Barfell v. State

• Citation: 399 N.E.2d 377
• Decision Date: 20 December 1979
• Docket Number: No. 3-877,3-877
• Parties: James Edward BARFELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). A 212.
• Court: Court of Appeals of Indiana

Page 377

399 N.E.2d 377

James Edward BARFELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-877 A 212.

Court of Appeals of Indiana, Third District.

Dec. 20, 1979.

Harriette Bailey Conn, Public Defender, Kyle M. Payne, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Charles D. Rodgers, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

In 1974, James Edward Barfell was charged with Committing a Felony while Armed with a Deadly Weapon. Negotiations between the State and Barfell culminated in a plea agreement, whereby Barfell agreed to plead guilty to the lesser offense of Robbery by Putting in Fear. The plea bargain was accepted by the trial court, and in February of 1975, Barfell was sentenced to the Indiana Department of Corrections for a period of not less than ten (10) nor more than twenty-five (25) years.

The following October, Barfell, proceeding pro se, filed a Petition for Post-Conviction Relief. The trial court denied the petition on the basis that the pleadings conclusively revealed he was not entitled to relief. In May of 1976, Barfell, this time with the assistance of fellow prisoners, filed a second Petition for Post-Conviction Relief, which was subsequently amended at the direction of a public defender. On May 20, 1977, the trial court denied this amended version of Barfell's second Petition for Post-Conviction Relief.

Barfell appeals from that decision and raises the following issues for our review:

(1) Whether the trial court erred in its conclusion that Barfell was not entitled to file a second Petition for Post-Conviction Relief?

(2) Whether the trial court's failure to advise Barfell that the State was required to prove his guilt beyond a reasonable doubt invalidates the guilty plea?

We reverse the trial court's denial of Barfell's Petition for Post-Conviction Relief on the basis that the plea of guilty was invalid.

I. Second Petition

Barfell maintains that the trial court erred in concluding that he was not entitled to file a second Petition for Post-Conviction Relief. That conclusion of the trial court was based on the provisions of Ind.Rules of Procedure, Post-Conviction Relief Rule 1, § 8, which reads:

"All grounds for relief available to a petitioner under this rule must be raised in his original petition. Any ground finally adjudicated on the merits or not so raised and knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the petitioner has taken to secure relief, may not be the basis for a subsequent petition, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original petition."

It is Barfell's contention that his failure to verify the original petition bars the invocation of finality which PC. 1, § 8 was intended to effectuate. We agree with Barfell.

Ind.Rules of Procedure, Post-Conviction Rule 1, §§ 2 and 3 require that Petitions for Post-Conviction Relief be verified. Among those matters which a petitioner is required to acknowledge in the verification is that "he has included every ground for relief known to petitioner." PC. 1, § 3. ¹ If such verification is not attached to the original petition, the trial court should return the petition for compliance with the verification requirements. Shelor v. State (1979), Ind., 386 N.E.2d 690, 691, relying on Owen v. State (1975), Ind.App., 338 N.E.2d 715, 718. Where, however, as here, the trial court adjudicates the merits of a petition which lacks the necessary verification, the petitioner is not barred from raising different grounds for relief in a subsequent petition. Id. The requirement of verification imposed by PC. 1, §§ 2 and 3 is designed to serve judicial economy. If properly applied, the rule eliminates both multiplicity of petitions and appeals from the original petition based on the issue of whether the verification requirements were satisfied. Id.

We note that the trial court concluded merely that Barfell was "not entitled" to file a second petition. The court did not, however, dispose of Barfell's second petition in a manner consistent with its erroneous interpretation of the procedural rules of postconviction relief. The court did not dismiss Barfell's petition on the basis of waiver, but it did hold a hearing on the substantive allegations contained in the petition and adjudicated those allegations. Consequently, regardless of whether the trial court's misinterpretation of the procedural rule is characterized as "error", it in no way prejudiced the rights of petitioner Barfell. At most, the erroneous conclusion of the court constituted harmless error. We thus proceed to an examination of Barfell's challenge to the trial court's disposition of the substantive claim raised in the second petition.

