Avery v. State
| Decision Date | 30 September 1976 |
| Docket Number | No. 176S2,176S2 |
| Citation | 265 Ind. 417,355 N.E.2d 395 |
| Parties | Lloyd AVERY, Jr., Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Harriette Bailey Conn, Public Defender, Larry A. Landis, Deputy Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant, Lloyd Avery, Jr., appeals from the denial of his post-conviction petition in which he sought to withdraw his guilty pleas to two criminal charges, and to plead anew to them. He was charged with first degree murder in the shooting deaths of his wife and brother-in-law. Upon his plea of guilty to the included offense of second degree murder before the Honorable John H. McKenna, appellant received a sentence of fifteen to twenty-five years.
The guilty plea proceeding occurred on October 28, 1971, and the order book entry, memorializing that event, states the following:
'AND AFTERWARDS on the 28th day of October, 1971, the same being a regular day of the Fourth Quarter Term, 1971, the following further proceedings were had and entered of record in the above entitled cause in the following words and figures, to-wit:
Comes now the State of Indiana by its Prosecuting Attorney and comes also the defendant, in his own proper person and by counsel, Ray Sine, in open court, and the defendant is now interrogated by the Court and instructed as to his constitutional rights and is arraigned, for his plea herein says that he is not guilty, but tenders herein a plea of guilty of the lesser included offense of Murder 2nd Degree, which offer is by the State accepted and the State now waives prosecution on the charge of Murder 1st degree. Defendant for his plea herein now says that he is guilty of the lesser included offense of Murder 2nd Degree. This cause is thereupon submitted to the It is now ordered by the Court that the Probation Department of this Court shall make a precommitment investigation as to the defendant herein and that a written report of such investigation be filed with the Court.'
Court for hearing and trial and the Court, having heard the evidence and being now fully advised in the premises, finds that the defendant is guilty of the lesser included [265 Ind. 419] offense of Murder 2nd Degree and that he is twenty-two years of age.
A transcript of the guilty plea proceeding occurring on October 28, 1971, certified to by the official court reporter to be true, full and complete, reads in its entirety as follows:
'BY MR. SINE:
The defendant will plead not guilty in
Now, Lloyd, the last I heard from you, you waived jury, is that right?
BY THE DEFENDANT:
A. That is correct.
Q. Then you plead not guilty to Murder in the First Degree, right?
A. Yes.
Q. You have anything further to say about this now?
A. I will plead guilty to Murder in the Second Degree in both cases.
Q. Now, you know the penalty for Murder Second Degree?
A. Life, and fifteen (15) to twenty-five (25) years.
Q. It can either be life or fifteen (15) to twenty-five (25) years, you understand that?
A. Yes, sir.
Q. You had adequate time to talk to Mr. Sine about this?
A. Yes, sir.
Q. And I will ask you these, did you kill your wife?
A. Yes, I did.
Q. Did you kill your brother-in-law?
A. Yes, I did.
Q. You are admitting these crimes?
A. Yes, I am.
Q. Nobody talked you into this plea?
A. No.
Q. Nobody from the Prosecutors' Office or your attorney talked you into this?
A. No.
Q. You know that, do you realize that prison sentence is mandatory, don't you?
A. Yes, sir.
Q. You know what you are doing?
A. Yes, sir.
(EVIDENCE HEARD)
Court now finds the defendant guilty, ordered pre-committment (sic) investigation report, orders pre-committment (sic) investigation report and sets this for sentencing Wednesday, November 3.'
I, Janet R. Hopkins, Official Court Reporter for the Lake Circuit Court, County of Lake, State of Indiana, do hereby certify that the above, within and foregoing is a true, full and complete transcript of all the evidence given in the above entitled hearing and that the same is the original transcript of the evidence as made by me from my shorthand (Machine) notes.
WITNESS MY HAND on the 13th day of November 1974.
/s/ Janet R. Hopkins
Janet R. Hopkins
Official Court Reporter
Lake Circuit Court
Crown Point, Indiana'
Upon consideration of the order book entry and transcript set out above, the judge hearing appellant's post-conviction petition found as follows:
However, the trial judge went on to conclude from testimony given at the post-conviction hearing that appellant had failed in his burden to prove that his guilty plea had not been voluntary, and that he had not intelligently and understandingly waived his federal constitutional rights to confrontation of witnesses and to the privilege against compulsory self-incrimination. Thereupon the court adjudged that appellant was not entitled to withdraw his pleas of guilty and to make new pleas.
The court's finding number five above and the records of the guilty plea proceedings themselves inescapably demonstrate that those records are inadequate to show that appellant was advised of the right to confront his accusers and to be free from compulsory self-incrimination, and that he was offered an opportunity to exercise them, and that he intelligently and understandingly rejected that offer. No lesser content than that could serve as a record upon which to base a waiver of federal constitutional rights. Carnley v. Cochran, (1962) 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. The duty of Indiana trial judges to preserve a record of such plea proceedings adequate to show that the plea was voluntary and that an intelligent and understanding waiver of federal constitutional rights had occurred at the guilty plea proceeding was first imposed as a matter of federal constitutional due process in 1969, two years prior to the guilty plea under consideration when the Supreme Court of the United States handed down the cases of McCarthy v. United States, (1969) 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, and Boykin v. Alabama, (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. In 1972, we applied the McCarthy-Boykin standards for testing the sufficiency of a guilty plea proceeding to an Indiana guilty plea which had taken place in 1970 in the case of Brimhall v. State, (1972) 258 Ind. 153, 279 N.E.2d 557.
If there was any lingering doubt about whether this Court deemed the requirements of McCarthy and Boykin applicable to pleas of guilty occurring...
To continue reading
Request your trial
-
Barfell v. State
...post-conviction record in the adjudication of a challenge to the validity of a guilty plea. See, e. g., Avery v. State (1976), 265 Ind. 417, 355 N.E.2d 395 (Arterburn, J., dissenting); Norfrey v. State (1976), Ind.App., 358 N.E.2d 202. In other instances, however, Courts have used the post-......
-
Hollingshed v. State
...demonstrate that appellant was advised of the rights enumerated in Boykin. Williams v. State, (1977) Ind., 363 N.E.2d 971; Avery v. State, (1976) Ind., 355 N.E.2d 395; Williams v. State, (1975) 263 Ind. 165, 325 N.E.2d 827; Brimhall v. State, The transcript of the plea proceeding and the or......
-
Neeley v. State
...N.E.2d 803; Williams v. State, (1975) 263 Ind. 165, 325 N.E.2d 827; Emert v. State, (1975) 263 Ind. 340, 330 N.E.2d 750; Avery v. State, (1976) Ind., 355 N.E.2d 395; Hollingshed v. State, (1977) Ind., 365 N.E.2d 1215. Justice Hunter in his footnote to Williams v. State, supra, and Emert v. ......
-
Williams v. State
...pleas, therefore, had been made 'knowingly, intelligently and understandingly,' and Williams' petition was denied. In Avery v. State (1976) Ind., 355 N.E.2d 395, this Court was faced with the identical issue. Justice DeBruler said in that 'The record of the guilty plea proceedings before us......