Davis v. State

• Decision Date: 26 March 1981
• Docket Number: No. PS,PS
• Citation: 418 N.E.2d 256
• Parties: Willie DAVIS, Petitioner-Appellant, v. STATE of Indiana, Respondent-Appellee. 442.
• Court: Indiana Appellate Court

Page 256

418 N.E.2d 256

Willie DAVIS, Petitioner-Appellant, v. STATE of Indiana, Respondent-Appellee.

No. PS 442.

Court of Appeals of Indiana, Third District.

March 26, 1981.

Willie Davis, pro se.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for respondent-appellee.

GARRARD, Judge.

Appellant, Willie Davis, pled guilty to the charge of forgery and was sentenced to an indeterminate term of not less than two nor more than fourteen years. ¹ Davis thereafter petitioned for post-conviction relief arguing, upon a number of theories, that his guilty plea should be vacated. A hearing on the petition was held, and the trial court subsequently denied it. Davis appeals from this denial.

On appeal, Davis raises the following issues for review:

1. Whether the trial court erred in accepting the plea of guilty without first advising Davis of the nature of the crime, or otherwise determining he understood the nature of the crime, of forgery.

2. Whether the trial court erred in denying Davis' oral motion to withdraw his plea of guilty prior to sentencing.

3. Whether the plea of guilty should be vacated where the prosecutor, during the course of plea bargaining, used the threat of an habitual criminal charge to induce Davis to plead guilty.

4. Whether the trial court erred in accepting the guilty plea where no written plea bargaining agreement had been filed by the prosecutor.

5. Whether the sentence imposed should have reflected the ameliorative impact of the new penal code.

6. Whether Davis received adequate legal representation.

Before proceeding to the issues, we note that our standard of review of the denial of a petition for post-conviction relief is very limited. Post-conviction proceedings are civil in nature. Since Davis failed to prove his allegations by a preponderance of the evidence in the trial court, he appeals a negative judgment. As such, a reviewing court may reverse only where the evidence is without conflict and leads unerringly to a conclusion contrary to the one reached below. Owen v. State (1975), 167 Ind.App. 258, 338 N.E.2d 715. Any conflict, therefore, must be resolved in favor of the trial court's decision.

I.

Davis initially contends that his guilty plea was not knowingly made as the court did not advise him, pursuant to IC 35-4.1-1-3, as to the nature of the crime charged. ² The record reflects that the court did not inform Davis at the time the plea was entered of the requisite elements of the crime of forgery. However, the statute does not require that the trial court inform a defendant of the elements of the crime with which he is charged. Rather, IC 35-4.1-1-3 requires that the court not accept a guilty plea without first determining that the defendant understands the nature of the charge against him. ³ See also Brimhall v. State (1972), 258 Ind. 153, 279 N.E.2d 557.

At the time of taking Davis' plea the court found that he understood the nature of the offense. The evidence does not lead unerringly to the conclusion that Davis did not understand the nature of the crime of forgery at the time he pled guilty. The record reveals that Davis' first attorney was given a copy of the information and the probable cause affidavit, both of which described the crimes charged, and that Davis waived a formal reading of those charges. Any doubt that Davis was not adequately advised by his first counsel was removed by the testimony of his second attorney who testified that he discussed the elements of forgery with Davis during one of his initial office visits prior to entering the plea of guilty. In addition, at the time of the plea, the facts necessary to support the charge were fully discussed and Davis made no showing at that time of any ignorance of the nature of the crime of forgery. See Brooks v. State (1974), 161 Ind.App. 552, 316 N.E.2d 688. ⁴

We note in concluding that apart from the assertion made in the petition itself, at the hearing on his petition Davis made no suggestion to the court as to how he had been confused or what he had not understood. Where the defendant has the burden of proving his case by a preponderance of the evidence, it is incumbent upon him to base his allegation upon something more than a belated assertion of unspecified "confusion." Davis failed to meet this burden. We, therefore, affirm the trial court's holding that Davis' plea was knowingly based upon an understanding of the nature of the crime of forgery.

II.

Davis next contends that the trial court erred in refusing to accept his oral motion to withdraw his guilty plea prior to sentencing.

