Patton v. State

Attorneys for Appellant Attorneys for Appellee

Daniel M. Grove Steve Carter
Special Assistant to the Attorney General of
Indiana
Public Defender of Indiana Indianapolis, IN
Indianapolis, IN
Ellen H. Meilaender
Deputy Attorney General
Indianaplis,IN
____________________________________________________________________________
__

In the

Indiana Supreme Court
_________________________________

No. 49S02-0309-PC-402

Keith Patton,
Appellant (Defendant below),

v.

State Of Indiana
Appellee (Plaintiff below).
_________________________________

Appeal from the Marion County Superior Court,
No. CR83-232D
The Honorable Patricia Gifford, Judge
_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No.49A02-0211-PC-
975 _________________________________

June 22, 2004

Sullivan, Justice.

Keith Patton pled guilty to attempted murder without knowing that
specific intent to kill was an element of that offense. A defendant who
pleads guilty need not be aware of each of the elements of the offense so
long as the defendant receives real notice of the true nature of the charge
or that the absence of such notice is harmless beyond a reasonable doubt.
However, there is no evidence that Patton received such notice with respect
to the attempted murder charge or that he acted with specific intent to
kill. We hold that under these circumstances, his guilty plea was invalid.
Patton’s sentence of 192 years for his other convictions remains in
effect.

Background

On October 22, 1983, 17-year-old Keith Patton, armed with a sawed-off
shotgun, and Leroy Johnson, both intoxicated, came upon a parked automobile
in which a young man was in the driver's seat and a young woman beside him.
Patton fired a shot into the driver’s side window that seriously injured
the passenger, Dietra Maxey. Patton subsequently fired a second shot, also
through the driver’s side window. This shot killed the driver, Michael
Pack. Patton and Johnson then sexually assaulted Maxey.

On June 1, 1984, Patton pled guilty to the offenses of murder (of
Pack), attempted murder (of Maxey), rape, criminal confinement, three
counts of criminal deviate conduct, and dealing in a sawed-off shotgun. At
the sentencing hearing on July 31, 1984, Patton admitted killing Pack but
he denied that he had had any intent to kill Pack. The trial court
sentenced Patton to death for the murder of Pack, to 30 years for rape, and
to an additional 132 years for the other crimes.[1]

Patton appealed his convictions for murder and rape only to this
court. (He did not appeal his convictions for attempted murder and the
other offenses.) We held that it had been improper for the trial court to
accept Patton’s guilty plea to murder when he had denied that he had had
any intent to kill Pack. We reversed the murder conviction, vacated the
death sentence, and remanded the case with instructions to retry the murder
count and re-sentence Patton on the rape count. Patton v. State, 517
N.E.2d 374 (Ind. 1987). After remand, the murder and rape charges were
tried to a jury. Patton was convicted of both murder and rape and received
a sentence of 90 years imposed consecutive to the sentences imposed for
attempted murder and the other offenses, bringing the total sentence to 222
years. These convictions and sentences were affirmed on appeal. Patton v.
State, 588 N.E.2d 494 (Ind. 1992).[2]

In 1996, Patton filed a petition for post conviction relief from the
murder, attempted murder, and other convictions. The petition was denied.
Patton filed this appeal, making the following claims:

1. Patton’s guilty plea to attempted murder was not knowing,
voluntary, and intelligent;

2. Our court's earlier reversal of the murder conviction
invalidated Patton’s guilty plea to the other offenses to which
he pled guilty;

3. Several of Patton’s convictions were invalid because they
violated double jeopardy; and

4. Patton’s murder conviction should be reversed because trial
counsel made improper statements regarding Patton’s guilty plea
during voir dire in the jury trial.

Patton v. State, 789 N.E.2d 968, 976 (Ind. Ct. App. 2003).

The Court of Appeals accepted the first of these four claims, finding
that Patton’s guilty plea to attempted murder was not knowing, voluntary,
and intelligent because he was not sufficiently aware that specific intent
to kill the victim was an element of the offense. Id. at 976. The State
has petitioned to transfer, seeking review of this determination. We will
discuss this issue infra. The Court of Appeals rejected Patton’s three
remaining claims. Id. at 973-74, 976. Patton has also petitioned to
transfer, seeking review of these determinations. We grant transfer and
summarily affirm the opinion of the Court of Appeals on these three issues.
See Ind. Appellate Rule 58(A)(2).

