Dolan v. State

• Decision Date: 03 June 1981
• Docket Number: No. 3-880A242,3-880A242
• Citation: 420 N.E.2d 1364
• Parties: Patrick M. DOLAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1364

420 N.E.2d 1364

Patrick M. DOLAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-880A242.

Court of Appeals of Indiana, Third District.

June 3, 1981.

Harriette Bailey Conn, Public Defender, Ihor N. Boyko, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Patrick M. Dolan appeals the denial of his petition for post conviction relief. In 1976 Dolan was charged with uttering a forged prescription. ¹ Dolan entered a plea of guilty pursuant to a plea agreement. Later he was sentenced to three years and placed on probation.

In 1978, while still on probation for the 1976 offense, Dolan was charged with a second offense of uttering a forged prescription. ² A second plea agreement was entered: Dolan pled guilty to violation of probation and to the second offense of uttering a forged prescription; and, the prosecutor recommended the reimposition of the three year sentence for the 1976 offense plus four years to be served consecutively for the 1978 offense. The court accepted the plea agreement and sentenced Dolan accordingly. Dolan now urges the following issues for our review: ³

(1) Whether Dolan entered his plea of guilty to the second offense knowingly, intelligently, and voluntarily;

(2) Whether the trial court erred in not listing aggravating circumstances for imposition of a sentence greater than the presumptive sentence for the second offense;

(3) Whether the imposition of the consecutive sentence for the second offense violated the constitutional proscription against ex post facto laws; and,

(4) Whether Dolan was properly credited with time served prior to sentencing for the first offense.

We affirm the judgment of the trial court upon issues one through three. We remand issue four to the trial court for recomputation of Dolan's presentence time credit.

I. Guilty Plea

Dolan contends his guilty plea to the second charge of uttering a false prescription was not made knowingly, intelligently and voluntarily due to the failure of the trial court to fully comply with the mandates of IC 1976, 35-4.1-1-3 (Burns Code Ed., 1979 Repl.) (Ind. Code § 35-4.1-1-3 (1976)). Specifically, Dolan asserts the fact the trial court failed to meet subsections (b) and (d) which provide:

"The court shall not accept a plea of guilty from the defendant without first addressing the defendant and

"(b) informing him that by his plea of guilty he is admitting the truth of all facts alleged in the indictment or information or to an offense included thereunder and that upon entry of such plea the court shall proceed with judgment and sentence;

"(d) informing him of the maximum possible sentence and minimum sentence for the offense charged and of any possible increased sentence by reason of the fact of a prior conviction or convictions, and of any possibility of the imposition of consecutive sentences...."

The State does not contest Dolan's assertion. However, the State contends Dolan's plea, when the record is considered as a whole, was entered in a knowing, intelligent and voluntary manner. We agree.

An examination of the guilty plea proceedings establishes that Dolan was not advised his guilty plea would be an admission of the truth of all facts in the information. However, the trial court did read the information to Dolan. Thereafter, the court asked Dolan if he had gone over the charge in the information with his attorney. Dolan stated that he had. The court then asked Dolan if that was the charge to which he was pleading guilty. Dolan stated that it was. The court then required Dolan to state in his own words the activities which involved the offense to which Dolan was pleading guilty. Dolan related those activities to the court. Later on during the proceedings, the court asked Dolan on more than one occasion if the facts and statements made were true and honest. Dolan always answered in the affirmative.

Dolan's present assertion regarding subsection (b) was answered in Lockert v. State (1979), Ind., 391 N.E.2d 613, 615, where the Court stated:

"With respect to petitioner's claim that he was not advised that by pleading guilty he would be admitting the truth of the facts contained within the indictment, once again the trial court's advisement failed to comply literally with the language in the statute, however, we do not find it to be reversible error in this case. In establishing a factual basis for the plea, the State introduced into evidence a statement made by the petitioner subsequent to his arrest. In his statement the petitioner admitted to having been a participant in the felony murder with which he was charged. At the guilty plea hearing, in response to questions by the trial judge, the petitioner stated that the facts contained in the statement were true. Inasmuch as the truth of the statement was acknowledged, and inasmuch as the facts therein related constituted the crime charged and to which the petitioner entered his guilty plea, we find that the trial court's advisement under the circumstances of this case, sufficiently conformed with § 35-4.1-1-3 as to constitute an adequate inquiry into the voluntariness of the plea."

