Comstock v. State

• Decision Date: 29 June 1981
• Docket Number: No. 2-281A50,2-281A50
• Citation: 422 N.E.2d 395
• Parties: Nick COMSTOCK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 395

422 N.E.2d 395

Nick COMSTOCK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-281A50.

Court of Appeals of Indiana, Fourth District.

June 29, 1981.

Harriette Bailey Conn, Public Defender of Indiana, Robert H. Hendren, Sp. Asst., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Carolyn M. Brawner, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

Defendant-appellant Nick Comstock appeals the Jay Circuit Court's denial of his "Petition for Post-Conviction Relief" from his 1975 conviction for second degree burglary. Comstock raises one issue for our consideration: Did the trial court err in denying his petition since there allegedly was an inadequate factual basis for accepting Comstock's 1975 guilty plea pursuant to a plea bargain agreement?

We affirm for the reasons stated below.

FACTS

The uncontested facts derived from the appellate briefs and record of proceedings reveal that on May 19, 1975 Comstock, pursuant to a plea bargain agreement, entered a plea of guilty to the first count of an information charging second degree burglary. The second count charging safe burglary was dismissed. On the same day a hearing was held on his plea at which the trial court ascertained Comstock had ample opportunity to consult with an attorney concerning his plea and that Comstock was satisfied with the legal representation provided by his attorney. At this hearing Comstock stated he could not recall the events on the evening of his arrest. The county prosecutor presented to the court an oral recitation of the State's case indicating it would produce several different witnesses whose combined testimony would prove Comstock guilty of the crimes charged. Comstock's attorney indicated that Comstock, after his arrest in route to the police station had said to the arresting officer that Comstock "just couldn't stay away from that place, the Burger Chef ...."

Based on Comstock's guilty plea the court on June 24, 1975 sentenced him to a suspended sentence of two to five years and placed him on probation for three years. On October 3, 1975 this suspended sentence and probation was revoked and he was committed to prison for a sentence of two to five years. Comstock filed his Petition for Post-Conviction Relief on March 17, 1980 which was denied on September 16. From this denial Comstock properly raises on appeal the previously stated issue.

DISCUSSION AND DECISION

Comstock argues the trial court was required to establish an independent factual basis before accepting his guilty plea. Since he was unable to remember the events of the night he was arrested, Comstock claims the court could accept his plea only if the State introduced sufficient independent evidence of his guilt. Comstock submits that the prosecutor's recitation of the facts the State intended to prove at trial is inadequate as a matter of law to constitute sufficient independent evidence of Comstock's guilt. The State responds that it introduced sufficient evidence to establish Comstock's guilt and, therefore, he failed to carry his burden of establishing grounds for post-conviction relief by a preponderance of the evidence. We agree with the State.

Initially, we note that in a post-conviction relief proceeding the petitioner must establish his grounds for relief by a preponderance of the evidence. Ind. Rules of Procedure, Post-Conviction Remedy Rule 1, § 5. The judge hearing the decision is the sole arbiter of the weight of the evidence and the credibility of the witnesses. Further, his decision will stand unless the petitioner demonstrates that the evidence is without conflict and leads solely to a result opposite that reached by the court. Cushman v. State, (1978) 269 Ind. 68, 378 N.E.2d 643.

Returning to the case before us, Indiana courts have expressly adopted the rationale established in North Carolina v. Alford, (1970) 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, where the United States Supreme Court allowed the defendant's guilty plea to stand, even though he vigorously argued his innocence, because the evidence in the record was overwhelmingly against him leaving only a minimal chance of acquittal. Boles v. State, (1973) 261 Ind. 354 303 N.E.2d 645; Liffick v. State, (1977) Ind.App., 367 N.E.2d 34. Thus, in Boles v. State, supra, our Supreme Court stated that a trial court should not accept a guilty plea when it is accompanied by a protestation of innocence and unaccompanied by sufficient independent evidence documenting a factual basis for the guilty plea. Rather, a guilty plea is to be accepted only when there is overwhelming evidence of the defendant's guilt accompanying his plea. Boles v. State, supra.

The trial court's determination to accept or reject a guilty plea is guided by Ind. Code 35-4.1-1-4(b) which provides that "(t)he court shall not enter judgment upon a plea of guilty unless it is satisfied from its examination of the defendant that there is a factual basis for the plea." Hitlaw v. State, (1978) Ind.App., 381 N.E.2d 527, held that evidence other than sworn testimony could serve as an adequate basis for accepting a guilty plea. In Hitlaw the evidentiary factual basis for the plea consisted of a pre-sentence report (submitted at the hearing on Hitlaw's plea) which detailed the investigator's version of the events, the victim's opinion of Hitlaw's motive, statements of the victim and other witnesses concerning the crime involved, the probable cause affidavit upon which Hitlaw's arrest was based and an officer's report of the incident. The Court held the probable cause affidavit standing alone contained "sufficient facts that indicate Hitlaw's guilt ...." Id. at 528.

The information before the trial court at the May 19, 1975 guilty plea hearing, in addition to the probable cause affidavit which was part of the record (but not introduced into evidence), consisted of the prosecutor's recitation of the facts the State contended it would prove if the plea was rejected and the case went to trial. The Prosecutor stated:

"(t)he State of Indiana in this cause CR-75/8 would offer to prove the, eh, crime as charged in the information first of all by a witness, Garth LeMaster. We would show that Mr. LeMaster is a Patrolman for the Portland City Police Department and that he was acting on that capacity on February the 3rd, 1975, and that he did receive a (sic) information via the radio, the police radio, that I believe the operator being Crowe, that information had been received from a Ruby Jellison, eh, that, eh, a person had broken the window at the Burger Chef Restaurant in Portland, Jay County, Indiana; that Mr. LeMaster then acted upon this information and proceeded to that Restaurant in Portland, Jay County, Indiana, and upon arriving he observed that the glass door on the south side of said Restaurant that had been broken out, and that the Officer, Officer LeMaster thereupon entered the said Restaurant and observed an individual within the Restaurant attempting to open the west door of that Restaurant. The Officer is familiar with and knows the individual by the name of Nick Comstock and that he would identify Nick Comstock as being the individual seen in the Restaurant who was attempting to open the west door to the Restaurant. Eh, and that, eh, the Officer, LeMaster did observe certain tools on the floor of this building near the vicinity of the safe and that those tools consisting of (sic) hammer, and a screwdriver and adjustable wrench. The Officer also observed one hinge bolt on the floor of the building, the Restaurant, immediately in front of the safe. And, eh, the Officer would testify that the bolt apparently came from the said safe. We also have a Karen Gilly (to) testify she (is) the Assistant Manager of Burger Chef, Portland, Jay County, Indiana, and she would testify that the combination dial of the safe located within the Restaurant had been damaged. We would have Leota Shaneyfelt testify that she is also an employ of Burger Chef and she was so employed on the 2nd day of February, in fact she was the last employee to leave the building that evening and, eh, she did...