Discussion

I

In order to accept a guilty plea consistent with applicable law, the
trial court must determine that a defendant is aware of the nature of the
charge to which he or she is pleading guilty. Henderson v. Morgan, 426
U.S. 637 (1976); Ind. Code § 35-35-1-2(a)(1). There has been confusion
over the extent to which, in order for a defendant to be aware of the
nature of the charge, the defendant must be advised of and understand each
element of the charge at the time defendant pleads guilty.

Our analysis starts with Henderson v. Morgan. In that case, a
petitioner for habeas corpus relief sought to have his conviction for
second-degree murder vacated on grounds that his guilty plea was
involuntary because, inter alia, he had not been aware that intent to cause
death was an essential element of the offense. The district court granted
habeas relief, finding that the petitioner had not been advised by counsel
or the state court that an intent to cause death was a central element of
second-degree murder. The Supreme Court also granted relief, holding that
because the petitioner had not received "adequate notice of the offense to
which he pleaded guilty, his plea was involuntary and the judgment of
conviction was entered without due process of law." Id. at 647.

The Supreme Court went on to say three things of consequence to the
issue of whether a defendant must be advised of and understand each element
of the charge at the time the defendant pleads guilty.

First, the Court said, "There is no need in this case to decide
whether notice of the true nature, or substance, of a charge always
requires a description of every element of the offense; we assume it does
not. Nevertheless, intent is such a critical element of the offense of
second-degree murder that notice of that element is required.” Id. at 647,
n. 18.

Second, the Court seemed to hold that, where the record of the guilty
plea proceeding does not contain a complete enumeration of the elements of
the offense to which an accused person pleads guilty, “either an
explanation [in the record] of the charge by the trial judge, or at least a
representation by defense counsel that the nature of the offense has been
explained to the accused” would be sufficient to satisfy the requirement
that the defendant receive notice of the true nature, or substance, of a
charge.” Id. at 646-647. “Moreover, even without such an express
representation, it may be appropriate to presume that in most cases defense
counsel routinely explain the nature of the offense in sufficient detail to
give the accused notice of what he is being asked to admit. This case is
unique because the trial judge found as a fact that the element of intent
was not explained to respondent.” Id. at 647.

Third, the Court made clear that any error in providing the requisite
notice is subject to harmless error analysis. Id. at 647. Because any
error in this regard would be of constitutional dimension, however, it
would have to be harmless beyond a reasonable doubt to avoid reversal.
Id.; see Chapman v. California, 386 U.S. 18 (1967).

After Henderson v. Morgan, our court has had three occasions to
address the issue of whether a defendant must be advised of and understand
each element of the charge at the time the defendant pleads guilty.

The first of these three is our opinion in DeVillez v. State. Among
the claims raised by the petitioner seeking post-conviction relief in that
case was that the trial court at the guilty plea proceeding had failed to
advise her of the elements of the charge of first degree murder to which
she had pled guilty. 275 Ind. 263, 267, 416 N.E.2d 846, 849 (Ind. 1981).
Justice DeBruler wrote for a unanimous court that, at the guilty plea
hearing, the petitioner had made a factual statement and tendered a written
admission in which she had "flatly, unmistakably and completely admit[ted]
facts which permit[ted] of only one appraisal, namely that it [was] an
admission of each element" of the charged offense. Id. The opinion went
on to say that “[s]uch a voluntary admission by the accused of each element
of an offense is sufficient as a basis for the plea judge's determination
that the accused is aware of the true nature of the charge against her and
comports with due process." Id. (citing Henderson v. Morgan, 426 U.S. 637
(1976)).

The DeVillez court agreed with the petitioner that the guilty plea
statute required that there be a rational basis for the judge's
determination that the accused understands the nature of the charge. But
the court "reject[ed] the position of [the petitioner] that such
requirement can only be satisfied by an advisement by the court of the
separate elements of the offense. That, of course, remains one good way to
make the determination, and we encourage it.” DeVillez, 275 Ind. at 267,
416 N.E.2d at 849.

