State Ex Rel. McManamon v. Blackford Circuit Court

95 N.E.2d 556, 229 Ind. 3, 1950 Ind. LEXIS 96

• Court: Indiana Supreme Court
• Decided: December 1, 1950
• Docket: 28,717
• Status: Published

Opinions

Young, C. J.

On August 31, 1943, Robert L. Furnish and Henry Glancey were charged by affidavit with the crime of larceny in the Blackford Circuit Court. On the same day, the defendant Furnish was convicted upon his plea of guilty and given a suspended sentence, the terms of which were violated by the defendant, which violation resulted in his sentence on June 9, 1944, for a term of one to ten years in the Indiana State Reformatory.

The defendant was released on parole from the reformatory on July 9, 1945, and was returned on June 21, 1949, as a result of another parole violation and, on April 27, 1950, the defendant filed a pleading in the Blackford Circuit Court entitled a “Motion to Vacate Judgment.”

On May 19, 1950, the State of Indiana filed a demurrer to this motion on the ground that the Blackford Circuit Court had no jurisdiction to entertain this motion because more than five years had elapsed since the time of judgment and that, consequently, the defendant had lost his right to review of the judgment by writ of error coram nobis.

On July 26, 1950, the Blackford Circuit Court overruled the State’s demurrer. On July 31, 1950, the State filed a motion to reconsider the ruling of the Blackford Circuit Court on said demurrer and, on August 5, 1950, the motion to reconsider was overruled and the State of Indiana was ruled to answer on or before September 1, 1950.

Thereafter, on August 28, 1950, this proceeding was commenced as an original action for a writ of prohibition against the Blackford Circuit Court and Max C. Peterson, as Judge of said Court. On said August 28, 1950, a temporary writ of prohibition was issued returnable on September 25. On August 30, 1950, the said Max C. Peterson, as Judge of the Blackford Circuit Court, filed his response herein, from which it appears that said temporary writ of prohibition was served upon him on August 29, and that on August 30, said respondent showed such service of said order on the entry book of his court, and that, after having made such entry, but on the same day, said respondent duly resigned from the office of Judge of the Blackford Circuit Court, comprising the 71st Judicial Circuit of the State of Indiana, and delivered such resignation to the Governor of the State of Indiana.

The real party in interest here is the Blackford Circuit Court, which has been served. Subsequently, the Judge of said Court has resigned and the Honorable James R. Emshwiller has been appointed Judge of said Court, with a record upon the minutes of his court of the filing of said petition. The said James R. Emshwiller has likewise filed a response to said petition, the effect of which is to admit most of the facts set out, but he denies the . allegations that the Blackford Circuit Court has no jurisdiction to. hear and determine issues raised by defendant’s motion and that it does not have jurisdiction to afford the relief prayed for by the defendant.

The petition herein is based upon § 9-3301, Burns’ 1942 Replacement (1949 Supp.) ; Acts of 1947, Ch. 189. This statute provides that any defendant shall be presumed to have waived his right to institute any proceeding for a writ of error coram nobis after the lapse of five years from the time of judgment or conviction, and no court shall have jurisdiction to entertain any such proceeding for writ of error coram nobis after said lapse of time and any court attempting to entertain jurisdiction in violation of this section may be prohibited by a writ of prohibition from so assuming jurisdiction, with the provision, however, that if any defendant shall have been prevented by the state, or by any officer or employee of the state where such defendant may be confined, from instituting such proceeding, or such defendant shall have been insane during such five year period, the time such defendant' shall have been temporarily prevented from instituting such proceeding shall be extended accordingly.

It is the petitioner’s position that the record shows that more than five years have expired since the said Robert F. Furnish was convicted and that, accordingly, the Blackford Circuit Court is without jurisdiction in said matter.

This question leads to whether or not the “Motion to Vacate Judgment” is, in effect, a motion for a writ of error coram nobis. In our opinion it is that or nothing. There is no procedure in this state for vacating a judgment by the court after the expiration of the term of said court at which said judgment was entered, but on the contrary, all of the cases in Indiana seem to hold that such a proceeding as this is, and must be treated and considered as, a motion for a writ of error coram nobis. Irwin v. State (1942), 220 Ind. 228, 239, 41 N. E. 2d 809; Sharp v. State (1939), 215 Ind. 505, 509, 19 N. E. 2d 942; Lobaugh v. State (1948), 226 Ind. 548, 82 N. E. 2d 247; Vonderschmidt v. State (1948), 226 Ind. 439, 81 N. E. 2d 782; Sanders v. The State (1882), 85 Ind. 318.

