In Re Filipiak

Concurring Opinion

Emmert, J.

The defendant, Anthony A. Filipiak, was charged, in substance, with having entered into a conspiracy with Blaz A. Lucas1 and Bryan Narcowich, *418attorneys of this bar and state, to free one Joseph Kaczka from serving a sentence in the Indiana State Farm for six months, for a financial consideration in the sum of $600.00.

It is not possible to obtain the full picture of the factual situation from the findings of facts made by the Commissioner, and it has been necessary to refer to the record of the evidence received in order to relate the history of the controversy. I agree with the Commissioner’s finding of facts that there was no case proved that the defendant acted dishonestly or corruptly. There is no proof that the defendant knew anything about the payment of any fee, either to Lucas or Narcowich. What was proved was judicial stupidity of a high order. When a judge in a criminal matter acts without jurisdiction to set aside a judgment of imprisonment and then enters a suspended sentence he invites suspicion that he has acted corruptly. There were violations of some of the Canons of Judicial Ethics of the American Bar Association, and because these canons were violated it is proper to note them by an opinion.

The defendant was a judge of the Juvenile Court of Lake County. On April 6, 1950, in Cause No. 4432, Joseph Kaczka pleaded guilty to a charge of contributing to delinquency, upon which judgment was pronounced that he be imprisoned in the State Farm for a term of six months, and pay a fine in the sum of $100 and costs. In this proceeding the State was represented by Deputy Prosecuting Attorney Obermiller of Lake ■County. Kaczka was transported to and imprisoned in the Indiana State Farm.

On April 21,1950, Blaz Lucas, who was then a deputy prosecuting attorney of Lake County, telephoned the defendant Filipiak. Lucas asked for a new trial for *419the prisoner, and the defendant made the following minutes: “Comes now Atty. Blaz Lucas and files motion for new trial. Motion granted. Sheriff of Lake County ordered to return the def Joseph Kaczka and have him in court on April 28th, 1950 at 10 A. M.” This minute was signed by the defendant judge.2 The defendant insisted that he inserted on the minute book immediately after the words “Motion granted,” the following: “Motion to be heard'on April 28 - 50.” It is not necessary for us to decide when this insertion was made, since he was not charged with making this as a false entry.

Thereafter the defendant informed Lucas he could not act as attorney in the matter, since he was a deputy prosecuting attorney. Lucas had been paid the sum of $300 by the sister of Joseph Kaczka, with the understanding he would receive another $300 if the motion for new trial resulted in a suspended sentence. Lucas refused to give any receipt for this money. A bonds-’ man by the name of Henry Sero had first contacted Kaczka’s sister, and he was present when the $300 in cash was paid.

After Lucas was informed he could not represent the prisoner, Henry Sero made arrangements with Bryan Narcowich to represent the prisoner, and he prepared a motion for new trial which was filed with, the papers in the cause, and he later received between $200 and $300 paid by Sero as agent for Kaczka’s. sister.

*420Narcowich and Lucas had offices in the same building and floor and hallway thereof. Narcowich had no stenographer, and Mrs. Lucas typed both motions for a new trial. Both motions stated the same three causes,

“1. For newly discovered evidence material to this defendant which could not with reasonable deKgence have discovered and produced at the trial.
“2. Accident and surprise which ordinary prudence on the part of this defendant and his counsel could not have foreseen or prevented.
“3. That the judgment of the court was against the weight of the evidence that the finding of the court was excessive.”

Narcowich appeared in open court on April 28th, and filed the motion for a new trial.

The order book entry of April 28th fails to state that a new trial was granted. It erroneously referred to the matter as a rehearing. It found the defendant guilty and that he should be sentenced to serve six months at the Indiana State Farm, and be fined in the sum of $300 and that the sentence should be suspended. The judgment did not recite that the defendant be imprisoned or that he pay the fine but it did state, “It is therefore considered, ordered, adjudged and decreed by the court that the serving of said State Farm sentence and the paying of said fine be and the and the same are hereby suspended and defendant ordered placed on probation to the Probation Department of this court. Defendant ordered released from Sheriff of Lake County. April 28, 1950.”

