Davis v. State

GARRARD, Judge.

Appellant, Willie Davis, pled guilty to the charge of forgery and was sentenced to an indeterminate term of not less than two nor more than fourteen years.1 Davis thereafter petitioned for post-conviction relief arguing, upon a number of theories, that his guilty plea should be vacated. A hearing on the petition was held, and the trial court subsequently denied it. Davis appeals from this denial.

On appeal, Davis raises the following issues for review:

1. Whether the trial court erred in accepting the plea of guilty without first advising Davis of the nature of the crime, or otherwise determining he understood the nature of the crime, of forgery.

2. Whether the trial court erred in denying Davis’ oral motion to withdraw his plea of guilty prior to sentencing.

3. Whether the plea of guilty should be vacated where the prosecutor, during the course of plea bargaining, used the threat of an habitual criminal charge to induce Davis to plead guilty.

4. Whether the trial court erred in accepting the guilty plea where no written plea bargaining agreement had been filed by the prosecutor.

5. Whether the sentence imposed should have reflected the ameliorative impact of the new penal code.

6. Whether Davis received adequate legal representation.

Before proceeding to the issues, we note that our standard of review of the denial of a petition for post-conviction relief is very limited. Post-conviction proceedings are civil in nature. Since Davis failed to prove his allegations by a preponderance of the evidence in the trial court, he appeals a negative judgment. As such, a reviewing court may reverse only where the evidence is without conflict and leads unerringly to a conclusion contrary to the one reached below. Owen v. State (1975), 167 Ind.App. 258, 338 N.E.2d 715. Any conflict, therefore, must be resolved in favor of the trial court’s decision.

I.

Davis initially contends that his guilty plea was not knowingly made as the court did not advise him, pursuant to IC 35-4.1-1-3, as to the nature of the crime charged.2 The record reflects that the court did not inform Davis at the time the plea was entered of the requisite elements of the crime of forgery. However, the statute does not require that the trial court inform a defendant of the elements of the crime with which he is charged. Rather, IC 35-4.1-1-3 requires that the court not accept a guilty plea without first determining that the defendant understands the nature of the *258charge against him.3 See also Brimhall v. State (1972), 258 Ind. 158, 279 N.E.2d 557.

At the time of taking Davis’ plea the court found that he understood the nature of the offense. The evidence does not lead unerringly to the conclusion that Davis did not understand the nature of the crime of forgery at the time he pled guilty. The record reveals that Davis’ first attorney was given a copy of the information and the probable cause affidavit, both of which described the crimes charged, and that Davis waived a formal reading of those charges. Any doubt that Davis was not adequately advised by his first counsel was removed by the testimony of his second attorney who testified that he discussed the elements of forgery with Davis during one of his initial office visits prior to entering the plea of guilty. In addition, at the time of the plea, the facts necessary to support the charge were fully discussed and Davis made no showing at that time of any ignorance of the nature of the crime of forgery. See Brooks v. State (1974), 161 Ind.App. 552, 316 N.E.2d 688.4

We note in concluding that apart from the assertion made in the petition itself, at the hearing on his petition Davis made no suggestion to the court as to how he had been confused or what he had not understood. Where the defendant has the burden of proving his case by a preponderance of the evidence, it is incumbent upon him to base his allegation upon something more than a belated assertion of unspecified “confusion.” Davis failed to meet this burden. We, therefore, affirm the trial court’s holding that Davis’ plea was knowingly based upon an understanding of the nature of the crime of forgery.

II.

Davis next contends that the trial court erred in refusing to accept his oral motion to withdraw his guilty plea prior to sentencing.

Davis was initially charged with theft and uttering a forged instrument. Pursuant to a plea bargaining agreement, the charge of theft was dismissed and the state agreed not to file an habitual criminal charge in return for Davis pleading guilty to the forgery. At the time Davis pled guilty the trial court conducted a thorough examination to insure, among other things, that Davis was competent, that he comprehended the constitutional rights he was waiving, that he acknowledged his guilt, that there were adequate facts supporting the charge, and that the plea was voluntarily made.

