McKinney v. State

GARRARD, Judge.

Daniel McKinney appeals the denial of his petition for post conviction relief which sought to set aside his guilty plea to a charge of burglary.

He asserts and the record bears out that when his plea was accepted he was not advised of the minimum possible sentence for the offense as required by IC 35 — 4.1—1— 3(d).1 The trial court found that since McKinney had entered a plea bargain which called for a specific sentence any advice as to the minimum sentence available was superfluous (Record at 114, 119).

We first note there is practical value in assuring that an accused is aware of both the maximum and minimum sentences for an offense to which he is contemplating a plea of guilty. Even where he has agreed to a proposed plea bargain which contains an agreed sentence he is entitled to know the minimum potential sentence for the offense if he is to intelligently and voluntarily agree to the proffered plea bargain. It is thus significant that the judge assure himself that the accused is aware of what he is agreeing to and that the record clearly reflects that there could have been no legitimate misunderstanding. Rights are not only thereby protected, but needless appeals are averted.2

Secondly, we note the oft-repeated admonition from our Supreme Court that trial courts strictly follow the requirements of IC 35-4.1-1-3. Turman v. State (1979), Ind., 392 N.E.2d 483. The fact that a plea agreement has been reached does not remove from the court its obligation. German v. State (1981), Ind., 428 N.E.2d 234.

Finally, we point out that the Fourth District in Ricketts v. State (1981), Ind.App., 429 N.E.2d 289 has already held that failure to follow the statutory mandate that an accused be advised of the minimum sentence will require vacation of a guilty plea.

The judgment of the trial court is reversed and the case is remanded with instructions to set aside the guilty plea.

*728STATON, J., concurs. HOFFMAN, P.J., dissents and files separate opinion.

. Effective September 1, 1982, this statute has been recodified as IC 35-35-1-2.

. As an illustration we point to instances where the accused has misunderstood his own counsel or counsel has misspoken in advising the defendant of the minimum possible sentence.