Anderson v. State
| Decision Date | 28 November 1979 |
| Docket Number | No. 3-379A76,3-379A76 |
| Citation | 396 N.E.2d 960 |
| Parties | Orville E. ANDERSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Harriette Bailey Conn, Public Defender of Indiana, Ihor N. Boyko, Deputy Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Rollin E. Thompson, Asst. Atty. Gen., Indianapolis, for appellee.
Orville E. Anderson brings this appeal following the denial of his petition for Post-Conviction Relief.
The facts relevant to this appeal indicate that Anderson was charged with First Degree Burglary 1 on June 23, 1977. He originally pleaded not guilty and requested a jury trial. On December 12, 1977 Anderson withdrew his previously entered plea of not guilty, and, pursuant to a plea bargain agreement, entered a plea of guilty to First Degree Burglary. He asserted at that time that he was under the influence of alcohol and could not remember anything that had happened on the day of the burglary. Anderson was an admitted alcoholic and had requested treatment in appropriate facilities for alcohol abuse. His request was denied. He was sentenced and committed to the Indiana Department of Correction for not less than 10 nor more than 20 years. Anderson pro se filed a petition for Post-Conviction Relief which was denied on August 18, 1978.
On appeal, he raises the following issues for our review:
(1) Did the trial court err when it accepted Anderson's guilty plea in view of his lack of recollection of having committed the crime charged?
(2) Was Anderson's guilty plea knowingly, intelligently and voluntarily given?
(3) Were Anderson's Constitutional rights denied because he failed to receive the treatment for alcohol abuse which had been recommended by the court at the time of sentencing?
We reverse and remand.
On appeal, Anderson urges this Court to find that the trial court erred when it accepted his guilty plea in view of his inability to remember committing the crime charged.
In grappling with an analogous issue, Indiana courts have expressly adopted the rationale presented in North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. The United States Supreme Court allowed the defendant's guilty plea, even though he strongly protested his innocence, because of the overwhelming evidence in the record against him and the minimal possibility of his acquittal. The court in Boles v. State (1973), 261 Ind. 354, 303 N.E.2d 645 stated that the trial court should never accept a guilty plea when it is accompanied by a protestation of innocence and unaccompanied by evidence showing a factual basis of guilt. Such a plea can be accepted only when accompanied by overwhelming evidence of the defendant's guilt. In addition, the guilty plea must be voluntarily, freely and knowingly given by the defendant who has been judicially advised of all the rights he is waiving. Boles, supra.
In determining whether to accept a guilty plea, the trial court must look to IC 1971, 35-4.1-1-4(b) (Burns Code Ed., 1978) for guidance. It provides:
"The court shall not enter judgment upon a plea of guilty unless It is satisfied from its examination of the defendant that there is a factual basis for the plea." (Emphasis supplied.).
This statute requires that there be a factual basis for the acceptance of a guilty plea. 2
In Liffick v. State (1977), Ind.App., 367 N.E.2d 34, the defendant pleaded guilty while repeatedly asserting he could not remember the alleged crime. He was the only witness at his guilty plea hearing. The State failed to produce substantive evidence of facts relative to the charge. Even though he had been fully informed of his Constitutional rights, this Court found that the trial court had erred by accepting his guilty plea. It said that unless the court had heard sworn testimony from other sources which assured it of the factual basis of the guilty plea, it could not accept the plea. In addressing this same issue, the court in Hitlaw v. State (1978), Ind.App., 381 N.E.2d 527 decided that evidence, other than sworn testimony, may also serve as an adequate basis for accepting a guilty plea. It said that, according to IC 1971, 35-4.1-1-4(b) (Burns Code Ed., 1978), the trial court need only be satisfied that there is a factual basis for the plea.
In the case at bar, the only "evidence" presented at Anderson's hearing was the prosecutor's statement that Mrs. Kohl had reported that she had been awakened by a noise made by the defendant as he was allegedly "fiddling with the safe" in her bedroom. In addition, Anderson's counsel told the court that, based upon his review of the prosecuting attorney's file, he felt that there was a substantial risk of conviction if the defendant were to proceed to trial. There was neither sworn testimony nor any witnesses presented at his hearing. In fact, there was no evidence of any sort introduced to the court which could provide the requisite factual basis for accepting the plea.
The State argues that the Pre-Sentence Report, Probable Cause Affidavit and Information provide the factual basis needed for the acceptance of Anderson's plea. We disagree.
A study of the record reveals that the court accepted Anderson's guilty plea on December 12, 1977. On that same day, that court ordered the Elkhart Probation Department to prepare and file a written pre-sentence investigation and report. This report was not filed until January 13, 1978. Obviously, this pre-sentence report was not before the trial court as in Hitlaw, supra, to help establish the requisite factual basis. Likewise, the Probable Cause Affidavit and Information cannot be considered sufficient for this purpose. Both are mere accusations against a defendant and no evidence whatsoever of his guilt. Watts v. State (1950), 229 Ind. 80, 95 N.E.2d 570.
In a Post-Conviction proceeding, the petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence. Ind. Rules of Procedure, Post-Conviction Rule 1, § 5. To be successful on appeal, a petitioner must demonstrate that the trial court's ruling was contrary to law in that the evidence was without conflict and led unerringly to a conclusion not reached by the trial court. Carroll v. State (1976), 265 Ind. 423, 355 N.E.2d 408.
We can find no substantive evidence of probative value, as required by IC 1971, 35-4.1-1-4(b), to provide a factual basis for the acceptance of Anderson's guilty plea. Accordingly, we reverse and remand for further action consistent with this opinion.
In light of our resolution of the first issue, we find it unnecessary to address the remaining issues.
Reversed and remanded.
There was sufficient evidence in the record to establish the requisite factual basis for accepting the guilty plea.
In voting to reverse the conviction the majority has adopted an erroneous interpretation of IC 1971, 35-4.1-1-4(b). That statute provides:
"The court shall not Enter judgment upon a plea of guilty unless it is satisfied from its examination of the defendant that there is a factual basis for the plea." (Emphasis supplied.)
where a criminal conviction occurs the sentence is the judgment. Schalkle v. State (1979), Ind., 396 N.E.2d 384; McMinoway v. State (1973), 260 Ind. 241, 294 N.E.2d 803, at 806; See also: People v. Stillman (1978) 61 Ill.App.3d 446, 18 Ill.Dec. 896, 378 N.E.2d 360. It therefore seems apparent that under the statute the determination of the factual basis for a guilty plea may be done at any time prior to sentencing and not just at the time when the plea is accepted. Several other jurisdictions which also require the ascertainment of a factual basis prior to the entry of judgment have embraced this position. Burton v. United States (9th Cir. 1973) 483 F.2d 1182; United States v. Romanello (D.Conn.1975) 425 F.Supp. 304; State v. Brooks (1978), 120 Ariz. 458, 586 P.2d 1270; People v. Carlisle (1975), 25 Ill.App.3d 1022, 324 N.E.2d 234. Thus a trial court may use any portion of the record which is before it prior to sentencing in determining the factual basis for a plea. People v. Johnson (1978), 66 Ill.App.3d 84, 22 Ill.Dec. 840, 383...
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