dissenting:
I respectfully dissent.
I.
I do not agree with the majority's conclusion that a factual basis was required for Turner's guilty plea to be accepted. Turner's plea was entered prior to the 19783 effective date of Ind.Code 385-4.1-1-4(b) (1973) [now Ind.Code 85-385-1-8(b)] which was the first statutory requirement that a factual basis be established before a guilty plea could be accepted. The majority cites Harshman v. State (1958), 282 Ind. 618, 115 N.E.2d 501, for the proposition that a factual basis was required prior to the enactment of I.C. 85-4.1-1-4(b). I do not think so.
In Horshkman, the supreme court considered a guilty plea entered by a defendant charged with vehicle taking who stated "I was drinking quite heavy that night. I don't remember taking the vehicle but there was so much evidence pointing against me, I certainly did take it. I don't remember driving it." Harshman at 620, 115 N.E.2d at 502. In allowing the defendant to withdraw his plea, the supreme court ruled:
"As we view it, a plea of guilty tendered by one who in the same breath protests his innocence, or declares he actually does not know whether or not he is guilty, is no plea at all. Certainly it is not a sufficient plea upon which to base a judgment of conviction. No plea of guilty should be accepted when it appears to be doubtful whether it is being intelligently and understandingly made, or when it appears that, for any reason, the plea is wholly inconsistent with the realities of the situation. We may add parenthetically that so far as the record before us discloses, no evidence whatsoever pointing to appellant's guilt was adduced, either before, during or after the entry of the plea."
Id. at 621, 115 N.E.2d at 502 (emphasis supplied).
The court also concluded that the trial court should have appointed counsel for the defendant and that the failure to appoint counsel had denied the defendant's constitutional rights. Id. The only language in the opinion that even faintly suggests a factual basis is needed before a guilty plea is accepted, is the court's parenthetical addendum to its determination that a plea from a defendant who claims not to know whether he is guilty is no plea at all. That brief addendum is ambiguous at best.
That dicta is more properly construed as suggesting that a trial court could accept a guilty plea from a defendant who claims he has no memory of the crime if there is additional evidence supporting the defendant's guilt. This is the current rule of law concerning guilty pleas from defendants who claim an inability to recall committing their crimes. See Stockey v. State (1987), Ind., 508 N.E.2d 793. Therefore, a "factual basis'" might be needed only if a defendant also protests his innocence or claims an inability to recall committing the crime. As Turner did neither, a "factual basis" under Harshman is not required.
Further, construing the dicta in Harsk-man as the majority does is inconsistent with the law at the time Horskman was decided and at the time Turner pled guilty.
*1051Prior to the enactment of 1C. 85-4.1-1-4(b), there was no requirement of a finding of guilty before a defendant could be sentenced upon a guilty plea. The supreme court, in Hathaway v. State (1968), 251 Ind. 874, 241 N.E.2d 240, observed:
"It is now well settled in Indiana law that upon a plea of guilty being entered, the court may render judgment and sentence.
'Upon a plea of guilty it is not error for the court to enter judgment upon the plea without a finding of guilty upon the plea of guilty. It has been held by this court that the trial court has nothing to do upon a plea of guilty but to fix the amount of punishment and render judgment or sentence accordingly, for the reason that the defendant by his confession of guilt makes a finding unnecessary. This is but following the rule practiced at common law. Upon reason a judgment must first have something upon which to rest, either upon a finding by the court or upon a verdict of a jury. A plea of guilty, according to authorities, has been held sufficient foundation upon which to rest a judgment. 4 Blackstone's Commentaries, 829; Griffith v. State (1871) 86 Ind. 406. * * ** Warner v. State (1924), 194 Ind. 426, 148 N.E. 288. See also: Witte v. Dowd, Warden (1951), 280 Ind. 485, 102 N.E.2d 680; Machibroda v. United States (1962), 368 U.S. 487, 82 S.Ct. 510, 7 LEd.2d 473.
Our research has not indicated that this is not still an accurate statement of the law.
