Dube v. State

• Decision Date: 22 November 1971
• Docket Number: No. 371S55,371S55
• Parties: Joseph A. DUBE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 7

275 N.E.2d 7

257 Ind. 398

Joseph A. DUBE, Appellant, v. STATE of Indiana, Appellee.

No. 371S55.

Supreme Court of Indiana.

Nov. 22, 1971.

Harriette Bailey, Conn., Public Defender, Paul J. Baldoni, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., William D. Bucher, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Judge.

This is an appeal from the trial court's denial of appellant's Petition for Post Conviction Relief. Appellant was charged by affidavit on April 2, 1968, with the crime of forgery, and after several deferments or continuances, appellant was arraigned on June 27, 1968. Appellant entered a plea of guilty to the offense charged and was sentenced on August 5, 1968, for a period of not less than two (2) nor more than fourteen (14) years in the Indiana State Prison. Appellant was not committed until December 20, 1968, when his sentence was modified to commitment to the Indiana Reformatory. December 2, 1969, appellant filed a Petition for Post Conviction Relief, and a hearing was held on March 13, 1970. On June 8, 1970, findings of fact and conclusions of law were filed by the court denying the petition. Appellant then filed his motion to correct errors and for rehearing on August 7, 1970, and a hearing was held on September 21, 1970. There is no indication in the record of the court's ruling on this motion. Also on September 21, 1970, appellant filed a motion to set aside the judgment of conviction and to withdraw his guilty plea, which was argued on December 4, 1970, and denied.

Joseph A. Dube, appellant, and 'flunky' in a large forgery ring, was arrested on forgery charges in Fort Wayne, Indiana. Dube contended he was not of sound mind at the time of the commission of the forgery. After making a statement, a deal was arranged whereby if Dube would cooperate by showing the authorities where the equipment was located and by identifying and testifying against the other members of the gang the prosecuting attorney would recommend a suspended sentence. Dube made quite clear that should he incriminate others his life would be in danger if he were imprisoned.

Dube never talked with the prosecutor personally but Dube's attorney and the prosecutor arranged the deal. Dube was assured by the chief investigator for the prosecutor's office and two State Policemen that the prosecutor would recommend a suspended sentence. Dube showed the police where a printing press and other equipment was located in Marion, Indiana. He gave them information against two other local members of the gang, one of whom subsequently pleaded guilty to federal charges and the other drowned. He testified against the ring leader at a grand jury hearing in Indianapolis. Dube cooperated fully with the authorities in shattering the forgery ring.

At arraignment on June 27, 1968, Dube was represented by counsel and entered a plea of guilty to forgery. One of the questions asked by the judge at the hearing was, 'Has anyone made any promises to you or threatened you in any way to induce you to plead either guilty or not guilty?' To which Dube replied, 'No, Sir.' However, Dube's attorney had coached Dube on these questions and answers. Dube said he answered in the negative because he felt to do otherwise would seriously threaten the arrangement. He stated, 'I figured that if I opened my mouth, that I'd probably get them into trouble or get myself into worse trouble, more or less afraid. However, it wasn't to lie to the Judge, but it's just that the attorney says to plead guilty.' The prosecutor did not recommend a suspended sentence at that time but did at the time of sentencing on August 5, 1968. However, much to the shock of everyone present but the Judge, Dube was sentenced for two (2) to fourteen (14) years in the State Prison.

Dube's attorney requested a rehearing and talked to the Judge a number of times before actual commitment. The prosecutor and the chief investigator for the prosecutor's office also spoke with the judge. All of them told the Judge of the promise and that Dube would be in grave danger should he be committed. The Judge did not change his sentence except that he changed the locus of imprisonment from the State Prison to the Indiana Reformatory even though Dube was over thirty (30) years of age.

Upon commitment, Dube's fears became a nightmarish reality, for the word was spread that he was a 'stoolpigeon.' On two occasions at the Reformatory, cans were dropped from the top of a cell house which struck him glancing blows. On another occasion he was threatened by four inmates who told him he had better stay close to a guard. Dube was then transferred to the State Prison. For his own protection, he requested to be placed in seclusion. After fourteen to fifteen months, the seclusion was in his words 'driving me crazy' and he requested to be let out into the general prison population. Reluctantly, the prison officials agreed. Dube was then involved in three altercations in two months arising out of his previous cooperation with the police. He said he frequently had to dodge homemade knives and that he once was chased out of a prison shop by a prisoner with a pair of scissors.

The essential question is whether Dube's plea of guilty was voluntarily, knowingly, and freely made or whether it was induced by the promise of a suspended sentence. A corollary question is whether the Judge should have made a further investigation when he discovered, before commitment, that promises had been made.

We recognize that so-called plea bargaining is a wide-spread practice in our criminal courts and that it often proves beneficial for both parties. For the State, the massive backlog of cases in our courts is well known. If a conviction can be obtained without the need for a formal trial the wheels of justice are accelerated thus enabling law enforcement personnel to conduct more extensive investigations and vigorous prosecutions of other cases in the fight against crime. For the defendant, it clearly increases the likelihood of a lighter sentence than he might otherwise receive. Were there no plea bargaining allowed, the prosecution would have no reason to seek other than the maximum sentence. Such a procedure also relieves the defendant and his family of a great deal of anxiety and embarrassment which might result from a protracted jury trial. However, with these benefits there are accompanying dangers inherent in the practice. This procedure must not be used as a coercive force to obtain pleas of guilty but must be the result of an agreement which both sides find mutually beneficial. For this reason it is essential that the trial court make certain that the plea of guilty is voluntary and that the defendant clearly understands the consequences of his plea. Several very important constitutional rights are waived by a defendant when he pleads guilty, including the right against self-incrimination and the right to a trial by a jury of his peers. When a waiver of these important rights occurs we must scrutinize the situation closely to make certain that the waiver was freely, knowingly, and voluntarily made with full knowledge of the consequences.

Clearly, the mere expectation of receipt of a lesser sentence would not be sufficient to make the plea involuntary. Brady v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; United States v. Marcus (7th Cir. 1954), 213 F.2d 230; United States v. Shneer (3d Cir. 1952), 194 F.2d 598. However, more than a mere expectation existed in this instance. Dube, who has only a fourth grade education, was told by his attorney that, although the decision was up to the Judge, he had always gone along with the prosecutor's recommendation. Add to this the assurance given Dube by police officers that the prosecutor would make the recommendation as long as Dube cooperated, and the voluntariness of the guilty plea becomes highly suspect.

In the case of Long v. State (1952), 231 Ind. 59, 106 N.E.2d 692 the appellant was made to believe that he would receive a suspended sentence if he withdrew his plea of not guilty and entered a plea of guilty. This Court there stated:

'This conduct even on the part of his own attorneys, would amount to a fraud upon appellant, which the trial court should neither allow nor countenance. It is not a sufficient base upon which to found a judgment taking away the right of liberty from a defendant charged with crime.' 231 Ind. at 62, 106 N.E.2d at 693.

This statement fits the situation of the case at bar. The prosecutor promised to recommend a suspended sentence and Dube was told by his attorney that the judge always followed the prosecutor's recommendations. Dube stated he pleaded guilty relying on these statements that he would receive a suspended sentence. 'A guilty plea, if induced by promises * * * which deprive it of the character of a voluntary act, is void.' Machibroda v. United States (1962), 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473. In United States v. Shneer (E.D.Pa.1952), 105 F.Supp. 883, although Shneer's attorney knew the court would not be bound by any recommendations, the reasonable reliance by Shneer upon his attorney's assurance that he would not be sentenced to jail misled him into changing his plea of not...