Turman v. State

HUNTER, Justice.

The petitioner is before this Court appealing from the denial of his petition for relief under Post-Conviction Relief, Rule 1. The petitioner had previously entered a guilty plea to rape, Ind.Code § 35-13-4-3 (Burns 1975), and was sentenced to a determinate term , of fifteen years. He now appeals raising the following issue:

Whether the trial court erred in determining that the guilty plea record was sufficient to support a finding that the guilty plea was knowingly, intelligently and voluntarily entered.

The facts from the record indicate that the petitioner, who was represented by counsel, entered into a plea agreement with the state. Said agreement was filed with the trial court on March 18,1976. The plea agreement, signed by defendant, detailed certain rights which defendant waived by virtue of his guilty plea. At the time the plea agreement was filed, the trial judge conducted an examination of petitioner regarding certain of petitioner’s rights and determining petitioner’s understanding of the charge against him.

Petitioner contends that his guilty plea was not voluntarily, entered. In considering the voluntariness of a guilty plea we start with the standard that the record of the guilty plea proceeding must demonstrate that the defendant was advised of his constitutional rights and knowingly and voluntarily waived them. Boykin v. Alabama, (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Our Court has consistently held that the record must provide a suffi*485cient basis for the conclusion that the defendant was meaningfully informed of the specific rights enumerated in Boykin. Laird v. State, (1979) Ind., 385 N.E.2d 452; Williams v. State, (1975) 263 Ind. 165, 325 N.E.2d 827. We now hold that the record must also provide a sufficient basis for the conclusion that the defendant was meaningfully informed of the rights and law detailed in West’s Ann.Ind.Code § 35—4.1-1-3 (1978).

That statute provides:

“Defendant to be advised by court. The court shall not accept a plea of guilty from the defendant without first addressing the defendant and
“(a) determining that he understands the nature of the charge against him;
“(b) informing him that by his plea of guilty he is admitting the truth of all facts alleged in the indictment or information or to an offense included thereunder and that upon entry of such plea the court shall proceed with judgment and sentence;
“(c) informing him that by his plea of guilty he waives his rights to a public and speedy trial by jury, to face the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to require the state to prove his guilt beyond a reasonable doubt at a trial at which the defendant may not be compelled to testify against himself;
“(d) informing him of the maximum possible sentence and minimum sentence for the offense charged and of any possible increased sentence by reason of the fact of a prior conviction or convictions, and of any possibility of the imposition of consecutive sentences;
“(e) informing him that the court is not a party to any agreement which may have been made between the prosecutor and the defense and is not bound thereby.”

The rule of Boykin, supra, and West’s Ann.Ind.Code § 35—4.1-1-3 (1978) have undergone considerable interpretation by this Court of late. In Williams v. State, supra, the record made at the post-conviction hearing established that the petitioner made a knowing and intelligent waiver of his rights. The Court held that a “defendant’s guilty plea is not tainted merely because the trial court fails to repeat defendant’s rights for him . . .” 263 Ind. at 176, 325 N.E.2d at 833. The Court then emphasized that the record must provide a basis for concluding that the defendant was meaningfully informed of his Boykin rights. The Williams case involved a guilty plea entered prior to the effective date of the statute. In a footnote, the Court noted that a different result might be called for under the statute.

In Neeley v. State, (1978) Ind., 382 N.E.2d 714, this Court held that, while a strict following of West’s Ann.Ind.Code § 35-4.1-1-3 (1978) would be the preferred practice, this Court will look to the entire record to determine if a defendant was fully advised of and understood his constitutional rights. In applying the rule of Neeley, this Court has held that when the record shows that a plea agreement was entered into which adequately informed the defendant of his constitutional rights, reversal is not required merely because the trial judge inadvertently failed to orally inquire whether appellant understood his right to compulsory process. Clark v. State, (1978) Ind., 383 N.E.2d 321.

With the Williams, Neeley and Clark cases in mind we now review the entire record in the case at bar as it relates to petitioner’s guilty plea. The United States Supreme Court in Boykin v. Alabama, supra, held that a defendant must be advised of his privilege against self-incrimination, his right to trial by jury and his right to confront his accusers. All of these rights are specifically enumerated in the Indiana statute. West’s Ann.Ind.Code § 35-4.1-1-3(c) (1978) provides that the court shall inform the defendant

“that by his plea of guilty he waives his rights to a public and speedy trial by jury, to face the witnesses against him and to require the state ■ to prove his guilt beyond a reasonable doubt at a trial at which the defendant may not *486be compelled to testify against himself . . ."

