Bonner v. State

Citation156 Ind.App. 513, 297 N.E.2d 867
Case DateJune 27, 1973
CourtCourt of Appeals of Indiana

Page 867

297 N.E.2d 867
156 Ind.App. 513
Larry BONNER, Appellant (Defendant below),
STATE of Indiana, Appellee (Plaintiff below).
No. 472A197.
Court of Appeals of Indiana, Second District.
June 27, 1973.
Rehearing Denied Aug. 1, 1973.

[156 Ind.App. 514]

Page 868

Harriette Bailey Conn, Public Defender, Carr L. Darden, Sr., Deputy Public Defender, for appellant.

Theo. L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Presiding Judge.


Petitioner-appellant Larry Bonner (Bonner) appeals from an adverse ruling by the Marion County Criminal Court, Division Two, on his Petition For Post-Conviction Relief which claimed his guilty plea was not voluntarily and knowingly entered.

We reverse.

Page 869


The record, when viewed most favorably to the State, reveals the following facts:

On April 20, 1971, an informant told the Indianapolis Police Department that he had purchased one capsule of heroin from Bonner. The police obtained an arrest warrant, arrested Bonner at his apartment and searched him and his apartment, but found no narcotics. He was then charged by Affidavit with two counts, Possession and Sale of Heroin.

[156 Ind.App. 515] On July 12, 1971, Bonner moved to withdraw his plea of not guilty and entered a plea of guilty to the charge of Possession, in return for which the State agreed to drop the Sale charge. The hearing was held in the Marion County Criminal Court, Division Two, and a finding of guilty was entered on the Possession charge.

The record reveals that during the course of this hearing on July 12, 1971, the guilty plea was accepted by the trial judge without reference by him to Bonner's constitutional rights pertaining to the privilege against self-incrimination and the right to confront one's accusers. Nor were any other of his rights under the state or federal constitutions referred to, except his right to a jury trial. Reference was also made to the penalty exacted for the offense to which he was pleading guilty. Pertinent parts of the record of the guilty plea hearing are excerpted in the Decision portion of this opinion.

On July 22, 1971, the court sentenced Bonner to the Indiana Reformatory for not less than two, nor more than ten years. He alleged in his Post-Conviction Relief Hearing on October 29, 1971 that the guilty plea had been entered as a result of coercion and had not been 'knowingly, intelligently, voluntarily, and willingly' entered. From the court's ruling against him this appeal is taken.


The following issues are presented for review by this appeal:

ISSUE ONE. Was Bonner's guilty plea entered voluntarily?

ISSUE TWO. Was Bonner's plea entered knowingly with knowledge of the consequences of such a plea?

ISSUE THREE. May it be assumed that Bonner was informed of the constitutional rights he was waiving by pleading guilty because he was represented by counsel, even though the record is silent as to any [156 Ind.App. 516] waiver by him of his right against compulsory self-incrimination and the right to confront his accusers?

As to ISSUE ONE, Bonner asserts that his plea of guilty to the lesser Possession charge was coerced because had he not done so he might receive a more severe penalty if convicted of the Sale charge.

The State replies that fear of being convicted of a more serious charge does not render a guilty plea to a lesser offense involuntary.

As to ISSUE TWO, Bonner contends that the colloquy with the judge during his guilty plea was insufficient to apprise him of the constitutional rights being waived by the guilty plea and the consequences thereof. Even absent coercion, he argues, a plea may not be truly voluntary unless the accused is aware of the plea and the consequences thereof.

The State answers by saying that the record clearly illustrates that the guilty plea was knowingly entered and that Bonner had been fully informed of his rights.

As to ISSUE THREE, Bonner argues that the information which he must possess in order to make an intelligent plea of guilty must be conveyed to him by the trial court judge and in the record.

Page 870

The State responds that when a defendant is represented by privately obtained counsel, the court may assume that he has been fully advised of the consequences of his plea, and therefore the court need not admonish him during the hearing.



CONCLUSION--It is our opinion that Bonner's guilty plea to the lesser Possession charge was entered voluntarily inasmuch as the mere 'threat' of punishment for the greater Sale charge does not constitute coercion.

