Allen v. State

• Decision Date: 27 October 1986
• Docket Number: No. 185S33,185S33
• Citation: 498 N.E.2d 1214
• Parties: Ed ALLEN, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Supreme Court

Page 1214

498 N.E.2d 1214

Ed ALLEN, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 185S33.

Supreme Court of Indiana.

Oct. 27, 1986.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

Petitioner Ed Allen was initially charged with theft and forgery in cause number 6625 and armed robbery, burglary, and confinement in cause number 6631. Pursuant to a plea bargain, Allen pleaded guilty in 1982 to armed robbery and forgery and received consecutive sentences of twenty years and five years, respectively. The remaining charges were dismissed by the State.

In this appeal from denial of post-conviction relief, Allen argues that his pleas were not entered voluntarily and intelligently because the trial court did not advise him that prior convictions could result in the imposition of an increased sentence, as required by Ind.Code Sec. 35-4.1-1-3 (later repealed, now Ind. Code Sec. 35-35-1-2). Petitioner also alleges that counsel was ineffective for failing to request a change of venue and failing to assert the defense of intoxication.

As petitioner, Allen had the burden of establishing his grounds for relief by a preponderance of the evidence. Rule PC 1, Section 5, Ind. Rules of Procedure for Post-Conviction Remedies.

Evidence that the trial judge failed to give one of the statutory advisements does not sustain appellant's burden. Petitioner must establish specific facts from which the trier of fact could conclude by a preponderance of the evidence that the trial judge's omission rendered the decision to enter a guilty plea involuntary or unintelligent. White v. State (1986), Ind., 497 N.E.2d 893. To prevail on appeal from denial of post-conviction relief, Allen must satisfy this Court that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court. Lowe v. State (1983), Ind., 455 N.E.2d 1126.

At the guilty plea hearing the trial judge discussed with Allen the nature of the charges to which he was pleading guilty, the voluntariness of his decision, the rights which he was waiving, and the factual basis for his plea. The court imposed the sentence recited in the plea bargain. Given this evidence, the trial court found that Allen had not proven that his plea was involuntary and unintelligent. There was a substantial basis for this finding.

I. Guilty Plea

The plea agreement recited that it would be "submitted with the understanding that in the event the Court accepts the terms hereof they will be followed...." The agreement provided that

if the court accepts the Defendant's pleas of guilty, the defendant will be sentenced as follows.... on the class B felony, for a period of Ten (10) years, plus an additional Ten (10) years for aggravated circumstances, and a sentence of ... Five (5) years which second sentence shall run consecutive to and not concurrent with the first sentence.

At the guilty plea hearing the judge explained the difference between concurrent and consecutive sentences. The court explained to appellant that if he was on parole or probation that the guilty pleas might adversely affect parole or probation. The judge told Allen that if the court accepted the agreement it would accept all the terms. The judge also explained the penalties which could be imposed for each of the offenses initially charged should Allen decide to go to trial. The judge told Allen that there were presumptive prison terms to which the Court could add additional years for aggravating circumstances or subtract years for mitigating circumstances. Appellant told the court that he had discussed the sentencing provisions with his lawyer, believed that he fully understood them, and did not have any questions about the possible sentences. The only direct reference to the impact of prior felony convictions on the length of the sentence was the court's inquiry, "Do you understand you may have some prior felonies, you kind of gone through this before?" Appellant responded affirmatively. When the sentence was pronounced by the court, defendant did not object.

The trial court need not use the exact language of the statute when advising a defendant, provided the court conveys to defendant the idea underlying the statutory advisement. West v. State (1985), Ind., 480 N.E.2d 221. The purpose of Ind.Code Sec. 35-4.1-1-3(d) was to ensure that a criminal defendant is fully cognizant of the range of penalties prior to pleading guilty. Underhill v. State (1985), Ind., 477 N.E.2d 284. This Court has previously found that a defendant's awareness of the range of penalties is adequately conveyed upon less than the express statement that a sentence could be enhanced based upon prior convictions. Wright v. State (1986), Ind., 490 N.E.2d 732 (though defendant had a prior criminal history, the court could not enhance a determinate sentence; moreover, such enhancement would have violated the terms of the plea agreement. Accord, Stonebreaker v. State (1985), Ind., 476 N.E.2d 837; Houston v. State (1985), Ind., 480 N.E.2d 218 (trial court's explanation that parole status could be adversely affected by guilty plea conviction, a plea bargain agreement which provided for enhanced sentence, and appellant's acceptance of a sentence, partially based upon his prior criminal acts, without objection, warranted inference that he was duly informed of the adverse impact prior convictions could have on sentence length); Underhill, 477 N.E.2d 284 (appellant informed of sentence range, difference between concurrent and consecutive sentences, and that aggravating circumstances could increase the sentence).

The trial court sufficiently conveyed to Allen that prior convictions could enhance the length of his sentence. The trial judge informed Allen that if he entered a guilty plea, this conviction could adversely affect his parole status. Moreover, the plea bargain agreement recited that ten years were added due to aggravating circumstances, and the judge advised Allen that the presumptive...