Bewley v. State

• Decision Date: 11 June 1991
• Docket Number: No. 49A02-8909-PC-00500,49A02-8909-PC-00500
• Citation: 572 N.E.2d 541
• Parties: Jerry BEWLEY, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below). 1
• Court: Indiana Appellate Court

Page 541

572 N.E.2d 541

Jerry BEWLEY, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 49A02-8909-PC-00500. ¹

Court of Appeals of Indiana Third District.

June 11, 1991.

Transfer Denied Sept. 27, 1991.

John B. Wilson, Jr., Nashville, for appellant.

Linley E. Pearson, Atty. Gen., David M. Sommers, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Jerry Bewley appeals the denial of his petition for post-conviction relief, raising the following two issues for our review:

I. Whether the trial court erred in accepting Bewley's guilty plea over his protestations of innocence.

II. Whether the trial court erred in enhancing the sentences for the crimes to which Bewley pled guilty.

We affirm in part, reverse in part, and remand.

Bewley indicated his intent to plead guilty to rape, robbery and burglary arising out of an incident whereby he and two accomplices entered the apartment of the victim, robbed her and raped her. At the guilty plea hearing, he indicated his disagreement with some of the underlying facts alleged by the State. However, after being questioned by the judge, Bewley indicated that he did not deny that he accompanied his accomplices into the apartment, took some objects from the apartment, and participated in the rape. He also indicated that he still wished to plead guilty.

Prior to sentencing, Bewley voiced his desire to withdraw his guilty plea on the basis that he did not participate in all of the acts alleged by the State. The judge again questioned him at length, and then denied his motion.

Bewley was sentenced to a total of ninety years in prison, but upon his Motion to Reconsider Sentence, the trial court later ruled that all sentences were to run concurrently, reducing Bewley's sentence to a total of fifty years for the three crimes.

Bewley's petition for post-conviction relief was denied, and he appeals.

I. Guilty Plea

Bewley contends that the trial court erred in failing to grant his motion to withdraw his guilty plea, arguing that it is reversible error for a court to accept a guilty plea over a defendant's protestations of innocence.

Initially, we note that the decision whether to grant or deny a motion for withdrawal of guilty plea rests within the sound discretion of the trial court. Centers v. State (1986), Ind., 501 N.E.2d 415, 419. Where a trial court denies such a motion, we indulge a presumption in favor of its ruling. Id. We will not disturb the ruling where it was based on conflicting evidence; only where the record shows that the trial court has abused its discretion is reversal warranted. Id.

The law regarding guilty pleas and protestations of innocence in Indiana has evolved from the case of Harshman v. State (1953), 232 Ind. 618, 115 N.E.2d 501. There, our supreme court stated:

As we view it, a plea of guilty tendered by one who in the same breath protests his innocence, or declares he actually does not know whether or not he is guilty, is no plea at all. Certainly it is not a sufficient plea upon which to base a judgment of conviction. No plea of guilty should be accepted when it appears to be doubtful whether it is being intelligently and understandingly made, or when it appears that, for any reason, the plea is wholly inconsistent with the realities of the situation.

(Emphasis added). This rule was modified to some extent by later cases decided by this court, which held that a guilty plea may be accepted by the trial court over the defendant's protestation of innocence, if there is independent evidence showing that he is guilty and if the plea is in the best interest of the defendant. See, e.g., Anderson v. State (1979), Ind.App., 396 N.E.2d 960, reh'g denied.

In Anderson, we relied upon the split decision of Boles v. State (1973), 261 Ind. 354, 303 N.E.2d 645 (2-2, Givan, J. not participating), which in dictum expressed approval of the U.S. Supreme Court's decision in North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, where the Court recognized that under the federal constitution, a guilty plea is not defective merely because a criminal defendant denies commission of the crime charged. In 1983, our supreme court repudiated Boles to the extent that it permitted a trial court's acceptance of a guilty plea while the defendant protested his innocence. Ross v. State (1983), Ind., 456 N.E.2d 420. Noting the limited precedential value of Boles, and reaffirming the holding in Harshman, the Ross Court stated:

The time has come to clearly state the Indiana law on this issue.

We hold, as a matter of law, that a judge may not accept a plea of guilty when the defendant both pleads guilty and maintains his innocence at the same time. To accept such a plea constitutes reversible error.

(Emphasis added).

Since its holding in Ross, our supreme court has declined to extend the rule to bar a guilty plea where the defendant makes an out-of-court unsworn statement maintaining his innocence, Moredock v. State (1989), Ind., 540 N.E.2d 1230, reh'g denied, or where the defendant initially disputed the facts upon which his plea was based but later assented to the plea. Frazier v. State (1986), Ind., 490 N.E.2d 315. However, the rule was extended in Patton v. State (1987), Ind., 517 N.E.2d 374, reh'g denied.

In Patton, our supreme court was faced with the issue of whether a trial court may accept the guilty plea of a capital offense defendant who pleads guilty but protests his innocence at the sentencing hearing prior to sentencing. The supreme court reversed, holding that the Ross rule applied to such a case:

The Ross rule, by its language, applies only to defendants who plead guilty and maintain their innocence at the same time. Patton did not protest his innocence at the same time as he pled guilty, but he did firmly contradict his admission of guilt at the sentencing hearing. Although the plea and contradiction were separate in time, the principle of Ross must apply to the sentencing hearing in a capital case.

517 N.E.2d at 376. Thus, while extending the Ross rule to require the setting aside of a guilty plea where a defendant protests his innocence at sentencing, the court expressly limited its language to capital cases. Mayberry v. State (1989), Ind.App., 542 N.E.2d 1359, 1361, transfer denied.

Our next step down this winding path requires us to decide whether a trial court must set aside a guilty plea in a non-capital case when the defendant maintains his innocence at a hearing held after the guilty plea hearing but prior to sentencing. We hold that the trial court, in its discretion, may decline to set aside the plea.

Bewley relies upon the Patton decision in arguing that the trial court should have granted his motion to withdraw his guilty plea. We find Patton distinguishable from the present case for the simple fact that this is not a capital case. Rather than mandating the same result in this case, Patton's language limiting it to capital cases by implication indicates that in non-capital cases, a court may deny a motion for withdrawal of plea after the guilty plea hearing, if it finds that the plea was supported by a sufficient factual basis and was freely, knowingly and voluntarily entered.

The situation in this case is akin to that in Frazier, supra, where the supreme court upheld the denial of a challenge to a guilty plea where the defendant initially protested his innocence, but indicated that he was accepting the plea agreement as best for his future. The court indicated that it could not accept the plea on that basis and further questioned the defendant, who finally indicated that the facts were correct and that he still wanted to plead guilty. Despite defense counsel's statement that there was a factual discrepancy, the court accepted the plea. On appeal from a denial of a petition for post-conviction relief, the supreme court...