Gosnell v. State
| Decision Date | 29 September 1982 |
| Docket Number | No. 981S243,981S243 |
| Citation | 439 N.E.2d 1153 |
| Parties | Glenn GOSNELL, Jr., Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Carr L. Darden, Acting Public Defender, James G. Holland, Sp. Asst. Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from the denial of a petition for post-conviction relief in which the petitioner sought to withdraw his 1970 plea of guilty to second degree murder upon a charge of first degree murder.
The appeal raises the following issues:
(1) Did the post-conviction relief court err in determining (a) that the petitioner's plea of guilty was entered knowingly and intelligently, and (b) that the petitioner was afforded effective assistance of counsel.
(2) Did the post-conviction relief court err in determining that the petitioner was not denied his right to a speedy trial.
At the hearing, when the State presented its witnesses, the petitioner's lawyer, who had not been called as a witness by the petitioner, testified in response to a question on direct examination that one of the reasons that he advised his client to plead guilty to second degree murder was that, at the time, a prisoner serving a life term for second degree murder would be eligible for parole sooner than a prisoner serving a life term for first degree murder. The petitioner claims, and the State does not dispute it, that eligibility for parole was not different for first rather than second degree murder convicts. The attorney's testimony was not, however, that there was a statutory provision or other guideline calling for different eligibility but rather that "[t]he experience back in 1970 was that a person doing life imprisonment for second degree murder was getting out, serving less time than a person doing life imprisonment for first degree."
At the hearing, petitioner sought to make the most of the statement about parole eligibility:
Then this colloquy ensued:
After this came out at the hearing, the petitioner moved to amend the petition to include the claim that he relied on bad advice on the parole question. The court permitted the amendment under Ind. R.P.C. 6, Sec. 4(c):
"At any time prior to entry of judgment the court may grant leave to withdraw the petition, and the petitioner shall be given leave to amend the petition as a matter of right."
It is elementary that the petitioner bears the burden of establishing his grounds for relief by a preponderance of the evidence. Ind. R.P.C. 1, Sec. 5. The judge is the sole judge of the weight of evidence and only where that evidence is without conflict and leads unerringly to a result other than that reached by the trial court, will his decision be set aside. Lloyd v. State, (1979) Ind., 383 N.E.2d 1048.
"A plea of guilty should be entirely voluntary and made by one who at the time fully understands the consequences thereof and this is especially true where one is charged with a serious crime." Ketring v. State, (1935) 209 Ind. 618, 622, 200 N.E.2d 212.
See also: Dube v. State, (1971) 257 Ind. 398, 275 N.E.2d 7.
This Court has permitted a plea of guilty resulting in an executed sentence to be withdrawn where it was shown that the prosecutor promised to recommend a suspended sentence and the defendant was told by his attorney that the judge always followed the prosecutor's recommendations, and...
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