Fraley v. State, 2--574A114

• Citation: 163 Ind.App. 226,323 N.E.2d 239
• Decision Date: 20 February 1975
• Docket Number: No. 2--574A114,2--574A114
• Parties: George FRALEY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Court of Appeals of Indiana

Page 239

323 N.E.2d 239

163 Ind.App. 226

George FRALEY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2--574A114.

Court of Appeals of Indiana, Third District.

Feb. 20, 1975.

Harriette Bailey Conn, Public Defender, Eugene C. Hollander, Deputy Public Defender, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

Before STATION, P.J., and GARRARD and HOFFMAN, JJ.

PER CURIAM.

The defendant, Fraley, sought to set aside his plea of guilty to aggravated assault and battery throught a petition for post-conviction relief, Indiana Rules of Procedure, Post-Conviction Remedy Rule 1. In so doing, he assumed the burden of proof and now stands in the shoes of one appealing from a negative judgment. Childs v. State (1975), Ind., 321 N.E.2d 841; Hoskins v. State (1973), Ind., 302 N.E.2d 499. He had failed to sustain the burden of proof imposed upon such appellants.

He first contends that the plea was not knowingly, voluntarily and intelligently entered.

Two of his specifications regarding this contention are based upon his testimony at the PCR 1 hearing, in which he denied understanding his rights and asserted that he had only a fourth grade education, could not read, and could barely write. The statement that he did not understand his rights merely conflicts with his prior statements to the court during the original proceedings that he did understand. Similarly, the evidence of his lack of education and illiteracy, while relevant, does not so conclusively demonstrate a lack of capacity for understanding that we must conclude the evidence was without conflict and led only to one reasonable conclusion. Hoskins, supra.

The third specification asserts that he was not advised of his constitutional rights as required by Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; Bonner v. State (1973), Ind., 297 N.E.2d 867; and Brimhall v. State (1972), Ind., 279 N.E.2d 557.

The record discloses that Fraley was originally charged by affidavit with the crime of robbery. He was arrested August 26, 1970, and was brought before the court the next day. He was then thoroughly advised of his constitutional rights by the court. He stated that he understood them and had no questions regarding any of them. At his request, an attorney was appointed to represent him.

On October 6, he was arraigned and pleaded not guilty. Trial was set for February 9, 1971.

On that date there was an indication that Fraley desired to plead guilty to 'theft from the person.' The court then advised him of the rights he would waive by entering a guilty plea and explained the theft charge. However, when Fraley was then asked about a factual basis for the plea, he denied committing any theft. The court then refused the plea and rescheduled trial for March 9.

On March 5, Fraley again appeared in court and indicated he wished to plead guilty to aggravated assault and battery. While the court explained the elements and penalty for this offense, it did not again go through an explanation of Fraley's constitutional rights.

Fraley contends this was reversible error per se. He asserts that Boykin, Bonner and Brimhall require the court to advise a defendant of his constitutional rights upon the record at the time of accepting the plea or the plea must be deemed to be not knowingly and intelligently entered.

We disagree. The primary issue is ascertainment of whether an accused understood and actually waived the rights which he is guaranteed by the constitution. In Boykin, and the numerous decisions applying its rationale, the courts have adopted the requirement of in-court disclosure and discussion of these rights prior to acceptance of a guilty plea. While the rule has been criticized as focusing upon an accused's 'right to be told' rather than his right to know, its ease of application and the uncertainties that may be thereby dispelled certainly commend its practical value.

This does not mean, however, that we have prescribed a pedantic ritual which must precisely accompany the acceptance of a guilty plea. To so construe Boykin would defeat its purpose for it would promote a mechanical incantation rather than an effective inquiry by the...