Opinion
No. 29,265.
Filed February 6, 1956. Rehearing Denied March 13, 1956.
1. APPEAL — Criminal Law — Writ of Error Coram Nobis — Presumption on Appeal of Denial of Writ — Trial Court — Judgment of Conviction Valid on its Face — Burden of Proof — Constitutional Rights — Weighing of Evidence. — After a petition for a writ of error coram nobis has been denied by the trial court, the presumption is that the judgment of conviction, which was valid on its face, was procured by due process of law and that the action of the trial court is correct. The burden is on the appellant to prove by fair preponderance of the evidence that he was denied his legal or constitutional rights and the court, on appeal, does not weigh conflicting evidence. p. 236.
2. APPEAL — Criminal Law — Trial — Motion for New Trial — Writ of Error Coram Nobis — Error Known at Time of Trial Cannot Be Resubmitted by Writ of Error Coram Nobis — Second Appeal or Substitute for Second Appeal — Constitutional Rights. — Under the instant writ of error coram nobis, appellant cannot claim a violation of his constitutional rights when his attorneys withdrew a plea of not guilty and entered a plea of nolo contendere as this question was known at the time he filed his motion for new trial in his first appeal, which afforded a proper remedy, and he cannot resubmit this question by writ of error coram nobis, nor employ the writ as a substitute for, or as a second appeal. p. 236.
3. CRIMINAL LAW — Constitutional Rights — Writ of Error Coram Nobis — Incompetent Counsel — Presumption of Competence. — In a writ of error coram nobis, which asserts that the trial was invalid because defendant was represented by incompetent counsel, it will be presumed that counsel discharged their full duty, and this presumption will prevail until overcome by strong and convincing proof. p. 237.
4. APPEAL — Criminal Law — Writ of Error Coram Nobis — Constitutional Rights — Competency of Counsel — Conflicting Evidence — Weighing of Evidence. — The evidence on the alleged acts of omission and incompetency of counsel, charged by instant writ of error coram nobis is in violent conflict, and the rule that the court on appeal will not weigh evidence when it is in conflict applies to appeals from the refusal of the trial court to grant a writ of error coram nobis. p. 237.
From the Lake Criminal Court, Thomas D. Galasini, Special Judge.
Thomas John Grecu, appellant, filed petition for writ of error coram nobis, which was denied, and appellant appeals.
Affirmed.
Daily Daily, Edward M. Slocum, and Inezellen Bales, all of Indianapolis, for appellant.
Edwin K. Steers, Attorney General, and Owen S. Boling, Deputy Attorney General, for appellee.
This appeal is from a judgment denying appellant's petition for writ of error coram nobis.
Appellant was convicted in the Criminal Court of Lake County for procuring the miscarriage of a pregnant woman. From a judgment overruling his motion for a new trial, an appeal was prosecuted to this court, and the judgment of the trial court affirmed. Grecu v. State (1954), 233 Ind. 464, 120 N.E.2d 179.
The sole error assigned in this appeal is that the finding and judgment denying the petition for the writ is contrary to law.
The rule by which we must be governed in this appeal is clearly stated in Moore, Sr. v. State (1953), 231 Ind. 690, 1. 692, 111 N.E.2d 47, 48, 49, as follows:
"After a petition for a writ of error coram nobis has been denied by the trial court, the presumption on appeal is that the action by the trial court is correct. Garrett v. State (1939), 216 Ind. 52, 22 N.E.2d 981. The presumption is that the judgment of conviction, which was valid on its face, was procured by due course of law. Sells v. State (1952), 231 Ind. 137, 107 N.E.2d 264; State v Lindsey (1952), 231 Ind. 126, 106 N.E.2d 230. The burden is on the appellant to prove by fair preponderance of the evidence that he was denied his legal or constitutional rights. Thompson v. State (1947), 225 Ind. 78, 72 N.E.2d 744; Sells v. State (1952), 231 Ind. 137, 107 N.E.2d 264, supra. When the action of the trial court is brought before us for review, we do not weigh conflicting evidence or determine the credibility of any of the witnesses."
Appellant asserts that his constitutional rights were violated when his attorneys and the court permitted him to withdraw his plea of not guilty and enter a plea of nolo contendere. 2. This question was settled adversely to appellant in Grecu v. State, supra, where it clearly appears from the record that the trial court had considered such plea as one of not guilty. Appellant cannot now resubmit this question because it was known to him at the time he filed his motion for a new trial in his first appeal and a proper remedy was afforded him by that appeal. Neither may he now employ the writ of error coram nobis as a substitute for or as a second appeal. Dowling et al. v. State (1954), 233 Ind. 426, 429, 118 N.E.2d 801; Yessen v. State (1955), 234 Ind. 311, 126 N.E.2d 760, 762.
Appellant further asserts that his trial was invalid because he was not adequately represented by competent counsel.
It will be presumed that counsel discharged their full duty, and this presumption will prevail until overcome by strong and convincing proof. Dowling et al. v. State, supra 3. (1954), 233 Ind. 426, 431, 118 N.E.2d 801.
Appellant was represented by three attorneys of his own selection. All of these men have had long and active trial experience and are among the leading trial attorneys at the 4. Lake County Bar. The evidence on the alleged acts of omission and incompetency is in violent conflict. The rule that this court will not weigh evidence when it is in conflict applies to appeals from the refusal of the trial court to grant a writ of error coram nobis. Dillon v. State (1952), 231 Ind. 396, 402, 108 N.E.2d 881; Kennedy v. State (1953), 232 Ind. 695, 698, 116 N.E.2d 98.
For the above reasons the judgment of the trial court must be affirmed.
Judgment affirmed.
Landis, Arterburn, Achor and Emmert, JJ., concur.
NOTE. — Reported in 131 N.E.2d 646.