We have held that even though a petition be designated as a motion for new trial, it may be considered as a petition for writ of error coram nobis, if it is in substance such a petition. Sharp v. State (1939), 215 Ind. 505, 19 N. E. 2d 942. Under no possible construction could either one of these motions for a new trial *421be considered a petition for a writ of error coram nobis. There had been no trial, since the prisoner had pleaded guilty. The motion for a new trial presented nothing under such circumstances. Carr v. State (1924), 194 Ind. 162, 142 N. E. 378; Jackson v. State (1903), 161 Ind. 36, 67 N. E. 690; Meyers v. State (1901), 156 Ind. 388, 59 N. E. 1052; Trattner v. State (1916), 185 Ind. 188, 113 N. E. 243. Section 9-2209, Burns’ 1942 Replacement, provides that “The court may not suspend the execution of sentence after the defendant shall have commenced to serve his sentence of imprisonment.” This prohibits a suspension of sentence even during the same term if the prisoner has commenced to serve his sentence. State ex rel. Steers, Attorney General v. Criminal Court of Lake County (1953), 223 Ind. 443, 112 N. E. 2d 445.

, There was no proof that the defendant Filipiak was to receive any part of any fee or money for sustaining a motion for new trial, or changing the judgment. His assertion of innocence in this matter is corroborated by the fact that subsequently he did revoke the suspended sentence, and the prisoner was imprisoned for six months in the Indiana State Farm.

However, the defendant’s judicial conduct falls very short of the proper standards laid down by the Canons of Judicial Ethics. Canon 4 provides:

“A judge’s official conduct should be free from impropriety and the appearance of impropriety; he should avoid infractions of law; and his personal behavior, not only upon the Bench and in the performance of judicial duties, but also in his every day life, should be beyond reproach.”

Canon 17 states:

“He should not permit private interviews, arguments or communications designed to influence his judicial action, where interests to be affected *422thereby are not represented before him, except in cases where provision is made by law for ex parte application.”

I believe the evidence here clearly shows the defendant agreed to grant the motion for new trial ex parte before the matter was presented to him in open court. It is not a situation where a lawyer seeks the advice of the judge as to the proper manner in which to proceed. Here the judge prejudged the merits of a very serious proceeding. He promised to do an act that was void for want of jurisdiction. The defendant contends that his intentions in the matter were good. What he did he made a matter of public record. Under such circumstances I do not believe his mistaken idea as to his rights, powers and duties discloses anything more than ignorance of law, and" a failure to appreciate that judges of juvenile courts, when they act in criminal matters, as this was, are bound by the same rules as a circuit court exercising criminal jurisdiction. We should not disbar a member of the legal profession on mere suspicion, or proof of only opportunity to act in violation of the high standards of our profession. The breach of judicial ethics was serious, but the facts in this case did not prove a lack of morality which would make the defendant unfit in character to practice law. For these reasons I do not believe the defendant should be disbarred, but he is subject to censure for his violation of judicial ethics.

. The information was filed here March 5, 1952. Blaz A. Lucas was disbarred by this court on January 17, 1952. See In re Lucas (1952), 230 Ind. 254, 102 N. E. 2d 909. Lucas had previously been convicted of conspiracy to violate the National Prohibition Act of the United States, and had served a year and a day in the federal penitentiary. Lucas v. McAfee (1940), 217 Ind. 534, 536, 29 N. E. 2d 403, 29 N. E. 2d 588.

. It was stipulated by the Disciplinary Commission and counsel for the defendant that the order book entry of this date shows the following: “April 21, 1950. Comes now Blaz Lucas attorney and files motion for new trial in this cause which motion is by the court granted and it is now by the court ordered that the Sheriff of Lake County, return the defendant herein from the Indiana Farm and surrender him in court on the 28th day of April, 1950, at 10:00 o’clock.”