Fisher v. State

• Decision Date: 23 February 1988
• Docket Number: No. 82S00-8607-PC-688,82S00-8607-PC-688
• Citation: 519 N.E.2d 539
• Parties: Charles E. FISHER, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
• Court: Indiana Supreme Court

Page 539

519 N.E.2d 539

Charles E. FISHER, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).

No. 82S00-8607-PC-688.

Supreme Court of Indiana.

Feb. 23, 1988.

Susan K. Carpenter, Public Defender, Kathryn L. Kelley, Sp. Asst., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lisa Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Petitioner Charles Fisher was charged with first degree murder and he entered a plea of not guilty. He later withdrew his plea of not guilty and pleaded guilty to a reduced charge of second degree murder. The court accepted the guilty plea and sentenced Fisher to life imprisonment in accordance with the State's recommendation. Fisher filed a pro se Petition for Post-Conviction Relief, which he later amended to allege that his plea of guilty was not entered knowingly, intelligently, and voluntarily. Subsequently, the State filed an amended Answer to raise the affirmative defense of laches. The court conducted a hearing on the amended petition and afterwards instructed the parties to file briefs and findings of fact and conclusions of law, which Fisher did. Later, outside the presence of Fisher and his counsel, the State moved to reconvene the hearing in order to introduce evidence of laches. The court granted the motion. Fisher filed a motion in opposition to the second hearing, which was denied. After the second hearing was held, the court denied Fisher's amended petition. Fisher appeals directly to this court raising four issues challenging the post-conviction court's findings of laches and that his guilty plea was knowingly, intelligently and voluntarily given. Because of our affirmation of the post-conviction court's determination that Fisher's guilty plea was given knowingly, intelligently and voluntarily, it is unnecessary to reach the laches issues.

Fisher contends the court erred in denying his post-conviction petition in that his plea of guilty was not entered knowingly, intelligently, and voluntarily due to the court's failure to advise him in compliance with Ind.Code Sec. 35-4.1-1-3 prior to acceptance of his plea. Fisher contends the court's failure to insure his plea was entered with a full understanding of all of the consequences also constitutes a denial of due process as guaranteed by Article I, Sec. 12 of the Indiana Constitution and the Fifth and Fourteenth Amendments to the United States Constitution.

The present standard of review on guilty pleas requires more than an allegation of a code violation. We now require a showing of prejudice by the petitioner. White v. State (1986), Ind., 497 N.E.2d 893, 905. "A petitioner who claims that his plea was involuntary and unintelligent but can only establish that the trial judge failed to give an advisement in accordance with Sec. 35-35-1-2 has not met his burden of proof. He needs to plead specific facts from which a finder of fact could conclude by a preponderance of the evidence that the trial judge's failure to make a full inquiry in accordance with Sec. 35-35-1-2(a) rendered his decision involuntary or unintelligent. Of course, unless the record reveals that the defendant knew or was advised at the time of his plea that he was waiving his right to a jury trial, his right of confrontation and his right against self-incrimination, Boykin will require that his conviction be vacated." White, 497 N.E.2d at 905.

Fisher invites this court to re-examine its standard espoused in White v. State (1986), Ind., 497 N.E.2d 893, believing it to be inconsistent with the development of the case law in this area. This we will not do.

Fisher maintains that the requirements of Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 were not met in that he was not specifically advised (1) that by pleading guilty, he was waiving his constitutional rights to a...