Hill v. State , 1983 Ind. App. LEXIS 3168 ( 1983 )

GARRARD, Judge.

This is an appeal from the denial of post conviction relief.

Appellant Hill was charged with battery. He originally pleaded not guilty. A week later, appearing pro se, he indicated his desire to enter a guilty plea. The court conducted a thorough arraignment during which it was revealed that Hill had been treated at the Wabash Valley Mental Health Center. It also appeared that Hill was currently taking a tranquilizer, Thorazine, upon prescription. The court questioned Hill about his emotional health and Hill stated that his condition had become stabilized, that he was able to proceed, and that he had no doubts concerning his ability to understand what was transpiring. From the record it appears that Hill's conversation with the judge was forthright, courteous and intelligent. Neither Hill nor anyone else on his behalf made any express suggestions that Hill was not competent.

Hill contended in his petition for post conviction relief that the court erred in failing to conduct a competency hearing prior to accepting his guilty plea. We disagree.

An accused is competent to stand trial if he has the present ability to consult rationally with his defense counsel and has factual comprehension of the proceedings against him. Mato v. State (1982), Ind., 429 N.E.2d 945.

At the time Hill entered his plea Indiana law provided for a competency hearing:

"If at any time before the final submission of any criminal case to the court or jury tring the same, the court, either from its own knowledge or upon the suggestion of any person, has reasonable grounds for believing that the defendant lacks the ability to understand the proceedings and assist in the preparation of his defense, the court shall immediately fix a time for a hearing to determine whether the defendant has that ability....

IC 85-5-8.1-1 [repealed and replaced by IC 85-86-8-1].

It has been repeatedly held under our statute that where there has been no petition to determine competency, the need for a competency hearing is discretionary with the court and a hearing need not be held unless the court, itself, has a bona fide or reasonable doubt as to the accused's ability to understand the proceedings and assist in his defense. Mato v. State, supra; Feggins v. State (1980), Ind., 400 N.E.2d 164; Adams v. State (1979), 270 Ind. 406, 386 N.E.2d 657; Lloyd v. State (1979), 270 Ind. 227, 383 N.E.2d 1048; Dragon v. State (1979), 270 Ind. 223, 383 N.E.2d 1046, cert. denied 442 U.S. 912, 99 S.Ct. 2829, 61 L.Ed.2d 279.

The circumstances disclosed by the record at the time of Hill's arraignment, guilty plea and sentencing were sufficient to put the court on inquiry. See Johnson v. State (1974), 262 Ind. 516, 319 N.E.2d 126. The judge questioned Hill, observed his demeanor and apparent comprehension, and listened to his responses. The record sustains the judge's conclusion that there was not reasonable grounds for believing Hill was then incompetent. Accordingly, there was no abuse of discretion in the court's failure to order a competency hearing and appoint psychiatrists to examine Hill.

Hill also asserts there was no adequate waiver of his right to counsel and no adequate factual basis for his plea.

Both at the original arraignment and again when Hill indicated his desire to plead guilty the court advised him of his right to counsel and that if he could not afford an attorney the court would appoint one for him at public expense. On both occasions the court pointed out that an attorney could assist Hill in "representing your best interests; he would assist you in terms of plea bargaining anything out, he would assist you in terms of cross examining witnesses, advising you of your constitutional rights, protecting you in regard to those rights and do all of those things for you." On both occasions Hill said that he understood and that he did not want an attorney. This was sufficient to demonstrate a waiver of Hill's right to counsel. Phillips v. State (1982), Ind., 441 N.E.2d 201; Shelton v. State (1979), Ind.App., 390 N.E.2d 1048.

Finally, Hill asserts there was an inadequate factual basis for the plea. Again, we disagree. Hill was charged with throwing a lighted cigarette into the left eye of Jack Hill. At the guilty plea proceeding he stated that he threw the cigarette in Jack Hill's eye and that "it was supposed to get in his eye." This was sufficient to establish both the necessary intent and the action upon which the charge was based.

The denial of post conviction relief is affirmed.

HOFFMAN, P.J., concurs. STATON, J., dissents and files separate opinion. ‘