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Dewitt v. State

Court: Indiana Supreme Court
Date filed: 2001-09-13
Citations: 755 N.E.2d 167
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ATTORNEYS FOR APPELLANT:          ATTORNEYS FOR APPELLEES:


SUSAN K. CARPENTER                      STEVE CARTER

Public Defender of Indiana                   Attorney General of Indiana

JAMES T. ACKLIN                   EILEEN EUZEN
Deputy Public Defender                  Deputy Attorney General
Indianapolis, Indiana                   Indianapolis, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA


ALFRAZIER DEWITT,                       )
                                        )
      Appellant-Petitioner,             )    Supreme Court Cause Number
                                        )    45S04-0104-PC-221
            v.                          )
                                        )    Court of Appeals Cause Number
STATE OF INDIANA,                       )    45A04-0008-PC-325
                                        )
      Appellee-Respondent.              )


                     APPEAL FROM THE LAKE SUPERIOR COURT
                  The Honorable T. Edward Page, Magistrate
                   Kathleen A. Sullivan, Judge Pro Tempore
                         Cause No.  3CR-103-678-460


                           ON PETITION TO TRANSFER

                             September 13, 2001


RUCKER, Justice


      Alfrazier Dewitt pleaded guilty to  burglary  in  1978.   He  filed  a
petition for  post-conviction  relief  several  years  later  attacking  the
validity of his plea on several grounds.  The post-conviction  court  denied
relief.  Finding one of  the  grounds  dispositive,  the  Court  of  Appeals
reversed.  We disagree and affirm the post-conviction court on all  grounds.


                       Factual and Procedural History

      On May 31, 1978, Dewitt broke into a Gary,  Indiana  gas  station  and
was apprehended inside by police.  At his  arraignment  on  June  15,  1978,
Dewitt pleaded not guilty and  requested  a  trial  by  jury.   However,  on
October 18, 1978, Dewitt entered into a  written  plea  agreement  with  the
State.  In exchange for Dewitt pleading guilty to  burglary  as  a  Class  C
felony, the State agreed to recommend probation.  That same day,  the  trial
court conducted a guilty plea hearing and  accepted  Dewitt’s  guilty  plea.
On October 31, 1978, the trial court ordered  Dewitt  to  serve  a  two-year
suspended sentence with two years of probation.
      Nearly fourteen years later, on July 6, 1992, Dewitt filed a  petition
for post-conviction relief.  He amended  his  petition  seven  years  later,
raising several issues regarding the validity of  his  guilty  plea.   After
conducting an evidentiary hearing on April  19,  2000,  the  post-conviction
court entered findings of  fact  and  conclusions  of  law  denying  relief.
Dewitt appealed.  Finding  one  issue  dispositive,  the  Court  of  Appeals
reversed  the  post-conviction  court.   More  specifically,  the  Court  of
Appeals held that  Dewitt’s  decision  to  plead  guilty  was  not  knowing,
voluntary, and intelligent because “he made an  affirmative  request  for  a
bench trial.”  Dewitt v. State, 739 N.E.2d 189, 192 (Ind.  Ct.  App.  2000),
reh’g denied.  The State seeks transfer, contending  the  Court  of  Appeals
misapplied the rigorous post-conviction standard of review.   We  grant  the
State’s petition to transfer on this point and also  address  the  remaining
issues which we restate as follows:  (1) did the trial court  advise  Dewitt
that he was waiving his Boykin rights by pleading guilty; and (2) was  there
an adequate factual basis for  his  plea.   We  affirm  the  post-conviction
court.

                             Standard of Review

      A petitioner who  has  been  denied  post-conviction  relief  faces  a
rigorous standard of review.  Benefiel v. State, 716 N.E.2d 906,  912  (Ind.
1999), reh’g denied, cert. denied,  531  U.S.  830  (2000).   As  such,  the
petitioner must convince the court on review that the evidence  as  a  whole
leads unerringly and unmistakably to a decision  opposite  that  reached  by
the post-conviction court.  Prowell v. State,  741  N.E.2d  704,  708  (Ind.
2001).  Stated differently, “[t]his Court  will  disturb  a  post-conviction
court’s decision as being  contrary  to  law  only  where  the  evidence  is
without conflict and leads to but one conclusion,  and  the  post-conviction
court has reached the opposite conclusion.”  Miller  v.  State,  702  N.E.2d
1053, 1058 (Ind. 1998).  Further, the  reviewing  court  accepts  the  post-
conviction court’s findings of fact unless  clearly  erroneous.  Ben-Yisrayl
v. State, 738 N.E.2d 253, 258 (Ind. 2000).

                                 Discussion

                                     I.
      Dewitt first contended  before  the  post-conviction  court  that  his
decision to  plead  guilty  was  not  knowing,  voluntary,  and  intelligent
because he made  an  “unambiguous”  request  for  a  bench  trial.   Br.  of
Appellant at  10.   In  support  of  this  contention,  Dewitt  directs  our
attention to the following discussion that took place at  the  beginning  of
his guilty plea hearing:
      [COURT]:  You had previously demanded trial by jury.  This case is set
      for trial on December 4.  But you may  withdraw  your  demand  and  be
      tired [sic] by the Court.  How do you wish to be tried, sir?


