Dillehay v. State

• Decision Date: 31 October 1996
• Docket Number: No. 49A02-9601-PC-15,49A02-9601-PC-15
• Citation: 672 N.E.2d 956
• Parties: Rhonda L. DILLEHAY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 956

672 N.E.2d 956

Rhonda L. DILLEHAY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-9601-PC-15.

Court of Appeals of Indiana.

Oct. 31, 1996.

Andrew C. Maternowski, Indianapolis, for Appellant-Defendant.

Pamela Carter, Attorney General, Carol A. Nemeth, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

KIRSCH, Judge.

Rhonda Dillehay pled guilty to dealing in cocaine, ¹ a Class A felony. She later sought post-conviction relief from that plea. The trial court denied relief, and Dillehay now appeals. She presents two issues:

I. Whether the post-conviction court erred in determining that Dillehay's guilty plea was voluntary and intelligent; and

II. Whether the post-conviction court erred in determining that the State established an adequate factual basis for Dillehay's guilty plea.

We affirm.

FACTS AND PROCEDURAL HISTORY

This appeal involves two cases against Dillehay, one in Room 3 of the Marion County Superior Court, Criminal Division (Court 3), and the other in Room 6 of the same court (Court 6). In Court 3, Dillehay faced charges of cocaine dealing, cocaine possession, and narcotics possession, arising from a police raid on a hotel room. In Court 6, Dillehay faced two counts of cocaine dealing and two counts of cocaine possession, arising from cocaine sales to a confidential informant.

Dillehay's counsel advised her that convictions in both courts on the dealing counts would result in a minimum forty-year sentence--twenty years in each court with mandatory consecutive sentences. To avoid the risk of forty years in prison, Dillehay signed a plea agreement calling for a twenty-year executed sentence. The agreement required Dillehay to plead guilty to the dealing count in Court 6. In return, the State agreed to dismiss the remaining counts in Court 6 and to dismiss all counts in Court 3.

At the guilty plea hearing the judge determined that Dillehay understood the terms of the plea agreement. The judge further confirmed that Dillehay knew the sentencing range for the dealing charge was twenty to fifty years, with a determinate sentence of thirty years. Record at 56-57. The judge then asked the prosecutor to state the maximum total sentence for all counts. The prosecutor did not know, but Dillehay's lawyer stated that the total potential sentence would be 179 years. ² Record at 60. When the judge asked Dillehay why she was pleading guilty, Dillehay responded: "Because I am guilty." Record at 54.

After ascertaining that Dillehay understood her rights concerning trial, the judge asked the prosecutor to recount the factual basis for the plea. The prosecutor read from the probable cause affidavit, which indicated that a confidential informant met Dillehay in two locations. Both times the informant obtained envelopes which Dillehay said contained cocaine. Subsequent testing proved that the envelopes, which bore Dillehay's fingerprints, did in fact contain cocaine. Record at 81-84. Dillehay admitted these allegations. The judge found the State had presented an adequate factual basis for the plea and accepted the plea agreement.

After her prison term started, Dillehay learned that her attorney was incorrect in believing that sentences from Courts 3 and 6 must be served consecutively. Accordingly, Dillehay filed a post-conviction relief petition. At the hearing on the petition she testified that she decided to plead guilty because the plea agreement offered a single twenty-year sentence as compared to the two consecutive twenty-year sentences her counsel told her she faced. She insisted that she pled guilty only because she mistakenly believed that the agreed sentence allowed her to avoid a minimum forty-year sentence.

The post-conviction court determined that the attorney had misinformed Dillehay concerning the potential sentence in two ways: first by advising her that the sentences must be consecutive, and second by miscalculating the maximum sentence at 179 years when the actual total was 152 years. The court decided, however, that the misinformation did not warrant post-conviction relief. Further, the court found that the factual basis for the plea was adequate.

DISCUSSION AND DECISION

I. Effect of Sentence Advisement

To obtain post-conviction relief, Dillehay must establish her claims by a preponderance of the evidence. Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993). Having failed to convince the post-conviction court of the merits of her claims, Dillehay must now demonstrate that the evidence leads unmistakably to reversal. Butler v. State, 658 N.E.2d 72, 75 (Ind.1995). We consider only the evidence that supports the post-conviction court's decision along with any reasonable inferences from that evidence. Wickliffe v. State, 523 N.E.2d 1385, 1386 (Ind.1988).