[156 Ind.App. 517] The contention that the threat of conviction of a greater crime will allow a defendant to void a guilty plea on the grounds of coercion has been recently rejected by no lesser authorities than the Supreme Courts of the United States and the State of Indiana. In Brady v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, the court stated:

'We decline to hold, however, that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged.' 397 U.S. 742, 751, 90 S.Ct. 1463, 1470.

Similarly, the Indiana Supreme Court has held:

'* * * the fears of the appellant brought about by the surrounding circumstances cannot be considered the type of coercion which would require the trial court to permit withdrawal of the guilty plea. Under the circumstances the appellant was simply placed in a situation where he was required to make a judgment as to the best course of action for him to take. We cannot say that his decision to plead guilty constituted an involuntary situation simply because of the existence of overwhelming evidence and the threat of a life sentence.' Lockhart v. State (Ind.1971), 274 N.E.2d 523, 526.

Consequently, Bonner's position is quite untenable.

So we proceed to examine the state of the law in the more complicated area of admonitions which must be given an accused at a guilty plea hearing.


CONCLUSION--It is our opinion that the transcript of Bonner's Guilty Plea Hearing indicates that he was not sufficiently advised of his state and federal constitutional rights so as to knowingly enter a plea of guilty with knowledge of the consequences thereof.

According to the United States Supreme Court in Brady v. United States, supra, 397 U.S. at 752, 90 S.Ct. at 1471, '* * * at present (1970) well [156 Ind.App. 518] over three-fourths of the criminal convictions in this country rest on pleas of guilty * * *.' So the guilty plea is a major cog in the criminal justice machinery.


'A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. * * * More is not required, the court has nothing to do but give judgment and sentence.' Kercheval v. United States (1927), 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009.

Thus the procedures surround a guilty plea are vital, not only because such a plea is an admission of guilt, but because of the finality of the action.

Judicial concern over an accused's understanding of his rights as they relate to a guilty plea is not a recent development.

Page 871

State and federal courts long ago expressed anxiety that an accused have full understanding of his plea:

'That a plea of guilty should be entirely voluntary, and made by one competent to know the consequences thereof, and that the trial court should satisfy itself of these facts before receiving it, appears to be well settled.' Mislik v. State (1915), 184 Ind. 72, 76, 110 N.E. 551, 552.

In order to be valid and binding, a plea of guilty must be made intelligently, advisedly, and understandingly. Harshman v. State (1953),232 Ind. 618, 620, 115 N.E.2d 501.

See also: Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.

Recent developments in the area of guilty pleas are not the result of a new direction taken by the courts, but rather are a consequence of the courts' reaffirmation and redefinition of the traditional course.

The cardinal cases expounding the rights with which we must be concerned are the United States Supreme Court decision in Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and the unanimous Indiana Supreme Court decision in Brimhall v. State (Ind.1972),279 [156 Ind.App. 519] N.E.2d 557. A discussion of the knowledge which an accused must have in order to plead guilty involves three areas of concern:

I. The nature of the crime: 1 does the accused understand the exact crime or crimes with which he is being charged--the elements which must be proved and how those elements relate to the facts of his conduct?

II. The constitutional consequences: 2 does the accused understand the rights automatically waived by a guity plea, and the effect that such waiver has on the conduct of the judicial proceeding?

III. The nature of the punishment: 3 does he understand [156 Ind.App. 520] the minimum, mandatory minimum, maximum,

Page 872

consecutive sentences that he may receive when convicted of the crime?

Because we decide this case on the ground that the record does not reveal Bonner's plea was entered understandingly, with knowledge of the consequences of his plea, no discussion is necessary of an accused's understanding of the nature of the crime or of the punishment for that crime.


On June 2, 1969, the landmark case of Boykin v. Alabama, supra, decided that the record must affirmatively show an effective waiver by an accused of his federal constitutional rights so that the guilty plea entered is 'intelligent and voluntary.' In fastening on the states the rule that in order for an accused entering a guilty plea to...

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