Curry v. State
| Decision Date | 04 December 1996 |
| Docket Number | No. 49S04-9509-PC-01080,49S04-9509-PC-01080 |
| Parties | Mark CURRY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Supreme Court |
Thomas E. Hastings, Brown, Hastings, Baldwin & Clutter, Indianapolis, for Defendant-Appellant.
Pamela Carter, Attorney General of Indiana and Christopher L. Lafuse, Deputy Attorney General, Indianapolis, for Plaintiff-Appellee.
ON PETITION TO TRANSFER
On December 4, 1980, the defendant pled guilty to a misdemeanor charge of operating a vehicle while intoxicated. Thirteen years later, in May of 1993, the defendant requested a copy of his guilty plea hearing. The court reporter responded by affidavit, informing the defendant that, in accordance with the judicial records retention procedures, the tapes of the proceedings were properly "recycled" and electronic recordings of the plea and sentencing no longer existed. See Administrative Rule 7 (). The defendant then filed a petition for post-conviction relief, alleging that the judge failed to ascertain whether the defendant knowingly, voluntarily and intelligently waived his constitutional rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
Following the presentation of evidence at three separate hearings, the post-conviction court denied the defendant's petition, finding that the loss of a record or transcript of a guilty plea hearing does not per se require a plea to be vacated because Appellate Rule 7.2(A)(3)(c) provides a means to reconstruct the record for review in such cases. The post-conviction court held that the defendant failed to establish that reconstruction of the record was impossible and failed to meet his burden of proof showing that he was entitled to have the conviction vacated and set aside. The Court of Appeals reversed the post-conviction court, finding that the defendant had shown that reconstruction of the record was impossible under Appellate Rule 7.2. Curry v. State, 650 N.E.2d 317 (Ind.Ct.App.1995). The State's Petition To Transfer was previously granted.
In post-conviction proceedings, the defendant-petitioner has the burden of establishing his grounds for relief. Ind.Post-Conviction Relief Rule 1(5). Therefore, because the defendant now appeals from a denial of relief, he is appealing from a negative judgment. When appealing a negative judgment, the defendant must convince this Court that the evidence presented during the post-conviction proceedings is without conflict and, as a whole, leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995).
Prior to the acceptance of a guilty plea, a trial court must determine that such plea is voluntarily made. Boykin, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). To satisfy the federal constitution, "[t]he record must show, or there must be an allegation and evidence which show," that the defendant was informed of, and waived, three specific federal constitutional rights: the Fifth Amendment privilege against compulsory self-incrimination and the Sixth Amendment rights to trial by jury and to confront one's accusers. Id. at 242-43, 89 S.Ct. at 1712, 23 L.Ed.2d at 279. In reviewing the transcripts and record in a death penalty direct appeal, the Boykin Court, found that "[s]o far as the record shows, the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court." Id. at 239, 89 S.Ct. at 1710, 23 L.Ed.2d at 277. The Court therefore held that it could not presume waiver of these rights from a record which was silent. Id. at 243, 89 S.Ct. at 1712, 23 L.Ed.2d at 279-80.
Boykin provided that proof showing the defendant was informed of the three specified federal constitutional rights may be provided by either of two different means: (1) the record itself or (2) "allegation and evidence." Id. at 242, 89 S.Ct. at 1712, 23 L.Ed.2d at 279. When a record or transcript of the proceedings is unavailable, Indiana provides a surrogate method for establishing and presenting a reconstructed record:
If no report of all or part of the evidence or proceedings at the hearing or trial was or is being made, or if a transcript is unavailable, a party may prepare a statement of the evidence of proceedings from the best available means, including his recollection. If submitted contemporaneously with the matter complained of, the statement may be settled and approved by the trial court. If submitted thereafter, the statement shall be served on other parties who may serve objections or prepare amendments thereto within ten (10) days after service. The statement and any objections or prepared amendments shall be submitted to the trial court for settlement and approval and as settled and approved shall become a part of the record and be included by the clerk of the trial court in the record.