The second is Coker v. State. Among the claims raised by the
petitioner seeking post-conviction relief in that case was that her guilty
plea to the offenses of criminal confinement and robbery was not entered
knowingly, intelligently, and voluntarily because the trial court did not
advise her of the elements of those offenses. 499 N.E.2d 1135, 1137 (Ind.
1986). Chief Justice Givan wrote that while the statute governing guilty
pleas “requires that a defendant entering a plea of guilty understand ‘the
nature of the charge against him,’ the statute does not … require that the
defendant understand the elements of that charge.” Id. Post-conviction
relief on this claim was denied because it was “apparent from the record
that [petitioner] did understand the charges against her.” Id. (Neither
Henderson v. Morgan nor DeVillez was mentioned in Coker. Although Justice
DeBruler (the author of DeVillez) dissented in Coker, he did not explain
the reason for his dissent.)

The third case is Sanders v. State. The post-conviction court had
held that the petitioner’s guilty plea to the offense of involuntary
manslaughter had not been knowingly, voluntarily, and intelligently entered
because, inter alia, he had not been advised of the specific elements of
the offense to which he pled guilty. 596 N.E.2d 225, 227 (Ind. 1992). In
the course of finding that there had been insufficient evidence to sustain
the post-conviction court’s holding, Justice Krahulik wrote for a unanimous
court that the “undisputed evidence from the transcript of the guilty plea
hearing satisfies the constitutional requirement set forth in Henderson v.
Morgan that Sanders was aware of the elements of the offense of involuntary
manslaughter when he pled guilty. See DeVillez." Id. at 228 (citations
omitted; emphasis supplied). (Coker was not mentioned in Sanders, an
opinion in which Justice Givan (the author of Coker) concurred.)

This brings us to the decision of the Court of Appeals in Howse v.
State, a case that, as the State noted at oral argument, is similar to the
case before us. 672 N.E.2d 441 (Ind. Ct. App. 1996), transfer denied. In
Howse, the petitioner in post-conviction proceedings sought to set aside a
plea of guilty to the offense of attempted murder on grounds that he did
not understand the nature of the charge to which he pled guilty.
Specifically, he argued that because he did not understand that the offense
of attempted murder requires proof that a defendant acted with the specific
intent to kill, he did not understand the nature of the offense to which he
pled guilty. Id. at 443.

The Court of Appeals discussed DeVillez, Coker, and Sanders, noting
the differences among the three. It concluded that it was required to
follow Sanders, the most recent of the three decisions, and concluded that
Sanders stood for the proposition that awareness of the elements of the
offense was required. Observing that Sanders had been resolved by looking
at the evidence presented at the guilty plea hearing and concluding that
Sanders had been aware of the elements of the offense to which he pled
guilty, the court examined the facts surrounding Howse's guilty plea and
reached the same conclusion. Id. at 444.

Judge Sullivan dissented in Howse. He discussed the "relative
complexity inherent in the crime of attempted murder," namely, "the
subtleties of the specific intent to kill requirement" and concluded that
the petitioner's guilty plea was not shown to have been made knowingly or
intelligently because "there was no suggestion that [he] was even remotely
aware that before he could be convicted of attempted murder the State would
have had to prove that" he had acted with the specific intent to kill. Id.
at 445.

This brings us to Patton’s case. In it, the Court of Appeals followed
the template set forth in Howse. That is, it started with the proposition
that Patton was required to be aware of the element of specific intent and
that this awareness could be shown by looking at the evidence presented at
the guilty plea hearing. But unlike Howse, where the Court of Appeals
concluded that Howse's admission of guilt at the guilty plea hearing was
sufficient to establish his awareness of the element of specific intent,
the Court of Appeals found here that the evidence presented at Patton's
guilty plea hearing was not sufficient to establish his awareness of the
element of specific intent. Here is the Court of Appeals analysis of the
evidence presented at the guilty plea hearing:

