Bullard v. State

¶1On Petition For Rehearing

¶2— The appellant was charged with murder in the first degree and upon trial, was found guilty of murder in the second degree. Following an appeal, we affirmed the judgment. (See Bullard v. State (1964), 245 Ind. 190, 195 N. E. 2d 856)

¶3*195The appellant has filed a petition for rehearing, stating that his trial counsel (privately employed) following his trial and conviction, did not file a motion for a new trial and that the appellant was compelled pro se to file a motion for a new trial, which was overruled.

¶4Thereafter, upon application of the appellant, the trial court appointed counsel for him as a pauper for the purposes of an appeal. The counsel so appointed was an attorney other than the one who had represented the appellant at the trial, and the case thus differs from that of Sparks v. State (on rehearing) March, 1964, 245 Ind. 250, 196 N. E. 2d 748. In the latter case trial counsel failed or refused to file a motion for a new trial, yet inconsistently accepted an appointment to represent an appellant on appeal.

¶5In State ex rel. Macon v. Orange Circuit Court (1962), 243 Ind. 429, 185 N. E. 2d 619, we held that it was the duty of trial counsel, whether represent-ting a pauper or a rich person, to file a motion for a new trial if such counsel feels there are meritorious grounds for a neto trial. A failure of counsel to do so is an assumption that no meritorious grounds existed in the opinion of competent counsel. There is no claim here that counsel was incompetent. Willoughby v. State (1960), 242 Ind. 183, 177 N. E. 2d 465, (cert. den.), 374 U. S. 832, 83 S. Ct. 1876, 10 L. Ed. 2d 1055.

¶6There are many cases in which no motion for a new trial is ever filed because either no grounds therefor existed in the opinion of competent counsel, or the defendant has acquiesced and accepted the same and waived any motion for a new trial or appeal. A defendant may waive in Indiana his right to appeal by his act or the act of his counsel. Both a *196pauper and a rich man in Indiana are bound by his counsel’s actions.

“A pauper can not claim the beneficial portions of counsel’s services and disclaim the undesirable portions thereof, any more than a rich man may do so. The pauper has no greater rights in this state than a rich man whose counsel has failed to file a motion for a new trial.” State ex rel. Macon v. Orange Circuit Court, January, 1964, 245 Ind. 269, 195 N. E. 2d 352, 353.

¶7Appellant states that he has presented the question of his privately employed trial counsel’s failure to file a motion for a new trial to this court at the first opportunity. However, the record shows that judgment was entered against the defendant and he was sentenced on March 22, 1963. The motion for a new trial was filed and overruled on April 11,1963 and upon his application, counsel was appointed for him as a pauper on April 11, 1963. There was still sufficient opportunity to file a new or amended motion for a new trial if his counsel on appeal found the original motion insufficient for any reason.1 A pauper and a rich man alike in this state are bound by the action or non-action of their counsel. Courts can operate only upon such a principle.

¶8No facts support the appellant in his contention that he acted promptly in this case. We have a right to assume that he could have discussed or did discuss this question with his counsel at the time he was appointed, the same as he has presented it to this court — almost a year later. We have no right to assume that his coun*197sel deliberately turned down a meritorious ground for an appeal if his counsel found any merit. However, he makes no claim that there is any omitted ground for a motion for a new trial not specified in the motion filed.

¶9It seems to us this is one of those cases where an appellant claims that technically he should have had counsel to prepare a motion for a new trial when his privately employed counsel failed to do so, and that therefore he ought not to be bound by the failure of his privately appointed and selected counsel. It appears further that if there was any merit in any unspecified claimed error, counsel appointed for the appeal would have discovered it and availed himself of it in appeal within time. In this state, errors occurring during trial known or apparent in the record are waived unless claimed and specified on appeal. An appellant has no right in such cases to keep quiet when an appeal is being perfected by competent counsel and the case decided and then, on rehearing, for the first time claim that there is error apparent in the record. Appellate courts should not be trifled with in such fashion.

¶10The petition for rehearing is denied.

¶11Landis, C. J., and Achor, J., concur. Jackson and Myers, JJ., concur in result.

¶12Note. — Reported in 195 N. E. 2d 856. Rehearing denied 197 N. E. 2d 295.