Buchanan v. State

• Decision Date: 19 March 1986
• Docket Number: No. 1-1185A271,1-1185A271
• Citation: 490 N.E.2d 351
• Parties: James BUCHANAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 351

490 N.E.2d 351

James BUCHANAN, Appellant, v. STATE of Indiana, Appellee.

No. 1-1185A271.

Court of Appeals of Indiana,

First District.

March 19, 1986.

Susan K. Carpenter, Public Defender, Kathryn Kelley, Sp. Asst. Public Defender, Indianapolis, for appellant.

NEAL, Judge.

STATEMENT OF THE CASE

Defendant-appellant, James Buchanan (Buchanan), appeals the denial of his Petition for Post-Conviction Relief by the Vigo Circuit Court wherein he alleged the trial court failed to strictly comply with advising him of his constitutional and statutory rights before pleading guilty to a charge of robbery, a Class B felony when armed with a deadly weapon.

STATEMENT OF THE FACTS

On August 26, 1982, Buchanan was charged with robbery in violation of IND. Code 35-42-5-1, a Class B felony when armed with a deadly weapon. On February 25, 1983, Buchanan withdrew his prior plea of not guilty, and pursuant to a plea agreement, he entered a plea of guilty to the armed robbery charge which the trial court accepted during the sentencing hearing on March 28, 1983.

Buchanan filed a pro se Petition for Post-Conviction Relief on September 30, 1983, which was subsequently amended by his attorney alleging the trial court erred in After the trial court denied Buchanan's petition, he filed his Motion to Correct Error arguing the trial court erred in denying his post-conviction relief petition for the reasons stated therein, and further alleged the trial court erred by failing to advise him of the possibility of an enhanced sentence where prior convictions exist. The trial court denied the motion to correct error, and Buchanan subsequently perfected this appeal. In response to Buchanan's appellate brief, the State filed a Motion For Remand And Trial wherein the State confessed error based on the alleged lack of a factual basis supporting the guilty plea.

that the factual basis supporting the charge failed to establish the use of a deadly weapon, and as a related matter, the trial court failed to determine whether he fully understood the nature of the charges against him. The State, in response to the amended petition, admitted error in the factual basis, and requested the trial court to modify the judgment to reflect conviction of a Class C felony.

ISSUES

I. Whether the trial court found a sufficient factual basis supporting the guilty plea to the crime charged.

II. Whether Buchanan was adequately advised so as to fully understand the nature of the charges against him.

III. Whether Buchanan was adequately advised of the possibility of an enhanced sentence.

DISCUSSION AND DECISION

Issue I and II.

In Buchanan's first argument he asserts the trial court erred in finding a sufficient factual basis as required in IND. CODE 35-35-1-3(b) before accepting his plea of guilty. Buchanan claims that since he allegedly denied the use and possession of a gun at the time he committed the offense, there is an insufficient factual basis to support the element "while armed with a deadly weapon" in IND. CODE 35-42-5-1(2) which raises the underlying robbery to a Class B felony. The State concedes as much in its confession of error and asks us to remand the case on that basis. Nevertheless, the laudatory action on the part of the State as an officer of the court does not relieve us of our duty to decide the law as applied to the facts in the Record. Green v. State (1953), 232 Ind. 596, 115 N.E.2d 211.

In his post-conviction proceeding, it was Buchanan's burden of proof to establish grounds for relief by a preponderance of the evidence. Ind. Rules of Procedure, Post-Conviction Rule 1 Sec. 5. The trial court is to determine the weight of the evidence and the credibility of the witnesses. Lloyd v. State (1979), 270 Ind. 227, 383 N.E.2d 1048. Buchanan here essentially asks us to reweigh the evidence.

A court shall not enter judgment upon a plea of guilty unless it is satisfied from its examination of the defendant or the evidence presented that there is a factual basis for the plea. IND. CODE 35-35-1-3(b). First, the trial court's examination of the defendant revealed the following:

"JUDGE: Alright. Well number one, specifically what you are charged with is going in and holding up the Merchants National Bank last August 25th here in Vigo County. You understand that?

BUCHANAN: Yes.

JUDGE: Uh--and the way the charge is drawn here--if you went to trial it would be up to the State to prove all of the essential elements that you knowingly took something of value from another person by threatening the use of force and that gun was used. This is what the State would have to prove basically in order to get a conviction if you went to trial.

BUCHANAN: Yes, sir.

JUDGE: And when you enter a plea of guilty uh--Mr. Buchanan, what you do is admit the truth of the allegations that I just mentioned here to you.... Uh--do you understand those points, sir?

BUCHANAN: Yes.

