Butler v. State, No. 45S03-9502-PC-247

Docket NºNo. 45S03-9502-PC-247
Citation658 N.E.2d 72
Case DateNovember 28, 1995
CourtSupreme Court of Indiana

Page 72

658 N.E.2d 72
Gerry BUTLER, Appellant (Petitioner Below),
v.
STATE of Indiana, Appellee (Respondent Below).
No. 45S03-9502-PC-247.
Supreme Court of Indiana.
Nov. 28, 1995.

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Charles A. Asher, South Bend, for appellant.

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Pamela Carter, Attorney General, Julie Zandstra Frazee, Deputy Attorney General, Indianapolis, for appellee.

ON PETITION TO TRANSFER

SHEPARD, Chief Justice.

The Court of Appeals ordered post-conviction relief for appellant Gerry Butler. It held that if a defendant and the prosecutor affirm that the facts support a plea, a trial court abuses its discretion if it accepts the plea without proof of all the relevant facts. We grant transfer.

I. The Prosecution of Butler's Drunk Driving

In 1987, during his third D.U.I., Butler crashed his vehicle into another car. As a result of Butler's acts, Juanita McClendon was killed, her eleven-year-old son was left paralyzed, her twelve-year-old daughter's leg was broken in three places, her sister's face was seriously scarred and her arm broken, and her five-year-old nephew broke both legs, both knees and received a head injury resulting in mental retardation.

The State charged Butler with a host of crimes: operating a motor vehicle while intoxicated causing death, a class C felony; 1 reckless homicide, a class C felony; 2 four counts of criminal recklessness causing serious bodily injury, class D felonies; 3 four counts of operating a motor vehicle while intoxicated causing serious bodily injury, class D felonies; 4 driving while suspended, a class A misdemeanor; 5 and one count alleging Butler was a habitual substance offender, a class C felony enhancement. 6

Butler's lawyer negotiated a plea bargain under which Butler pled guilty to operating a vehicle while intoxicated resulting in death or serious bodily injury, and to being a habitual substance offender. In exchange, the State dismissed the remaining six charges. The court sentenced Butler to concurrent sentences of eight years for the driving while intoxicated charges and added eight years for the habitual substance count.

Three years later Butler filed a petition for post-conviction relief, claiming he was not a habitual substance offender. The Indiana Code requires two prior substance convictions as class A misdemeanors or as felonies; Butler contended one of his priors was a class C misdemeanor. 7 Butler said he did not know this when he pled guilty to being a habitual substance offender. He also alleged that he had entered this fallacious plea because his counsel was ineffective.

The post-conviction judge undertook to determine the nature of the challenged prior conviction. During the hearing on Butler's petition, the post-conviction court examined the text of the chronological case summary and the citation for Butler's second offense. 8 The CCS stated Butler was charged with " 'DR UNDER INFLUENCE (REFUSAL)' and 'NO PLATES.' " The citation indicated that Butler was " 'driving while intox., contrary to the form of State Statute, I.C. 9-11-2-1,' " (R. 150.) This citation referred to a statute defining a class C misdemeanor, but

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the post-conviction court found as a fact that the text of the ticket referred to the offense of Operating a Vehicle While Intoxicated, a class A misdemeanor. Ind Code Ann. § 9-11-2-2 (West Supp.1987).

In effect, the court inferred that the statutory citation was a scrivener's error. The court buttressed this conclusion by noting Butler's own testimony revealed he was not misled about the nature of the charge, for he admitted to the sentencing court that he had "two prior D.U.I.s". (R. 61.) Finally, the court concluded the offense was likely a class A misdemeanor because there was no evidence Butler submitted to a blood-alcohol content test. The court noted that without this test Butler could not have been convicted of driving with the .10 percent blood-alcohol content required for conviction of a class C misdemeanor under § 9-11-2-1. 9

The post-conviction court also denied Butler's claim of ineffective assistance of counsel. It found that even if counsel failed to suggest that Butler might collaterally challenge the status of the second offense, there was "no evidence to suggest that this would have made a difference to [Butler's] decision to plead guilty." (R. 153.)

Butler appealed, alleging the post-conviction court erred by finding he had committed the required predicate offenses. He further claimed he had been denied effective assistance of counsel and that the post-conviction court had erred by considering the testimony of a deputy prosecutor on an issue of law.