In this case, Patton was never told that the State, in order to
obtain a conviction for attempted murder, would have to prove that
Patton specifically intended to kill Maxey when he shot into the
vehicle. Moreover, while the prosecutor read the charging information
to Patton, the information alleged only that Patton "knowingly" tried
to kill Maxey. His verbal acknowledgment of the truth of the
allegation therefore did not establish his awareness of the specific
intent to kill requirement. Further, unlike in Howse, Patton's
understanding of this element was not supported by an acknowledgement
of guilt on the basis of facts giving rise to the inference that
Patton specifically intended to kill Maxey. Patton admitted to
shooting into the vehicle but never acknowledged that he shot at Maxey
or that he knew Maxey was in the vehicle when he shot.

Thus, Patton was not sufficiently aware that the State had to
prove his specific intent to kill Maxey, and he therefore did not
sufficiently understand the nature of the charge to which he pleaded
guilty. We therefore reverse the denial of post-conviction relief on
this ground and remand with instructions to grant Patton a new trial
on the attempted murder charge.

Patton, 789 N.E.2d at 975-976.

II

The State seeks transfer in this case, asking for a declaration of the
extent to which a defendant must be advised of and understand each element
of the charge at the time defendant pleads guilty. It argues that the
Court of Appeals was wrong in Howse and in this case to find a
constitutional requirement that a defendant be aware of the elements of the
offense to which the defendant pleads guilty. Rather, the State contends,
this Court's opinion in Coker accurately stated the law when it concluded
that while a defendant must understand the nature of the charge, that does
not require the defendant to understand the elements of that charge.

We believe that two levels of analysis are required here. As a matter
of federal constitutional law, Henderson v. Morgan controls. We believe
that that case stands for four principles of relevance here:

(1) that a defendant has a constitutional right to "'real notice
of the true nature of the charge'" to which the defendant pleads
guilty, Henderson v. Morgan 426 U.S. at 645 (quoting Smith v. O’Grady,
312 U.S. 329 (1941);

(2) that that right will have been honored where the record of
the guilty plea hearing "contains either an explanation of the charge
by the trial judge, or at least a representation by defense counsel
that the nature of the offense has been explained to the accused[;]
even without such an express representation, it may be appropriate to
presume that in most cases defense counsel routinely explained the
nature of the offense in sufficient detail to give the accused notice
of what he is being asked to admit,” Henderson v. Morgan 426 U.S. at
647;[3] and

(3) where intent is "a critical element of the offense...,
notice of that element is required,” Id. at 647, n. 18.

(4) even where the notice required has not been given and cannot
be presumed, a defendant is not entitled to relief if the error is
harmless beyond a reasonable doubt. Id.; see Chapman v. California,
386 U.S. 18 (1967).

For purposes of the issue presented in Patton’s case, we hold that
failure of notice that specific intent is an element of attempted murder
will constitute harmless error, i.e., be harmless beyond a reasonable
doubt, where during the course of the guilty plea or sentencing
proceedings, the defendant unambiguously admits to, or there is other
evidence of, facts that demonstrate specific intent beyond a reasonable
doubt.

As a matter of state law, the Legislature has prescribed that:

The court shall not accept a plea of guilty or guilty but
mentally ill at the time of the crime without first determining that
the defendant: (1) understands the nature of the charge against him; …
Any variance from the requirements of this section that does not
violate a constitutional right of the defendant is not a basis for
setting aside a plea of guilty.

Ind. Code § 35-35-1-2(a) & (c). Given the explicit language of this
statute, we hold that it does not impose any greater obligations on the
court receiving a guilty plea nor confer any greater rights on a defendant
pleading guilty than those imposed and provided in Henderson v. Morgan.

III

In many and perhaps most cases in which the issue of notice of the
elements of an offense to which a defendant pleads guilty, “intent” will
not be a critical element of the offense. See, e.g., DeVillez, 275 Ind.
263, 416 N.E.2d 846, and Coker, 499 N.E.2d 1135, discussed supra. Except a
critical element of the offense, we believe that Henderson v. Morgan does
not require notice of the element to satisfy the due process mandate of
“real notice of the true nature of the charge.” However, for the following
reasons, we believe that the specific intent element of attempted murder is
a "critical element of the offense" to which Patton pled guilty within the
meaning of Henderson v. Morgan such that notice of the element was
required.