Any arguments as to the sufficiency of the evidence are not relevant. When the appellant chose to plead guilty and to waive a trial he also chose to waive the protection of having the charge proved against him. What must be considered is whether or not the plea was entered freely and understandingly. In order to determine this, we must look to the circumstances surrounding the entering of the plea.
Examination of the record reveals that the appellant appeared in court represented by counsel. The trial judge advised the appellant of the crime of which he was charged. When the trial judge asked the appellant how he wished to plead, guilty or not guilty, appellant's counsel entered a plea of guilty.
At this time the trial judge inquired as to whether the appellant had been promised anything to enter his guilty plea and he also advised the appellant that he wasn't required to plead guilty, but that he was entitled to have the charge proved against him by the State, and that he could have a trial by jury. The appellant stated that he had been in court before and that he understood the proceedings; that knowing all this, he wanted to plead guilty. The appellant said he had discussed this matter with his attorney. The court then accepted the appellant's plea of guilty.
It is manifest that the appellant was given ample opportunity to plead not guilty, and he, voluntarily, chose not to do so. We can see no way in which the trial judge acted improperly in this manner."
Id. 251 Ind. at 377-79, 241 N.E.2d at 242 (emphasis supplied).
The supreme court in Hathaway considered a factual situation substantially similar to the one before us. The defendant in Hathaway, like Turner, was claiming that the evidence was insufficient to support the court's finding. The supreme court unequivocally rejected that contention, and we should do the same.
There was no factual basis presented at the guilty plea hearing in Hathaway, and the supreme court determined that, in 1968, the law did not require a finding of guilty supported by any evidence before a guilty plea could be accepted. The majority's contention that a factual basis was a requirement before the enactment of I.C. 85-4.1-1-4(b) is therefore contrary to established supreme court precedent. The supreme court has consistently affirmed guilty pleas taken without a factual basis, see Witte v. Dowd (1951), 230 Ind. 485, 102 N.E.2d 630; Warner v. State (1924), 194 Ind. 426, 143 *1052N.E. 288; Griffith v. State (1871), 36 Ind. 406. )
IL
Turner's other claims are similarly with out merit. The rights and privileges he seeks to assert were not in effect at the time he pled guilty. Our supreme court has determined that Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, is not to be applied retroactively, see Campbell v. State (1975), 262 Ind. 594, 821 N.E.2d 560, and that the protections now afforded to minors are also unavailable for retroactive application. See Weaver v. State (1978), 269 Ind. 141, 378 N.E.2d 858.
Under the standard enunciated by the supreme court in Hothaway, it is clear Turner's guilty plea was voluntary and that the trial court properly accepted it. Record at 82-88. Turner has also failed to demonstrate his counsel was ineffective. Turner claims that his counsel was ineffective because he failed to advise him of his constitutional rights and that his counsel misled him about the crime to which he was pleading guilty.
The petitioner in a post-conviction proceeding bears the burden of establishing his claim by a preponderance of the evidence, and the post-conviction court is the sole judge of the evidence and the credibility of the witnesses. A reviewing court will not reverse the post-conviction court's judgment unless the evidence is undisputed and leads unmistakably to a conclusion opposite that reached by the post-conviction court. Grey v. State (1990), Ind., 553 N.E.2d 1196.
To succeed upon a claim of ineffective assistance of counsel, a defendant must demonstrate deficient performance by counsel that prejudiced him. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 LEd.2d 674; Lowrence v. State (1984), Ind., 464 N.E.2d 1291. The Court in Strickland determined that a showing must be made that counsel's performance was unreasonable under the prevailing professional norms. Applying this standard to Turner, because the advisement of constitutional rights was not required at the time Turner entered his guilty plea, Turner has failed to demonstrate his counsel's performance was unreasonable under the prevailing professional norms at that time.
As to Turner's claims that his counsel misled him, the transcript of the guilty plea hearing shows that the trial court informed Turner he was charged with theft and Turner's counsel entered a plea of "guilty as charged." Record at 82. The post-conviction court is the sole judge of the evidence, it could have chosen to disbelieve Turner's self-serving declarations that he thought he was pleading guilty to joy-riding. As the evidence is conflicting and does not lead inescapably to a conclusion opposite that reached by the post-conviction court, we should affirm the post-conviction court's judgment.