Fulmer v. State, 71S00-8612-PC-1019
| Citation | 519 N.E.2d 1236 |
| Decision Date | 08 March 1988 |
| Docket Number | No. 71S00-8612-PC-1019,71S00-8612-PC-1019 |
| Parties | Kenneth L. FULMER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, Michael Hunter Freese, Office of the Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.
Petitioner Kenneth L. Fulmer petitioned the trial court for post-conviction relief pursuant to Post-Conviction Rule 1, Ind.Rules of Procedure. The trial court denied Fulmer's petition. Fulmer now appeals, raising three issues:
1) Whether the trial court accepted his guilty plea without giving him the advisement of rights required by statute;
2) Whether the trial court erred by failing to advise petitioner of the parole consequences of his plea; and
3) Whether the trial court abused its discretion by failing to order a competency hearing.
In the fall of 1975, Fulmer was serving a life sentence for first degree murder at the Indiana State Prison. Fulmer and four other inmates escaped from their confinement, entered the home of the warden and kidnapped him at gunpoint. When the men were caught, Fulmer was charged with armed kidnapping, Ind.Code Sec. 35-1-55-1 (Burns 1975) 1, and kidnapping for ransom, Ind.Code Sec. 35-1-55-3 (Burns 1975). 2
The State requested dismissal of the charge of kidnapping for ransom. In November 1976, Fulmer pled guilty to the charge of armed kidnapping. The trial court found that Fulmer was competent to stand trial, that Fulmer's guilty plea was voluntary and intelligent, and that the plea was supported by a factual basis. The court entered judgment and sentenced Fulmer to life imprisonment.
Fulmer claims that the court erred at the plea hearing in violation of Ind.Code Sec. 35-4.1-1-3 (1975), the statute controlling advisement of rights at that time. 3 First, he asserts that the trial court did not inform him of "any possibility of the imposition of consecutive sentences." Ind.Code Sec. 35-4.1-1-3(d) (Burns 1975). This phrase refers only to the sentence which is imposed for the conviction based on the guilty plea. Morlan v. State (1986), Ind., 499 N.E.2d 1084. The life sentence that Fulmer was serving at the time of his conviction of kidnapping did not directly affect the sentence imposed for the kidnapping conviction. 4 Although Fulmer will spend more time in prison than he would have had he not already been in prison, that is a collateral consequence of his conviction of kidnapping and does not warrant advisement of consecutive sentences under the statute.
Second, Fulmer alleges that the trial court failed to inform him "of the maximum possible sentence and minimum sentence for the offense charged...." Ind.Code Sec. 35-4.1-1-3(a) (Burns 1975). At the plea hearing, the judge advised Fulmer that a conviction of armed kidnapping carried a penalty of life imprisonment. This penalty was mandatory and was not expressed as a maximum and minimum in the controlling statute. See Ind.Code Sec. 35-1-55-1 (Burns 1975). The record states:
The allegedly omitted advisement of the minimum sentence is the same as the advisement of the maximum sentence. The trial court did not err in omitting an advisement indistinguishable from one already given.
Third, Fulmer claims the trial court failed to inform him "that the court is not a party to any agreement which may have been made between the prosecutor and the defense and is not bound thereby." Ind.Code Sec. 35-4.1-1-3(e) (Burns 1975). The record includes the following exchange:
Where there is no plea agreement the court need not advise the defendant that the court would not have been bound by such an agreement had there been one. The failure of the court to inform the defendant of statutory advisements that have no application to his case cannot affect the voluntariness or intelligence of his plea and does not constitute error.
The trial judge complied with the statutory requirements in a manner so as to afford Fulmer his constitutional rights.
Fulmer claims that the trial court's failure to advise him of the parole consequences of his plea affected its voluntariness. The judge was not required to advise the defendant of the parole consequences of his plea. The parole impact of a plea is neither a constitutional right nor an advisement required by statute. See Jones v. State (1986), Ind., 491 N.E.2d 542. Moreover, at the time of the plea hearing, there were no parole consequences to his plea.
Finally, Fulmer argues that his plea was not voluntary and intelligent because the judge failed to order a hearing to determine whether he was competent to stand trial. A...
To continue reading
Request your trial
-
Cormack v. Warden
...plea is neither a constitutional right nor an advisement required by statute.'" Cormack, 2017 WL 6521707 at*2 (quoting Fulmer v. State, 519 N.E.2d 1236, 1238 (Ind. 1988)). Mr. Cormack also argues that his right to equal protection was violated because defendants are advised of their probati......
-
Arnold v. State
...effect of prior convictions which directly affect the sentence rendered upon the guilty plea." Morlan, supra, at 1086. In Fulmer v. State (1988) Ind., 519 N.E.2d 1236, the defendant was charged with armed kidnapping and kidnapping for ransom after he escaped from jail while serving a life s......
-
Harris v. State
...has noted that the parole impact of a plea is neither a constitutional right nor an advisement required by statute. Fulmer v. State, 519 N.E.2d 1236, 1238 (Ind.1988). Thus, Harris' plea is not rendered involuntary or unknowing because he was unaware that parole would be statutorily imposed.......
-
Kyner v. Superintendent
...court has held, however, that a court is "not required to advise the defendant of the parole consequences of his plea." Fulmer v. State, 519 N.E.2d 1236, 1238 (Ind. 1988); see also Jones v. State, 491 N.E.2d 542, 543 (Ind. 1986). Thus, even if Kyner was not informed at his sentencing that h......