Bish v. State

• Citation: 421 N.E.2d 608
• Decision Date: 10 June 1981
• Docket Number: No. 479S89,479S89
• Parties: Donald BISH, Donald Conrad and Steven Botchuck, Appellants, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 608

421 N.E.2d 608

Donald BISH, Donald Conrad and Steven Botchuck, Appellants, v. STATE of Indiana, Appellee.

No. 479S89.

Supreme Court of Indiana.

June 10, 1981.

Harriette Bailey Conn, Public Defender, Marcia L. Dumond, Deputy Public Defender, Indianapolis, Garrett N. Wyss, New Haven, R. Steven Hearn and Timothy D. Blue, Rasor, Harris, Lemon & Reed, Warsaw, for appellants.

Theodore L. Sendak, Atty. Gen., George B. Huff, Jr., Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

This case presents the consolidated appeals of Donald Bish, Donald Conrad and Steven Botchuck. Appellants Bish, Conrad and Botchuck were charged in Noble Circuit Court with various offenses stemming from the abduction, sexual assault and robbery of a young woman. All three defendants were charged with class B confinement, Ind.Code § 35-42-3-3 (Burns 1979 Repl.); class A unlawful deviate conduct, § 35-42-4-2; and class B robbery, § 35-42-5-1. In addition, Bish and Botchuck were charged with class A rape, § 35-42-4-1, and Botchuck and Conrad were each charged with being an habitual criminal, § 35-50-2-8. On the day their jury trial was to begin, the three defendants entered into negotiated plea agreements with the prosecutor. Pursuant to these agreements, each entered guilty pleas to the following charges: class D confinement; class B unlawful deviate conduct; class B rape; and class B robbery. The prosecutor then dismissed the habitual criminal pleadings against Conrad and Botchuck.

Following the submission of these plea agreements, the trial court examined each defendant to determine that he was knowingly, voluntarily, and intelligently entering these pleas. The defendants were fully advised of their rights, and none makes any claim in his appeal that his guilty pleas were not properly made. In addition, the trial court properly established the requisite factual basis before accepting the pleas. The plea agreements contained no arrangements concerning the sentences to be imposed, and, after receiving the defendants' guilty pleas, the trial court conducted a sentencing hearing and then sentenced Bish, Conrad and Botchuck accordingly.

Pursuant to the defendants' guilty pleas and the facts and circumstances revealed at the sentencing hearing, the trial court imposed the following sentences: each defendant received a four-year sentence for the confinement and twenty-year term on the deviate conduct charge; Botchuck and Conrad received twenty-year terms for robbery; finally, Bish and Botchuck were each sentenced to twenty years on the rape count, while Conrad was sentenced to a seventeen-year term for rape. The trial court ordered that each defendant would serve his four terms consecutively.

Appellants Bish, Conrad and Botchuck each raise several issues concerning the sentences imposed by the trial court. Some of these questions are common to two of the appellants, while many issues are raised by only one party. Thus, the issues we shall consider in this opinion concern: (1) whether the trial court erred in using the victim's statement as the sole source of the factual basis for the guilty pleas; (2) whether the information was defective and at variance with the sentences imposed; (3) whether the trial court erroneously ordered that the sentences be served consecutively; (4) whether the trial court erroneously considered the commission of all of the crimes in increasing the sentence for each crime; (5) whether the trial court erred in admitting a doctor's affidavit as evidence in the sentencing hearing; (6) whether the trial court erred in admitting certain testimony during the sentencing hearing; (7) whether the trial court erred in denying a motion to correct error based on an allegedly uncontradicted affidavit; and (8) various challenges to findings made by the trial court concerning aggravating and mitigating circumstances and to the reasonableness of the sentences imposed.

The charges against Bish, Conrad and Botchuck arose out of the robbery and repeated sexual assaults perpetrated on a young woman they abducted. The record reveals that the victim, C. S., was walking alone in the town of Ligonier in the early morning hours of May 21, 1978. Bish, Conrad and Botchuck had been consuming alcohol for several hours and were driving around in Botchuck's automobile. They drove past C. S., and asked her if she wanted a ride. When she declined their offer several times, Botchuck grabbed her and forced her into the back seat of the automobile. Conrad was driving at this time. Once inside the car, C. S., asked to be taken to a telephone booth or to her home. These requests went unheeded. A short time later, Botchuck crawled into the back seat area and forced C. S., to disrobe, squeezing her neck when she refused. Bish held C. S.'s hands while Botchuck disrobed. Botchuck then attempted to have sexual intercourse with her. Bish then climbed into the back seat and forced C. S., to have sexual intercourse with him; at the same time, Botchuck was forcing her to perform oral sex on him.

