dissenting.
I must respectfully dissent from the majority opinion. As the majority explains, the defendant was fully advised at the guilty plea hearing of the various constitutional rights enumerated in Ind.Code § 35-4.1-1-3 (Burns 1979 Repl.). That is not at issue, however.
Pursuant to subsection “a” of Ind.Code § 35-4.1-1-3, supra, the trial court also has the affirmative duty—prior to accepting a guilty plea—to determine that a defendant “understands the nature of the charge against him.” Id. Interspersed with the majority’s repeated statements that defendant was fully advised of his constitutional rights are the majority’s assertions that “On questioning from the trial judge and his attorney, defendant stated he was well aware of the charges brought against him ...” and that “The record clearly shows that the court thoroughly questioned the defendant and his attorney to determine that he fully understood the charges brought against him ... . ” See Majority Opinion, supra.
In fact, the record unequivocally reveals that the question whether defendant understood the nature of the charge against him was never touched upon in the course of the guilty plea hearing. Defendant was never asked whether he understood the nature of the crime charged against him; the record reveals the elements of the offense were never explained to him.
There is nothing in the record to support the majority’s characterization of the events which transpired at the guilty plea hearing, insofar as defendant’s understanding of the offense is concerned. Nor does the negotiated plea agreement contain any enunciation of the elements which compose the offense or an expression by defendant that he understood the nature of the charge against him.
Since time immemorial a plea of guilt has been recognized as an extra-judicial confession. As a confession of guilt which carries with it the abandonment of the right to a trial by jury and an extended deprivation of liberty, it has been repeatedly emphasized that the entry of a guilty plea demands the “utmost solicitude” from the court accepting the plea. Boykin v. Alabama, (1969) 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 280. See also, Brady v. United States, (1970). 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; Turman v. State, (1979) Ind., 392 N.E.2d 483 (Givan, C. J., and Pivarnik, J., dissenting).
In Henderson v. Morgan, (1976) 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108, as relied on by defendant, our United States Supreme Court reversed the entry of a guilty plea for the reason that the defendant had not been advised of the elements of murder prior to the acceptance of his plea. The Court’s ruling was expressly predicated on the fact that defendant’s own testimony cast doubt upon whether he possessed the intent to kill the victim. Inasmuch as defendant had not been informed that the intent to kill was necessary to sustain a conviction for murder, the Court concluded that the plea of guilt was not voluntary. For the Court, Justice Stevens continued:
“There is nothing in this record that can serve as a substitute for either a finding after trial, or a voluntary admission, that respondent had the requisite intent. Defense counsel did not purport to stipulate to that fact; they did not explain to him that his plea would be an admission of that fact; and he made no factual statement or admission necessarily implying that he had such intent. In these circumstances it is impossible to conclude that his plea to the unexplained charge of second-degree murder was voluntary.” Id., 426 U.S. at 646, 96 S.Ct. at 2258, 49 L.Ed.2d at 115.
As in Henderson, doubt as to the mental state of the defendant is reflected in the record. As the majority explains, defendant not only testified he was drunk at the time of the shooting, but also that he acted in fear for his own safety. Unlike DeVillez v. State, (1981) Ind., 416 N.E.2d 846 and Vertner v. State, (1980) Ind., 400 N.E.2d 134, where this Court unanimously distinguished Henderson, we do not confront here an unequivocal admission of each element *76of the crime. An issue as to defendant’s mental state and intent existed; pursuant to Henderson and Ind.Code § 35-4.1-1-3, supra, defendant should be permitted to withdraw his plea.
The trial court’s error cannot be cured by utilizing the fact that defendant felt remorse; his feelings about the shooting do not establish his guilt of murder, as opposed to the lesser offenses of voluntary or involuntary manslaughter. Nor can this Court properly base its conclusion on the supposition that it “appears” that defendant was aware of the intoxication defense and had concluded that it would not be successful at trial. These are precisely the dubious after-the-fact determinations eschewed in Boykin and sought to be eliminated by our legislature’s enactment of Ind.Code § 35-4.1-1-3, supra.
In Turman v. State, supra, the majority of this Court held that the record of the guilty plea hearing must provide a sufficient basis for the conclusion that “the defendant was meaningfully informed of the rights and law detailed in West’s Ann.Ind. Code § 35-4.1-1-3 (1978).” Id., 392 N.E.2d at 485. Defendant has provided us with a record which reveals just the contrary. In the context of the instant case, he has satisfied his burden of proof, for as in Henderson, there is nothing in the record to serve as an adequate substitute for the trial court’s error.
The majority, in refusing to address the applicability of Henderson, has contravened that decision of the United States Supreme Court, as well as our legislature’s mandate in Ind.Code § 35-4.1-l-3(a), supra, and this Court’s decision in Turman v. State, supra. The trial court’s denial of post-conviction relief should be reversed, the defendant should be permitted to withdraw his guilty plea, and the cause should be remanded for further proceedings.
I dissent.
DeBRULER, J., concurs.