Hall v. State

MAY, Judge,

dissenting.

I would affirm the denial of Hall's petition for post-conviction relief, and therefore I must respectfully dissent.

As the majority notes, Indiana law does not permit a defendant who pleads guilty to challenge his conviction on direct appeal. See Tumulty v. State, 666 N.E.2d 394 (Ind.1996). Rather, on direct appeal, such defendants may challenge only their sentences. To challenge the validity of their guilty pleas, defendants must petition for post-conviction relief. Accordingly, the procedural posture under which the State was given the burden of proof in Boykin, challenge of a guilty plea on direct appeal from a conviction, presumably never arises in Indiana.

However, neither does Indiana law permit collateral challenges to convictions within habitual offender proceedings. Edwards v. State, 479 N.E.2d 541, 547 (Ind.1985). Rather, defendants must normally challenge the predicate convictions via direet appeals or post-conviction proceedings. Id. Predicate convictions may be challenged during habitual offender proceedings if the predicate conviction is "constitutionally invalid," but Boykin violations do not fall within that exception. See id. at 547-48.12 Accordingly, the procedural posture in Parke, a collateral attack within an habitual offender proceeding, wherein the Supreme Court placed the burden of proof regarding Boykin advisements on the defendant, will not arise under Indiana law.

In essence, Indiana law provides only one method for challenging the validity of a guilty plea-a petition for post-conviction *114relief. Who, then, should have the burden of proving whether a petitioner received his Boykin advisements? Should we consider a petition for post-conviction relief analogous to (1) a direct appeal wherein the State has the burden pursuant to Boy-kin, (2) a collateral attack wherein the petitioner has the burden pursuant to Parke, or (8) some combination thereof wherein the State sometimes has the burden and the petitioner sometimes has the burden?13 If it is some combination thereof, can we create a rule for assignment of the burden that (1) could be consistently applied and (2) would comport with constitutional requirements for knowing and intelligent guilty pleas, while at the same time respecting the need for judgments to be final? 14

The majority declines to follow Parke because Parke mounted his collateral attack against his guilty plea during recidivist proceedings, while Hall claims he simply filed a petition for post-conviction relief without having been charged as an habitual offender. Because post-conviction proceedings are the only route for challenging guilty pleas in Indiana, the majority believes Hall's petition does not fall into Justice O'Connor's category of collateral attacks having "independent purpose other than to overturn the prior judgment." 15 See Parke, 506 U.S. at 30, 118 S.Ct. 517. I disagree, and believe Parke controls.

I find it inconceivable that Hall filed his petition for post-conviction relief without an "independent purpose" other than to overturn the prior conviction, id., because Hall is no longer suffering any direct consequences of his plea. He filed his petition for post-conviction relief eighteen and a half years after being given "a five-year suspended sentence with two years on probation." Op. at 103. Any complaint he has now is undoubtedly based on his desire to avoid some indirect negative consequence-be that an habitual offender proceeding, difficulty getting a job because of his criminal record, or inability to vote. As I see it, any of those reasons is an "independent purpose" sufficient to remove Hall from that special category of persons entitled to the lesser burden of proof provided by Parke. See, eg., Mas*115sachusetts v. Lopez, 426 Mass. 657, 690 N.E.2d 809, 814 (1998) (following Parke to apply Boykin burden on post-conviction petitioner who filed his state petition for post-conviction relief to challenge old guilty pleas that had recently been used to enhance a federal sentence).

"Routine reversal of convictions on technical grounds imposes substantial costs on society." White v. State, 497 N.E.2d 893, 905 (Ind.1986). Those costs include the time and resources of jurors, witnesses, judges, lawyers, and prosecutors, and the stress on victims who must re-live painful experiences during trial testimony. Id. If time has passed, witnesses may have moved away or may have forgotten important details of the crime, making re-trial by the State impossible. Id. If guilty individuals routinely avoid punishment, society's view of the justice system will become jaded and we will be unable to deter or rehabilitate criminals. Id. Reversal of Hall's conviction on technical grounds at this late date comes at too high a cost to be justified simply by the absence of a transcript of his guilty plea hearing.16

For all these reasons, I respectfully dissent.

. As our supreme court explained:

In Indiana the general rule is that the alleged invalidity of predicate felony convictions may not be challenged during habitual offender proceedings when the prior final judgments are regular on their face. The habitual offender hearing is not the proper forum to contest the validity of these prior convictions. The proper procedure to challenge this type of predicate conviction is for the accused to set aside the predicate conviction in a direct attack through appeal or post-conviction relief in the court of conviction. However the accused may challenge the predicate felony conviction in a habitual offender proceeding when the conviction is constitutionally invalid. The conviction is deemed to be constitutionally invalid only when the following criteria are satisfied:
(1) The court records reflecting the proceedings which led to the prior conviction, on their face, must raise a presumption that the conviction is constitutionally infirm; and
(2) The apparent constitutional infirmity must be of the type which undermines both the integrity and reliability of the determination of guilt. Where the conviction is based upon a guilty plea, the infirmity must affect that part of the guilty plea which constitutes the admission of guilt.

