dissenting.
This Court has repeatedly held that the case of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), mandates that the defendant at a guilty plea hearing be personally advised by the trial judge of three constitutional trial rights, namely, jury trial, confrontation, and the privilege against self-incrimination; and a failure of the record of plea proceedings to show compliance with this mandate warrants a later withdrawal of the plea. Hollingshed v. State (1977), 266 Ind. 597, 365 N.E.2d 1215; Emert v. State (1975), 263 Ind. 340, 330 N.E.2d 750; Williams v. State (1975), 263 Ind. 165, 325 N.E.2d 827; Brimhall v. State (1972), 258 Ind. 153, 279 N.E.2d 557. I would follow these precedents and reverse the judgment of the trial court.
Boykin rights are like Miranda rights. Neeley v. State (1978), 269 Ind. 588, 382 N.E.2d 714. They are safeguards of the real rights. They are not rights, but funetion like rights. Where they exist, we know that the real rights are secure. Where they do not exist, we are left in doubt. Here we are left very much in doubt because the judge said nothing to the defendant about his rights, and the two lawyers spoke about the rights with him six months and more before the plea. The lawyers and the judge did not state to him that he would be giving up his rights by pleading guilty, and he never said that he understood he was giving up his rights. Knowledge of a right is but a part of the basis for a judicial determination of a voluntary, knowing, and intelligent waiver of that right. The complete basis includes a manifestation of the freely made decision to forego the right. That part of the basis is absent here under any view of the record.
Finally, I dissent because the trial judge at the post-conviction hearing kept the risk of non-persuasion on appellant, even after appellant showed the constitutional error in the plea proceedings. He concluded upon looking at the entire record, including the evidence generated at the post-conviction hearing, that appellant had failed to sustain his burden of proving that his plea had been involuntary and unknowing. As I understand the majority opinion, appellant should have prevailed if the judge was left in doubt about whether there was a valid waiver.