The Court of Appeals reframed Butler's first issue, asking instead whether his guilty plea was supported by a sufficient factual basis. The court held there was no factual basis to accept the plea because Butler's testimony was the only evidence about the class of his convictions. It held that this evidence alone could not constitute a sufficient factual basis. Butler v. State (1994), Ind.App., 638 N.E.2d 826. Reversing on this ground, it did not address Butler's second and third claims of error.

We grant the State's petition to transfer to consider the following issues:

1. Whether the post-conviction court erred when it found Butler had committed two prior class A misdemeanors;

2. Whether Butler received effective assistance of counsel; and,

3. Whether the post-conviction court erred by admitting and relying on opinion testimony about a legal issue.

At the outset, we note that a petitioner who loses in a post-conviction proceeding stands in the shoes of one appealing from a negative judgment. On appeal, he must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the trial court. Lowe v. State (1983), Ind., 455 N.E.2d 1126. On appeal, we examine only the probative evidence which supports the post-conviction court's judgment, along with any reasonable inferences from that evidence. Wickliffe v. State (1988), Ind., 523 N.E.2d 1385. With this standard in mind, we turn first to the nature of Butler's prior conviction.

II. Butler's Previous Offenses

The Court of Appeals characterized Butler's claim concerning the class of his prior conviction as a question of factual basis. We begin by explaining why it is more than that.

Because a guilty plea constitutes a waiver of constitutional rights, a trial court has a duty to evaluate the validity of every plea before accepting it. Stowers v. State (1977), 266 Ind. 403, 363 N.E.2d 978. Indiana Code § 35-35-1-3 outlines the parameters of this obligation when it requires courts to ascertain the voluntariness of the plea and whether there is a factual basis for it. Ind.Code Ann. § 35-35-1-3 (West 1986). 10 These requirements parallel those

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utilized in the federal courts, 11 where they rest on Rule 11 of the Federal Rules of Criminal Procedure rather than on any constitutional basis. 12 See McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969).

Since the 1930's, Indiana courts have recognized the need to find that a guilty plea is voluntary. Ketring v. State (1936), 209 Ind. 618, 200 N.E. 212. By contrast, factual basis emerged as a requirement only more recently. See Brimhall v. State (1972), 258 Ind. 153, 279 N.E.2d 557. Our General Assembly created a factual basis requirement in 1971 by adopting Section 35-4.1-1-4 and recodifying it in 1973 at Section 35-35-1-3. Some judges made such inquiries before the General Assembly required it. See Turner v. State (1991), Ind., 580 N.E.2d 665, 669 (DeBruler, J., dissenting).

The factual basis requirement primarily ensures that when a plea is accepted there is sufficient evidence that a court can conclude that the defendant could have been convicted had he stood trial. See III American Bar Association Standards for Criminal Justice § 14-1.6, Commentary § 14-1.6(a) (1986). In short, this standard ensures that a person who pleads guilty truly is guilty. 13 This is particularly important where a defendant pleads guilty with "an understanding of the nature of the charge, without realizing that his conduct did not actually fall within the charge." 2 Wayne R. LaFave and Jerold H. Israel, Criminal Procedure, § 20.4(f), n. 118 (quoting Fed.R.Crim.P. 11, Advisory Committee Note) (1991); see also South Dakota v. Lashwood, 384 N.W.2d 319 (S.D.1986) (observing that purpose is to protect one who might not realize his conduct does not fall within scope of charge). Moreover,

inquiry into the factual basis of the plea provides the court with a better assessment of the defendant's competency and willingness to plead guilty ..., increases the visibility of charge reduction practices, provides a more adequate record and thus minimizes the likelihood of the plea being successfully challenged later, and aids correctional agencies in the performance of their functions.

2 LaFave & Israel, § 20.4(f), n. 120 (citing ABA Standards Relating to Pleas of Guilty 33 (Approved Draft, 1968)); see also John L. Barkai, Accuracy Inquiries for all Felony and Misdemeanor Pleas: Voluntary Pleas But Innocent Defendants?, 126 U.Pa.L.Rev. 88, 95-100 (1977).