A quarter-century ago, we explained the importance of a defendant
possessing the specific intent to kill as a necessary element of attempted
murder. Zickefoose v. State, 270 Ind. 618, 622, 388 N.E.2d 507, 510
(1979). Shortly after Patton committed the crimes that are the subject of
this proceeding -- but before he entered his guilty plea -- we explained
that an instruction that correctly sets forth the elements of attempted
murder requires an explanation that the act must have been done with the
specific intent to kill. Smith v. State, 459 N.E.2d 355, 358 (Ind. 1984).
In 1991, we reaffirmed that attempted murder instructions must include the
required mens rea of specific intent to kill. Spradlin v. State, 569
N.E.2d 948, 950 (Ind. 1991) (holding that to convict a defendant of
attempted murder, the defendant must have intended to kill the victim at
the time that the defendant took a substantial step toward committing
murder). And in Simmons v. State, 642 N.E.2d 511 (Ind. 1994), a post-
conviction case, we granted relief on grounds that the petitioner's jury
had not been instructed that specific intent was an element of attempted
murder in a case in which judgment was entered prior to the date of
Patton's guilty plea.

The post-conviction court denied Patton relief on his claim. In the
appellate review of a post-conviction court's negative judgment denying
post-conviction relief, our role is to determine whether the undisputed
evidence, subject to the post-conviction court's opportunity to judge
credibility, unerringly and unmistakably leads us to an opposite
conclusion. Spranger v. State, 650 N.E.2d 1117, 1121 (Ind. 1995). The
post-conviction court made two findings on the subject:

1. “The evidence indicates that neither the court nor Patton's attorney
specifically advised Patton of the element of specific intent.”

2. “[T]here is adequate evidence from the record of the guilty plea
proceeding to infer that Patton was aware of the elements of the
offense of attempted murder. As in Sanders and Howse, Patton admitted
to a factual basis which supported a specific intent to kill.”

(App. to Br. of Pet’r-Appellant at 138-139.) The evidence in the record is
without conflict in support of the first of these two findings. During the
post-conviction hearing, Patton's post-conviction counsel asked Patton's
trial counsel, "So would it be fair to say that you would not have advised
Keith that in order for him to be guilty of the attempted murder of Deitra
Maxey that he had to have specifically intended to kill her?" Trial
counsel responded, "I'm sure I didn't." P-C Tr. at 25. [4]

As part II, supra, makes clear, where a defendant has not been given
notice of the specific intent element of attempted murder and notice cannot
be presumed, the defendant will nevertheless not be entitled to relief
where the defendant, during the course of the guilty plea or sentencing
proceedings, unambiguously admits to, or there is other evidence of, facts
that demonstrate specific intent beyond a reasonable doubt. However, the
post-conviction court here does not set forth any of the facts from which
it draws its second conclusion that there is "adequate evidence... to infer
that Patton was aware of the elements of the offense of attempted murder."
There are simply no findings of fact by the post-conviction court to
support this conclusion – a conclusion that falls short of the beyond-a-
reasonable doubt standard.

In its brief, the State argues:

In this case, Petitioner acknowledged that he approached the car
with a shotgun, pointed the gun at the window, and fired into the car,
striking in seriously injuring Maxey. Petitioner also acknowledged
that when Pack attempted to drive away, he fired a second shot into
the car which struck and killed Pack, and that he proceeded to force
Maxey to engage in several sexual acts with him.

[State's] Petition for Transfer at 6 (citations to record omitted). We do
not find anything in these three sentences that support a finding of
specific intent beyond a reasonable doubt. The first sentence omits the
crucial fact that the shot that seriously injured passenger Maxey was fired
through the driver’s side. The second two sentences contribute nothing in
the way of information about Patton’s mental state when he fired the shot
that injured Maxey.

