Alston v. State

• Decision Date: 25 April 1988
• Docket Number: No. 49A02-8612-PC-428,49A02-8612-PC-428
• Citation: 521 N.E.2d 1331
• Parties: Byron Q. ALSTON, Petitioner-Appellant, v. STATE of Indiana, Respondent-Appellee.
• Court: Indiana Appellate Court

Page 1331

521 N.E.2d 1331

Byron Q. ALSTON, Petitioner-Appellant, v. STATE of Indiana, Respondent-Appellee.

No. 49A02-8612-PC-428.

Court of Appeals of Indiana,

First District.

April 25, 1988.

Rehearing Denied June 9, 1988.

Susan K. Carpenter, Public Defender, Hope Fey, Deputy Public Defender, Indianapolis, for petitioner-appellant.

Linley E. Pearson, Atty. Gen., Cheryl L. Greiner, Deputy Atty. Gen., Indianapolis, for respondent-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

Petitioner-appellant, Byron Q. Alston (Alston), appeals the denial by the Marion Superior Court, Criminal Division Two, of his petition for relief under Ind. Rules of Procedure, Post-Conviction Rule 1.

We affirm.

STATEMENT OF THE FACTS

Alston, age 18 years, was charged by Information on January 11, 1982, with two Class A felonies. He was charged in Count I with kidnapping while armed with a deadly weapon (a knife), and in Count II, he was charged with robbery with a deadly weapon (a knife), resulting in bodily injury. The presumptive sentence for a Class A felony is 30 years, to which could be added 20 years for aggravating circumstances and from which could be subtracted 10 years for mitigating circumstances.

After extensive discovery, a written plea agreement was entered into and signed by Alston and his attorney, the terms of which provided that he would enter a plea of guilty to simple robbery, a Class B felony, and the State would recommend an executed sentence of 10 years. The presumptive sentence for a Class B felony is 10 years, to which could be added 10 years for aggravating circumstances and from which could be subtracted 4 years for mitigating circumstances. The plea agreement recited that Alston understood that he had a right to: (1) a public trial by jury; (2) confront and cross-examine the witnesses against him; (3) have compulsory process for obtaining witnesses; and (4) require the State to prove his guilt beyond a reasonable doubt. In addition, he acknowledged that he understood; (5) that by entering a plea of guilty he would waive these rights; (6) that by entering a plea of guilty, he would admit to the truth of the facts stated in the Information; (7) that he was satisfied with his attorney; and (8) that he believed that entering a plea of guilty was in his best interest.

At the guilty plea hearing, wherein he was accompanied by his attorney, Alston acknowledged that he had attended school twelve years and lacked only one credit from graduating. He stated that he could read and write, had read the plea agreement, initialed each of its provisions, discussed it with his attorney, and understood it. In answer to the trial court's questions, he stated that he understood his rights, had no complaint against his attorney, and entered into the plea agreement of his own free will. The court read to him the Information and advised him of the presumptive, maximum, and minimum penalty for simple robbery. The trial court further advised him that by his plea of guilty, Alston was giving up his right to a jury trial, right to subpoena and cross-examine witnesses, right to remain silent, right to have the State prove his guilt beyond a reasonable doubt, and if he went to trial, he would not be required to prove anything. Alston acknowledged that he understood these advises.

The trial court made a factual determination which disclosed that Alston approached a 24-year-old woman in the Lafayette Square parking lot at 2:15 p.m., flashed a butcher knife at her, shoved her into her car, got in, and drove off with her. Acquiescing to his threats, she agreed to cash a check at a bank drive-in. The first drive-in refused, but the second drive-in bank cashed her check. Alston then put her out of the car and left with it, her money, her purse, and her other personal belongings. Later he was caught driving the victim's automobile.

The pre-sentence investigation report reflected that Alston had a juvenile record consisting of arson, two instances of theft, disorderly conduct, public intoxication On April 22, 1982, Alston filed a pro se petition for shock probation which was denied. On July 8, 1982, he filed a petition to modify his sentence which was also denied. His motion to reconsider that latter petition, filed on August 26, was likewise denied.

criminal trespass, shoplifting, conspiracy to commit robbery, resisting arrest, and robbery. On April 10, 1982, in accordance with the plea agreement, the court imposed the agreed presumptive sentence of 10 years.

