Dissenting Opinion
Staton, P.J.I dissent from the majority opinion. I would grant Ewing a new trial for these two reasons:
First, I do not consider Justice Hunter’s statement in Williams v. State (1975), 263 Ind. 165, 325 N.E.2d 827 mere dictum which may be disregarded.1 I consider it in the light of a policy directive, a new standard of justice which must be observed by all Indiana Courts in the administration of justice. Certainly, this was the intent of the Indiana Legislature when it enacted IC 1971, 35-4.1-1-3 and 35-4.1-1-4.
*604■ The prosecuting attorney is a party to the plea negotiations; he has an interest in the acceptance of the plea by the trial court as negotiated. If he is permitted to control the entire guilty plea proceeding by asking the questions on a printed form, the voluntariness of the guilty plea may be obscured. For example, before the guilty plea is presented to the trial court, the defendant may have gone over the questions asked in the guilty plea form with the prosecutor and his defense counsel. Explanations may have been made to the defendant which superficially satisfy his questions. The defendant’s agreement rather than his understanding may predominate this meeting.2 Furthermore, the answers given by the defendant to the questions on the printed guilty plea form may be considered by the parties as a former consummation of their guilty plea agreement. An objective approach to the question of voluntariness may have been blunted by more complicated and detailed parts of the plea negotiations. Only an objective, impartial interrogation of the defendant when he enters his guilty plea can assure that the plea is entered voluntarily.
In.Ewing’s plea, only the prosecutor interrogated him as to the voluntariness of his plea. Most of the questions were answered with a simple “yes” or “no”. The trial court remained mute. This procedure has the appearance of leaving the administration of justice in the sole hands of the prosecuting attorney with the trial court as an acquiescent bystander. This procedure is contrary to the policy enunciated by Justice Hunter in Dube v. State (1971), 257 Ind. 398, 275 N.E.2d 7 and later repeated by Chief Justice- Givan in Watson v. State (1973), 261 Ind. 97, 300 N.E.2d 354:
“It is important for all segments of our society to believe that our court systems dispense justice. This includes the *605criminals themselves as well as the law abiding citizens and especially those criminals who have cooperated fully in police investigations.”
Unless the statutory safeguards are applied equally rather than at random by the trial courts, this policy can never become a reality.
Secondly, the statutory safeguards, IC 1971, 35-4.1-1-3 and 35-4.1-1-4, which require the trial court to address the defendant have constitutional overtones. As pointed out in Boykin v. Alabama (1969), 395 U.S. 283, 89 S.Ct. 1709, 23 L.Ed.2d 274, “Several. federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth.” The Boykin Court refused to presume a' waiver of this important constitutional right from a silent record. .Under Indiana law, greater protection is afforded the defendant.
A silent trial court which has failed to address the defendant as mandated by the Indiana Legislature can not effect a voluntary guilty plea. The fundamental rights of the defendant must be observed by the trial court. Substantial compliance with the statutory mandate by the trial court is required. Norfrey v. State (1976), 171 Ind. App. 590, 358 N.E.2d 202.
Note. — Eeported at 358 N.E.2d 204.
. “If this statutory standard had been applicable at the time of petitioners’ pleas, and if the record was identical to the one before us, petitioners would undoubtedly have presented a solid case for post-conviction relief.”
. Obviously, there are plea negotiations between the prosecutor and the defense counsel where the defendant is never present. Competency of. defense counsel.is sometimes questioned on appeal because his advice to the defendant is not on the record. The elapse of time and a heavy case load may dull the memory of defense counsel as to the exact advice given in every case. The statutes place the responsibility for the administration of justice where it belongs — on the trial court.