* * *

* * *

JUDGE: .... Well, knowing these things, is it your intention to enter this plea of guilty to Robbery as a Class B felony this morning?

BUCHANAN: Yes, sir."

Where a defendant states that he understands the nature and elements of the crime charged, and he further states that he understands that his guilty plea is an admission of the truth of the matters contained within the criminal information filed against him, such admission is sufficient to establish a factual basis for the plea. Lombardo v. State (1981), Ind., 429 N.E.2d 243; Lloyd, supra. Here, as the Record indicates, Buchanan stated he understood the elements the State would be required to prove, and that by his guilty plea he would be admitting the truth of these allegations. These admissions provide a sufficient factual basis for Buchanan's subsequent guilty plea.

Second, according to IND.CODE 35-35-1-3(b), a factual basis for a guilty plea exists where the court is satisfied based on the evidence presented. Following the above statements in the Record, the prosecutor, Mr. Walker, described the actions of Buchanan in the course of the bank robbery. Mr. Walker noted as Buchanan approached the teller window, he presented the teller with a note which said: "Do as I say, I have a gun. Put all your money in the bag and hurry. I have three guys looking outside." Thereafter, the following colloquy transpired:

"JUDGE: But you did do it, uh?

BUCHANAN: Yes.

JUDGE: Mr. Walker?

WALKER: I forgot to mention uh--the note said he had a gun and the defendant, in fact, did have a gun.

JUDGE: What kind of gun did you have sir?

BUCHANAN: It was a blank gun, taped up with scotch tape that Harold Rogers give me.

JUDGE: Uh, huh--

BUCHANAN: Which--at the time I robbed the bank, it was in my car, in the car seat. But in the statement it said I had it in my pocket, uh--when--

JUDGE: That part you disagree with?

BUCHANAN: No, because when Mr. Statler questioned me I told him it was still in the car and he just kept saying--are you sure it wasn't in your pocket--so finally I just said yes, it was in my pocket. But it was in the car seat in the car, because I could not take it in."

From these portions of the Record, it is clear that there is evidence in the Record from which the trial court could infer a sufficient factual basis for the plea. During the course of the robbery, Buchanan stated in the note that he had a gun, and it is reasonable to assume that the victim was put in fear and believed Buchanan was concealing a gun. After his arrest, Buchanan apparently gave a statement to the police that he had a gun in his pocket during the robbery. The trial court told him he was charged with robbery and that a gun was used, and Buchanan stated he was aware that by pleading guilty he was admitting those facts. Later, the prosecutor stated that the note said Buchanan had a gun, and that he did in fact have a gun after which Buchanan admitted having a blank gun. All these statements and admissions are evidence in the record supporting the plea.

To be convicted of armed robbery, it is not required that a gun or other deadly weapon be revealed during the robbery. Kruckeberg v. State (1978), 268 Ind. 643, 377 N.E.2d 1351, cert. denied, (1978), 439 U.S. 990, 99 S.Ct. 590, 58 L.Ed.2d 665; Sewell v. State (1982), Ind.App., 442 N.E.2d 1142. It is not required that a gun or deadly weapon ever be introduced into evidence. Brown v. State (1977), 266 Ind. 82, 360 N.E.2d 830. Finally, it doesn't matter that a blank gun was used as long as it could be used as a bludgeoning instrument to satisfy the definition of a deadly weapon in IND.CODE 35-41-1-2. Barber v. State (1981), Ind.App., 418 N.E.2d 563. See also Jones v. State (1978), 269 Ind. 543, 549, 381 N.E.2d 1064, 1068 (starter gun); Williams v. State (1983), Ind.App., 451 N.E.2d 687, 690-91 (pellet gun); Decker v. State (1979), 179 Ind.App., 472, 494-95, 386 N.E.2d 192, 206-07, trans. denied (toy gun); Lockridge v. State (1977), 172 Ind.App. 141, 147, 359 N.E.2d 589, 593-94, trans. denied (meat fork mistaken for gun barrel).

Buchanan tries to create a second issue by stating that the Record shows he was confused as to the nature of the charges against him. In support, Buchanan claims that his statements that he left the gun in his car, that the advice of counsel saying the note given to the teller supported the charge, and that the ambiguous wording of the Information alleging he committed armed robbery "by threatening the use of force ... with a gun" proves his argument. Regarding the phraseology of the Information, similar wording was not held insufficient in Rodriguez v. State (1979), 179 Ind.App. 464, 385 N.E.2d 1208. Regarding Buchanan's other claims, they merely create conflicting inferences from his prior statements and admissions which the trial court was not bound to accept or believe. Where facts in the Record support a factual basis for the plea, the trial court was not required to believe subsequent equivocation on the part of Buchanan. The facts in the Record believed by ...