Allred v. State

• Decision Date: 29 January 1965
• Docket Number: No. 30451,30451
• Citation: 246 Ind. 359,203 N.E.2d 830
• Parties: Stanley R. ALLRED, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 830

203 N.E.2d 830

246 Ind. 359

Stanley R. ALLRED, Appellant, v. STATE of Indiana, Appellee.

No. 30451.

Supreme Court of Indiana.

Jan. 29, 1965.

Patrick N. Ryan, of Ryan & Welchons, Marion, for appellant.

Edwin K. Steers, Atty. Gen., David S. Wedding, Deputy Atty. Gen., for appellee.

LANDIS, Judge.

This appeal is from the judgment denying appellant's motion to vacate the previous judgment of conviction of larceny by shoplifting ¹ which had been entered by the court upon appellant's plea of guilty.

Appellant's verified motion to vacate judgment filed in the lower court was as follows:

'* * * the defendant in the above-entitled cause * * * being duly sworn upon his oath deposes and says:

'1. By affidavit dated March 19, 1962, he was charged herein with larceny by shoplifting for allegedly stealing an $18.99 radio.

'2. At his arraignment, he pleaded not guilty and asked for trial by jury.

'3. Sometime before March 12, 1963, the prosecutor for this judicial circuit acting for the State of Indiana and the defendant's attorney agreed that in the interests of justice if the defendant would change his plea to guilty of this offense said prosecutor would recommend a suspended sentence. The honorable judge was aware of this and concurred in the matter. This was represented to the defendant who on said March 12, 1963, changed his plea to guilty.

'4. On May 15, 1963, when the less than talented probation officer has submitted a paper purporting to be a presentence investigation, the Court acting on the same sentenced the defendant to the Indiana State Farm for a period of 90 days and fined him the maximum of $200.00. Said paper was nothing more than a story based on irrelevant heresay [sic]. Actually the defendant had a very minor criminal record.

'5. That he is not guilty of the crime charged as he previously informed the Court at his arraignment and he only changed his plea after hearing of the above representations.

'WHEREFORE, defendant moves the court to vacate its judgment herein, to withdraw his plea of guilty and enter his plea of not guilty and stand trial by jury.'

The State filed nothing in opposition to the motion to vacate judgment and the court denied the same without a hearing of evidence upon the allegations therein contained, the record merely showing the said motion was filed, submitted and denied on May 16, 1963.

Appellee (The State) has conceded in its brief that if appellant's motion to vacate judgment and withdraw the guilty plea were uncontroverted, its allegations should be accepted as true, but appellee contends such allegations were already contradicted by appellant's statements under oath in open court at the time appellant entered his plea of guilty to the charge. Appellee cites the following:

'Q. Is your present plea done freely and voluntarily?

'A. Yes.

'Q. No pressure, no duress in any form for you to make the change of plea; no promises of leniency, on the other hand?

'A. No promises.'

Appellee further cited the court's statement to appellant at such time that if he expected leniency, he should start tehing the truth.

In reviewing the question of whether the lower court abused its discretion in denying appellant's motion to vacate judgment and withdraw the guilty plea, it can be said that if there is a conflict in the evidence, and there is substantial evidence indicating appellant was fully advised of his rights, that his plea of guilty was freely and understandingly entered, and that at the time appellant entered his plea of guilty he freely and...