German v. State
| Decision Date | 03 December 1981 |
| Docket Number | No. 680S162,680S162 |
| Citation | 428 N.E.2d 234 |
| Parties | Gary B. GERMAN and Larry J. Jackson, Appellants, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Harriette Bailey Conn, Public Defender, Howard N. Bernstein, Deputy Public Defender, Indianapolis, for appellants.
Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.
This is a consolidated appeal from the denial of separate but identical petitions for post-conviction relief under Ind.R.P.C. 1. German and Jackson entered into plea-bargain agreements with the State in which they agreed to plead guilty to charges of attempting to commit a crime while armed with a deadly weapon (Ind.Code § 35-12-1-1, repealed) in return for the State's promise to dismiss two other charges against each of them arising out of the same incident. The trial court accepted the agreements and sentenced each defendant to fifteen-year prison terms.
In 1978 German and Jackson filed pro se petitions for post-conviction relief. The Public Defender then entered the case, obtained permission to amend the petitions, and represented the defendants at a hearing on the petitions in 1979.
We treat the appeal as raising the following issues:
(1) Whether the trial court's determination that the guilty pleas were entered voluntarily, knowingly, and intelligently is supported by the record.
(2) Whether the trial court's determination that defendants' trial counsel was competent is supported by the record. Because of our resolution of the first issue, we do not reach the second.
The plea bargain statutes provide:
"The court shall not accept a plea of guilty from the defendant without first addressing the defendant and
(a) determining that he understands the nature of the charge against him;
(b) informing him that by his plea of guilty he is admitting the truth of all facts alleged in the indictment or information or to an offense included thereunder and that upon entry of such plea the court shall proceed with judgment and sentence;
(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 obtaining 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;
(d) informing him of the maximum possible sentence and minimum sentence for the offense charged and of any possible increased sentence by reason of the fact of a prior conviction or convictions, and of any possibility of the imposition of consecutive sentences;
(e) informing 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."
"(a) The court shall not accept a plea of guilty without first personally addressing the defendant and determining that the plea is voluntary. The court shall address the defendant and determine whether any promises, force or threats were used to obtain the plea.
(b) The court shall not enter judgment upon a plea of guilty unless it is satisfied from its examination of the defendant that there is a factual basis for the plea.
(c) A plea of guilty shall not be deemed to be involuntary under subsection (a) of this section solely because it is the produce of an agreement between the prosecution and the defense."
The post-conviction hearing judge found that the transcripts of the guilty plea and sentencing hearings disclosed that the court had failed to advise the defendants explicitly that by pleading guilty they were waiving certain rights; or that the plea of guilty was an admission of the facts alleged in the information or of lesser included offenses; or that the court was not a party to the agreement. He also found that the court had failed to address the defendants and determine from them that their pleas were not the result of promises or threats. He found, however, that the following provision of the identical written plea agreements signed by the defendants served to inform them of these rights and of their waiver of these rights:
The defendants initialed each phrase setting forth a specific right. The judge also found that the fact of the acceptance of the plea agreements renders the failure to inform the defendants that the court was not a party to the agreements and not bound to accept them, harmless.
The record shows that the trial judge addressed German and Jackson separately, read the charges set out in the information, and asked each defendant if he understood the nature of the charges. German and Jackson both answered, "yes." The plea agreements are identical and contain a statement that it constitutes an admission by the appellants of all facts alleged in the information. Each statement is initialed by each defendant.
The trial judge informed German and Jackson that they had the right to a public trial by jury, the right to counsel, the right to confront witnesses, the right to have compulsory process for obtaining...
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White v. State
...the existing case law of this Court, he is entitled to have his petition granted and his conviction set aside, citing German v. State (1981), Ind., 428 N.E.2d 234. 2 We have decided that German should be overruled and that the judgment of the trial court in this case should be I. Post-Convi......
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Davis v. State
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