Despite the wealth of writing on the benefits of the factual basis requirement, court decisions and statutes specifying the "precise quantum of evidence" constituting "factual basis" are non-existent. 2 LaFave & Israel, § 20.4(f)(1) (citing, for comparison, ALI Model Code of Pre-Arraignment Procedure § 350.4(3) (1975)) (requiring courts to find "reasonable cause exists" before accepting a plea). This is because a finding of factual basis is a subjective determination that permits a court wide discretion-- discretion

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that is essential due to the varying degrees and kinds of inquiries required by different circumstances. See Snyder v. State (1986), Ind., 500 N.E.2d 154, 157.

Obviously, a court need not find evidence proving guilt beyond a reasonable...

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61 practice notes
  • Coleman v. State, No. 45S00-9203-PD-158
    • United States
    • Indiana Supreme Court of Indiana
    • December 29, 1998
    ...that course should be followed."). Finally, counsel's performance is presumed effective. Douglas, 663 N.E.2d at 1154; Butler v. State, 658 N.E.2d 72, 78 (Ind.1995). To be successful, Coleman's offers of proof must rebut that presumption. They do not. We will review each of Coleman's major a......
  • Metheny v. State, No. 149
    • United States
    • Court of Appeals of Maryland
    • July 24, 2000
    ...529 F.2d 1374, 1376 (4th Cir.1975); People v. Hoffard, 10 Cal.4th 1170, 43 Cal. Rptr.2d 827, 899 P.2d 896, 903 (1995); Butler v. State, 658 N.E.2d 72, 75-76 (Ind.1995); Lacy v. People, 775 P.2d 1, 5 (Colo.1989)(en banc); State v. Barboza, 115 N.J. 415, 558 A.2d 1303, 1306, n. 1 (1989); Stat......
  • Conner v. State, DEFENDANT-APPELLANT
    • United States
    • May 25, 1999
    ...the post-conviction court's determination and does not reweigh the evidence or Judge the credibility of the witnesses. Butler v. State, 658 N.E.2d 72, 75 (Ind. 1995); Lowery, 640 N.E.2d at 1. Ex Parte Communication to the Jury The defendant argues that the post-conviction court erred regard......
  • Prowell v. State, No. 82S00-9407-DP-666
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1997
    ...plea waives any constitutional claims of error in the admission or exclusion of evidence prior to its entry). See, e.g., Butler v. State, 658 N.E.2d 72 (Ind.1995). The defendant, in his reply brief, acknowledges this longstanding rule, but claims that the purposes of that rule do not apply ......
  • Request a trial to view additional results
61 cases
  • Coleman v. State, No. 45S00-9203-PD-158
    • United States
    • Indiana Supreme Court of Indiana
    • December 29, 1998
    ...that course should be followed."). Finally, counsel's performance is presumed effective. Douglas, 663 N.E.2d at 1154; Butler v. State, 658 N.E.2d 72, 78 (Ind.1995). To be successful, Coleman's offers of proof must rebut that presumption. They do not. We will review each of Coleman's major a......
  • Metheny v. State, No. 149
    • United States
    • Court of Appeals of Maryland
    • July 24, 2000
    ...529 F.2d 1374, 1376 (4th Cir.1975); People v. Hoffard, 10 Cal.4th 1170, 43 Cal. Rptr.2d 827, 899 P.2d 896, 903 (1995); Butler v. State, 658 N.E.2d 72, 75-76 (Ind.1995); Lacy v. People, 775 P.2d 1, 5 (Colo.1989)(en banc); State v. Barboza, 115 N.J. 415, 558 A.2d 1303, 1306, n. 1 (1989); Stat......
  • Conner v. State, DEFENDANT-APPELLANT
    • United States
    • May 25, 1999
    ...the post-conviction court's determination and does not reweigh the evidence or Judge the credibility of the witnesses. Butler v. State, 658 N.E.2d 72, 75 (Ind. 1995); Lowery, 640 N.E.2d at 1. Ex Parte Communication to the Jury The defendant argues that the post-conviction court erred regard......
  • Prowell v. State, No. 82S00-9407-DP-666
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1997
    ...plea waives any constitutional claims of error in the admission or exclusion of evidence prior to its entry). See, e.g., Butler v. State, 658 N.E.2d 72 (Ind.1995). The defendant, in his reply brief, acknowledges this longstanding rule, but claims that the purposes of that rule do not apply ......
  • Request a trial to view additional results

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