Davis v. State

• Decision Date: 18 June 1984
• Docket Number: No. 1-1283A390,1-1283A390
• Parties: Guy Anthony DAVIS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 926

464 N.E.2d 926

Guy Anthony DAVIS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-1283A390.

Court of Appeals of Indiana First District.

June 18, 1984.

Susan K. Carpenter, Public Defender, Melanie C. Conour, Deputy Public Defender, Indianapolis, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

NEAL, Presiding Judge.

STATEMENT OF THE CASE

Petitioner-appellant Guy Anthony Davis (Davis) appeals the denial of his petition for post-conviction relief filed pursuant to Ind.Rules of Procedure, Post-Conviction Remedy Rule 1.

We reverse.

STATEMENT OF THE RECORD

On August 10, 1976, Davis was charged with first degree burglary on August 13, 1976, he was presented to the trial court where the charge was explained and he was advised of his rights to counsel, to plead not guilty, to a jury trial, to confront witnesses, to an attorney, to compulsory process, not to testify, and that the State must prove his guilt beyond a reasonable doubt. On September 14, 1976, a written plea agreement was signed by Davis and filed with the trial court which recited that it was not binding on the court, and that Davis would plead guilty to the lesser included offense of entering to commit a Davis's post-conviction relief petition alleged that at the time of the entering the guilty plea, there was not a voluntary, knowing and intelligent waiver and plea because the court had not advised him at the time of the entering and accepting the plea that he had a right to compulsory process, a right not to incriminate himself, a right to have the state prove his guilt beyond a reasonable doubt, a right to a public and speedy trial, and that the court was not a party to the plea agreement. The State defended the petition on the grounds of denial and laches. The trial court, in its findings of fact and conclusions of law, essentially found from the over all record recited above that Davis was advised of all of his rights; that he waived those rights; and that the plea of guilty was voluntarily, knowingly, and intelligently entered. The trial court made no finding of laches, and did not base its decision thereon.

felony and receive a one to five year indeterminate sentence. It further stated that he understood his constitutional rights to a public and speedy trial, a jury trial, freedom from self-incrimination, to confront and cross-examine witnesses, to compulsory process, and to have the State prove his guilt beyond a reasonable doubt. It concluded by stating that upon entering the guilty plea he waived those rights. On October 1, 1976, Davis appeared and in response to questions by the court he acknowledged the plea agreement and the sentence. He acknowledged that by pleading guilty to the crime of entering to commit a felony he waived a jury trial and the right to confront and examine witnesses, and stated the plea was voluntary. The court accepted the plea agreement. Counsel for Davis, not Davis himself, entered the guilty plea and thereupon the court made its factual determination of guilty and sentenced Davis according to the agreement.

It is to be noted that Davis served his sentence and the post-conviction petition is a proceeding to erode the base supporting a later conviction as a habitual offender.

DISCUSSION AND DECISION

IND.CODE 35-4.1-1-3 and 4, which were enacted in 1973, were in effect when Davis' guilty plea was entered. While the August 13 proceeding, the plea bargain and the October 1 proceeding if considered collectively, would satisfy the statutes, the October 1 proceeding at which the guilty plea was entered is wholly inadequate to satisfy those sections. We believe that under the present case law it is beyond dispute that a plea of guilty must be vacated unless the record shows that the trial court informed the accused of all the constitutional rights he is waiving by direct statements at the time of the guilty plea. Garringer v. State, (1983) Ind., 455 N.E.2d 335; Early v. State, (1982) Ind., 442 N.E.2d 1071. Early was emphatic, and stated that the waiver must occur simultaneous with the guilty plea, and the defendant must understand his right "at that very moment". Such error has been held to be fundamental. Brown v. State, (1982) Ind.App., 435 N.E.2d 582. George v. State, (1980) 273 Ind. 271, 403 N.E.2d 339, permitted a guilty plea to stand even though there was a lapse of 14 days from the advice and the plea because at the prior proceeding the defendant was "seriously considering" pleading guilty, and indicated a willingness to plead guilty. In doing so the court distinguished Beard v. State, (1978) 176 Ind.App. 348, 375 N.E.2d 270, which held that a 70-day lapse was fatal. Here we find no special circumstances as in George.

The State does not seriously dispute the above strict application of the statute. Instead, it urges us to retroactively apply the February 29, 1984 amendment to IND.CODE 35-4.1-1-3 and 4, and adopt a harmless error rule. That amendatory statute found in the Acts of 1984, Public Law 179, contains a section as follows:

"(c) any variance from the requirement of the section that does not violate a constitutional right of the defendant is not a basis for setting aside the plea of guilty."

The State then argues that the statute is procedural and can be applied retroactively.

We first note that the requirements of IND.CODE 35-5.1-1-3 and 4 are probably broader than those of Boykin v. Alabama, (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, as...