      [DEWITT]:  By the Court.


R. at 158.  Dewitt argues that he thought he was requesting  a  bench  trial
by responding that he wanted to be tried “[b]y the Court.”
      The post-conviction court found that Dewitt did not  request  a  bench
trial by stating that he wanted to be tried “[b]y  the  Court.”   The  post-
conviction court explained that at the time of Dewitt’s guilty plea  hearing
in 1978, “tried by the Court” was the “current vogue” language for a  guilty
plea.  R. at 148.  The post-conviction court then  concluded  that  Dewitt’s
decision to plead guilty was knowing, voluntary, and intelligent.
      Our review of the guilty plea hearing  in  its  entirety  reveals  the
following.  During the guilty plea hearing, the trial  court  verified  that
Dewitt understood the charge against him and the possible sentencing  range.
 After Dewitt indicated that he wanted to give  up  his  previously  invoked
right to a trial by jury and instead be tried by the court, the trial  court
advised him that “if we proceeded to trial,” then  Dewitt  would  have  been
entitled to various rights.  R. at 23 (emphasis added).  Dewitt then  stated
that he had discussed the case fully with  his  attorney  and  that  he  had
already signed a plea agreement with the State.  The trial  court  discussed
the details of the plea agreement  with  Dewitt.   Specifically,  the  trial
court warned Dewitt that the plea agreement was not  binding  on  the  court
and that “[i]f the Court, after  reviewing  the  pre-sentence  investigation
report[,] decides that for the good of all concerned that that is  the  best
of all possible dispositions, you may be ordered in prison from two  (2)  to
eight  (8)  years.”   R.  at   25.    The   trial   court   then   inquired,
“[U]nderstanding the possible penalties, how do you  plead;  guilty  or  not
guilty?”  Id.  Dewitt  responded,  “Guilty.”   Id.   The  trial  court  then
scheduled a sentencing date.
      Even if Dewitt was confused by the language “tried by the Court”  that
the trial court used at the beginning of the hearing,  the  above  recounted
colloquy shows that Dewitt knew, at least by the end of  the  hearing,  that
by pleading guilty he was not getting a bench trial.  Applying the  rigorous
post-conviction standard of review, we cannot conclude that the evidence  as
a whole leads unerringly  and  unmistakably  to  a  decision  opposite  that
reached by the post-conviction court.
                                     II.
      Dewitt next contended before the post-conviction court that the  trial
court did not advise him that he was waiving his Boykin rights  by  pleading
guilty.  Dewitt concedes that the trial court  advised  him  of  his  Boykin
rights; however, he argues that had the trial court told  him  that  he  was
waiving these rights by pleading guilty, he would not have  pleaded  guilty.