Davis was initially charged with theft and uttering a forged instrument. Pursuant to a plea bargaining agreement, the charge of theft was dismissed and the state agreed not to file an habitual criminal charge in return for Davis pleading guilty to the forgery. At the time Davis pled guilty the trial court conducted a thorough examination to insure, among other things, that Davis was competent, that he comprehended the constitutional rights he was waiving, that he acknowledged his guilt, that there were adequate facts supporting the charge, and that the plea was voluntarily made.

Over two months after entering his plea, but prior to sentencing, Davis appeared in court on two separate occasions and orally requested permission to withdraw his plea. At both hearings Davis was advised by the court that such a motion must be in writing and verified. ⁵ Defense counsel stated that he had told Davis that a written motion was required, and that counsel had been advised that a Mr. Turner, an attorney in Chicago, would be preparing the motion. No motion was ever filed. At sentencing Davis again orally requested permission to withdraw his plea, and his request was again denied.

The general rule in Indiana is that a motion to withdraw a plea of guilty is addressed to the discretion of the trial court. Riley v. State (1972), 258 Ind. 303, 280 N.E.2d 815. Thus, a trial court's ruling disallowing the withdrawal of a plea will not be disturbed on appeal unless it can be established that the trial court clearly abused its discretion. Id.

We conclude that it was not error for the trial judge to refuse to accept Davis' oral motion to withdraw his plea. IC 35-4.1-1-6 clearly provides that such a motion must be in writing and verified. The judge advised Davis on two occasions that his motion must be made pursuant to statutory requirements. It was not an abuse of discretion to deny Davis' motion as not having been properly made.

III.

Davis next alleges that his plea was not knowingly and intelligently made as the prosecutor threatened bringing an habitual criminal charge against him as an inducement to pleading guilty.

The law in Indiana is clear that it is not unlawful coercion to use the threat of an habitual criminal charge as an inducement to a defendant to accept a plea bargain as long as there is probable cause to believe the accused could be charged under the statute as an habitual offender. ⁶ Howard v. State (1978), 268 Ind. 589, 377 N.E.2d 628, cert. denied 439 U.S. 1049, 99 S.Ct. 727, 58 L.Ed.2d 708, citing Bordenkircher v. Hayes (1978), 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604. As the court in Holmes v. State (1980), Ind., 398 N.E.2d 1279 stated, "The offer of a reduced charge or sentence recommendation, where there is a legitimate basis for the greater alternative, is a legitimate bargaining tool of the State." 398 N.E.2d at 1280.

Davis urges that at the time a plea bargaining agreement was being discussed he did not have the requisite number of felonies on his record to support an habitual criminal charge. ⁷ The record is unclear as to whether a number of convictions on Davis' record at that time were for felonies or misdemeanors. Information available to the state at the time of plea bargaining showed that Davis had been incarcerated on at least four separate occasions upon convictions for involvement in burglary, criminal trespass of a vehicle, battery, and possession of marijuana, all of which occurred in Illinois. In addition, it appears that the prosecutor's offer to refrain from pursuing habitual criminal charges also contemplated and applied to a separate charge of robbery which was then pending in Elkhart Circuit Court.

We cannot discern from the record before us whether Davis' prior convictions were for felonies. We attribute this void to Davis. If, in fact, the prosecutor did not have probable cause to believe that an habitual criminal charge would lie, it was incumbent upon Davis to present adequate proof thereof at the postconviction hearing. This he failed to do. Other than bare assertions that he had not been convicted and imprisoned on felony charges, Davis presented no evidence to support his argument. It is the responsibility of an appellant to present a record demonstrating the facts upon which he premises error. We cannot consider an allegation of error where there is nothing in the record to support it. Bobbitt v. State (1977), 266 Ind. 164, 361 N.E.2d 1193; Fox v. State (1979), Ind.App., 384 N.E.2d 1159. We, therefore, conclude that Davis has failed to meet his burden of showing that the evidence leads to a conclusion contrary to the one reached below.

IV.

The prosecutor did not file a written plea bargaining agreement with the court as required by IC 35-5-6-2. ⁸ Davis argues that this constitutes a sufficient ground for vacating his plea of guilty. We disagree.

IC 35-5-6-2 clearly requires that any recommendation made by the prosecutor on a felony charge must be in writing. The purpose behind this statute is to insure that a defendant does not base his guilty plea upon certain promises made by the prosecutor where the judge has in fact not accepted the state's recommendation. Gross v. State (1975), 167 Ind.App. 318, 338 N.E.2d 663. The importance of this provision is most apparent where the prosecutor has made a sentencing recommendation upon which ...