II. Guilty Plea

At the hearing wherein Barfell pled guilty to the lesser included offense of Robbery by Putting in Fear, the trial court neglected to advise him that should he proceed to trial, the State would be required to prove his guilt "beyond a reasonable doubt." Barfell's assertion that the trial court's failure to properly advise him is predicated on concomitant grounds: (1) the statutory duty of the trial court to advise him of the standard of proof necessary to sustain a conviction, IC 1971, 35-4.1-1-3(c) (Burns Code Ed.); and (2) the constitutional dimension of the "beyond a reasonable doubt" standard of proof, In re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. In short, Barfell argues that the due process significance of the right elevates it to a status equivalent to those rights ² enumerated in Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, the advisement of which is a constitutional prerequisite to a valid guilty plea. Barfell thus maintains that the failure to advise him of the standard of proof prior to the entry and acceptance of his plea cannot constitute harmless error.

IC 1971, 35-4.1-1-3, supra, which constitutes the statutory basis for Barfell's claim, reads in relevant part:

"The court shall not accept a plea of guilty from the defendant without first addressing the defendant and,

"(c) Informing him that by his plea of guilty he waives his rights to a public and speedy trial by jury, to face the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to require the state to prove his guilt beyond a reasonable doubt at a trial at which the defendant may not be compelled to testify against himself;" (Emphasis added.).

The language of the statute "The court shall not accept a plea of guilty . . . without first addressing the defendant and . . . " is mandatory in nature. Turman v. State (1979), Ind., 392 N.E.2d 483, 488. The trial court thus erred when it failed to inform Barfell of the State's standard of proof in the event he opted to proceed to trial. Id.

It is the State's contention, however, that the court's error was merely a "technical" one which did not prejudice the substantial rights of Barfell. Notwithstanding the meritless nature of the arguments tendered by the State in support of its contention, ³ the question whether the trial court's neglect constitutes reversible error is tenable. While Barfell was not advised at the guilty plea hearing that by his plea he would waive his right to require the State to prove his guilt beyond a reasonable doubt, he testified at the post-conviction relief hearing that he understood that right at the time he entered his plea. That understanding was professed during the following colloquy between the prosecuting attorney and Barfell:

"Q. And if the Court or Mr. Burke or myself or anybody including the public defender were to tell you that the State of Indiana has the burden beyond a reasonable doubt, do you know what that means?

"A. Uh-huh.

"Q. What does it mean?

"A. It means, you have evidence to win.

"Q. That I have enough evidence to prove the case beyond a reasonable doubt, right?

"A. Yes.

"Q. Did you understand that to be my duty if we had gone to trial in the Arm (sic ) Robbery case?

"A. Yes.

"Q. You understood that?

"A. Uh-huh.

"Q. You knew that I had to prove my case?

"A. Uh-huh.

"Q. And since we didn't go to trial I didn't any longer have that burden, is that correct?

"A. Yes.

"Q. The burden is gone since the plea of guilty was entered to a lesser included crime?

"A. Yes.

"Q. But you understood, did you not, that if we had gone to trial that it is the Prosecutor's Office job to meet that burden of proof that it had before you could be convicted?

"A. Yes, sir."

Our disposition of Barfell's appeal thus encompasses the sub-issue of whether the record compiled at the post-conviction relief hearing can be used to rehabilitate the inadequate guilty plea record. We turn to that question.

In Boykin v. Alabama, supra, the Supreme Court indicated that the constitutional validity of a guilty plea is to be established by the trial court on the record of that hearing wherein the plea is entered. 395 U.S. at 243-244, 89 S.Ct. at 1712. Consistent with the sequential scheme contemplated by the Court in Boykin advisement of rights, then entry and acceptance of plea our legislature, in enacting IC 1971, 35-4.1-1-3, supra, mandated that the trial court advise the defendant of the various substantive components detailed therein prior to accepting a plea of guilt. The language of the statute is unequivocal: "The court shall not accept a plea of guilty from the defendant without first addressing the defendant and . . . (informing him of the substantive matters contained in the statute.)" ⁴

Notwithstanding these constitutional and statutory mandates that the validity of a guilty plea be established prior to its entry and acceptance, Indiana case law reveals dichotomous approaches to the question before us. In some instances, Courts...