Similarly, we find the procedure followed by the trial court in this case to have sufficiently complied with IC 35-4.1-1-3(b). Dolan admitted the facts, statements, and charges made in the information, as discussed with his attorney, and as related in his own words were true and honest representations. As in Lockert, we conclude that this is an adequate inquiry to assure the defendant knowingly, intelligently and voluntarily entered his plea.

A further examination of the record establishes the trial court failed to specifically state the sentence for the second offense could or would be served consecutive to the first sentence. Again, however, the record as a whole reveals Dolan entered his plea knowingly, intelligently, and voluntarily.

Dolan's plea agreement stated in part:

"Defendant, PATRICK M. DOLAN, does, in fact, enter said plea of guilty and admit his probation violation, the State of Indiana, and the Defendant, PATRICK M. DOLAN, and the Defendant's counsel, will jointly recommend to the Court that the Defendant receive a three (3) year sentence ... pursuant to a violation of his probation ... and that the Defendant shall additionally receive a four (4) year sentence consecutive to the sentence (for parole violation) ....

"That if the recommendation of the State of Indiana, the Defendant, and his counsel, is accepted by the Court, and if the Defendant is, in fact, sentenced to a period of incarceration of three (3) years for his probation violation ... and four (4) years thereafter for his (second offense of uttering a forged prescription) then, and in that event, the State of Indiana will dismiss page 2 of the Information filed ... charging the Defendant with being a Habitual Criminal Offender." (Emphasis added.)

(/S/ Patrick M. Dolan)

At Dolan's arraignment, the following dialogue occurred:

"(Prosecutor) Your Honor, with regard to that hearing, that is apart (sic) of a plea bargain that has been discussed and agreed between the defendant himself, his counsel and the Prosecutor's office and relates to not only the violation of probation, but also to his second offense for uttering a forged prescription.

"(Court) Have you had an opportunity to go over this Prosecuting Attorney's recommendation, Mr. Dolan?

"(Dolan) Yes, I have, Your Honor.

"(Court) Oh, I see. You and your attorney have oh, yes, you've signed it, right?

"(Dolan) Right.

"(Court) So, you have had opportunity to read it.

"(Dolan) Yes, Your Honor.

"(Court) You're familiar with the contents, then?

"(Dolan) Yes, I am, Your Honor."

Thereafter, the trial court judge, Judge Hughes, told Dolan:

"(Court) The court is placed in somewhat of a position here by reason that tomorrow is my last day in court and there'll be a new Judge who will pass sentence upon you in the other cause pending against you and I can only say that I would accept the Prosecuting Attorney's recommendation. You would have to assume also that Judge Jones who will assume the bench here January 1 at the time he passes sentence upon you in the other charge pending against you will also accept the recommendation. However, if he does not and there's any controversy over it, I want it understood that you have a right withdraw any pleas that you make in these causes. Do you understand this?

"(Dolan) Yes, I do."

Dolan then entered his plea of guilty and a sentencing hearing was set for a later date. At the sentencing hearing, presided over by the new judge, Judge Jones, the following dialogue occurred:

"(Court) Do you also understand that there was a plea bargain agreement executed by yourself, ... your attorney at that time and also executed by ... a Deputy Prosecuting Attorney?

"(Dolan) Yes, I do.

"(Court) Do you understand what that plea bargain contains?

"(Dolan) Yes, sir.

"(Court) Do you understand that the bargain indicates that you were to be sentenced, I understand or had been sentenced already to three years on a prior charge?

"(Dolan) Right.

"(Court) Or have your probation revoked would be a better way of saying it and ordered to serve that term and that in addition to that, the penalty in this offense is that you are to serve four years, which will be consecutive with the violation of probation.

"(Dolan) Right."

Judge Jones then stated:

"Inasmuch as I have already indicated I'd give my consent to the plea bargain agreement, I feel it's incumbent I live by my own agreement and that I accordingly accept the recommendation which is entered into by all parties."

Whereupon, it was entered in the record:

"(T)he defendant was sentenced to the Indiana Department of Corrections for a period of four years, which sentence was to run consecutive to a sentence imposed (for violation of...