Early v. State, 382S125

• Decision Date: 14 October 1983
• Docket Number: No. 382S125,382S125
• Citation: 454 N.E.2d 416
• Parties: Charles Alex EARLY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 416

454 N.E.2d 416

Charles Alex EARLY, Appellant, v. STATE of Indiana, Appellee.

No. 382S125.

Supreme Court of Indiana.

Oct. 14, 1983.

Susan K. Carpenter, Public Defender, Paul Levy, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Charles Alex Early appeals from the denial of his petition for post-conviction relief by which he sought to withdraw his plea of guilty to robbery while armed with a deadly weapon. He was charged with this class B felony on September 28, 1978. On April 10, 1979, he pleaded guilty to this offense pursuant to a plea bargain agreement with the State, the terms of which required the prosecutor in return to recommend a sentence of fifteen years. This sentence was to be served concurrently with another fifteen year sentence for robbery which Early was to receive under a plea agreement in a different court and consecutively to a one to ten year sentence imposed on another offense. The trial judge took the plea under advisement.

On May 4, 1979, the trial judge accepted the plea and sentenced Early according to the recommendation. On March 10, 1981, Early filed a petition for post-conviction relief which was denied on November 18, 1981 after a hearing. He appeals, claiming that his plea was not knowingly and intelligently entered because the trial court did not advise him that it was not a party to any plea agreement between the prosecution and the defense. He also alleges that the trial court failed to meaningfully convey to him an understanding of the applicable sentencing scheme, but due to our resolution of his first assignment of error we need not address his second contention.

At the guilty plea hearing, the trial judge addressed Early and undertook an advisement of the rights enumerated in Ind.Code Sec. 35-4.1-1-3 (Burns 1979 Repl.) [Acts 1973, P.L. 325, Sec. 4; p. 1750 (repealed 1982); for provision effective September 1, 1982, see Ind.Code Sec. 35-35-1-2 (Burns Supp.1983) ]. He did not, however, comply with section (e) of that statute which precludes acceptance of a guilty plea by the court from the defendant without first "[i]nforming him that the court is not a party to any agreement which may have been made between the prosecutor and the defense and is not bound thereby."

In McCann v. State, (1983) Ind., 446 N.E.2d 1293, the defendant similarly claimed that the judge failed to advise him that the court was not a party to the plea agreement and was not bound by it. We recognized there that while strict compliance with the terms of the statute is required, German v. State, (1981) Ind., 428 N.E.2d 234 (Givan, C.J., and Pivarnik, J., dissenting), the exact language of the statute need not be used, Laird v. State, (1979) 270 Ind. 323, 385 N.E.2d 452. We found the statute satisfied in McCann as the defendant was expressly told that the plea bargain was not binding on the judge and that no agreement between him, his attorney and the prosecutor was binding on the court. In the instant case, however, defendant was not in any way advised or informed that the court was not a party to the agreement and was not bound thereby, and the trial judge in no way "conveyed the idea that the court had not been a bargainer and that he had made no prior commitments." Id. 446 N.E.2d at 1296.

The burden in the post-conviction hearing was on petitioner Early to establish the grounds for relief by a preponderance of the evidence. Ind.R.P.C. 1,...