Dissenting Opinion
DeBruler, J.The Elkhart Circuit Court has to date been reversed twice upon the same issue presented by appellants here. In Brimhall v. State, (1972) 258 Ind. 153, 279 N.E.2d 557, we reversed the court’s judgment denying a post-conviction petition to withdraw a guilty plea, for failure of the record of the guilty plea proceeding to demonstrate an advice of rights and a knowing and intelligent waiver of them. Referring to applicable United States Supreme Court decisions and their underlying rationale, we stated:
“The court in McCarthy [v. United States, (1969) 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418], reversed a conviction where the federal rule was not complied with holding that there is no adequate substitute for ‘demonstrating in the record at the time the plea is entered the defendant’s understanding of the nature of the charge against him. (Emphasis added.) 394 U.S. at 470, [89 C. Ct. at 1173.] In summing up their disposition of this case, the U.S. Supreme Court stated:
‘Our holding that a defendant whose plea has been accepted in violation of Rule 11 should be afforded the opportunity to plead anew not only will insure that every accused is afforded those procedural safeguards, but also will help reduce the great waste of judicial resources required to process the frivolous attacks on guilty plea *184convictions that are encouraged, and are more difficult to dispose of, when the original record is inadequate. It is, therefore, not too much to require that, before sentencing defendant to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and to determine whether they understand the action they are taking.’ 394 U.S. at 472, [89 S. Ct. at 1174.]
This reasoning is persuasive and was given constitutional dimension in Boykin v. Alabama, (1969) 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274, where the U.S. Supreme Court held that in order to satisfy the constitutional requirements of due process, the record of the entry of the plea must demonstrate a knowing and intelligent waiver by the accused of his constitutional rights. Since the Boykin case, presuming waiver from a silent record in a guilty plea case is impermissible.
í* Í
There is nothing in this record to indicate that the appellant was advised of his rights under the State and Federal Constitutions, and nothing to indicate that he intentionally and freely waived those rights.” (Emphasis added.) 258 Ind. at 164-65.
In Darmody v. State, (1973) 156 Ind. App. 88, 294 N.E.2d 835, the Court of Appeals for the Third District reversed the Elkhart Circuit Court’s denial of a post-conviction petition to withdraw a guilty plea, for failing to make a record of the guilty plea proceeding reflect the waiver of the right to counsel. There, the court explained:
“There must be a clear waiver of the right to the presence of counsel at the arraignment. The trial court has the affirmative duty to demonstrate a knowing and intelligent waiver in the record.
* * *
The trial court’s record must reflect a knowing and intelligent waiver which has been voluntarily made. Waiver will not be presumed or inferred. The record in the present case is silent as to any knowing and intelligent waiver. Therefore the judgment of the trial court should be and the same hereby is reversed. . . .” 294 N.E.2d at 839-40.
As might be expected from a court which refuses to be instructed, the record in this ease of both the guilty plea *185proceeding and the post-conviction proceeding does not show a waiver of federal constitutional rights. At no time does anyone inform the accused that the effect of their pleas of guilty is to waive their rights to have the State prove them guilty beyond a reasonable doubt, and to be free from compulsory self-incrimination, and to confront their accusers. A waiver of these rights is governed by federal constitutional standards. Boykin v. Alabama, (1969) 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274. A waiver of them may not be inferred from this record no matter how it is viewed, since there is no record affirmation by the accused that they desire to forego these fundamental rights. Carnley v. Cochran, (1961) 369 U.S. 506, 82 S. Ct. 884, 8 L. Ed. 2d 70. We are presented here by an advice of rights by defense counsel and simple pleas of guilty. The failure of the trial judge personally to question the accused concerning their understanding of the dimension of their rights prior to extracting the guilty plea is contrary to our holding in Brimhall v. State, supra. Brimhall requires the trial judge to perform this function. An advice of rights by the prosecutor or defense counsel does not satisfy the constitutional mandate that the trial judge, prior to accepting the plea of guilty, determine for himself upon addressing the accused, that the accused understands his rights and understands that they will be given up by a plea of guilty. These rights are personal to the accused. They do not belong to counsel. It is counsel’s job to raise the awareness of the accused of his rights and the practical effect of a waiver. Then the court must test the effectiveness of counsel’s educative efforts. This is what must be done under the law as it exists today. I would settle for no less.
Here the record discloses that the court, reflected by the record, does not understand the twofold nature of the guilty plea. A guilty plea is not only a judicial admission of guilt. It is also a waiver of federal constitutional rights. It is not a waiver of arraignment. Prior waivers under the Miranda rule cannot take the place of it. It cannot be inferred from any *186advisement of what the abstract rights are and a subsequent plea of guilty.
And finally, this issue of waiver is before the Court in this appeal. In the motion to correct errors the accused posited:
“2. The court erred in not finding as fact that the court did not question the Petitioners concerning their waiver of constitutional rights upon pleading guilty, since the complete record of the arraignment on January 26, 1973, discloses no such examination.”
And in their brief, the accused argue:
“The Elkhart Circuit Court totally disregards the numerous cases in this state which have flowed from Boykin, supra, which places the obligation on the court to establish on the record when a guilty plea is accepted, that the defendant does so in a knowing, intelligent, and voluntary manner. The record herein is not one showing that either defense counsel or the prosecuting attorney questioned the defendants herein as to the nature of their understanding of constitutional rights or their intent to waive any’’ (Emphasis added.)
The requirement that the trial judge at the guilty plea proceeding personally address the accused and delve into his appreciation of his rights and the fact that a plea of guilty is a waiver of them is now statutory. Ind. Code §§ 35-4.1-1-2 and 35-4.1-1-4, being Burns §§ 9-1203 and 9-1205. Ind. Code § 35-4.1-1-5, being Burns § 9-1206, requires a full and complete transcript of the judge’s colloquy with the accused. Perhaps together the Indiana Supreme Court and the Indiana General Assembly can convince the Elkhart Circuit Court that his personal attention to the advisement of rights and extraction of a waiver is mandatory.
I vote to reverse the judgment of the trial court with instructions to grant these petitioners’ leave to withdraw their pleas of guilty.
Note. — Reported at 325 N.E.2d 827.