At the time the trial court accepted petitioner’s guilty plea and sentenced petitioner, the court inquired into petitioner’s understanding of his rights. The court addressed the petitioner as follows:

Q. “All right. Now, before I can accept your plea I want to ask you if you understand certain points and I believe, Mr. Katz, you have gone over these points previously with the De-' fendant?”
BY MR. KATZ: “Yes, sir.”
BY THE COURT:
Q. “The fact that you waive your right to a speedy and public trial and impartial jury, do you understand that?”
A. “Yes.”

Furthermore, the plea agreement, signed by petitioner included the following advise-ments of rights he would have if he pleaded not guilty:

“6. (a) The right to a speedy and public trial by an impartial jury in the county in which each offense is alleged to have been committed . . .;

and

“7. That the defendant further understands that' if he enters a plea of guilty he thereby waives his right to a trial by jury.”

The judge advised petitioner “that you waive your right to confront all the witnesses against you at the trial” and the plea agreement provided that if petitioner pleaded not guilty he would have “the right to confront all witnesses against him at time of trial.”

With regard to petitioner’s privilege against self-incrimination, the record is somewhat muddled. The plea agreement informed the petitioner that he had the “right not to testify without prejudice . .” [Emphasis added.] The judge told petitioner, “you waive the right to testify without prejudice.” [Emphasis added.] Therefore, the record displays that the judge incorrectly stated the law with regard to petitioner’s privilege against self-incrimination.

The Indiana statute provides that the trial court shall determine that the defendant understands the nature of the charge against him. West’s Ann.Ind.Code § 35-4.-1-1-3(a) (1978). The trial judge asked defendant:

Q. “Have you gone over the plea agreement with your counsel and 'do you understand the charges that have been filed against you and the consequences of your pleading guilty to the felony, , count two, rape?”
A. “Yes.”

The plea agreement contained a more elaborate basis for determining petitioner’s understanding. The agreement provided that petitioner and the prosecutor agreed and stipulated to the following:

“1. That the defendant is charged in the within cause by information with having on the 1st day of November, 1975, committed the following crime(s): Count I, KIDNAPPING, I.C.1971, 35-1-55-1; Ind. Stat.Ann., § 10-2901 (Burns’ Code Ed.); Count II, RAPE, I.C.1971, 35-13-4-3; Ind.Stat.Ann., § 10-4201 (Burns’ Code Ed.) and Count III, Robbery, I.C.1971, 35-13-4-6; Ind.Stat.Ann., § 10-4101 (Burns’ Code Ed.).
“2. That the defendant has received a copy of the information and has read and discussed same with his attorney, KATZ & BRENMAN, and affirms that he understands each accusation against him as stated in the charging instrument.
“3. That the defendant has discussed with his attorney the facts and surrounding circumstances as known to him concerning the matters averred in the charging instrument and believes and feels that his attorney is fully apprised as to all' such matters.
“4. That the defendant has been informed by his attorney, as to the nature and cause of every accusation against the defendant and that the attorney for the defendant has counseled and advised the defendant with regard to such matters and as to any possible defenses which the defendant might have in this cause.”

*487The Indiana statute provides that the trial court shall inform the defendant

“that by his plea of guilty he is admitting the truth of all facts alleged in the indictment or information or to an offense included thereunder and that upon entry of such plea the court shall proceed with judgment and sentence. . . West’s Ann.Ind.Code § 35-4.1-1-3(b) (1978).

Here the record does not disclose any statement of this nature made either by the judge or contained in the plea agreement. The judge did have petitioner describe the crime in open court. However, the judge never informed petitioner of the significance of that in-court description as it related to the allegations against him.

The statute also provides that the judge shall inform the defendant that he waives his right “to have compulsory process for obtaining witnesses in his favor . . . .” West’s Ann.Ind.Code § 35—4.1-1-3(c) (1978). The judge in the case at bar told defendant,

“you . . . waive your right to use the power and process of the Court to compel the production of any evidence including attendance of any witnesses in your favor at the trial . . . .”

