Morris v. State

Indiana Supreme Court

Morris v. State

466 N.E.2d 13, 1984 Ind. LEXIS 890

CourtIndiana Supreme Court

DecidedJuly 24, 1984

Docket184S21

StatusPublished

Cited by19 cases

This text of 466 N.E.2d 13 (Morris 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.

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Morris v. State, 466 N.E.2d 13, 1984 Ind. LEXIS 890 (Ind. 1984).

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Opinion

PIVARNIK, Justice.

This is an appeal from the Marion Superi- or Court's denial of post-conviction relief. Appellant-petitioner Abe Morris, III, was found guilty by a jury in 1978 of confinement, deviate conduct, rape and robbery. He was sentenced to concurrent imprisonment terms of twenty years for confinement, fifty years for deviate conduct, fifty years for rape and twenty years for robbery. This Court affirmed Petitioner's convictions in Morris v. State, (1980) Ind., 409 N.E.2d 608.

Petitioner filed this petition for post-conviction relief pro se on November 18, 1981, alleging that he was denied effective assistance of counsel. The trial court held an evidentiary hearing on October 1, 1982, and subsequently denied the petition. Included in the trial court's findings and conclusions was the conclusion that "Res judicata would apply to most of the issues raised by Petitioner, in that these same issues were presented to the Indiana Supreme Court in the appeal of this case."

The trial court's conclusion was correct since petitioner raised the ineffectiveness of his counsel as an issue in his direct appeal and also outlined several examples of the alleged ineffectiveness. Notwithstanding the fact that petitioner gave several additional examples of his counsel's alleged ineffectiveness during the post-con-viection hearing, a consideration of the ineffectiveness issue would constitute review of an issue already decided on direct appeal. The additional examples of alleged ineffective representation raised in the instant appeal were available to petitioner when be filed his direct appeal with this Court and the general rule provides that issues not raised but available to a defendant in his original appeal cannot be considered in subsequent post-conviction proceedings. Richardson v. State, (1982) Ind., 439 N.E.2d 610; Kennedy v. State, (1979) 271 Ind. 382, 393 N.E.2d 139, cert. denied, (1980) 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 734, reh. denied, 444 U.S. 1104, 100 S.Ct. 1074, 62 L.Ed.2d 791; Frasier v. State, (1977) 267 Ind. 24, 366 N.E.2d 1166. Accordingly, there is nothing for this Court to review in this appeal and the trial court is affirmed.

GIVAN, C.J., and DeBRULER, HUNTER and PRENTICE, JJ., concur.

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PIVARNIK, Justice.

This is an appeal from the Marion Superi- or Court's denial of post-conviction relief. Appellant-petitioner Abe Morris, III, was found guilty by a jury in 1978 of confinement, deviate conduct, rape and robbery. He was sentenced to concurrent imprisonment terms of twenty years for confinement, fifty years for deviate conduct, fifty years for rape and twenty years for robbery. This Court affirmed Petitioner's convictions in Morris v. State, (1980) Ind., 409 N.E.2d 608.

Petitioner filed this petition for post-conviction relief pro se on November 18, 1981, alleging that he was denied effective assistance of counsel. The trial court held an evidentiary hearing on October 1, 1982, and subsequently denied the petition. Included in the trial court's findings and conclusions was the conclusion that "Res judicata would apply to most of the issues raised by Petitioner, in that these same issues were presented to the Indiana Supreme Court in the appeal of this case."

The trial court's conclusion was correct since petitioner raised the ineffectiveness of his counsel as an issue in his direct appeal and also outlined several examples of the alleged ineffectiveness. Notwithstanding the fact that petitioner gave several additional examples of his counsel's alleged ineffectiveness during the post-con-viection hearing, a consideration of the ineffectiveness issue would constitute review of an issue already decided on direct appeal. The additional examples of alleged ineffective representation raised in the instant appeal were available to petitioner when be filed his direct appeal with this Court and the general rule provides that issues not raised but available to a defendant in his original appeal cannot be considered in subsequent post-conviction proceedings. Richardson v. State, (1982) Ind., 439 N.E.2d 610; Kennedy v. State, (1979) 271 Ind. 382, 393 N.E.2d 139, cert. denied, (1980) 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 734, reh. denied, 444 U.S. 1104, 100 S.Ct. 1074, 62 L.Ed.2d 791; Frasier v. State, (1977) 267 Ind. 24, 366 N.E.2d 1166. Accordingly, there is nothing for this Court to review in this appeal and the trial court is affirmed.

GIVAN, C.J., and DeBRULER, HUNTER and PRENTICE, JJ., concur.

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466 N.E.2d 13, 1984 Ind. LEXIS 890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-state-ind-1984.

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