Over two months after entering his plea, but prior to sentencing, Davis appeared in court on two separate occasions and orally requested permission to withdraw his plea. At both hearings Davis was advised by the court that such a motion must be in writing and verified.5 Defense counsel stated that *259he had told Davis that a written motion was required, and that counsel had been advised that a Mr. Turner, an attorney in Chicago, would be preparing the motion. No motion was ever filed. At sentencing Davis again orally requested permission to withdraw his plea, and his request was again denied.

The general rule in Indiana is that a motion to withdraw a plea of guilty is addressed to the discretion of the trial court. Riley v. State (1972), 258 Ind. 303, 280 N.E.2d 815. Thus, a trial court’s ruling disallowing the withdrawal of a plea will not be disturbed on appeal unless it can be established that the trial court clearly abused its discretion. Id.

We conclude that it was not error for the trial judge to refuse to accept Davis’ oral motion to withdraw his plea. IC 35-4.1-1-6 clearly provides that such a motion must be in writing and verified. The judge advised Davis on two occasions that his motion must be made pursuant to statutory requirements. It was not an abuse of discretion to deny Davis’ motion as not having been properly made.

III.

Davis next alleges that his plea was not knowingly and intelligently made as the prosecutor threatened bringing an habitual criminal charge against him as an inducement to pleading guilty.

The law in Indiana is clear that it is not unlawful coercion to use the threat of an habitual criminal charge as an inducement to a defendant to accept a plea bargain as long as there is probable cause to believe the accused could be charged under the statute as an habitual offender.6 Howard v. State (1978), 268 Ind. 589, 377 N.E.2d 628, cert. denied 439 U.S. 1049, 99 S.Ct. 727, 58 L.Ed.2d 708, citing Bordenkircher v. Hayes (1978), 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604. As the court in Holmes v. State (1980), Ind., 398 N.E.2d 1279 stated, “The offer of a reduced charge or sentence recommendation, where there is a legitimate basis for the greater alternative, is a legitimate bargaining tool of the State.” 398 N.E.2d at 1280.

Davis urges that at the time a plea bargaining agreement was being discussed he did not have the requisite number of felonies on his record to support an habitual criminal charge.7 The record is unclear as to whether a number of convictions on Davis’ record at that time were for felonies or misdemeanors. Information available to the state at the time of plea bargaining showed that Davis had been incarcerated on at least four separate occasions upon convictions for involvement in burglary, criminal trespass of a vehicle, battery, and possession of marijuana, all of which occurred in Illinois. In addition, it appears that the prosecutor’s offer to refrain from pursuing habitual criminal charges also contemplated and applied to a separate charge of robbery which was then pending in Elkhart Circuit Court.

We cannot discern from the record before us whether Davis’ prior convictions were for felonies. We attribute this void to Davis. If, in fact, the prosecutor did not have probable cause to believe that an habitual criminal charge would lie, it was incumbent upon Davis to present adequate proof thereof at the postconviction hearing. This he failed to do. Other than bare assertions that he had not been convicted and imprisoned on felony charges, Davis presented no evidence to support his argu*260ment. It is the responsibility of an appellant to present a record demonstrating the facts upon which he premises error. We cannot consider an allegation of error where there is nothing in the record to support it. Bobbitt v. State (1977), 266 Ind. 164, 361 N.E.2d 1193; Fox v. State (1979), Ind.App., 384 N.E.2d 1159. We, therefore, conclude that Davis has failed to meet his burden of showing that the evidence leads to a conclusion contrary to the one reached below.

IV.

The prosecutor did not file a written plea bargaining agreement with the court as required by IC 35-5-6-2.8 Davis argues that this constitutes a sufficient ground for vacating his plea of guilty. We disagree.

IC 35-5-6-2 clearly requires that any recommendation made by the prosecutor on a felony charge must be in writing. The purpose behind this statute is to insure that a defendant does not base his guilty plea upon certain promises made by the prosecutor where the judge has in fact not accepted the state’s recommendation. Gross v. State (1975), 167 Ind.App. 318, 338 N.E.2d 663. The importance of this provision is most apparent where the prosecutor has made a sentencing recommendation upon which the defendant may be relying in pleading guilty.

