On a plea of guilty to an affidavit charging assault and battery judgment was entered April 22, 1943, fining appellant $500 and sentencing him to imprisonment for six months at the Indiana State Farm. An order book entry of proceedings on the 10th day of May (during the same term of court) shows that he appeared by counsel who filed a verified motion grounded on many facts stated therein asking *Page 181 that the judgment be vacated and for permission to withdraw his plea of guilty and enter a plea of not guilty and that concurrently therewith notice of the filing was served upon the prosecuting attorney who at once appeared and objected to the granting of the relief prayed. The entry continues with the statement that the motion "is now submitted to the Court and the Court having heard the argument of counsel thereon, and being sufficiently advised in the premises, overrules said motion Exception to defendant. And the defendant now prays an appeal to The Supreme Court of Indiana, from the said judgment herein, which appeal is now granted . . ." A bill of exceptions incorporates the order book entry including the verified motion, after which appears the following:
"And Be It Further Remembered, that no other proceedings of any kind and no filing in said cause except as herein enumerated and set out were made in said cause; that no evidence was had or heard by the court on said matter, either oral or by verified written statement; that the State of Indiana by its Prosecuting Attorney filed no affidavit or paper of any kind; that said motion to set aside judgment and permit defendant to withdraw his plea of guilty and enter a plea of not guilty was submitted to the court, without having been read by either the court or the Prosecuting Attorney, and without knowledge on the part of either as to the contents of said motion and verified statement of facts attached thereto, other than as recited orally by counsel for the defendant in open court. . . ."
This bill of exceptions was signed by the judge who presided during all the prior proceedings.
The error assigned is the overruling of said motion. If the facts stated therein were true unquestionably *Page 182 the relief prayed in the motion should have been granted.
The Attorney General in a motion to dismiss the appeal asserted that "recitals of fact in a motion require proof the same as an allegation of fact in any other pleading or paper. It not appearing from the record what evidence, if any, was heard, there was nothing therefore in the record which affirmatively shows that the trial court erred in such ruling, and, therefore, the ruling must be presumed by the court to be correct." We overruled the motion. The Attorney General thereupon filed a short brief confessing error. He asserts therein that the prosecutor should have been required to file an answer to the verified motion and the court should have heard evidence on the issue formed by the motion and answer. He asks that the cause be remanded for such proceedings. In a reply brief appellant insists that the trial court should be ordered to vacate the judgment and accept his plea of not guilty. The character of the mandate is therefore our only problem.
A judgment on a plea of guilty has the same finality as any other judgment. The defendant may challenge its validity by motion during the term, by appeal, or, in certain cases, 1, 2. by writ of error coram nobis after the term has expired. But in either case the burden is upon him to establish the invalidating facts. State ex rel. Cutsinger v.Spencer (1941), 219 Ind. 148, 41 N.E.2d 601; State ex rel.Sawa v. Criminal Court of Lake County (1942), 220 Ind. 4,40 N.E.2d 97; Irwin v. State (1942), 220 Ind. 228, 41 N.E.2d 809. The issue raised by appellant's motion is whether the plea of guilty was "freely and understandingly made." Eagle v.State (1944), 221 Ind. 475, 48 N.E.2d 811. This is the question to be decided *Page 183 whether or not the prosecuting attorney files an answer or makes an oral objection. Perhaps there should be a rule prescribing the procedure but none now exists. In the absence thereof the pleading and proof of the issue must be governed by the procedure applicable to other similar issues presented by motion. If the evidentiary facts are admitted there may still exist a question as to their legal effect. If the facts are denied they must be proved. A verified motion raises the issue but does not tend to prove it, Soucie v. State (1941), 218 Ind. 215, 226, 31 N.E.2d 1016, 1021, unless such a pleading is submitted as evidence or treated as proof. Frequently an issue of fact is submitted and decided upon verified complaints and answers or upon affidavits and counter-affidavits. This is common practice in injunction and receivership cases. When so submitted uncontroverted facts appearing in the verified pleadings are treated as true and the trier resolves conflicts as he would in considering oral testimony. We find here no such submission or decision.