And the plea agreement detailed this right as follows:

“6. (e) The right to use the power and process of the Court to compel the production of any evidence, including the attendance of any witnesses, in his favor at trial . . . .”

The statute provides that the judge shall inform the defendant that the court is not bound by a plea agreement. West’s Ann. Ind.Code § 35-4.1-1-3(e) (1978). The judge did not inform defendant of this fact, probably because he intended to follow the terms of the agreement. Again, searching the entire record as dictated by Neeley v. State, supra, we find that petitioner was made aware of this fact by the following paragraph of the plea agreement.

“9. That the defendant understands that if the Court is unable to accept and approve of the above-stated agreement, that the defendant will be permitted to withdraw his plea of guilty and that the Court will reinstate a plea of Not Guilty and that this matter will be set for trial at the earliest convenience of the Court.”

The record is wholly silent as to any advisement of the maximum and minimum possible sentences for the crime charged as required by West’s Ann.Ind.Code § 35-4.1-1-3(d) (1978). The record is also silent as to the requirement that the court inform the defendant of the state’s burden of proof at trial. West’s Ann.Ind.Code § 35—4.1-1-3(c) (1978).

In post-conviction proceedings, the burden of proof rests with the petitioner to establish his grounds for relief by a preponderance of the evidence. Ind.R.P.C. 1 § 5; Laird v. State, supra; Davis v. State, (1975) 263 Ind. 327, 330 N.E.2d 738. The judge hearing the petition is the sole judge of the weight of the evidence and the credibility of the witnesses. Carroll v. State, (1976) 265 Ind. 423, 355 N.E.2d 408. His decision will be reversed only where the evidence is without conflict and leads unerringly to a result not reached by the trial court. Laird, supra; Cottingham v. State, (1978) Ind., 379 N.E.2d 984.

Applying the above standard to the facts at bar, we find that the record leads us unerringly to at least three conclusions not reached by the trial court. First, petitioner was not informed of the state’s burden of proof at trial as required by West’s Ann.Ind.Code § 35-4.1-1-3(c) (1978). Second, petitioner was not informed of the relevant sentences as required by West’s Ann.Ind. Code § 35-4.1-1—3(d) (1978). Like the United States Supreme Court in Boykin v. Alabama, supra, we will not presume that defendant was aware, of this information from a “silent record.” 395 U.S. at 243, 89 S.Ct. at 1712, 23 L.Ed.2d at 280.

We find some basis in the record to support the trial court’s finding that defendant was aware that by giving the details of the crime he was admitting the truth of the allegations against him and that the trial court would proceed with sentencing. West’s Ann.Ind.Code § 35—4.1—1-3(b) *488(1978). We are, however, concerned that a lay person might not ordinarily understand the legal significance of his confession in open court.

We would not ordinarily disturb the trial court’s weighing of the evidence where two statements regarding the privilege of self-incrimination conflicted. However, the weight of the judge’s erroneous statement in open court would certainly outweigh the impact of a contrary but correct statement of the law contained in the plea agreement entered into at an earlier date. Again we are led unerringly to a result not reached by the trial court, that petitioner was not properly advised of his privilege against self-incrimination as provided by the Fifth Amendment to the United States Constitution.

We reiterate here our encouragement, stated in Neeley v. State, supra, that trial courts follow precisely the requirements of West’s Ann.Ind.Code § 35-4.1-1-3 (1978) when accepting guilty pleas as “a fool-proof procedure of insuring against claims such as are raised in the present case.” 382 N.E.2d at 718. The primary reason for petitioner prevailing in this case is that the trial judge failed to pick up the statute and examine petitioner-defendant as the legislature intended.

Because of the mandatory nature of West’s Ann.Ind.Code § 35-4.1-1-3 (1978), which provides that a trial court “shall not accept a plea of guilty from the defendant without first addressing the defendant .” and informing him of certain rights and law, we find that the trial court erred in determining that the record was sufficient to support a finding that the guilty plea was knowingly, intelligently and voluntarily entered.

The judgment of the trial court is reversed and this cause is remanded to the trial court with instructions to vacate the guilty plea, reinstate petitioner’s plea of not guilty and set the matter for trial.

DeBRULER and PRENTICE, JJ., concur. GIVAN, C. J., dissents with opinion in which PIVARNIK, J., concurs.

PIVARNIK, J., dissents with opinion in which GIVAN, C. J., concurs.