In the instant case none of the policies behind the application of IC 35-5-6-2 are relevant. The plea bargaining agreement merely stated that the charge of theft would be dismissed and no habitual criminal charge would be brought by the state.9 There were no recommendations to the court regarding sentencing. While Henry v. State (1977), Ind.App., 370 N.E.2d 972, held that a plea is involuntary where the requirements of IC 35-5-6-2 have not been met, Henry dealt with a defendant who had relied upon a prosecutor’s recommendation as to sentencing. As such, the rationale in Henry is inapplicable to the case at bar.

Without holding that IC 35-5-6-2 does not apply to plea bargaining agreements like the one herein, we conclude that it was not reversible error for the court to accept Davis’ plea of guilty absent a written recommendation having been filed by the state. Davis has alleged no harm to himself as a result of the court not requiring the agreement to be reduced to writing. As has often been stated, “To avail himself of an error a party must both suffer harm to a right he possesses and suffer prejudice to himself as a result.” Jones v. State (1976), 265 Ind. 447, 355 N.E.2d 402, 405.

V.

Davis argues that his sentence should have reflected the ameliorative effect of the new penal code sentencing provisions on forgery. Davis committed forgery prior to the effective date of the new code, October 1,1977, and he was sentenced under the old code to a two to fourteen year indeterminate sentence. Forgery carries a two to eight year determinate sentence under the new code, and thus, Davis argues, his sentence should receive the ameliorative benefit of the new code.

We have consistently held that crimes committed prior to the effective date of the new code should be tried and sentenced under the statute in force at the *261time the offense was committed. Bonner v. State (1979), Ind., 392 N.E.2d 1169; State v. Palmer (1979), Ind., 386 N.E.2d 946. Additionally, the exact issue Davis presents with regard to the crime of forgery and the ameliorative impact of the new code sentencing provisions was discussed in Woods v. State (1979), Ind.App., 391 N.E.2d 858, wherein the court held that where a forgery was committed prior to the effective date of the new code, the sentencing provisions of the old statute apply. We, therefore, conclude that the court properly sentenced Davis under the statute in effect at the time he committed the crime.

VI.

Finally, Davis urges that he was not adequately represented by counsel during the plea bargaining process and prior to sentencing. Davis bases his argument upon two acts of his attorney. First, that counsel failed to prepare and file the required written motion to withdraw the guilty plea. Second, Davis asserts that at the time of plea bargaining, counsel did not investigate Davis’ record and the law in order to determine whether Davis was eligible to be charged as an habitual criminal.

When reviewing an allegation of incompetent counsel, we premise our review upon a presumption that an attorney has fully discharged his duty, and strong and convincing proof is required to overcome this presumption. The presumption of competency is overcome only by showing that what the attorney did, or failed to do, “made the proceedings a mockery and shocking to the conscience of the court.” Lenoir v. State (1977), 267 Ind. 212, 368 N.E.2d 1356, 1357-58. See also Duncan v. State (1980), Ind., 400 N.E.2d 1112; Ottman v. State (1979), Ind., 397 N.E.2d 273.

The record reveals that counsel did not prepare and file a written motion to withdraw a guilty plea because he had been advised by both Davis and a Mr. Turner in Chicago that the latter would be preparing the motion.10 Indeed, counsel told Davis that he would not file the motion because he thought it would be futile, and that if he wished it to be filed he should seek other counsel. Davis pled guilty on February 15th and he was not sentenced until June 2nd. He clearly had adequate time in which to seek the assistance of other counsel and, in fact, represented to his attorney that he had done so. At worst, the evidence is conflicting as to who had the responsibility of filing the motion. We cannot conclude, therefore, that counsel’s reliance, although perhaps misplaced, upon representations made by his client that another attorney would be preparing the motion constituted a “mockery of justice.”