Edwards v. State, 479 N.E.2d 541, 547 (Ind.1985).

The court applied this standard to a Boykin claim raised during a habitual offender proceeding: In this case, the record does not affirmatively show that appellant was advised of his privilege against self-incrimination or of his right to confront his accusers. This predicate felony conviction thus raises a presumption of constitutional infirmity in satisfaction of the first criterion. A defendant would satisfy the second criterion where it can be shown, for instance, that the defendant was not represented by counsel or knowingly and intelligently waived such representation at the time of the prior felony conviction. However, a Boykin violation affects only the waiver part of the guilty plea and does not undermine the integrity and reliability of the determination of guilt. Therefore, there is no denial of due process in relegating defendant to a direct attack to set aside the prior conviction. Furthermore, we see no serious erosive effect from our direct attack preference upon the rights safeguarded by Boykin.

Id. at 547-48.

. We routinely refer to post-conviction proceedings as "collateral attacks" on a judgment, see, eg., majority op. at 105, and Indiana law imposes on post-conviction petitioners the burden of proving their grounds for relief by a preponderance of the evidence. See Post-Conviction Rule 1 § 5. However, our supreme court has used the phrase "direct attack" when discussing a petition for post-conviction relief filed to challenge the validity of a guilty plea. See, eg., Edwards, 479 N.E.2d at 547, 548.

. While the specific issue we struggle with today is new, the task we face is not new to courts in modern democracies. We are again faced with a need to balance two competing values: "(1) the need to vindicate federal and state rights by correcting errors, and (2) the need to bring proceedings to a rest, especially where the passage of time reduces the possibility that a new trial will be reliable." White v. State, 497 N.E.2d 893, 895-96 (Ind.1986).

. The majority provides one other reason for declining to follow Parke: "our [slupreme [court cited to both [Wilburn and Corder] in Curry [v. State, 674 N.E.2d 160 (Ind.1996) ], a case decided after Parke, without any indication that either Corder or Wilburn were no longer valid precedent." Op. at 108. However, the issue in Curry was whether the post-conviction petitioner had made an adequate attempt to reconstruct the record of his guilty plea hearing. The supreme court affirmed the denial of his petition for post-conviction relief because Curry had not demonstrated reconstruction of his plea hearing was impossible. Curry, 674 N.E.2d at 164. As the issue before the court in Curry did not require discussion of Parke's limitation of Boykin and as the supreme court did not even acknowledge Parke, I would not interpret Curry's citation to Corder and Wilburn to establish the validity of those cases after Parke.

. My opinion today should not be interpreted to indicate every post-conviction petitioner whose record is missing should have the burden of proof pursuant to Parke. Nor do I express an opinion on where the line should be drawn to shift the burden from the State to post-conviction petitioners. I simply would hold, based on the facts in this case, that Hall is not in the category of persons entitled to the benefit of the presumption created by Boykin.

Nevertheless, I note all post-conviction petitioners already have the burden of production when they allege their guilty pleas were not knowing or intelligent because a trial court failed to give the other non-Boykin advise-ments required by statute. White v. State, 497 N.E.2d 893, 905 (Ind.1986) (holding a post-conviction petitioner has a burden to prove not only that the trial judge failed to give an advisement required by statute but also that the judge's failure "rendered his decision involuntary or unintelligent"). The reason our supreme court shifted that burden to petitioners is because placing the burden on the State

exposed our post-conviction relief procedures to incredible abuse. It has created a virtual tidal wave of petitions by prisoners, some of whom have slumbered on their rights for five or ten years. It has, by definition, afforded relief only to prisoners who have asserted their guilt before the trial judge and never recanted. It has visited felony convictions with all the finality of default judgments in small claims court.

Id. at 900. Those same concerns weigh in favor of holding Parke applies to at least some, if not all, post-conviction petitions. See also Redington v. State, 678 N.E.2d 114 (Ind.Ct.App.1997), reh'g denied.

In addition, one statement by Justice O'Connor in Parke leads me to believe the Supreme Court might, if given the opportunity, further narrow the holding in Boykin, such that it would apply only when a record exists that is silent: "We are therefore unprepared to say that when the government carries the ultimate burden of persuasion and no transcript of the prior proceeding exists, the Due Process Clause requires the Commonwealth to prove the validity of the conviction by clear and convincing extrarecord evidence." Parke, 506 U.S. at 35, 113 S.Ct. 517.