The question now presented to the court is whether or not the statute of limitations is applicable after the passage of five years. There is no provision for relief from judgments after term in our criminal code. This leaves the question as to whether or not a writ of error coram nobis may be applied for after five years have passed during which the defendant had opportunity to learn of his rights.

It is alleged in the defendant’s motion that, on August 31, 1943, there was filed in said court an affidavit against the defendants, charging them with larceny. On the same day this defendant was arraigned and plead guilty to the charge in said affidavit and the court immediately passed sentence upon this defendant and suspended such sentence; that the defendant was about 19 years of age and was without financial means; that he was in a dazed and subnormal condition and did not realize the charge and facts placed against him and the law applicable thereto; that he had no opportunity to discuss the case with legal counsel and that he was not advised of his constitutional right to be represented by counsel, and that the trial judge did not advise him of the consequences to follow a plea of guilty, nor the nature of the punishment that could be placed against him. He says that he has only recently learned that he was entitled to be represented by counsel when said charge was placed against him and that he was entitled to have legal counsel furnished for him and to represent him at said hearing and that he was entitled to be heard himself and was entitled to face the witnesses in the trial of said cause and now, with due diligence, he presents the matters of fact occurring at the time of said conviction, all at his earliest opportunity after learning what his constitutional rights were at the time of said hearing.

It was also alleged in said petition that the affidavit, filed against defendant at the time, was signed by one Albert L. Merkel and that the names of witnesses endorsed on the back of said affidavit were Albert L. Merkel, Isaac Cook and Roscoe Markin; that all of said witnesses were living and available and that said Dan Kinney, whose goods were alleged to have been stolen, is living and available and that his co-defendant is still living and is available in said matter. It is upon these grounds that he asks to have the judgment against him set aside and that he be permitted to withdraw his plea of guilty and to enter a plea of not guilty and to have a trial as to his guilt or innocence.

It seems, however, to be pretty well established that a petition for a writ of error coram nobis asks for a new trial, but is in the nature of a civil action. State ex rel. Emmert v. Gentry (1945), 223 Ind. 535, 538, 62 N. E. 2d 860; McDowell v. State (1947), 225 Ind. 495, 76 N. E. 2d 249; State ex rel. Barnes v. Howard (1946), 224 Ind. 107, 110, 65 N. E. 2d 55; State ex rel. v. Criminal Court of Lake Co. (1942), 220 Ind. 4, 5, 40 N. E. 2d 971; State ex rel. Jones v. Smith, v. Hornaday (1942), 220 Ind. 645, 647, 648, 45 N. E. 2d 203, 46 N. E. 2d 199; State ex rel. Cutsinger v. Spencer, Judge (1941), 219 Ind. 148, 155, 41 N. E. 2d 601. The case of State ex rel. v. Criminal Court of Lake Co., supra, involved a petition for a writ of error coram nobis and then, quoting from State ex rel. Cutsinger v. Spencer, Judge, supra, the court said:

“ ‘A petition for coram, nobis is not based upon a contention that the judgment attacked is void. It concedes that it is valid upon its face, and that there is no error apparent upon the face of the record. No longer is the state seeking to deprive the defendant of his life, liberty, or property. He is not now “the accused” in a “criminal prosecution.” It is he who is now seeking to deprive the State of Indiana of rights concerning his liberty which have vested in it by a judgment which must be presumed to have been procured by due course of law until he sustains the burden of overcoming the presumption. The petitioner is asking that the taxpayers, the state, be required to bear the expense of furnishing him with a certified record of the proceedings in the criminal case. We know of no constitutional provision that requires that the public shall bear any of the expense of the preparation or prosecution of the petitioner’s action seeking to overthrow the judgment, nor of any statute requiring or authorizing the expenditure of public funds for such a purpose.’ ”

In the case of State ex rel. Emmert v. Gentry, supra, this court said, at p. 538, as follows:

“We have repeatedly held that a coram nobis proceeding is in the nature of a motion for a new trial and that it is also in the nature of a civil action. It is in the nature of the former because its object is to secure the setting aside of a judgment and a retrial of the matter upon which judgment had been rendered. It is in the nature of the latter because it presents a new and different cause for trial wherein the burden of proof is on him who requests relief from the judgment. It is not a trial of the original cause, but merely a determination of whether or not some fact or facts were in existence but unknown to the moving party and to the court which, if known, would have caused the court to rule differently.”

