of the crime of first degree murder. Basically, the petitioner argues that the instruction requires the jury to find one element, malice, from the existence of another element, the fact that a person was killed. The instruction does not do this, however, and it cannot be viewed as an instruction prohibited by Sandstrom and Francis.” ²

We further would point out that this was an issue which was available to appellant on his original appeal and was not raised. Therefore it was waived. Schiro, supra. This issue is available only on the basis that trial counsel’s failure to object to the instruction or raise the issue on appeal constituted ineffectiveness of counsel. See Ind. Post-Conviction Rule 1(1). We agree with Judge DeClue’s analysis of the situation. Therefore we do not find that trial counsel was ineffective.

The trial court is affirmed.

SHEPARD, C.J. and KRAHULIK, J., concur. DeBRULER, J., concurs in result with separate opinion. DICKSON, J., concurs in result.

2 . Francis v. Franklin (1985), 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344.