Greer v. State , 262 Ind. 622 ( 1975 )

Arterburn, J.

Appellant Robert Greer and his brother, James Greer, were tried by a jury and convicted of the crimes of Robbery and Inflicting Injuries in the Commission of a Robbery. They were sentenced to life imprisonment. They appealed, and the conviction was affirmed by this Court. Greer v. State (1970), 253 Ind. 609, 255 N.E.2d 919. Robert Greer then filed a post-conviction petition pursuant to Rule PC. 1. The petition was dismissed upon a motion by the State, and this appeal from that dismissal has followed.

As grounds for post-conviction relief, Appellant alleged as follows:

“As a matter of law, the evidence presented by the State of Indiana, was insufficient to convict. The Court erred in denying my motion for directed verdict.

There was no evidence presented at trial, either direct or circumstantial, which tended to link me with the crime. I feel that I was convicted only because I am James’ brother, the evidence against him was strong, and there was supposedly two people involved in the robbery.”

The sufficiency of the evidence was an issue not argued on the original direct appeal although that issue was properly preserved for appeal by the Motion for New Trial filed by the retained trial attorney. In other words, Appellant’s appointed appellate attorney, who was not his trial attorney, chose not to pursue this issue on appeal.

This case has in substance the same posture as Kidwell v. State (1973), 260 Ind. 303, 295 N.E.2d 362. In that case an appellant in a post-conviction petition raised several issues which had been preserved by the Motion for New Trial but had not been pursued on appeal. The post-conviction petition, like the petition in this case, did not explain this failure to raise these issues on the direct appeal. See, Langley v. State (1971), 256 Ind. 199, 267 N.E.2d 538. Therefore, the trial judge in Kidwell ruled on the post-conviction petition by a “Special Findings of Fact and Conclusions of Law” which said that Appellant “had waived the questions now presented in his petition for post-conviction relief.” Kidwell, supra, 295 N.E.2d at 363. In considering the appeal of this denial of post-conviction relief, this Court affirmed the trial judge. In our opinion we noted that appellate counsel had chosen not to pursue all the stated grounds in the Motion for New Trial. We went on to say: “The next question is, therefore, did counsel for appellant on his original appeal fail to properly represent, the Appellant when he waived some of the error alleged in the motion for new trial.” Kidwell, supra, 295 N.E.2d at 364.

Thus, we recognized that a post-conviction petition which attempts to raise issues waived on appeal implicitly alleges incompetent representation on the part of appellate counsel. Furthermore, in the interests of judicial economy we decided that issue at once rather than putting all involved to the effort of litigating a new post-conviction procedure with a petition alleging incompetent post-conviction representation for the failure of the post-conviction attorney to allege incompetent appellate representation. Rule PC. 1(8). We have previously warned that the post-conviction remedies are not “super appeals.” Langley, supra, 256 Ind. at 210. There is no right to perpetual litigation on the part of a defendant in a criminal case.

Appellant suggests that the case of McKinley v. State (1969), 253 Ind. 187, 252 N.E.2d 420, requires that the issue in question be litigated by an evidentiary post-conviction hearing. However, in that case the issue had not been preserved in the Motion for New Trial. Moreover, the reason for the inadequate motion for new trial was apparently that an attorney other than the one appointed for the trial had been appointed to prosecute the appeal but this appointment was made only one business day prior to the date for filing a Motion for New Trial. Thus, neither the defendant nor his attorney could in fairness be held responsible for the waiver of the issue in question. In the instant case, Robert Greer has had a different attorney for each stage: trial, appeal, and post-conviction remedy. But, only the appellate counsel was appointed.

We think that this case has the same posture as Kidwell even though technically the post-conviction petition was dismissed rather than denied and even though the trial judge made no specific findings of fact or conclusions of law. PC. 1(6). Justice is served by recognizing at this time that Appellant, in essence, is claiming that the failure of his appellate attorney to pursue the sufficiency of the evidence issue amounts to incompetent representation as a matter of law. Incompetency of counsel revolves around the particular facts of each case. Thomas v. State (1969), 251 Ind. 546, 242 N.E.2d 919. There is a presumption that counsel has been competent. Haddock v. State (1973), 260 Ind. 593, 298 N.E.2d 418; Payne v. State (1973), 261 Ind. 221, 301 N.E.2d 514; Hoskins v. State (1973), 261 Ind. 291, 302 N.E.2d 499. It requires strong and convincing evidence to rebut this presumption. Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686; Robbins v. State (1971), 257 Ind. 273, 274 N.E.2d 255. What the attorney did or did not do must have made the proceedings a mockery of justice shocking to the conscience of the reviewing court. Payne, supra. We do not second-guess tactics or strategy. Blackburn, supra.

The facts of this case were fully set out in the opinion on the direct appeal. Greer, supra. It is sufficient to reiterate that two men brandishing sawed-off shotguns robbed a tavern and in making their escape shot two police officers. The robbers were described by the clothing they wore, height, and approximate weight; but, their faces were hidden by the ski masks which they wore. During the search of the neighborhood which followed the robbery, Appellant Robert Greer was seen carrying a sawed-off shotgun running from the rear of one house to another. The ski masks and other clothing worn by the robbers were found in the home of James Greer. Robert Greer was apprehended during the course of the neighborhood search. Under these circumstances, we can not say that the appellate attorney made a mockery of the appeal by his decision to argue the difficult search and seizure issues which he did and to forego the sufficiency of the evidence issue. This was a matter of appeal strategy which we do not second-guess.

The judgment of the trial court in dismissing the post-conviction petition is affirmed.

Givan, C.J., Hunter, Prentice, JJ., concur; DeBruler, J., dissents with opinion.