Emert v. State, 775S166

• Decision Date: 14 July 1975
• Docket Number: No. 775S166,775S166
• Citation: 263 Ind. 340,330 N.E.2d 750
• Parties: Juan EMERT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 750

330 N.E.2d 750

263 Ind. 340

Juan EMERT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 775S166.

Supreme Court of Indiana.

July 14, 1975.

Rehearing Denied Sept. 29, 1975.

Harriette Bailey Conn, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., James M. Garrettson, Deputy Atty. Gen., Indianapolis, for appellee.

OPINION ON PETITION FOR TRANSFER

HUNTER, Justice.

The defendant was convicted of carrying a pistol without a license in violation of Ind.Ann.Stat. § 10--4736 (Burns 1956 Repl.), IC 1971, 35--23--4--3. He was sentenced by the trial court to a determinate sentence of ten years. He thereafter filed a petition with the Marion Criminal Court, Division IV, seeking post-conviction relief from the judgment entered on his guilty plea of January 15, 1973. The trial court denied the petition and the defendant appealed the decision to the Court of Appeals, First Division. The Court of Appeals 'reversed and remanded with instructions to grant petitioner relief by vacating his judgment of conviction and plea of guilty.'

The attorney general, on behalf of the state, filed petition to transfer, citing in support the case of Williams v. State (1975), Ind., 325 N.E.2d 827. In Williams, this Court addressed itself to an identical question presented by this defendant. The threshold question in Williams--the same as the question here--involved a determination of what constitutes a silent record. There we determined that the defendants' pleas were voluntarily and intelligently entered and with full knowledge of their constitutional rights based upon the written record submitted. ¹

The Public Defender on behalf of the petitioner below cites Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and Brimhall v. State (1972), 258 Ind. 153, 279 N.E.2d 557, contending that our Criminal Rule 10 requires the same type of record--in other words a colloquy between the trial judge and the defendant at arraignment, to determine whether a plea is voluntarily and intelligently entered with the defendant's full knowledge of his constitutional rights. In Williams, as in this case, we find that Boykin did not explicitly require such a colloquy. In Brimhall we found that while the defendant had consulted with counsel, there was no record of testimony that he had been advised of his constitutional rights under Boykin and, additionally, neither did the record show such advice by the judge of the court. We determined in Williams that Boykin 'was concerned primarily with what the record must show and not who must make the record.' In the instant appeal, the record does show a voluntary and intelligent entry of a plea of guilty made with full knowledge of the defendant's constitutional rights.

For all the foregoing reasons, the judgment of the trial court in denying post conviction relief is hereby affirmed.

ARTERBURN, J., concurs.

GIVAN, C.J., concurs in result.

PRENTICE, J., dissents with opinion in which DeBRULER, J., concurs.

PRENTICE, Justice (dissenting).

I dissent and would grant transfer but would reverse the trial court, as did the Court of Appeals, and direct that the guilty plea and conviction be vacated.

The record in this case merely discloses only that at some time prior to arraignment Emert's counsel had read a written form to him which contained an explanation of the constitutional rights which would be waived upon the plea of guilty, that Emert had signed such form and that, at arraignment, the trial judge asked him only if he understood the same, and he answered that he did. The most this record can indicate is that Emert thought that he understood his rights, and there is nothing from which the trial judge could have independently assessed Emert's knowledge. Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, requires that the record demonstrate a knowing and intelligent waiver by the accused.

Nothing is more clearly demonstrated by the parade of cases that pass before us than that most criminally accused are woefully ignorant, not only of their intricate constitutional rights but also of court procedures and even of the English language. Such circumstances mandate that the trial court make such inquiry, in each case, as will enable him to assess intelligently the accused's true understanding of his perilous position. What is demonstrated by the record is important only to the extent that it assures that the rights of the accused are not violated. We...