Arnold v. State
| Decision Date | 13 June 1989 |
| Docket Number | No. 49A02-8712-PC-503,49A02-8712-PC-503 |
| Citation | 539 N.E.2d 969 |
| Parties | Michael ARNOLD, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender, Stephen T. Owens, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.
Michael Arnold appeals the denial of his petition for post-conviction relief.
We affirm.
On August 19, 1981, Arnold pleaded guilty to one count of criminal trespass (a class A misdemeanor), two counts of theft (class D felonies), and two counts of burglary and one count of attempted burglary (class B felonies). The pleas were accepted by the court at that time. 1 They were not entered pursuant to a plea agreement with the State. At the time that the offenses were committed, Arnold was on probation for a prior burglary offense. Arnold's probation was subsequently revoked on August 26, 1981, and a six-year suspended sentence was reinstated. On September 11, 1981, Arnold was given the presumptive sentence on each count of the instant charges, with the sentences to run concurrently. The total length of time imposed was ten years, the presumptive sentence for burglary. The instant sentences were ordered to be served consecutively to the sentence resulting from the probation revocation. 2
Arnold claims his pleas were not entered knowingly, voluntarily or intelligently because the trial court failed to advise him of the following:
(1) the minimum possible sentences for burglary and theft;
(2) the possibility of an increase in sentence by reason of his prior convictions; and
(3) the requirement of consecutive sentencing as a result of the probation revocation.
Arnold claims that if he had received these advisements pursuant to I.C. 35-4.1-1-3 (current version at I.C. 35-35-1-2) (Burns Code Ed.Supp.1988), 3 he would not have entered his guilty pleas.
Arnold contends that the appropriate standard of review is the entire record standard of Neeley v. State (1978) 269 Ind. 588, 382 N.E.2d 714. Arnold's contention is based on the fact that his guilty plea was entered prior to December 3, 1981, the date as of which the strict standard of review announced in German v. State (1981) Ind., 428 N.E.2d 234, became effective. Arnold argues that because the court failed to expressly overrule Neeley in White v. State (1986) Ind., 497 N.E.2d 893, the Neeley standard must be applied to pleas entered prior to December 3, 1981.
While it is true that the White decision did not expressly overrule Neeley as it did German, it is also true that our supreme court has since applied the White standard of review to pleas entered prior to German's effective date. See, e.g., Morlan v. State (1986) Ind., 499 N.E.2d 1084 (DeBruler, J., dissenting).
Under the new standard of review announced in White, supra, 497 N.E.2d 893, Arnold had the burden of establishing his grounds for relief by a preponderance of the evidence. Hutchinson v. State (1986) Ind., 501 N.E.2d 1062. Evidence that the trial judge failed to give him one of the requisite statutory advisements does not sustain appellant's burden. The petitioner must establish specific facts by a preponderance of the evidence that the trial judge's omission rendered the decision to enter a guilty plea involuntary or unintelligent. White, supra. To prevail upon appeal from denial of post-conviction relief, Arnold must satisfy the court that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite of that reached by the trial court. Hutchinson, supra, at 1064.
Arnold claims that the trial court failed to advise him in accordance with I.C. 35-4.1-1-3 of the minimum possible sentence for burglary and theft. We note that at the post-conviction relief hearing, however, Arnold only asserted that the trial court had failed to advise him of the minimum sentence for theft. In fact, Arnold testified that the trial judge had advised him of the minimum sentence for burglary as a class B felony. In any event, the transcript of the guilty plea hearing shows that the judge instructed him that "the presumptive sentence for a class B felony is ten (10) years, to which the Court might add ten (10) years for aggravating circumstances, or might deduct four (4) for mitigating circumstances." Record at 107. The accused is fully informed of the minimum and maximum penal consequences when he is advised of the sentence range for the offenses charged. Hutchinson, supra, 501 N.E.2d at 1065; Silvers v. State (1986) Ind., 499 N.E.2d 249.
