dissenting.
I respectfully dissent for the following reasons. The majority properly concedes that an oral plea bargain is unenforceable. IND.CODE 85-35-3-3; Naked City, Inc. v. State, (1984) Ind.App. 460 N.E.2d 151. Further, it concedes that the so-called oral plea bargain is incapable of being carried out and as such is beyond the control of the court. Williams v. State, (1981) Ind.App. 427 N.E.2d 708; IND.CODE 11-10-1-1, et seq. To avoid problems such as occurred here, Boykin v. Alabama, (1968) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and its progeny, including PC 1, IND.CODE 85-35-3-2, IND.CODE 35-35-1-3, and IND. CODE 35-35-3-3 have required all matters concerning a guilty plea to be reduced to writing or spread of record, so that
"When a judge discharges that function, he leaves a record adequate for any review that may be later sought and forestalls the spin-off of collateral proceed*322ings that seek to probe murky memories."
Boykin, supra, at 244, 89 S.Ct. at 1712-18.
Alleging only in his petition an unenforceable oral plea bargain of a matter beyond the control of the court as an inducement, Hunter fails to allege that at the guilty plea hearing the trial court neglected to inquire whether any promises, force or threats were used to obtain the plea. If the court properly inquired into any inducement, and Hunter failed to inform the court of the inducement, or testified falsely about it, he should be foreclosed from raising the matter in a later post conviction proceeding. Hunter makes no assertion or argument in his brief, nor does he allege in his petition, that the guilty plea hearing was flawed in any way. Rather, he seeks to leap over that proceeding and "probe murky memories" long after the prosecutor's office and police have closed their files and the witnesses have dispersed.
As I understand the majority opinion, it concedes that if after a hearing, the record reflects proper inquiry by the trial court at the guilty plea hearing and that Hunter failed to assert his alleged inducement, or had testified falsely concerning it, he would not be permitted to have his plea set aside in a post conviction proceeding, but that the only error here is failure of the trial court to conduct a hearing to determine these facts.
It is my opinion that to withstand a dismissal of his petition, a defendant should be required not only to plead the alleged unenforceable oral plea bargain induce ment, but also plead facts to show that the trial court was derelict in failing to inquire into any promise or inducement, and if it did, facts in justification of his failure to properly present such matter to the court at the guilty plea hearing which is for that purpose.
Parallel authority exists foreclosing a defendant from raising issues in a post conviction proceeding that could have been raised in a proper proceeding. For example, in Davis v. State, (1975) 263 Ind. 327, 330 N.E.2d 738, the court held that where a defendant does not raise issues he could have raised on direct appeal, he cannot raise them in a post conviction proceeding absent a showing of ineffective counsel.
The posture Hunter assumes here is that he can allege some questionable ground in a post conviction proceeding, and then throw the burden on police officers to produce him from the prison, appoint a public defender, involve the services of the prosecuting attorney's office to defend, and absorb the court's time in a hearing, all at substantial expense. The clear purpose of PC 1, See. (e) is to make available to the trial court an instrument to terminate summarily such a proceedings initiated to harass the already overburdened criminal justice system. In my opinion, it was correctly used.