Garcia v. State

• Decision Date: 01 May 1975
• Docket Number: No. 3--774A130,3--774A130
• Citation: Garcia v. State, 326 N.E.2d 822, 164 Ind.App. 92 (Ind. App. 1975)
• Parties: Florentino A. GARCIA, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 822

326 N.E.2d 822

164 Ind.App. 92

Florentino A. GARCIA, Defendant-Appellant, v.STATE of Indiana, Plaintiff-Appellee.

No. 3--774A130.

Court of Appeals of Indiana, Third District.

May 1, 1975.

Anthony V. Luber, South Bend, for defendant-appellant.

Theo.L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for plaintiff-appellee.

GARRARD, Judge.

The defendant, Garcia, was charged with first degree burglary.On December 19, 1973, he indicated his desire to withdraw his original not guilty plea and enter a plea of guilty.

Acceptance of the plea was subject to the procedures set forth in IC 1971, 35--4.1--1--1 (Acts 1973, promulgated July 26, 1973.)

In the proceeding that followed, the court advised Garcia regarding the offense, its penalty, and the fact that probation was not possible.Garcia was also told that if he pleaded guilty he waived his right to trial by jury, or by the court.However, the record discloses no other determination made by the court regarding Garcia's understanding of his constitutional rights.

That deficiency was asserted in Garcia's subsequent verified motion to withdraw his guilty plea and in the motion to correct errors addressed to the court's refusal to permit withdrawal of the plea.

IC 1971, 35--4.1--1--3 specifically requires that:

'The court shall not accept a plea of guilty from the defendant without first addressing the defendant and

(c) informing him that by his plea of guilty he waives his rights to a public and speedy trial by jury, to face the witnesses against him, to have compulsory process for obtainign witnesses in his favor and to 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; . . .'

It was error for the court to fail to follow the mandate of the statute.

The state, however, urges that the error does not require reversal because the record affirmatively discloses that Garcia was advised of his constitutional rights by his own attorney prior to entry of the plea.

IC 1971, 35--4.1--1--6 provides that where a motion to withdraw a guilty plea is made after judgment and imposition of sentence, the court will not be deemed to have abused its discretion in denying the motion unless withdrawal of the plea is necessary to correct manifest injustice.The statute provides that such a motion is to be treated as a petition for post conviction relief.The movant has the burden of establishing his grounds for relief by a preponderance of the evidence.However, the statute also provides that withdrawal of the plea is necessary to correct manifest injustice whenever the plea was not knowingly and voluntarily made.

As stated in Boykin v. Alabama(1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and the companion Indiana decisions, ¹ one of the determinatives of a knowing, voluntary plea is whether the defendant was apprised of the constitutional rights he would waive by pleading guilty.

It should be noted, however, that the constitutional law aspect of the court's failure to itself advise the defendant of his rights is underpinned by the rule that waiver may not be presumed from a silent record.Boykin, supra;Williams v. State (1975), Ind., 326 N.E.2d 827;Brown v. State (1973), Ind., 300 N.E.2d 83.

In Campbell v. State (1975), Ind., 321 N.E.2d 560, 563, 564, our Supreme Court, in affirming a conviction based upon a pre-Boykin guilty plea, observed:

'We agree that the failure of a record to show affirmatively that a trial court advised the defendant of each of his constitutional rights as enumerated in Boykin, or that he was otherwise aware of such guaranties, is reversible error in cases arising subsequent to Boykin.'(Emphasis added)

Most recently the Court in Williams, supra, sustained a conviction where the record at the time the guilty plea was entered clearly disclosed advisement of the defendant albeit not by the court.

It would appear that the Court's reasoning in Williams would apply equally under the statute² since the defendant presumably could show no prejudice from violation of the statutory language directing the court to give the advice where the record demonstrates clearly that he was in fact advised.But, see: Williams, supra, n. 1.

In any event, the risks of delayed criminal justice and waste of judicial time and energy clearly indicate the value of the court ascertaining these matters for itself on the record when the plea is accepted.

In the present case, at the hearing on Garcia's motion to withdraw his plea, his trial attorney testified specifically to the advice he had given Garcia regarding his constitutional rights.In that testimony, no mention whatever is made of Garcia's right to confront and examine the witnesses against him or that the state was required on trial to prove him guilty beyond a reasonable doubt.

Whether these failures resulted from inadvertence at the time Garcia was advised, or simply from inadvertence in presenting the attorney's testimony matters not.

We are confronted with a record which is silent on two of a criminal defendant's substantial rights.We must therefore reverse.Bonner v. State (1973), Ind.App., 297 N.E.2d 867.

Reversed with instructions.

HOFFMAN, J., concurs.

STATON, P.J., concurs with opinion.

STATON, Presiding Judge (concurring).

The post conviction record, which consisted of a defense counsel's testimony as to what Garcia was advised regarding his constitutional rights before he entered his guilty plea, can not be substituted for a silent...