Thomas v. State

STATON, Judge,

concurring in result.

I concur in the result reached by the majority.

Our standard of review is dictated by Thomas' means of appeal. Tumulty v. State (1995), Ind.App., 647 N.E.2d 361, 363, trans. pending. If the record of the guilty plea hearing was adequate to present Thomas' argument without a post-conviction hearing, Thomas could have directly appealed his guilty plea. Id. at 365. On direct appeal, Thomas would have had to demonstrate that the State failed to prove the factual basis for the guilty plea. Id. However, since Thomas proceeded under post-conviction procedures, *552he cannot simply put the State to its proof. Weatherford v. State (1993), Ind., 619 N.E.2d 915, 917-918. Instead, Thomas must demonstrate that he was not an habitual offender. Id. I agree that he has failed to do so.

Thomas argues that, because he appeals from a guilty plea, he can put the State to its proof. Roe v. State (1992), Ind.App., 598 N.E.2d 586. The Roe court concluded that a postconviction petitioner could put the State to its proof of the factual basis for an habitual-offender guilty plea. Id. at 587-588.

I agree with the majority that Weather-ford implicitly overruled Roe in the post-conviction context. In Weatherford, our Supreme Court provided no exceptions for guilty pleas. See Tunwlty, supra, at 868 (no exception for post-conviction appeal of guilty plea). I write separately to note that the rationale and burden of proof illustrated by Roe is still viable on direct appeal from a guilty plea. See id. at 366.

I concur.