This- is, therefore, a case involving a writ of error poram nobis and is not a habeas corpus cáse. We so held in Dowd, Warden v. Anderson (1941), 220 Ind. 6, 7, 40 N. E. 2d 658, and, in Potter v. Dowd (1944), 146 F. 2d 244, that court held and-said, on p. 246, quoting from Dowd v. Anderson, supra:

• “ ‘It.has been provided by statute, and uniformly held by this court from the earliest times, that- a judgment of a court, of competent jurisdiction cannot be collaterally attacked and overthrown in' a habeas corpus proceeding; that failure to accord the defendant constitutional rights is error, but does not render, the judgment void.’ Continuing on page 8 of 220 Ind.,- at page 659 of 40 N. E. 2d, it said,: ‘Where constitutional rights, state or federal, are invaded or denied there are well known remedies provided, . . .’ See also Goodman v. Daly, 201 Ind. 332, 165 N. E. 906; Dinkla v. Miles, 206 Ind. 124, 188 N. E. 577; Ingersoll v. Kunkel, 210 Ind. 482, 4 N. E. 2d 183; Christian v. Dowd, 219 Ind. 265, 37 N. E. 2d 933; State ex rel. Spence v. Worden, 219 Ind. 532, 39 N. E. 2d 733. Thus it is clear that in Indiana the writ of habeas corpus is not the appropriate remedy in such a case as we are now considering. However, the writ of error poram nobis is available. State ex rel. Kunkel v. Circuit Court of LaPorte County, 209 Ind. 682, 200 N. E. 614; Ingersoll v. Kunkel, 210 Ind. 482, 4 N. E. 2d 183; Swain v. Dowd, 215 Ind. 256, 18 N. E. 2d 928; and State ex rel. Dowd v. Superior Court of LaPorte County, 219 Ind. 17, 36 N. E. 2d 765.”

The case of Harris and May v. State (1932), 203 Ind. 505, 181 N. E. 33, was an appeal from a judgment -, denying verified petition of appellants to vacate the judgments against them, to withdraw their pleas of guilty and to put them upon trial , in due form of law. In passing upon that question, on p. 510, the court said:

“ ‘A court should accept pleas of guilty from defendants charged with serious crime who are unrepresented by counsel, when they are manifestly young and inexperienced, or obviously lacking in intelligence or knowledge of our spoken language, with caution and only after reasonable inquiry into the facts to discover whether a plea of guilty is entered freely and understanding^.’ Dobosky V. State (1915), 183 Ind. 488,- 109 N. E. 742; Rhodes V. State (1927), 199 Ind. 183, 185, 156 N. E. 389; Mislik v.. State (1915), 184 Ind. 72, 110 N. E. 551.”

The Supreme Court of the United States has held specifically that 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, 77 L. Ed. 158; Ex Parte Hawk (1944), 321 U. S. 114, 117, 88 L. Ed. 572; Woods v. Nierstheimer (1946), 328 U. S. 211, 216, 217, 90 L. Ed. 1177; Johnson v. Zerbst (1938), 304 U. S. 458, 468, 82 L. Ed. 1461; Young v. Ragen (1949), 337 U. S. 235, 240, 93 L. Ed. 1333; Carter v. Illinois (1946), 329 U. S. 173, 175, 91 L. Ed. 172.

Of the above cases, we are chiefly concerned with the case of Woods v. Nierstheimer, supra. In that case it did not appear to the Supreme Court that the judgments they were asked to review would rest on an adequate non-federal ground and it was said: “Nor do the denials of petitioner’s applications for habeas corpus present a federal question merely because the five-year statute of limitations on the statutory substitute for the writ of error coram nobis has expired:” In that case, the appeal was dismissed, with the statement that, “Furthermore, it cannot be doubted that if the State of Illinois should at all times deny all remedies to individuals imprisoned within the státe in violation of the Constitution of the United States, the federal courts would be available to provide a remedy to correct such wrongs. Ex parte Hawk, 321 U. S. 114, 88 L. Ed. 572, 64 S. Ct. 448.”

The Supreme Court of the United States has held that every state must afford prisoners “some clearly defined method by which they may raise claims of denial of federal rights.” Young v. Ragen, supra. It was held that every person shall have “the opportunity to open an inquiry into the intrinsic fairness of a criminal process even though it appears proper on the surface,” and that, “Questions of fundamental justice protected by the Due Process Clause may be raised,” outside the record. Carter v. Illinois, supra.

