French v. State
| Decision Date | 26 December 1984 |
| Docket Number | No. 3-684A150,3-684A150 |
| Citation | 472 N.E.2d 210 |
| Parties | Donald FRENCH, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below). |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender, Bev Cummings, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.
Donald French entered a plea of guilty on each of four counts of check deception, a Class A misdemeanor. The trial court imposed the maximum one year term on each count and ordered the sentences to run consecutively, for a total of four years, with credit for jail time served prior to sentencing. French subsequently filed a pro se petition for post conviction relief alleging error in the imposition of consecutive sentences. The petition included a signed but uncompleted affidavit of indigency for the appointment of counsel.
The trial court granted the petition only to the extent of entering findings in the record to support the imposition of consecutive sentences. The court recited the particulars of French's rather lengthy history of past convictions, including convictions for burglary and theft, as well as the fact that French was on probation in Ohio for forgery. The court found that such history justified the imposition of consecutive sentences and that imposition of concurrent sentences would depreciate the seriousness of the crime.
French timely filed a Motion to Correct Errors, captioned "Belated Appeal," alleging the same sentencing error and the additional ground that the trial court failed to appoint counsel for the post conviction proceedings. 1 The motion was denied and French now appeals alleging the trial court erred in accepting French's guilty pleas without advising him that prior convictions could affect the length of his sentence.
Reversed and remanded with instructions to vacate the guilty pleas.
In post conviction relief proceedings, the petitioner bears the burden of proving his claim by a preponderance of the evidence. He is appealing from a negative judgment and we will not reverse the trial court's determination unless the evidence is not conflicting and leads unerringly to a contrary result. Johnson v. State (1983), Ind., 453 N.E.2d 975, 976. In order to uphold a guilty plea as knowing and voluntary, the record must show that the defendant was meaningfully advised of the rights and law detailed in Ind.Code 35-35-1-2 (Burns Code Ed., 1984 Supp.). Strict compliance with the statutory mandate is required. Johnson, supra, at 977.
IC 35-35-1-2 provides in pertinent part:
Technically, French's claim of the failure to advise him of the effect of his prior convictions is being raised for the first time on appeal, but because non-compliance with the guilty plea statute constitutes fundamental error, we will address the argument. Kidder v. State (1983), Ind.App., 456 N.E.2d 427, 428, n. 2.
On the day of the initial hearing the trial court undertook a thorough advisement of rights, en masse, to French and others appearing for their initial hearings. A detailed explanation of the possibility of consecutive sentences for multiple offenses was included. 2 The evidence on the record is undisputed 3 that the trial court did not advise French, either in the group or individually, that prior convictions could increase the sentence to be rendered upon a plea of guilty. French also signed a waiver of rights form, authorized in misdemeanor cases by IC 35-35-1-2(b). This form did not mention the effect of prior convictions on sentencing decisions.
It is not altogether clear from French's brief whether he claims that his prior convictions were a factor in the court's imposition of the maximum term on each count or whether such convictions influenced the imposition of consecutive sentences. In either case, however, it is clear from the trial court's recitation of French's criminal history that the sentencing decision was affected by the fact of French's prior convictions.
We have some strong reservations as to whether the legislature contemplated the situation at bar when it mandated advising a defendant that prior convictions could increase a sentence. We are inclined to believe that "possible increased sentence" refers to the discretion of the trial court to enhance the presumptive sentence for certain felony convictions upon a finding of aggravating circumstances--the most obvious of which is a history of prior convictions. We are not entirely persuaded that imposition of the maximum...
To continue reading
Request your trial
-
White v. State
...statement." 428 N.E.2d at 236, 237. At least one subsequent case treated subsection 2(b) as though it might be valid. French v. State (1984), Ind.App., 472 N.E.2d 210. If the Austin announcement that subsection 2(b) codified the constitution was not fully reliable, one is naturally led to e......
-
Richardson v. State
...by the court to determine the defendant's understanding of the rights and the concept of waiver, id. at 616, citing French v. State, 472 N.E.2d 210, 212 (Ind.App.1984); James v. State, 454 N.E.2d 1225, 1227 (Ind.App.1983), the court reviewed the evidence from which it concluded that the rec......
-
Badger v. State
...the incorrect advice concerning the minimum sentence rendered the defendant's plea bargain illusory), trans. denied; French v. State, 472 N.E.2d 210, 213 (Ind.Ct.App.1984) (holding that defendant's guilty plea could not be said to have been entered with full knowledge of the consequences of......
-
NM v. State
...(disapproving of Snowe "[t]o the extent that the court in Snowe applied the [wrong] standard of review"), and French v. State, 472 N.E.2d 210, 212 (Ind.Ct.App.1984) (noting en masse advisement of adults was Our research did not uncover other Indiana or United States Supreme Court cases disc......