It is true that the trial court failed to advise Arnold of the one-year minimum sentence for theft. The court also did not advise him of the possibility of alternative misdemeanant sentencing. However, evidence that the trial court failed to give one of the statutory advisements does not sustain appellant's burden. Morlan, supra, 499 N.E.2d 1084. Although Arnold claims that he would have tried to negotiate a different plea agreement 4 or would have elected to exercise his right to a trial, we fail to see how the trial court's failure to advise him of the minimum sentence for theft would have changed his decision to plead when he was facing a minimum sentence of six years and a maximum sentence of 69 years. In any event, the court was not required to advise him of the misdemeanant sentencing alternative. Hutchinson, supra, 501 N.E.2d 1062; Zavesky v. State (1987) 3d Dist.Ind.App., 514 N.E.2d 658.
Arnold has not satisfied us that in this regard the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court.
Arnold also claims that the trial court erred in not advising him of the possibility of an increase in sentence by reason of his prior convictions, as required by I.C. 35-4.1-1-3 (now I.C. 35-35-1-2). Arnold argues that his sentences for theft and burglary were increased due to his prior record because the trial court gave him the presumptive sentence for each count instead of the minimum sentence. This argument simply does not square with the applicable statutes.
I.C. 35-50-2-5 (Burns Code Ed.Repl.1985) provides in part as follows:
"A person who commits a class B felony shall be imprisoned for a fixed term of ten years, with not more than ten years added for aggravating circumstances or not more than four years subtracted for mitigating circumstances...."
I.C. 35-50-2-7 (Burns Code Ed.Supp.1988) provides in part that:
"A person who commits a Class D felony shall be imprisoned for a fixed term of two (2) years, with not more than two (2) years added for aggravating circumstances or not more than one (1) year subtracted for mitigating circumstances...."
Thus it is clear that the trial judge did not in fact increase Arnold's sentences due to Arnold's prior convictions. The court would have increased the sentences only if he increased the presumptive sentences. Thus Arnold would have been harmed by the trial court's failure to give Arnold this particular advisement only if the court had increased the presumptive sentence on each count. We find no prejudice by this omission.
Finally, Arnold argues that the court failed to advise him that the instant sentences had to be served consecutively to the six-year sentence imposed as a result of the revocation of his probation. 5 Arnold was told that he might receive consecutive sentences on the robbery charges and that his guilty plea might affect his probation status. He was not, however, advised that the guilty plea sentence and the earlier suspended sentence might have to be served consecutively. Although we find no ground for reversal in this argument, it merits some discussion.
Indiana Code 35-50-1-2 (Burns Code Ed.Supp.1988) 6 has been the subject of much confusion and litigation in recent years. When a court must impose a consecutive sentence pursuant to subsection (b) as opposed to when it may impose a consecutive sentence pursuant to subsection (a) has not been made entirely clear. See, e.g., Sides v. State Ind., 490 N.E.2d 318, aff'd (1986) 507 N.E.2d 560 (); Groff v. State (1986) Ind., 488 N.E.2d 711 (); Hutchinson v. State (1985) Ind., 477 N.E.2d 850 (); Frazier v. State (1987) 3d Dist.Ind.App., 512 N.E.2d 215, trans. denied (sentencing court could not impose sentence pursuant to I.C. 35-50-1-2(a) for burglary to be served consecutively to whatever sentence might be imposed in a pending sentencing hearing in a different matter; the statute presupposes that when the second sentence is imposed so as to invoke the statute, the other sentence must already have been imposed or must be imposed contemporaneously therewith); Killian v. State (1987) Ind., 512 N.E.2d 411 (); Kendrick v. State (1988) Ind., 529 N.E.2d 1311 .
The interaction of the consecutive sentencing statute with the advisement statute has also caused confusion. Our review of the recent cases leads us to conclude, despite misgivings, that no advisement was necessary in Arnold's...
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