Gibson v. State

• Citation: 456 N.E.2d 1006
• Decision Date: 14 December 1983
• Docket Number: No. 683S235,683S235
• Parties: John T. GIBSON, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 1006

456 N.E.2d 1006

John T. GIBSON, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 683S235.

Supreme Court of Indiana.

Dec. 14, 1983.

Susan K. Carpenter, Public Defender, Paul Levy, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged with Murder, IC Sec. 35-42-1-1(1) [Burns 1979]. His subsequent negotiations with the prosecutor resulted in a plea agreement that appellant would plead guilty to murder in return for a recommendation of a forty (40) year prison sentence. At the guilty plea hearing, appellant pled guilty and the trial judge sentenced him to forty (40) years imprisonment.

Appellant now claims his guilty plea should be vacated on the grounds that he did not enter it knowingly, voluntarily and intelligently because:

(1) the trial court did not advise him of the possibility of conviction of a lesser included offense if the case were tried to a jury, and

(2) it was induced, in part, by representations to him that without a plea of guilty appellant could be subject to the death penalty.

In reviewing the denial of post-conviction relief, we do not reweigh evidence nor judge the credibility of witnesses. The denial of relief will be reversed only where the judge was presented with uncontradicted evidence leading to but one conclusion, and the trial court arrived at an opposite decision. Davis v. State, (1983) Ind., 446 N.E.2d 1317; Brown v. State, (1983) Ind., 443 N.E.2d 316. At the post-conviction hearing the petitioner had the burden of proving by a preponderance of evidence that he was entitled to relief. Ind.P.C.R. 1, Sec. 5; Davis, supra; Turman v. State, (1979) 271 Ind. 332, 392 N.E.2d 483.

Appellant cannot predicate his entitlement to relief on an alleged error by the trial court in failing to inform him of lesser included offenses before accepting his plea of guilty to the greater offense of murder.

At the time the guilty plea was entered, the statute read:

"35-4.1-1-3 [9-1204]. Plea of guilty--Defendant advised by court.--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. [IC 35-4.1-1-3, as added by Acts 1973, P.L. 325, Sec. 4, p. 1750.]" (Our emphasis.)

Appellant argues that unless the record reflects he fully understood the nature and penalty for the lesser included offense of voluntary manslaughter at the moment of entering his plea of guilty, the court erred in concluding he fully understood the effect and consequences of his plea, citing Davis, supra; Early v. State, (1982) Ind., 442 N.E.2d 1071; German v. State, (1981) Ind., 428 N.E.2d 234. Appellant also alleges his attorney had never discussed lesser included offenses with him. The record of the guilty plea hearing, and his attorney's testimony at the post-conviction hearing, indicate otherwise. The post-conviction court's resolution of this conflicting evidence will not be disturbed on appeal. Davis, supra.

Since appellant pled guilty to the charged offense, it was unnecessary for the trial court to make reference to the lesser included offense in ascertaining appellant understood the nature of the charged offense. Sims v. State, (1981) Ind.App., 422 N.E.2d 436. The record in the case at bar reflects appellant's statements that he understood the nature and possible penalties for murder. As Justice DeBruler said in DeVillez v. State, (1981) Ind., 416 N.E.2d 846, 849, appellant's "knowledge of the true nature of the greater offense necessarily supplies sufficient knowledge of the true nature of the lesser and included offense ...." Moreover, subsection (d) necessitates only that the accused be advised of the possible maximum and minimum sentence for the offense charged, not for any lesser included offenses.

In Brown v. State, (1983) Ind., 443 N.E.2d 316, the appellant Brown argued he should have been allowed to withdraw his plea of guilty to the offense of attempted voluntary manslaughter because he was not informed of the minimum possible sentence which could be imposed if he went to trial and was convicted of the greater offense with which he was charged: attempted murder. Justice DeBruler ably refuted the proposition with the following:

"The record of the guilty plea hearing clearly discloses, however, and defendant does not dispute, that he was advised of the minimum and maximum possible sentences for the crime to which he was pleading guilty--attempted voluntary manslaughter.

"While Ind.Code Sec. 35-4.1-1-3(d) (Burns 1979 Repl.) (recodified in Ind.Code Sec. 35-35-1-2, effective September 1, 1982) requires that the defendant be informed of the possible penalties for the 'offense charged,' it does so solely in the context of receiving a guilty plea. Likens v. State, (1978) 177 Ind.App. 101, 378 N.E.2d 24. In Likens, the Court of Appeals stated:

" 'Clearly the understanding and therefore voluntary nature of a plea is questionable when the accused is unaware of the penalty he may receive if the plea is accepted.... The reason such understanding is necessary is that the sentence is the consequence of the plea. The same cannot be said regarding advice which concerns charges which are to be dismissed if the plea is accepted.... Thus, it does not follow that the court must advise the defendant of potential sentences for offenses to which he will not be subjected if his plea is accepted.' (Original emphasis) Id., 378 N.E.2d at 30.

"Defendant is entitled to be informed of the actual penal consequences of his plea of guilty, not the hypothetical result of a trial on a charge which the State has agreed not to prosecute in return for the plea. Here, defendant's expectations were not thwarted, and he was properly informed of the range of penalties for attempted voluntary manslaughter. ...