Followell v. State

Decision Date20 September 1991
Docket NumberNo. 42S04-9109-PC-730,42S04-9109-PC-730
Citation578 N.E.2d 646
PartiesDavid FOLLOWELL, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender, Patrick R. Ragains, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

Appellant David Followell pled guilty as charged in 1983 to one count of criminal deviate conduct, a class B felony, Ind.Code Sec. 35-42-4-2 (West 1986). He was sentenced to twenty years, the maximum sentence allowed by statute for a class B felony. Ind.Code Sec. 35-50-2-5 (West 1986).

At the combined guilty plea and sentencing hearing, the judge questioned Followell to determine whether his guilty plea was voluntary and intelligent. The judge's questions closely tracked the controlling statute, Indiana Code Sec. 35-35-1-2, requiring judges, before accepting a guilty plea, to make an inquiry:

(1) Determining that [the defendant] understands the nature of the charge against him;

(2) Informing him that by his plea he waives his rights to:

(A) A public and speedy trial by jury;

(B) Confront and cross-examine the witnesses against him;

(C) Have compulsory process for obtaining witnesses in his favor; and

(D) Require the state to prove his guilt beyond a reasonable doubt at a trial at which the defendant may not be compelled to testify against himself;

(3) Informing him of the maximum possible sentence and minimum sentence for the crime charged and any possible increased sentence by reason of the fact of a prior conviction or convictions ... (emphasis added).

Ind.Code Sec. 35-35-1-2 (Burns 1981).

The court's inquiry of Followell satisfied all the statutory requirements save one, the warning that a defendant's criminal history can serve as an aggravating factor to enhance a presumptive term. Instead, after informing Followell of the minimum and maximum penalties for a class B felony the judge asked him if he understood that the court could impose the maximum sentence of twenty years, to which Followell replied, "Yes." Record at 71.

After accepting the plea, the court sentenced Followell to the maximum term of twenty years. Among the aggravating factors which the court found to support the enhancement were Followell's three juvenile adjudications (which would have been felony convictions had he been an adult) and a misdemeanor conviction as an adult. The court also listed as aggravators the fact that a deadly weapon was used in the commission of the crime, and that the victim, a 14-year-old girl, would bear the psychological scar of Followell's actions for the rest of her life.

Two years later, Followell petitioned for post-conviction relief, claiming that his plea was not made voluntarily or intelligently because the judge did not inform him that his prior juvenile and adult criminal history could be used to support enhancement of his sentence to the maximum penalty. The post-conviction court denied Followell's petition, and the Court of Appeals affirmed in an unpublished opinion. Followell v. State, No. 42A04-9007-PC-326 (Ind.App. Mar. 13, 1991).

As petitioner, Followell had the burden of establishing his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). Evidence that the trial judge failed to give one of the statutory advisements does not by itself sustain petitioner's burden. Sage v. State (1986), Ind., 501 N.E.2d 427. He must establish specific facts from which the trier of fact could conclude by a preponderance of the evidence that the trial judge's omission rendered the decision to enter a guilty plea involuntary or unintelligent. White v. State (1986), Ind., 497 N.E.2d 893. Thus he must prove that any erroneous or omitted advisements, if corrected, would have changed his decision to enter the plea. Sage, 501 N.E.2d at 429.

The judge who heard the post-conviction petition was the same judge who sentenced Followell in 1983. In denying the petition, the judge concluded that he had decided to enhance the sentence based largely on the two other aggravating factors he had cited, and not on the juvenile adjudications and misdemeanor conviction. The judge declared from the bench that he was satisfied that in making his sentencing decision, he had not relied in any substantial way on Followell's juvenile adjudications or adult misdemeanor conviction. The court made no mention of the impact of omitting an advisement on Followell's decision to plead. Record at 238-240. Similarly, in affirming the post-conviction court, the Court of Appeals held that the other...

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5 cases
  • Trujillo v. State
    • United States
    • Indiana Appellate Court
    • 28 Noviembre 2011
    ...changed his or her decision to enter the plea. State v. Lime, 619 N.E.2d 601 (Ind.Ct.App.1993), trans. denied (citing Followell v. State, 578 N.E.2d 646 (Ind.1991)). Trujillo couches his claim in terms of ineffective assistance of counsel. In order to prevail on a claim of ineffective assis......
  • State v. Lime
    • United States
    • Indiana Appellate Court
    • 30 Agosto 1993
    ...the burden of establishing his grounds for relief by a preponderance of the evidence. Ind.Post-Conviction Rule 1(5); Followell v. State (1991), Ind., 578 N.E.2d 646, 648. In State v. Cleland (1985), Ind., 477 N.E.2d 537, our supreme court examined a similar question. The petitioner rested o......
  • Beldon v. State
    • United States
    • Indiana Appellate Court
    • 21 Noviembre 1995
    ...the trial judge failed to give one of the statutory advisements does not by itself sustain the petitioner's burden. Followell v. State (1991), Ind., 578 N.E.2d 646, 648, reh. denied. The petitioner must establish specific facts from which the trier of fact could conclude by a preponderance ......
  • State v. Drysdale
    • United States
    • Indiana Appellate Court
    • 12 Marzo 1997
    ...petitioner has the burden of proving his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1 § 5; Followell v. State, 578 N.E.2d 646, 648 (Ind.1991). When the State appeals from an order granting post-conviction relief, the standard of review for a negative judgment does ......
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