Ordinarily in an appeal there is no question as to what was determined below or the method by which it was determined. The usual inquiry is whether it was correctly determined. 3, 4. But this appeal is different. The record is unique. It shows that "no evidence either oral or written" was heard by the court. The only information received by the judge was the "argument of counsel" mentioned in the order book entry and the oral recital by counsel referred to in the bill of exceptions. Such a record precludes any possible contention that the issue presented by the motion was proved. It has been held that the phrase "being sufficiently advised in the premises" found in an order book entry of a ruling, imports that evidence has been considered, but here the assertions of the bill *Page 184 of exceptions negative any such assumption. Nor can we conclude from anything in the record that the facts stated in the motion were admitted. An astounding fact stated in the bill of exceptions signed by the judge is that neither he nor the prosecuting attorney ever read the motion. If the latter did not know what facts were averred in the motion surely he could not admit that they were true. Appellant's attorney doubtless prepared the bill of exceptions. It gives the impression, whether intentionally or not, that the judge and prosecuting attorney were almost completely ignorant of the contents of the motion. Appellant not only had the burden below but also in this appeal. We may not indulge any presumptions in his favor. So we may not conclude that the oral recital referred to in the bill of exceptions was adequate to advise either the judge or the prosecuting attorney of the facts stated in the motion or that such recital was accepted in lieu of evidence. In this peculiar situation we can only guess as to what was determined by the judge and how it was determined. It is clear only that he knew a motion to set aside the judgment was being filed and that, for some inexplicable reason, he thought it should be denied. The only issue raised by appellant's motion, namely, whether he freely and understandingly entered his plea, had no hearing and no judicial consideration. Until that issue is judicially determined in his favor his plea has the same force and effect as if his guilt had been found by the verdict of the jury. A mandate similar to that suggested by the Attorney General therefore seems proper under the unusual circumstances of this case.
Appellant's argument to the contrary is principally based upon the fact that in many cited cases this court, *Page 185 after holding that the trial court erred in overruling such 5. a motion, ordered the judgment to be set aside for a trial on plea of not guilty. In most of the cases cited the record showed a judicial determination of the issue below and the question for this court was whether the trial judge had abused his discretion. Eagle v. State, supra. All the cases recognize the rule that "where it appears from the record that the court's ruling was based on conflicting evidence which it was compelled to weigh to reach a conclusion" the reviewing court will not disturb the ruling. Dobosky v. State (1915),183 Ind. 488, 109 N.E. 742. Almost universally the opinions disclose either that the facts were admitted or were undisputed or that the circumstances under which the plea of guilty was entered were thoroughly canvassed in the first hearing and needed no further development by subsequent hearing. We have found no case where the form of the mandate was questioned in the appeal and none where the State, after the opinion was filed, sought to change the mandate on the ground that other compelling facts favorable to the trial court's action could be shown at a future hearing.
Of the cases cited Dobosky v. State, supra, is more nearly like the case at bar than any other that we have found. InMislik v. State (1915), 184 Ind. 72, 110 N.E. 551, the court says of the Dobosky case, "no evidence was heard on the presentation of the petition." This apparently was the fact for it is stated in the Dobosky opinion: "On the day last named, the matter was heard on appellant's verified petition and all the relief prayed for denied him." The circumstances under which Dobosky and Mislik on the same day pleaded guilty to the same charge are more fully disclosed in the Mislik opinion where the appeal followed *Page 186 a hearing at which evidence was introduced including the testimony of the chief of police and another policeman called by the State. The two cases were under consideration by this court at the same time and while Dobosky's appeal was first decided it may be assumed that this court was not unmindful of the desirability of a like result as to the two appellants. In theDobosky case the prosecuting attorney was given five days notice of the hearing and in that time could make up his mind as to the course by him to be pursued whereas in the instant case the motion was presented to the court at the same hour when notice was served on the prosecuting attorney. In the former case the prosecutor may have concluded that he could not controvert the facts appearing in the motion and therefore accepted them as true confining the hearing to argument as to the legal effect of the facts averred. In any event the case is distinguished from the case at bar in that no question was there presented as to the form of this court's mandate.
In Dobosky v. State, supra, it is said that: "No harm could have resulted to society or to the State by permitting a withdrawal of the plea of guilty . . ." But it is clear that such action would have put the State to the expense and trouble of a trial, and it is also conceivable in this case that even in the eighteen days between the entry of appellant's plea and his request for its withdrawal, important and perhaps vital evidence of guilt may have become unavailable. If the facts averred in appellant's motion are true, he was entitled to withdraw his plea regardless of the resultant "harm" or disadvantage to the State. But we are unable to see any sound reason for giving him the correlative advantage merely because the trial judge erroneously refused to attempt to ascertain the truth *Page 187 or falsity of the facts so alleged. A fair hearing to determine the facts will not harm appellant or put him at a disadvantage for if the issue is determined in his favor he will obtain the relief prayed. If it is determined against him he will have lost nothing to which he was entitled.
In ordering a hearing we do not intend to foreclose the right of the judge, without hearing, to set aside the judgment and grant appellant a trial upon his plea of not guilty. Both 6. the judge and the prosecuting attorney have a duty as officers of the court to accord to the accused his constitutional rights. There may be ways, without a hearing, for them to ascertain that the material facts alleged in appellant's motion are true. If so, there should be no hesitancy in granting the requested relief without a hearing. If the facts are disputed, the evidence, including the testimony of the judge as to facts within his personal knowledge, should be taken and recorded as a basis for subsequent review if the final ruling of the trial judge be adverse to appellant.
For error confessed this cause is remanded to the trial court for answer, submission of evidence, hearing and decision of the issue tendered by appellant's motion and for further proceedings in conformity with this opinion.
SWAIM, J., dissents.