concurring.
I concur, subject to the following caveat. The denial of post conviction relief is appropriate because Williams failed to demonstrate that he is entitled to retroactive application of a new rule of law. Generally, a new rule of criminal procedure is not applicable to those cases on collateral review, i.e., those which have become final. Daniels v. State (1990), Ind., 561 N.E.2d 487, 488. Williams was required to show that the use of his pretrial statement for impeachment "seriously diminished the likelihood of an accurate conviction." Id. at 490.
Any communication related to plea negotiations is privileged and inadmissible in evidence unless a defendant afterward has entered a guilty plea which the defendant has not withdrawn. Hensley v. State (1991), Ind.App., 578 N.E.2d 918, 916. Moreover, this court has recently held that such communications may not be offered for impeachment or for consideration at sentencing. Tyree v. State (1988), Ind. App., 518 N.E.2d 814; Hensley, supra.
*351"At the subsequent trial, the trial court allowed the State to impeach Tyree's testimony with the statements forming the factual basis for the plea made at the guilty plea hearing.... The State argues that the prosecutor did not present evidence of the guilty plea.... [T}he statements made by the defendant at the guilty plea hearing establishing the factual basis for the plea are no more admissible than the fact that the defendant pled guilty."
Tyree, supra, at 815-16.
"Any communication related to plea negotiations is privileged and inadmissible in evidence unless a defendant afterward has entered a guilty plea which the defendant has not withdrawn. Crandell v. State (1986), Ind.App., 490 N.E.2d 877, 880, trans. denied; Moulder v. State (1972), 154 Ind.App. 248, 258-59, 289 N.E.2d 522, 528. See also 1.0. § 85-85-3-4 (where the court did not approve a plea agreement, 'a verbal or written communication concerning [a] plea agreement, may not be admitted into evidence at the trial of the case ...'). A communication is considered to be privileged, and therefore inadmissible, if the communication's 'ultimate purpose [is] the reduction of punishment or other favorable treatment from the State to the defendant.' Crandell, 490 N.E.2d at 380.
* * * * * L
Defendants understandably would be hesitant to enter plea negotiations if they feared that statements made during the negotiations could be used against them at sentencing. Therefore, we hold that a sentencing court may not consider statements, including 'clean-up' statements which involve uncharged crimes, which statements are made by a defendant during plea negotiations which did not result in a plea agreement accepted by the court."
Hensley, supra, at 916-17.
The "ultimate purpose" of Williams' statement to police was to obtain favorable treatment (i.e., the State's participation in a plea agreement providing for a plea of guilty to theft rather than robbery). The recent cases relied upon by Williams support his contention that the State may not use "clean-up" statements (made as a condition of plea bargaining) to impeach if the guilty plea is withdrawn. - However, Williams failed to show that his statement (offered for impeachment) formed a substantial part of the State's case, casting doubt on the accuracy of his conviction and establishing an exception to the general rule of non-retroactivity.