Belcher v. State
| Decision Date | 07 December 1989 |
| Docket Number | No. 49A02-8805-PC-184,49A02-8805-PC-184 |
| Citation | 546 N.E.2d 1276 |
| Parties | Reginald BELCHER, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender, John Pinnow, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Office of Attorney General, Indianapolis, for appellee.
Defendant-appellant Reginald Belcher appeals from the denial of his Petition for Post-Conviction Relief.
We affirm.
In 1971 Belcher along with two co-defendants, Dennis Wickliffe and Sherman Coleman, was charged with theft of a vehicle. The affidavit named all three defendants. On October 28, 1971, cause number CR71-1127, State v. Dennis Wickliffe, was called for trial. After the judge suggested calling all the defendants, he was informed that Mr. Wickliffe wanted to plead guilty. Wickliffe then entered a plea of guilty to exerting unauthorized control over a vehicle under circumstances not amounting to theft. The court read part of the affidavit and inquired into Wickliffe's understanding of the plea to which he was entering. The state subsequently presented testimony from two officers. Officer Mize testified that the car had been reported stolen and that Wickliffe had been apprehended with the car approximately two hours later. Officer Gray testified that he had made the arrest and had "apprehended the subjects as they [came] out of the garage and around the house." Record at 85. Officer Mize further testified that the subjects were starting to strip the car in the garage at the time of the arrest and that Wickliffe had admitted to him later that he did take the car. The court accepted Wickliffe's plea.
That same morning, cause number CR71-1127 was again called with respect to the three defendants, and it was noted that a hearing had already been held with respect to Wickliffe. The court was informed that both remaining defendants, Coleman and Belcher, had authorized their attorney to withdraw their pleas of not guilty and enter pleas of guilty to theft of a vehicle. There was no written plea agreement.
After advising Belcher and Coleman of their rights, the court reiterated the charge and the possible penalties for it, read the affidavit to them and asked if they understood the charge; both indicated they did. The court asked if both understood that a plea of guilty was an indication to the court that everything in the affidavit was true; both stated they understood and wanted to plead guilty.
At that point, the court swore in the witnesses again and asked Belcher and Coleman if they had both been in the courtroom when Officer Mize had testified before. Both responded that they had been present and had heard his testimony. Both responded in the negative when the court asked them if there was any part of his testimony which had been incorrect. After incorporating by reference all the evidence heard in the cause earlier that day, the court accepted the defendants' guilty pleas.
Belcher presents two issues on appeal, which we rephrase as follows:
(1) whether he was adequately advised of his right against self-incrimination; and
(2) whether an adequate factual basis for the plea was established.
The petitioner in post-conviction proceedings bears the burden to prove grounds for relief by a preponderance of the evidence. The post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses. We will reverse only where the evidence is without conflict and leads exclusively to a conclusion contrary to that reached by the post-conviction court. Bates v. State (1988) Ind., 517 N.E.2d 379.
Belcher's plea was entered prior to the effective date of I.C. 35-4.1-1-3 (Burns Code Ed.Repl.1979), now I.C. 35-35-1-2 (Burns Code Ed.1985). Therefore, the advisement concerning the right against self-incrimination is governed by Boykin v. Alabama 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Compliance with Boykin is determined using the standard outlined by White v. State (1986) Ind., 497 N.E.2d 893, 905:
"Of course, unless the record reveals that the defendant knew or was advised at the time of his plea that he was waiving his right to a jury trial, his right of confrontation and his right against self-incrimination, Boykin will require that his conviction be vacated." White, supra.
The following colloquy occurred between the court and the two co-defendants:
Belcher alleges error in the failure of the trial court to specifically advise him that he was waiving the right against self-incrimination. To speak in terms of a waiver of the right against self-incrimination is misleading in this context. The right against self-incrimination involves the privilege an accused has to refrain from testifying at trial. At a plea hearing one doesn't "waive" the right to refrain from testifying against oneself; one waives the proceeding in which testifying against oneself would be an issue.
Although the advisement given Belcher was not ideal, an almost identical advisement was held adequate to inform a defendant of his privilege against self-incrimination in Gosnell v. State (1985) Ind., 483 N.E.2d 445. See also Mayberry v. State (1989) 2d Dist. Ind.App., 542 N.E.2d 1359. Belcher was also informed that he had a right to plead not guilty and to have a trial by jury. There is nothing in the record which persuades us that Belcher did not understand that by pleading guilty and not proceeding to trial the issue of testifying against himself could not arise. We are unaware of any case law requiring a trial judge to go to the depth of inquiry at a guilty plea hearing that Belcher appears to be seeking.
There is no error in this appeal.
At his post-conviction relief hearing, Belcher testified on direct examination that he would not have entered a guilty plea "if the court had made [him] go through the factual basis during [his] guilty plea." Record at 125-126. He asserts that the court could not rely on the evidence presented at Wickliffe's guilty plea hearing to establish a factual basis for Belcher's plea because Belcher's name was never specifically mentioned by Officer Mize. 1
At the PCR proceeding, Belcher claimed for the first time that he was not involved in the theft of the car, but was merely doing some work on the car after being hired by Wickliffe to do so. Belcher also testified that he did not know the car was stolen when he was working on it.
In Ross v. State (1983) Ind., 456 N.E.2d 420, our Supreme Court held that a judge may not accept a plea of guilty when the defendant both pleads guilty and maintains his innocence at the same time. This rule was seemingly extended in Patton v. State (1987) Ind., 517 N.E.2d 374, to require vacation of an accepted plea where the defendant maintains his innocence at the sentencing hearing in a capital case. Belcher...
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