Frazier v. State

PIVARNIK, Justice.

Defendant-Appellant James Frazier was charged with robbery, a class A felony. Pursuant to a plea agreement, he pleaded guilty to robbery, a class B felony, and was sentenced to twenty (20) years. His Petition for Post-Conviction Relief was denied. He now appeals that denial and raises as the sole issue, whether Appellant entered the plea knowingly and voluntarily.

Ind.Code § 85-4.1-1-8 (Burns 1979) governed this plea agreement and stated:

"The court shall not accept a plea of guilty from the defendant without first addressing the defendant and ... (c) informing him that by his plea of guilty he waives his rights ... to require the state to prove his guilt beyond a reasonable doubt."

Appellant maintains that although the court did advise him of the elements of the offense and that the State would be required to prove them, the court did not explain that such proof would have to be beyond a reasonable doubt. He contends, therefore, that he entered the plea unknowingly and involuntarily.

Although a trial court is obligated to inform a defendant of the statutory ad-visements, precise statutory language need not be used. Pharris v. State (1985), Ind., 485 N.E.2d 79, 80. Furthermore, we recently decided White v. State (1986), Ind., 497 N.E.2d 893, where we held:

"To decide a claim that a plea agreement was not made voluntarily and intelligently, we will review all the evidence before the court which heard his post-conviction petition, including testimony given at the post-conviction trial, the transcript of the petitioner's original sentencing, and any plea agreements or other exhibits which are part of the record.
A petitioner who claims that his plea was involuntary and unintelligent but can only establish that the trial judge failed to give an advisement in accordance with [the governing statute] has not met his burden of proof. He needs to plead specific facts from which a finder of fact could conclude by a preponderance of the evidence that the trial judge's failure to make a full inquiry in accordance with [the governing statute] rendered his decision involuntary or unintelligent."

Id. at 905.

A review of all of the evidence in this case illustrates that the court thoroughly and completely advised Appellant of all of his rights on numerous occasions, with the exception of using the words "beyond a reasonable doubt" to describe the standard of proof. The court explained Appellant's right to a speedy trial by a jury; to be represented by counsel at all times; to see and cross-examine witnesses produced by the State; to present his own witnesses and evidence, enhanced by the compulsory subpoena process; to be presumed innocent at trial; to appeal; and to testify or to remain silent at trial The court further explained, "[It would be the burden of the State of Indiana through the Prosecuting Attorney to bring out all of the essential information and make proof of the essential elements of the charge before you could be convicted." Each element of the crime was then individually explained to Appellant. It was made clear to Appellant that if he did plead guilty, all of these rights would be waived. Appellant acknowledged he was willing to plead guilty in return for a twenty (20) year sentence on class B robbery because he realized that he stood a chance of receiving a fifty (50) year sentence on class A robbery.

Appellant pleads no specific facts which show that the court's failure to describe the standard of proof as "beyond a reason*1189able doubt" rendered his decision to plead guilty involuntary or unintelligent. In light of the above, we cannot hold that had the court used that language, Appellant would not have pleaded guilty. Appellant has not met his burden of proof set forth in White.

The trial court is affirmed.

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