Dillehay contends that due to her counsel's incorrect advice concerning the potential sentences, her guilty plea was neither voluntary nor intelligent. She insists she would have gone to trial in both courts had she known the potential sentences could be concurrent. She further argues that the incorrect advice she received concerning the total maximum sentence interfered with her ability to make an intelligent plea. ³

The State responds that Dillehay has failed to prove she would have gone to trial but for the inaccurate sentencing advice. Further, the State points out that Indiana law requires a sentencing advisement solely on the charge to which the defendant intends to plead guilty, not on charges dismissed. Brown v. State, 443 N.E.2d 316, 319 (Ind.1983). Accordingly, the State contends, the misinformation on the dismissed charges does not render the plea invalid, because no advice was required on those charges. Dillehay acknowledges that no advisement is required for dismissed charges but counters that if an advisement is given, it must be correct.

To be valid, a guilty plea must be made knowingly, voluntarily and intelligently. Stowers v. State, 266 Ind. 403, 409, 363 N.E.2d 978, 982 (1977); Likens v. State, 177 Ind.App. 101, 105, 378 N.E.2d 24, 27 (1978). The plea bargain offered by the State may not be illusory. Daniels v. State, 531 N.E.2d 1173, 1174 (Ind.1988). Where, as here, the plea agreement calls for certain charges to be dismissed, the plea is voluntary if the defendant understands the sentencing range for the charge(s) to which the defendant is pleading guilty. IC 35-35-1-2(a)(3). Indiana precedent does not require the trial court to advise the defendant concerning penalties for charges to be dismissed. Brown, 443 N.E.2d at 318-19; Likens, 177 Ind.App. at 110, 378 N.E.2d at 30. As the court stated in Brown, "[d]efendant is entitled to be informed of the actual penal consequences of his plea of guilty, not the hypothetical result of a trial on a charge which the State has agreed not to prosecute in return for the plea." 443 N.E.2d at 319. Absent coercion or deception regarding charges to be dismissed, a reviewing court must consider all facts and circumstances, including misadvice, to determine whether the defendant voluntarily and intelligently pled guilty. Lockhart v. State, 257 Ind. 349, 353-54, 274 N.E.2d 523, 526 (1971); Likens v. State, 177 Ind.App. at 109, 378 N.E.2d at 29.

Dillehay insists that the incorrect sentencing advice rendered her plea invalid as a matter of law. She cites Likens v. State, 177 Ind.App. 101, 378 N.E.2d 24 (1978), which our supreme court quoted in the Brown opinion. Highlighting dicta from Likens, Dillehay argues that receiving misinformation is more damaging than receiving no information. The Likens opinion notes that "[w]here misadvice from counsel leads the defendant to believe he can receive a sentence much longer than the law would allow, at least two courts [in other jurisdictions] have permitted the plea to be set aside." 177 Ind.App. at 109 n. 7, 378 N.E.2d at 29 n. 7. The court went on to explain, however, that to require sentencing advice covering all charges would be to restructure and potentially confuse the plea bargaining process:

"The advice, if given, could be both speculative and misleading since the prosecution is neither bound to submit to the jury every charge in the information, nor is it barred from commencing additional criminal proceedings because the defendant is already charged with a crime. Because of these uncertainties it would be unduly time consuming and still potentially confusing to the accused to impose such a requirement."

Likens, 177 Ind.App. at 110, 378 N.E.2d at 30.

According to Dillehay, a defendant should be advised not only of the sentencing range for the charge to which the defendant is pleading guilty, but also of the ranges and potential sentencing combinations for all charges to be dismissed. In Dillehay's case, this would have required an explanation of the potential for concurrent versus consecutive sentences on every possible combination of convictions, e.g., both counts of possession but not dealing, or both counts of dealing, or one count of dealing in one court and one count of possession in the other, and so on. This would make the advisement extremely complex and would lengthen the bargaining process. We find no such sweeping requirement for sentencing advice in our precedent, and we decline to impose one here.

Although the misadvice does not warrant reversal as a matter of law, we must examine the related factual question: whether the incorrect advice concerning the minimum sentence rendered Dillehay's plea bargain illusory. A plea induced by an improper threat is illusory, thus involuntary and invalid. Gibson v. State, 456 N.E.2d 1006, 1009 (Ind.1983)(quoting Nash v. State, 429 N.E.2d 666, 671 (Ind.Ct.App.1981)); see also Marshall v. State, 590 N.E.2d 627, 631 (Ind.Ct.App.1992), trans. denied. When sentencing advice from defense counsel is at issue, we consider all relevant facts and circumstances, including the actual sentence risk, the plea agreement, and the post-conviction...