Butler v. State, No. 45A03-9309-PC-304

• Docket Nº: No. 45A03-9309-PC-304
• Citation: 638 N.E.2d 826
• Case Date: August 10, 1994
• Court: Court of Appeals of Indiana

Page 826

638 N.E.2d 826 Gerry BUTLER, Appellant-Petitioner Below,
v.
STATE of Indiana, Appellee-Respondent Below. No. 45A03-9309-PC-304. Court of Appeals of Indiana,
Third District. Aug. 10, 1994.
Rehearing Denied Nov. 3, 1994.

Charles A. Asher, South Bend, for appellant.

Pamela Carter, Atty. Gen. of Indiana and Julie Zandstra Frazee, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Gerry Butler appeals the denial of his petition for post conviction relief, presenting three issues for this court's review:

I. Whether Butler's guilty plea was supported by a sufficient factual basis;

II. Whether Butler was denied the effective assistance of counsel;

III. Whether the post conviction court erred by allowing the expert testimony of a Deputy Prosecutor.

Page 827

The first of these issues is dispositive. We reverse the denial of post conviction relief.

On May 9, 1987, Butler was involved in an automobile collision that caused the death of one person and seriously injured four others. On June 20, 1989, he pled guilty to operating a vehicle while intoxicated causing serious bodily injury and admitted his status as an habitual substance offender.

On June 24, 1992, Butler filed a petition for post conviction relief, alleging that he had not committed the predicate offenses (two felonies or class A misdemeanors) to support an habitual substance offender determination. IND.CODE 35-50-2-10. Butler contended that his new counsel's investigation had revealed that his previous convictions consisted of one class A misdemeanor and one class C misdemeanor. He further alleged that his former counsel was ineffective in failing to ascertain, prior to the guilty plea hearing, whether he had committed two prior offenses which were classified as class A misdemeanors.

Hearing on the post conviction petition was held on December 17, 1992. The charging and conviction documents submitted to the post conviction court (but not submitted to the guilty plea court) could neither refute nor substantiate Butler's claim that his second alcohol-related conviction was a class C misdemeanor. The "Indiana Information and Summons" alleged a violation of IND.CODE 9-11-2-1 ("Operation of a vehicle with .10% or more alcohol in blood," a class C misdemeanor) but described the violation as "Driving While Intox" (apparently referring to "Operation of vehicle while intoxicated," a class A misdemeanor). The court docket sheet indicated the imposition of a sixty day sentence, the maximum penalty provided for a class C misdemeanor conviction. ¹ Record, pp. 317, 322.

Nevertheless, the...