Gibson v. State
| Decision Date | 10 December 1974 |
| Docket Number | No. 2--1173A244,2--1173A244 |
| Citation | 319 N.E.2d 661,162 Ind.App. 337 |
| Parties | Damon GIBSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Donald D. Chiappetta, Muncie, for appellant.
Theodore L. Sendak, Atty. Gen., Robert F. Colker, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was accused by affidavit of the offense of assault and battery with intent to kill. Pursuant to plea bargaining he entered a plea of guilty to what was considered to be the included offense of aggravated assault and battery, 1 a plea that was perfunctorily accepted by the trial court. Subsequent to a presentence investigation he was sentenced to an executed term of not less than one nor more than five years. At the time of sentencing he indicated that he wished to appeal, and two weeks later he filed with the trial court his motion to set aside sentence and withdraw plea of guilty. He now appeals to this court from the overruling of that motion.
We reverse.
Appellant's contention is that his plea was not made knowingly, advisedly, intelligently and understandingly, a contention based on his allegation that he had been positively assured by his attorney that he would receive a suspended sentence. That allegation is supported in part by an affidavit from his attorney (now deceased) that said attorney believed that the plea bargaining agreement was that the State would recommend a suspended sentence and that he advised appellant on that basis. Witnesses produced by appellant testified that they had been present when said attorney advised appellant not only that he would receive a suspended sentence but also that the trial court had already agreed to that sentence.
The State's rebuttal was that the plea bargaining agreement was that the State would make no recommendation as to sentence.
The basic question presented is whether the trial court committed fundamental constitutional error in its acceptance of appellant's plea of guilty, and we conclude that it did.
The trial court's acceptance of appellant's guilty plea was so perfunctory that it is apparent the court did not determine whether appellant was acting knowingly and voluntarily. The entire hearing on that plea is as follows:
Comes now the State of Indiana . . ..'
The above record shows that the trial court did not inquire as to whether appellant's plea was the...
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...have, in fact, been made . . . ." Id., 300 N.E.2d at 355. See Dube v. State, (1971) 257 Ind. 398, 275 N.E.2d 7; Gibson v. State, (1974) 162 Ind.App. 337, 319 N.E.2d 661. By failing to ask Collins if his plea was made in response to promises by the police or prosecutor, the court failed to c......
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