Champion v. State, 683S240

• Decision Date: 07 June 1985
• Docket Number: No. 683S240,683S240
• Citation: 478 N.E.2d 681
• Parties: Gary Dean CHAMPION, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 681

478 N.E.2d 681

Gary Dean CHAMPION, Appellant, v. STATE of Indiana, Appellee.

No. 683S240.

Supreme Court of Indiana.

June 7, 1985.

J. Michael Trueblood, Trueblood, Fountain, Graham, and O'Reilly, Lafayette, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant entered a plea of guilty to Aiding in the Commission of a Felony: Robbery. He was sentenced to thirty (30) years. Appellant's Petition for Post-Conviction Relief was denied.

The facts are: David Lyons discussed with appellant and another friend, Ward Jolly, the possibility of robbing a service station. The trio formulated their plan in discussions which lasted for nearly a week. During these discussions Lyons indicated that it was very likely that the attendant at the station and any other witnesses to the robbery would be killed.

Lyons would enter the station and commit the robbery while appellant and Jolly remained in the car as lookouts. They drove to the station at 1:00 A.M. and determined that only one attendant was on duty. However, there were several customers in the station and they decided it would be prudent to return later. At approximately 4:00 A.M. they determined the station was empty, save the attendant. They parked in the service station lot. Lyons entered the service station with a shotgun. Lyons killed the attendant and obtained nearly $1500 in cash. While Lyons was in the service station, appellant remained in the car.

Appellant was arrested shortly thereafter. On November 28, 1978, the State filed a two-count Information. Count I alleged Aiding in the Commission of a Felony: Felony Murder and Count II Alleged Aiding in the Commission of a Felony: Murder. The State had the option of seeking the death penalty under this Information. See Ind.Code Sec. 35-50-2-9(b)(1) and Ind.Code Sec. 35-41-2-4.

Following nearly a year of pretrial activity, which included extensive plea bargain negotiations, the State amended the Information to allege a third count. This count charged appellant with Aiding in the Commission of a Felony: Robbery. Appellant pled guilty to this third count and Counts I and II were dismissed.

Appellant seeks the reversal of a denial of post-conviction relief. He is entitled to this relief only when the evidence is without conflict and leads unerringly to a conclusion contrary to the one reached by the trial court. Hemphill v. State (1984), Ind., 461 N.E.2d 126.

Appellant first contends his guilty plea was not freely, knowingly and intelligently given. He maintains the plea was made under the coercive pressure of a threat of capital punishment which had no legitimate basis. He cites Nash v. State (1981), Ind.App., 429 N.E.2d 666, for support. This Court has indicated a bargained plea, motivated by an improper threat, is to be deemed illusory and a denial of substantive rights. Gibson v. State (1983), Ind., 456 N.E.2d 1006.

Appellant argues the representations made concerning the seeking of the death penalty were threats to do what the law would not permit and thus the threat was illusory. As noted above, the law in existence at the time of the plea did permit the State to seek the death penalty. However, two and one-half years later the United States Supreme Court decided the case of Enmund v. Florida (1982), 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140.

In Enmund the Court found the imposition of the death penalty was violative of the Eighth and Fourteenth Amendments for the defendant who aids in the commission of a felony which results in death when the defendant did not take life, attempt to take life or intend to take life. This Court discussed the rule in Enmund in Resnover v. State (1984), Ind., 460 N.E.2d 922, where we said:

"Enmund therefore dictates the rule that although vicarious liability for crimes perpetrated by one's confederates can justify one's conviction for said crimes, the imposition of death upon a vicariously guilty defendant must be based on 'his culpability, not on that of those who committed the robbery and shot the victims, for [the United States Supreme Court] insist[s] on "individual consideration as a constitutional requirement in imposing the death sentence." ' Enmund, 458 U.S. at 798, 102 S.Ct. at 3377, 73 L.Ed.2d at 1152 (quoting Lockett v. Ohio, (1978) 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990); See also Woodson [v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) ], supra. The Enmund court specified that 'For purposes of imposing the death penalty, [the defendant's] ... punishment must be tailored to his personal responsibility and moral guilt.' Enmund, 458 U.S. at 801, 102 S.Ct. at 3378, 73 L.Ed.2d at 1154." Id. at 935.

Appellant contends the death penalty, had it been sought and imposed under the facts of the instant case, would have been violative of Enmund and the sentence would have been vacated. This, he argues, is what makes the threat of the death penalty illusory and improper.

We do not agree. The focus of Nash and Gibson is on the activity of the State at the moment the plea is entered. At that moment the State must possess the power to carry out any threat which was a factor in obtaining the plea agreement which was accepted. The lack of that real power is what makes the threat illusory and causes the representation to take on the...