Many of the cases in the Supreme Court upon this question involved were rules in Illinois, and a following of these must, we think, lead to the result which we have attained in this case. That is why they were used whenever a defendant has actually been deprived of his right to counsel. That fact in, and of, itself constitutes a violation of the Fourteenth Amendment and if there is no remedy for such a situation under state practice then the federal courts are open to defendants to raise the question. These cases, most of them, came from Illinois on habeas corpus proceedings. We, in our state, have, as we have shown above, nothing in our habeas corpus law which gives the defendant this right. We have attempted to avoid this situation by enlarging the rights of defendants under petitions for writs of error coram nobis. Therefore, what is said above, with reference to habeas corpus cases from Illinois, applies exactly to our cases in Indiana under coram nobis, and if we have no habeas corpus which meets the situation, and if our proceedings for writs of error coram nobis are so circumscribed as to deprive the defendant of his fundamental right given him by the Fourteenth Amendment, then Indiana is without law suitable for the situation, and what has been said above in the eases from Illinois on habeas corpus applies equally as well to Indiana in cases attempting to apply coram nobis proceedings.

We find considerable dicta in the Indiana cases to the effect that where a constitutional question is involved it is generally assumed that coram nobis will lie. Fluty v. State (1947), 224 Ind. 652, 71 N. E. 2d 565; State ex rel. Kunkel v. LaPorte Circuit Court (1936), 209 Ind. 682, 200 N. E. 614; Rhodes v. State (1927), 199 Ind. 183, 156 N. E. 389.

Under the facts alleged in the case before us, we have a situation which seems to call for the application for a writ of error coram nobis. If, by this statute, the defendant is deprived of that right, he is without any right, and this court has held many times that the Constitution of the United States is the supreme law of the land that it is the duty of this court to enforce it. The provisions of the statute hereinabove criticized violated the Fourteenth Amendment to the Constitution of the United States. We must, therefore, consider the case as though there were no such statute. In the case before us, the sentence of conviction still stands and is unappealed from, but it is likewise true that a person seeking the relief granted by a petition for a writ of error coram nobis was required to use reasonable diligence in order to avail himself of a remedy. Irwin v. State (1942), 220 Ind. 228, 41 N. E. 2d 809. A man could not, before the passage of this statute of limitations, and with full knowledge of his right to such a writ, have sat idly by and then have prepared a petition for a writ of error coram nobis. So, now, and in this case, we are convinced that there should be some application of the rule of diligence. It occurs to us that before a man, who has allowed excessive time to elapse since the date of his sentence, can come into court for-a writ of error coram nobis, he should be required to show diligence, but, in the case before us, it appears from the allegations of the petition of the defendant that he did use diligence. The better rule would be for the trial judge in each case to try-all the facts presented to him by the petition for a writ, then, if, from such presentation of evidence, it occurs to the trial judge that sufficient time has elapsed since the sentence of the man- and that the man, in fact, had sufficient knowledge of his rights, the petition should be denied for lack of diligence. Therefore, in the case before us, we must take the petition of the defendant at par value and he should have a right to present his case. Where he makes a good case, the writ should be granted. Where he fails to make a good case, the writ should be denied.

It should be borne in mind that the question here involved arose upon a demurrer to the complaint and everything alleged therein must be taken as true and that it appears therefrom that the trial was started before he had learned of his constitutional rights and, “now with due diligence he presents the matters of fact occurring at the time of said conviction, all at his earliest opportunity after learning what his constitutional rights were at the time of’said hearing.” For the purpose of considering the ruling upon said demurrer, we must consider said facts as true. Questions presented by this relator’s petition means the facts presented by the defendant’s petition must be accepted.

The Attorney General, in lodging this petition for prohibition had in’mihd two cases heretofore tried by this court, namely Pembleton v. McManaman (1949), 227 Ind. 194, 84 N. E. 2d 889; and State ex rel. Hunter v. Murray (1950), 228 Ind. 98, 89 N. E. 2d 539. In both of those cases the defendant was the moving party and in neither of those cases was the question of the constitutionality of this statute presented. This court gratuitously injected the question there and, to the extent that either or both of those cases are in violation of anything said in this opinion, we hereby disapprove of them. This means that the defendant in the case before us shall necessarily have his petition set for hearing and leaves the case for trial by the judge before whom he was originally arraigned, if available, or, if he is not available, before the judge of said court who may be on the bench and, depending upon the result of the evidence in that case, the court, in the exercise of the discretion that lies within it, shall grant or deny the petition.

Hence we hold that the petition of the State in the ease should be denied and that the' temporary writ should be and is hereby vacated.

Gilkison, J., concurs with an opinion. Emmert, J., dissents with an opinion.