On October 7, 1982, Alston, pro se, filed a post-conviction petition, denominated by us as PCR I, which alleged: (1) misconduct of his attorney at trial; (2) incompetency of his attorney at trial; (3) violation of his constitutional rights; and (4) he did not understand the proceedings. After several continuances requested by Alston, then represented by a public defender, the petition was heard on December 2, 1982, and denied. Through the public defender's office, Alston filed his petition for leave to file a belated motion to correct errors on PCR I on June 28, 1983, which was granted. However, the belated motion to correct errors was denied, and the ensuing appeal questioning counsel's performance during plea negotiations was denied on September 6, 1984 in Alston v. State, 467 N.E.2d 809 (Ind.App.), an unpublished opinion.

Meanwhile, on April 22, 1983, Alston had filed yet another pro se petition for sentence modification which was denied.

After the opinion on PCR I was handed down, Alston, on April 8, 1984, through the public defender's office, filed another petition for post-conviction relief denominated by us as PCR II charging: (1) denial of due process; (2) misconduct of the prosecuting attorney; (3) violation of the 5th, 6th, and 14th amendments; and (4) that his confession was coerced. After PCR II was set for hearing on December 13, 1984, and he was transported to the Marion County Jail, Alston, on December 7, 1984, dismissed PCR II without prejudice. On that same day he filed yet another post-conviction petition denominated by us as PCR III, in which he charged: (1) misconduct of his attorney at trial; (2) incompetency of counsel; (3) violation of his constitutional rights; and (4) he did not understand the proceedings. After continuances sought by Alston, he dismissed PCR III without prejudice on March 8, 1985.

Finally, on March 6, 1986, he filed, pro se, the petition for post-conviction relief here under consideration, which we shall denominate as PCR IV. In PCR IV he alleges: (1) he wanted his prison sentence reduced; (2) he was promised 8 years instead of 10 years by his attorney; (3) he had served 5 out of 10 years; and (4) he did not understand the proceedings. After the public defender's office appeared in his behalf, PCR IV was amended to add that the guilty plea was not entered freely and voluntarily because the trial court had not advised him; (5) that the court was not a party to the plea agreement and was not bound by it; (6) that the plea of guilty acted as an admission of the facts alleged in the Information; and (7) that by entering a plea of guilty he waived his right to a public and speedy trial. After a hearing conducted on August 18, 1986, PCR IV was denied. It is to be noted that the plea agreement contained a sentence initialed by Alston, which advised him of his right to a public trial by jury, and that if he pleaded guilty he would be admitting the facts alleged in the Information. At the guilty plea hearing, the trial court advised him of his right to a jury trial.

ISSUES

Alston raises three issues which we will discuss together. They are as follows:

I. Whether Alston's conviction for robbery violated due process of law as guaranteed by the sixth and fourteenth amendments to the U.S. Const., art. I, Secs. 12 and 13 of the Indiana Const., and Indiana law.

II. Whether the lower court erred by concluding Alston was afforded the effective assistance of counsel during previous post-conviction proceedings.

III. Whether the lower court erred and abused its discretion by finding Alston

had waived his grounds for post-conviction relief.

DISCUSSION AND DECISION

Alston first claims that at the guilty plea hearing the trial court failed to give him the advisements required by IND.CODE 35-4.1-1-3 by not informing him of the three advisements contained in allegations (5), (6), and (7) of PCR IV set forth above. He correctly argues that under German v. State (1981), Ind., 428 N.E.2d 234, such omissions would be fatal requiring that the guilty plea be set aside. However, German has been superceded by White v. State (1986), Ind., 497 N.E.2d 893 which eased the draconian requirements of German. White places an additional burden on a defendant to show that the omitted advisements prejudiced him. He is now required to allege and prove that his plea would have been different had he known and understood the advisements. This Alston has not done. White is retroactive and governs matters occurring in the time frames involved here. Patton v. State (1987), Ind.App., 507 N.E.2d 624. In fact, White itself had retroactive application.

Alston next claims that PCR I was filed, determined, and appealed during a time that the rule in German prevailed. Therefore, if counsel, also from the public defender's office, had raised these three omitted advisements required by IND.CODE 35-4.1-1-3, PCR I would have been successful. Therefore, counsel in PCR I was incompetent, and PCR IV, addressing the matter of incompetency of counsel in PCR I, should be granted.

We have set out the record in detail which illustrates the extreme abuse existing in post-conviction proceedings which White attempted to ameliorate. A full and open guilty plea hearing was held wherein Alston was represented by counsel. The factual determination conducted by the court fixed his guilt beyond question. In addition to the facts presented by the State, Alston admitted in open court that he had...