Davis now contends that the primary impetus behind his plea of guilty was the fear of being imprisoned for life as an habitual criminal. Since he now maintains that he was not eligible for an habitual criminal charge when plea bargaining was discussed, Davis urges counsel did not adequately research the convictions on his record and the law regarding habitual criminals in order to advise him that the threat of an habitual criminal charge was unfounded. Davis does not suggest that trial counsel deliberately misinformed him as to his eligibility for such a charge nor does any evidence in the record indicate that such was the case. The most that may be said is that counsel did not do all of the research that could have been done. Counsel did attempt to secure additional information as to Davis’ prior criminal record but was unsuccessful. In addition, it does not appear that prior to entering the plea Davis ever questioned his eligibility for treatment as an habitual offender. To this day, evidence has not been produced showing Davis’ record for felony convictions. Although counsel may not have been as judicious as he could have been in not inquiring further into Davis’ record, we cannot say that his inaction made the proceedings a mockery so as to overcome the presumption in favor of adequate representation.

Affirmed.

*262HOFFMAN, P. J., concurs. STATON, J., concurs in result and files separate opinion.

. Davis was sentenced under the former forgery statute, IC (1976), 35-1-124-1, which carried a two to fourteen year indeterminate sentence. The present version of the statute, IC 35-43-5-2, imposes a two to eight year determinate sentence.

. IC 35-4.1-1-3 reads in pertinent part:

“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;”

. IC 35-4.1-1-1 concerning arraignment requires that the defendant be given a copy of the charge before being called upon to plead and that, if he so requests, the indictment or information shall be read to him.

. Davis would also appear to be arguing that there was an insufficient factual basis established to support the plea as required by IC 35-4.1-1-4. Specifically, Davis contends the court did not make a sufficient inquiry as to the presence of intent to defraud. We conclude there was sufficient evidence of intent since Davis testified that he presented for payment for cash a partially completed money order upon which appeared the name of the purchaser, “Ronald Greenwald,” that he endorsed the back of the money order in the name of Ronald Greenwald, and that he is, in fact, not Ronald Greenwald. See generally Finger v. State (1973), 260 Ind. 148, 293 N.E.2d 25; Reid v. State (1973), 156 Ind.App. 692, 298 N.E.2d 480.

.IC 35-4.1-l-6(b) provides:

“(b) After entry of a plea of guilty but before imposition of sentence, upon motion of the defendant the court may allow the defendant to withdraw his plea of guilty for any fair and just reason unless the state has been substantially prejudiced by reliance upon the defendant’s plea. The motion to withdraw the plea of guilty made pursuant to this subsection shall be in writing and verified. The motion shall state the facts in support of the relief demanded and the state may file counter-affidavits in opposition to the motion. The ruling of the court on the motion shall be reviewable on appeal only for an abuse of discretion. However, the court shall allow the defendant to withdraw his plea of guilty whenever the de*259fendant proves that withdrawal of the plea is necessary to correct a manifest injustice.”

. IC (1976), 35-8-8-1 is the applicable habitual criminal statute as the crime was committed prior to the effective date of the new penal code.

. IC 35-8-8-1 provided:

“Every person who, after having been twice convicted, sentenced and imprisoned in some penal institution for felony, whether committed heretofore or hereafter, and whether committed in this state or elsewhere within the limits of the United States of America, shall be convicted in any circuit or criminal court in this state for a felony hereafter committed, shall be deemed and taken to be an habitual criminal, and he or she shall be sentenced to imprisonment in the state prison for and during his or her life.”

. IC 35~5-6-2(a) provides:

“(a) No recommendation may be made by the prosecutor to a court on a felony charge except (1) in writing, and (2) before the defendant enters a plea of guilty. The recommendation shall be shown as filed, and, if its contents indicate that the prosecutor anticipates that the defendant intends to enter a plea of guilty to a felony charge, the court shall order the presen-tence report required by IC 1971, 35-4.1-4-9 [35-8-1A-9] and may hear evidence on the recommendation.”

IC 35-5-6-1 states in pertinent part:

“(b) ‘Recommendation’ means a proposal by the prosecutor to a court that:
(1) A charge be dismissed: or
(2) A defendant, if he pleads guilty to a charge, receive less than the maximum penalty permitted by law.”

. Of note, the dismissal of the charge of theft was mandatory upon the court, IC 35 — 3.1—1— 13, and the trial court does not control the state’s decision whether to charge a person as an habitual criminal.

. Evidence at the post-conviction proceedings revealed that Mr. Turner was not an attorney but rather worked as a public relations man for Muhammad Ali, the boxing champion. The testimony is conflicting as to when counsel for Davis learned of this fact.