Dissenting Opinion
Sullivan, J.I respectfully dissent.
Prior to the filing of his Post-Conviction Petition, Bonner did not at any time file or otherwise seek to have his guilty plea withdrawn so as to enter a not guilty plea. I do not, however, premise my dissent upon the possible waiver by Bonner of any question with respect to the guilty plea since the State did not at the Post-Conviction stage assert waiver as a defense. See Langley v. State (1971), 256 Ind. 199, 267 N.E.2d 538. Rather, I disagree upon the basis that Petitioner below has not demonstrated that his guilty plea was not knowingly and understandingly made.1 The burden in this regard is upon him. PC. Rule 1 § 5; Conley v. State (1972), 259 Ind. 29, 284 N.E.2d 803; Lenwell v. State (1973), 156 Ind. App. 41, 294 N.E.2d 643.2
I have no hesitation in accepting the basic premise, as enunciated by the majority, that the trial court should be *532very specific in its dialogue with a defendant concerning knowledgeable waiver of the three constitutional rights delineated in Boykin v. Alabama (1969), 395 U.S. 238, 89 S. Ct. 1709, i.e., (1) the privilege against self incrimination; (2) the right to trial by jury; and (3) the right to confront one’s accusers. I further agree that in order to avert PC. proceedings which clog the dockets of trial courts and appellate courts alike, the court in accepting a guilty plea v/ould be particularly well advised to make a complete record with respect to the matters discussed with the defendant. Without regard to the obvious dictates of Boykin, the ABA Standards (which I believe were here met), and the soon to be effective § 3 of the Code of Criminal Procedure adopted by the 1973 Indiana General Assembly as referred to by the majority, it is only common sense that the trial court in accepting the plea, interrogate the defendant extensively with respect to voluntariness, knowledge of his constitutional rights, awareness of the nature of the charge and of the possible penal consequences. Compare Conley v. State, supra, and Huff v. State (1972), 154 Ind. App. 542, 290 N.E.2d 508, an appeal from denial of relief under PC. Rule 2.
The fact remains, however, that neither Brimhall v. State (1972), 258 Ind. 153, 279 N.E.2d 557, cited by the majority, nor Boykin v. Alabama, supra, arose out of denial of post-conviction relief. It is the further fact that Appellant-Petitioner has not here claimed that he was not aware of the nature of the charge against him, that he did not knowingly waive the constitutional rights enunciated in Boykin, or that he did not know the penal consequences of his plea. The essence and the be-all, end-all of his position is that the record of his guilty plea proceeding did not reflect a specific interrogation as to these matters.
The Petitioner-Appellant’s Motion to Correct Error is even more limited than the argumentative position assumed in his brief. The Motion to Correct Errors is solely premised upon an assertion rejected by the majority, i.e., the alleged coercive *533nature of the plea by reason of the “threat of suffering the greater penalty” unless he pled guilty to the offense for which a lesser penalty was prescribed. The Post-Conviction Petition itself insofar as we are here concerned, alleges merely that Petitioner was “entrapped and pressured into entering his guilty plea.”
There is a substantial difference between a plea not entered voluntarily and one not entered knowingly and intelligently. See Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S. Ct. 2041, 41 U.S. Law Week 4726, 4732 at footnote 25. Thus, an allegation that a guilty plea was coerced and was therefore not voluntary does not present any reviewable issue with regard to whether the plea was made knowingly and intelligently.
Upon the facts before us and in view of the arguments presented by Petitioner-appellant, I believe that as in Conley, supra:
“Without an allegation and showing of ineffective counsel in this case, we must conclude that Conley’s attorney provided full and adequate assistance, which would include consultation regarding the defendant’s constitutional rights and the gravity of his offense.
We must conclude that the trial court was correct in finding against the appellant and that he failed to sustain his burden of proof that he was misinformed, that he was deceived or that he did not understand the plea and its consequences. The appellant did not take the stand to deny the record or support the contentions made in the briefs and at the Rule P. C. 1 hearing. The rule under which this proceeding was brought places upon the petitioner the burden of making out his case by a preponderance of the evidence. Rule P. C. 1(5). The creation of a mere ambiguity or uncertainty in the evidence cannot be characterized as sustaining the burden of proof by a preponderance thereof. On the contrary, there is no allegation of inadequacy on the part of his attorney and there is no proof in the record of such a condition.” (284 N.E.2d 803, 809)
Absent an allegation and evidence to the contrary, it is improper for us to presume that petitioner’s counsel did not perform his responsibilities to his client prior to and at *534the proceeding at which his guilty plea was entered. As stated in Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686:
“ ‘[T]here is a presumption that an attorney has discharged his duty fully, and it requires strong and convincing proof to overcome this presumption.' ”
As heretofore stated, Bonner neither alleged nor did he prove by a preponderance of evidence that he was unaware of the constitutional consequences of his guilty plea. I would, therefore, affirm.
Note. — Reported at 297 N.E.2d 867.
. The majority has correctly, I think, disposed of appellant’s argument that the guilty plea was coerced and was thus involuntary.
. The placing of the burden upon the Petitioner is entirely consistent with the ABA Standards Relating to Post-Conviction Remedies. Section 4.6(d) of those Standards reads in part as follows:
“Ordinarily, the proponent of factual contentions, whether the applicant’s proof of the elements of a prima facie case or the respondent’s proof of affirmative defenses, should have the burden of establishing those facts by a preponderance of evidence.”