Goff v. State, 29784
| Decision Date | 25 January 1960 |
| Docket Number | No. 29784,29784 |
| Parties | Charles GOFF, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Charles W. Edwards, Spencer, Armstrong, Gause, Hudson & Kightlinger, Aribert L. Young, Saul I. Robb, Indianapolis, for appellant.
Edwin K. Steers, Atty. Gen., of Indiana, Owen S. Boling, Asst. Atty. Gen., John A. Pushor, Deputy Atty. Gen., for appellee. JACKSON, Judge.
This is an appeal from a judgment of the Owen Circuit Court, sentencing the appellant to the Indiana State Prison for a period of not less than two nor more than twenty-one years on an affidavit charging appellant with the offense of manslaughter.
The facts disclosed by the record show that on or about the 11th day of January, 1959, appellant, while driving an automobile was in a collision with another automobile owned by one Curtis Hoaks, such collision resulting in the death of Patricia Hoaks. On January 12, 1959, appellant was charged by affidavit with the commission of a felony, in three counts, count one charging reckless homicide by operating a motor vehicle upon a public highway in Owen County in the State of Indiana with reckless disregard for the safety of others by driving into the property of Curtis Hoaks thereby causing the death of Patricia Hoaks; count two charging reckless homicide by driving a motor vehicle upon a public highway in Owen County, Indiana, while under the influence of intoxicating liquor and to the left of the center line of the public highway into the property of Curtis Hoaks, thereby causing the death of Patricia Hoaks; count three charging involuntary manslaughter by driving a motor vehicle upon a public highway in Owen County, Indiana, while under the influence of intoxicating liquor and striking an automobile in which Patricia Hoaks was riding and thereby feloniously, but involuntarily, inflicting a mortal wound upon said Patricia Hoaks of which she died on the 11th day of January, 1959.
The record further discloses that appellant was placed in jail on January 11, 1959; the warrant was not issued on the affidavit until January 12, 1959; that on January 12, 1959, appellant, without benefit of counsel, was arraigned and entered a plea of guilty, and the court found him guilty of involuntary manslaughter as charged in count three of the affidavit, deferring sentencing until January 15, 1959, and ordering the Sheriff and State Police to make an investigation into the 'criminal history and personal circumstances' of the appellant. On January 15, 1959, counsel for appellant entered an appearance for him and immediately orally requested leave and moved the court to withdraw appellant's plea of guilty, which motion the court overruled. The court then found the appellant to be forty-five years of age, heard and saw evidence of the presentencing investigation and sentenced the appellant to the Indiana State Prison for an indeterminate term of not less than two nor more than twenty-one years. On the next day, January 16, 1959, appellant filed his verified written motion to vacate the judgment entered the previous day, and for leave to withdraw his plea of guilty, a copy of which was served on the Prosecuting Attorney by mail. Such motion, omitting the formal parts thereof, signature and jurat reads as follows:
'1. The defendant is not guilty of the crimes charged.
'2. The defendant's constitutional rights were violated by his not being allowed to advise with counsel prior to entering his plea of guilty and the failure of the Court in not advising the defendant of his right to have pauper counsel.
'3. The defendant did not advise with counsel prior to entering his plea of guilty.
'4. The defendant was arrested and confined January 11, 1959, following an accident. The defendant was arraigned on January 12, 1959. During the period of confinement the defendant was not given medical treatment and at the time of arraignment the defendant was dazed and consequently the defendant had no understanding of the nature and the consequences of his plea.
'5. The defendant conferred with no-one prior to entering his plea of guilty herein.
'6. This motion is made at the first opportunity after defendant's having the opportunity to consult with counsel. Such consultation taking place approximately fifteen (15) minutes before the time of sentencing.
The court then overruled and denied appellant's written and verified motion to vacate judgment and for leave to withdraw plea of guilty.
Thereafter appellant perfected his appeal to this court. Appellant's assignment of errors contains thirteen grounds. In the interest of brevity, and in view of the fact that the State of Indiana in its answer brief admits that appellant's grounds seven and eight appear to uphold appellant's contentions we will confine our consideration of the appeal to those two grounds.
The seventh ground assigned as error reads as follows:
The appellant before sentence, orally moved to withdraw his plea of guilty and after sentencing filed a verified written motion to withdraw the plea of guilty. Where it can be reasonably construed that when the plea of guilty was entered the appellant was ignorant of a plain constitutional right, of which he would have taken advantage had he been properly advised, then the appellant should be allowed to withdraw the plea of guilty and enter a plea of not guilty. Atkinson v. State, 1920, 190 Ind. 1, 7, 128 N.E. 433.
Where an accused having entered a plea of guilty on being arraigned, subsequently desires to withdraw the plea, the proper method is by a verified motion and service on the Prosecuting Attorney. The above procedure was followed in this case. Where there is an abuse of discretion, the court, on appeal, will review the ruling even where the application for leave to withdraw the plea is made after judgment. A verified plea, uncontroverted, that the guilty plea was not made understandingly or freely, should be granted. 'No harm could have resulted to society or...
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