If statements or conduct of the trial judge are in controversy, the statement shall be supported by sworn affidavit which shall be submitted to the trial judge for his certification. If he refuses to certify the statement he shall file opposing affidavits. All such affidavits shall be included in the record by the clerk of the trial court.
Ind.Appellate Rule 7.2(A)(3)(c).
Building upon the requirements of Boykin, this Court in Zimmerman v. State, 436 N.E.2d 1087 (Ind.1982), held that, when a defendant seeks post-conviction relief alleging his guilty plea was not voluntarily made, the loss of a record or transcript of a guilty plea will require the vacation of the plea and a new trial only when reconstruction of the record through Appellate Rule 7.2 is impossible. Id. at 1088-89. In Zimmerman, the tape recording of the guilty plea hearing had been lost or inadvertently destroyed. The State attempted to reconstruct the record pursuant to Appellate Rule 7.2(A)(3)(c) and submitted its attempt to the post-conviction judge, who also presided over the guilty plea hearing. Over the defendant's objection, the post-conviction judge certified the State's reconstructed record. On appeal, we rejected the defendant's "belief that a lost record was per se the equivalent of a silent record" and denied the defendant post-conviction relief because he "did not avail himself of the provisions of Appellate Rule 7.2(A)(3)(c) allowing him to participate in the reconstruction of the lost record." Id. at 1089 (emphasis added). We observe that a determination that it is impossible to reconstruct the record will be a rare finding, as compliance with Appellate Rule 7.2 will almost always provide a basis by which the merits of the claim may be determined. See Campbell v. Criterion Group, 605 N.E.2d 150, 161 (Ind.1992) ().
In the case at bar, the defendant alleges the trial court failed to properly advise him of his Boykin rights. However, he fails to present an actual or a reconstructed record upon which his claim may be determined. As such, we do not have a record from the plea proceedings which is "silent" as to whether or not the defendant received proper advisements, as did the Boykin Court. Rather, as in Zimmerman, we have no record. The defendant attempts to distinguish his case from Zimmerman by contending that he did attempt to reconstruct the record and the evidence presented demonstrates that reconstruction is impossible.1 We find these contentions to be unsupported.
When the statements or conduct of the trial judge are in controversy, attempts to reconstruct the record are made pursuant to Appellate Rule 7.2. Under Appellate Rule 7.2, the defendant is required to prepare a statement of the evidence of the guilty plea proceedings, prepared from "the best available means, including his recollection." App.R 7.2(A)(3)(c). He must also support his version by sworn affidavit and submit it to the trial judge for certification. If the trial judge refuses to certify the statements, Appellate Rule 7.2 requires that the judge file opposing affidavits. As provided by the Rule, these affidavits are then included in the record of the trial court. The defendant failed to satisfy any of these requirements. Therefore, as a matter of law, he did not attempt to reconstruct the record under Appellate Rule...
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...bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Curry v. State, 674 N.E.2d 160, 161 (Ind.1996). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a neg......
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Hall v. State
...the evidence from the best available sources, which may include the party's or the attorney's recollection." 2. See, e.g., Curry v. State, 674 N.E.2d 160 (Ind.1996); Patton v. State, 537 N.E.2d 513 (Ind.Ct.App.1989); Corder v. State, 516 N.E.2d 71 (Ind.Ct.App.1987); Wilburn v. State, 499 N.......
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Hall v. State
... ... Id. As did the Wilburn court, the Corder court held because Boykin requires advisements on the record, it could not infer that Corder had been advised of his rights. 5 Id ... A case in which it was held that reconstruction of the record was not impossible is Curry v. State, 674 N.E.2d 160 (Ind.1996) ... Curry had pleaded guilty to operating while intoxicated in 1980. In 1993, he filed for post-conviction relief after learning that the tape recordings of his hearing had been "recycled" and no longer existed. Curry thus claimed that there was no record ... ...