In sum, neither the post-conviction court’s findings nor the State’s
brief provide us with any evidence that Patton acted with the specific
intent to kill Maxey. Nor does our own review of the evidence at the
guilty plea or sentencing hearings. And even if an inference of specific
intent could be drawn from the post-conviction court’s findings, the
State’s brief, or our own review of the evidence at the guilty plea and
sentencing hearings, such an inference falls well short of demonstrating
specific intent beyond a reasonable doubt.

We start with the relevant excerpt from the guilty plea hearing:

The Court: Alright, Keith, now I have six more Counts here to
read to you that you will be, by virtue of changing your plea,
admitting to.... Keith Patton, on or about the 22nd day of October,
1983, in Marion County, Indiana, Count I, did knowingly attempts to
commit the crime of Murder by knowingly attempting to kill another
human being, Deitra Maxey, by shooting at and against the person of
Deitra Maxey by means of a deadly weapon, a shotgun, which constituted
a substantial step toward the commission of said crime of Murder....
Those six Counts, … you will be admitting as true those facts. Is
that what you want to do, Keith? You want to admit that as true?

(Supp. Alsip R. at 18, 21.) Patton answered, "Yes." We think it apparent
that there is nothing in this dialogue from which any inference of specific
intent can be drawn.

Second, we, like the Court of Appeals, have been unable to locate
anything in the record indicating that Patton ever acknowledged shooting at
Maxey or even knowing that Maxey was in the vehicle when he shot. Patton,
789 N.E.2d at 975-976.

Finally, we note that at his sentencing hearing, Patton admitted that
he had killed Pack but denied that he had killed him intentionally. We
reversed the trial court's acceptance of Patton's guilty plea. While not
compelled as a matter of logic, it seems to us likely that just as Patton
denied intentionally killing Pack when questioned on the intent element of
the offense of murder, Patton would have denied specifically intending to
kill Maxey if he had been on notice of the specific intent element of the
offense of attempted murder.

The earlier-mentioned fact that the shot that seriously injured
passenger Maxey was fired through the driver’s side, (Supp. Alsip R. at
38), lends support to our conclusion in each of the three preceding
paragraphs.

At the time Patton pled guilty to the offense of attempted murder, he
did not know that specific intent to kill was an element of the offense.
And we find nothing in the findings of the post-conviction court or in our
own review of the evidence that would support a conclusion that Patton
acted with specific intent to kill when he fired the shot that injured
Maxey. We find that the undisputed evidence leads us to a conclusion
opposite that of the post-conviction court and that Patton's guilty plea to
the offense of attempted murder did not comport to Henderson v. Morgan's
mandate that Patton receive "real notice of the true nature of the charge
against him," 426 U.S. at 645.

Conclusion

We grant transfer, summarily affirm portions of the opinion of the
Court of Appeals as set forth under Background, supra, and affirm the
judgment of the post-conviction court except that Patton’s conviction and
sentence for attempted murder are vacated. Patton’s sentence of 192 years
for his other convictions remains in effect. This case is remanded to the
trial court for further proceedings consistent with this opinion.

Shepard, C.J., Dickson, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Patton was sentenced to 30 years for Attempted Murder, 30 years for
each count of Criminal Deviate Conduct, 10 years for Confinement, 2 years
for Dealing in a Sawed Off Shotgun, all sentences to run consecutively.
[2] The murder prosecution was also the subject of another opinion of this
Court. See State ex rel. Patton v. Superior Court, 547 N.E.2d 255 (Ind.
1989).

[3] The Supreme Court has subsequently held that providing a defendant with
a copy of the indictment gives rise to a presumption that the defendant was
informed of the nature of the charge. Bousley v. United States, 523 U.S.
614, 618 (U.S. 1998) (citing Henderson v. Morgan, 426 U.S. at 647).

[4] There are five separately numbered records in this case. Materials
from two of those records are referenced in this opinion. The transcript
of the post-conviction proceeding that is the subject of this appeal is
referred to as the Post –Conviction Transcript (P-C Tr.). The record of
the initial guilty plea and sentencing proceedings that took place before
Judge Thomas E. Alsip are referred to as the Supplemental Alsip Record
(Supp. Alsip R.).