Shortly thereafter, the car stopped at a gravel pit. The driver, Conrad, then climbed into the back seat and attempted to have sexual intercourse with the victim. When his efforts proved unsuccessful, he forced her to perform oral sex on him. Bish, Conrad, and Botchuck kept C. S. confined for the next few hours, continuing their sexual assaults, some of which occurred simultaneously. They also threatened, beat, and slapped her whenever she resisted. The evidence indicated that, at some point, two of the defendants pressed with their hands on the sides of C. S.'s head, causing her to hear a loud noise and then lose consciousness.

C. S., was discovered unconscious at the edge of a road in Elkhart County, Indiana, with her underwear placed over her head and her pants tied around her neck. She was taken to Elkhart General Hospital, where she arrived in a semi-conscious and incoherent condition. The entire episode lasted approximately four hours.

I.

Appellant Donald Conrad argues the trial court failed to follow the proper procedure in accepting his guilty pleas. Specifically, Conrad contends the trial court erred when it accepted and used the victim's statement as the sole source for the necessary factual basis. Ind.Code § 35-4.1-1-4(b) (Burns 1979 Repl.) provides:

"The court shall not enter judgment upon a plea of guilty unless it is satisfied from its examination of the defendant that there is a factual basis for the plea."

The record reveals that the trial court conducted a lengthy examination of the three defendants to determine that their guilty pleas were entered knowingly, voluntarily and intelligently. Thereafter, the court directed the prosecutor to present evidence of a factual basis to support the guilty pleas. The victim, C. S., testified in detail as to what the defendants had done to her during this incident. The court then determined that the arrangements proposed concerning the guilty pleas were agreeable to the victim, her parents and the investigating officer in the case. Thereafter, the following exchange occurred:

The Court :

"I am going to ask you, Mr. Conrad, Mr. Bish and Mr. Botchuck, to tell me all of the things that happened here. The information in my opinion as recited by the witness, ..., is complete on the elements for me to find a factual basis. Mr. Diggins, do you find that there is anything that the Court has not received sufficient to find a factual basis thus far?

Mr. Diggins : (counsel for defendants Conrad and Bish): No, Your Honor.

The Court : Mr. Hearn?

Mr. Hearn : (counsel for defendant Botchuck): I'm not quite sure I understand the question.

The Court : Do you think there's anything lacking the Court should hear to find a factual basis?

Mr. Hearn : No.

The Court : I will then give your clients the options of telling me now in their own words what happened or if they would like to wait for the date of sentencing.

Mr. Hearn : We would elect to wait till sentencing, Your Honor.

The Court : Mr. Diggins?

Mr. Diggins : Mr. Conrad and Mr. Bish also would defer until that time, Your Honor.

The Court : Now, Mr. Conrad, Mr. Bish and Mr. Botchuck, you have heard these witnesses. You have heard them ask me to accept these pleas, and you have heard them testify about matters for me to find a factual basis. I now renew my question. Do you still want to plead guilty to these four charges, Mr. Conrad?

Mr. Conrad : Yes.

The Court : Mr. Bish?

Mr. Bish : Yes, sir.

The Court : And Mr. Botchuck:

Mr. Botchuck : Yes."

Record at 616-18.

Thus, the record shows that the trial court began to conduct an examination of each of the defendants to determine that a factual basis existed. In response to a question from the court, counsel for each defendant acknowledged that the victim's testimony presented a complete factual basis. The court then stated that he wanted each defendant to explain in his own words what had occurred; however, the court gave them the option of waiting until the sentencing hearing to make their statements. The defendants, by counsel, chose to wait until the time of sentencing, and the court thereafter accepted the guilty pleas and entered judgments of convictions accordingly.

Clearly, then, appellant Conrad has waived the issue. While the statute requires, and better practice suggests, that the defendant himself should be examined before judgment is entered on a guilty plea, in this case the defendants, including Conrad, expressly and unequivocally waived this requirement. Appellant Conrad does not argue that this omission rendered his guilty pleas involuntary or unknowing, nor does he argue that the court established no factual basis to support his guilty pleas. In light of the defendants' deferral and the clear and unchallenged factual basis which was presented by the victim's testimony before judgment was entered, we do not believe the trial court committed reversible error in this case. Cf. ...