Harrison v. State

CRIMINAL PETITION FOR TRANSFER

GIVAN, Chief Justice.

On August 10, 1982, appellant pled guilty to four Class B felonies: Voluntary Man*1099slaughter, Conspiracy to Commit Voluntary Manslaughter, Robbery and Conspiracy to Commit Robbery. He was sentenced to serve concurrent ten (10) year terms of imprisonment. On November 21, 1984, appellant filed a Petition for Post-Conviction Relief in which he alleged that he was not properly advised by the trial judge upon the entry of his guilty plea. The petition was denied. In a memorandum decision, the Court of Appeals reversed and remanded with instructions to vacate the guilty plea. We grant appellee's Petition for Transfer, vacate the opinion of the Court of Appeals and affirm the trial court.

On August 10, 1982, appellant requested leave to withdraw his plea of not guilty and filed a written plea bargain agreement. A guilty plea hearing was held, at the conclusion of which the court took the matter under advisement. On September 1 the court accepted appellant's plea of guilty to the charges set out above and sentenced him pursuant to the terms of the plea agreement. The court also ordered that the sentences run concurrently with the sentence imposed in an unrelated cause.

Appellant's post-conviction petition alleged that the trial court failed to advise him "of any possible increased sentence by reason of the fact of a prior conviction or convictions" as required by Ind.Code § 35-4.1-1-8(d) {repealed and recodified at Ind. Code § 35-35-1-2). In denying the requested relief, the post-conviction court determined that "based on the totality of the circumstances" appellant was properly advised of his rights pursuant to Ind.Code § 35-4.1-1-3. The Court of Appeals, properly deeming itself bound by precedent of this Court, concluded the omission of the advisement constituted reversible error.

This Court has subsequently held, however, that a post-conviction petitioner who merely establishes that the trial judge accepting his plea of guilty failed to give an advisement in accordance with the guilty plea statute has not met his burden of proof. White v. State (1986), Ind., 497 N.E.2d 893. The petitioner must plead specific facts from which it can be concluded that the omission rendered his decision to plead guilty involuntary or unintelligent. In addressing such a claim, we look to the entire record, including the written plea bargain agreement, the transcript of the sentencing 'and any further evidence presented at the post-conviction hearing. Id.

While the record does not affirmatively show that appellant understood the possibility of an enhanced sentence by virtue of his prior conviction, we cannot find that his decision to plead guilty was involuntary or unintelligent. There is no evidence to indicate that appellant was misled as to the terms of the plea agreement or was coerced into pleading guilty. Id. Nor is there any evidence showing that appellant would not have pled guilty but for the omitted advisement. The failure of the trial judge to strictly comply with the statute had no impact on the sentencing, as appellant received the concurrent presumptive sentences provided for in the plea agreement, those sentences to be served concurrently with the sentence imposed on appellant's only prior conviction. The trial court was correct in concluding that appellant was not entitled to post-conviction relief.

Appellee's Petition for Transfer is granted and the Court of Appeals' opinion is hereby vacated.

The trial court is affirmed.

PIVARNIK, SHEPARD and DICKSON, JJ., concur. DeBRULER, J., dissents with separate opinion.