      The post-conviction court found that Dewitt was  “not  credible”  when
he testified during the post-conviction  hearing  that  he  would  not  have
pleaded guilty if the trial court had told  him  that  he  was  waiving  his
Boykin rights by pleading guilty.  R. at  151.   The  post-conviction  court
then concluded that a reading of the guilty plea  hearing  in  its  entirety
“clearly” shows that Dewitt knew he was waiving  these  rights  by  pleading
guilty.  R. at 151-52.
      According to Boykin v. Alabama, 395 U.S. 238  (1969),  a  trial  court
must be satisfied that an accused  is  aware  of  his  right  against  self-
incrimination, his right to trial by jury, and his  right  to  confront  his
accusers before accepting a guilty  plea.   Id.  at  243.   However,  Boykin
“does not require that the record of the guilty plea  proceeding  show  that
the accused was formally advised  that  entry  of  his  guilty  plea  waives
certain constitutional rights[,]” nor does Boykin require  that  the  record
contain a formal waiver of these rights by the accused.   State  v.  Eiland,
707 N.E.2d 314, 318 (Ind. Ct. App. 1999) (quotation omitted), reh’g  denied,
opinion expressly adopted by 723 N.E.2d 863 (Ind. 2000);  Barron  v.  State,
164 Ind. App.  638,  330  N.E.2d  141,  144  (1975).   Rather,  Boykin  only
requires a conviction to be vacated if the defendant did  not  know  or  was
not advised at the time of his plea that he was waiving his  Boykin  rights.
Davis v. State, 675 N.E.2d 1097, 1103 (Ind. 1996); see  also  United  States
ex rel. Miller v. McGinnis, 774 F.2d 819, 824 (7th Cir. 1985) (holding  that
a defendant must be “fully cognizant” that he is waiving his  Boykin  rights
by pleading guilty).
      Our review of the  record  confirms  that  the  trial  court  did  not
formally advise Dewitt that he was waiving his  Boykin  rights  by  pleading
guilty, and Dewitt did not formally waive these rights.  However,  as  noted
above, a formal advisement and waiver are not required; rather, Dewitt  must
have only known that he was waiving his Boykin rights  by  pleading  guilty.
It is clear Dewitt knew that he was waiving his right to trial  by  jury  by
pleading guilty.  At the arraignment, the  trial  court  advised  Dewitt  as
follows:  “You have a right, a constitutional right to a trial  by  jury  or
you may waive that right  and  be  tried  by  the  court.”   R.  at  167-68.
Although Dewitt initially chose to  have  a  trial  by  jury,  he  expressly
forfeited this right at the guilty plea hearing.  R. at 158.
      Further, at the guilty plea hearing, the trial  court  advised  Dewitt
after he pleaded guilty that “if we proceeded to trial sir,  you  could  not
be compelled to testify and if you chose not to testify that  would  not  be
considered as any evidence of guilt against you; do  you  understand  that?”
R. at 23 (emphasis added).  Because the trial court spoke in  terms  of  “if
we proceeded to  trial,”  Dewitt  presumably  understood  that  having  just
pleaded guilty, he was not entitled to a trial and therefore there would  be
no necessity for him to confront his accusers or exercise his right  against
self-incrimination.  See Barron, 330 N.E.2d at 144.  Accordingly, we  cannot
conclude that the evidence as a whole leads unerringly and  unmistakably  to
a decision opposite that reached by the post-conviction court.
                                    III.
      Dewitt lastly contended before the post-conviction  court  that  there
was an inadequate factual basis for his plea because during the guilty  plea
hearing the prosecutor gave the  wrong  address  of  the  gas  station  that
Dewitt robbed.  The facts are these.  The State charged Dewitt with  robbing
a Martin Gas Station located at 900 Virginia Street in  Gary,  Indiana.   R.
at 10.  However, during the guilty plea hearing, the prosecutor stated  that
the Martin Gas Station was located at 8732 Northcote  in  Hammond,  Indiana.
R. at 26.   Dewitt  argues  that  because  the  prosecutor  gave  the  wrong
address, “[t]he evidence points only in the  direction  that  [he]  did  not
commit the crime to which he pled guilty.”  Br. of Appellant at 20.
      The post-conviction court made the following findings:
      At the guilty plea hearing, the factual basis was  laid  down  by  the
      deputy prosecuting attorney representing the  [S]tate  at  the  guilty
      plea hearing.  That factual basis as stated by the deputy  prosecuting
      attorney identified the gas station as being located at 8732 Northcote
      in Hammond, Lake County, Indiana, rather than at 900  Virginia  Street
      in Gary, Indiana.  The petitioner however admitted that he  did  break
      into the Martin station.  The defendant had also admitted to the trial
      court judge early in the guilty plea hearing that he fully  understood
      the charges against him. . . . At the end of the guilty plea  hearing,
      the trial court judge asked  the  defendant  several  other  questions
      about the  details  of  the  break-in,  such  as  the  fact  that  the
      petitioner was arrested at the scene.


R. at 147-48.
      A trial court may not accept a plea of  guilty  unless  it  determines
that a sufficient factual basis exists to support the plea.  Ind. Code § 35-
35-1-3(b).[1]  A factual basis exists  when  there  is  evidence  about  the
elements of the crime from which a trial  court  could  reasonably  conclude
that the defendant is guilty.  Rhoades v. State, 675 N.E.2d 698,  700  (Ind.
1996).  The factual basis of a guilty plea need not be established beyond  a
reasonable doubt.  Wilson v. State, 707  N.E.2d  318,  320  (Ind.  Ct.  App.
1999).  Rather, relatively minimal evidence can be adequate.   Rhoades,  675
N.E.2d at 700.  To be entitled  to  post-conviction  relief,  the  defendant
must prove that he was prejudiced by the lack of a factual  basis.   Eiland,
723 N.E.2d at 864.
      Our review of the guilty plea  hearing  shows  that  Dewitt  told  the
judge that he broke into a Martin Gas Station on May 31,  1978,  and  police
arrested him on the scene before he could take anything from the store.   R.
at 26-27.  Even though the prosecutor misstated the address,  this  evidence
is sufficient for a trial  court  reasonably  to  conclude  that  Dewitt  is
guilty.  Cf. Sangsland v. State, 715 N.E.2d 875, 878 (Ind.  Ct.  App.  1999)
(holding that where the date is not an element of  the  offense,  the  State
does not even need to prove  it),  trans.  denied;  Mishler  v.  State,  660
N.E.2d 343, 348 (Ind. Ct. App. 1996) (holding that a  variance  between  the
offense charged and the proof adduced at trial  only  requires  reversal  if
the
variance misleads the defendant in preparation of a defense  or  places  him
in danger of double jeopardy).   Therefore,  we  cannot  conclude  that  the
evidence as  a  whole  leads  unerringly  and  unmistakably  to  a  decision
opposite that reached by the post-conviction court.

                                 Conclusion

      We affirm the post-conviction court.

SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.

BOEHM, J., concurs as to parts I and III and concurs in result  as  to  part
II.
-----------------------
      [1]  At the time of Dewitt’s guilty plea in 1978, this  principle  was
codified at Indiana Code section 35-4.1-1-4 (1975).