Hall v. State

• Decision Date: 13 December 2004
• Docket Number: No. 02A05-0401-PC-48.,02A05-0401-PC-48.
• Citation: 819 N.E.2d 102
• Parties: Gregory Charles HALL, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

819 N.E.2d 102

Gregory Charles HALL, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 02A05-0401-PC-48.

Court of Appeals of Indiana.

December 13, 2004.

Lorinda Meier Youngcourt, Huron, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Appellant, Gregory Charles Hall, challenges the denial of his petition for post-conviction relief. Upon appeal, Hall claims that the trial court erred in denying his petition because there is no record of his having been advised of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

We reverse and remand.

The facts most favorable to the decision of the post-conviction court reveal that Hall was charged with Burglary as a Class C felony on July 20, 1982. On April 6, 1983, Hall entered a guilty plea. On April 27, 1983, the trial court accepted Hall's plea and imposed a five-year suspended sentence with two years on probation. Eighteen and a half years later, on October 25, 2001, Hall filed a petition for post-conviction relief. On May 13, 2003, Hall filed an amended petition alleging for the first time that he did not enter into his guilty plea knowingly, intelligently, and voluntarily because he was not advised of his Boykin rights.¹ The trial court's file contains no transcript of the April 6 or April 27, 1983 hearings. No other documents exist which indicate that Hall was advised of his Boykin rights. Therefore, on July 8, 2003, the post-conviction court conducted a hearing with respect to reconstruction of the record of the guilty plea hearing pursuant to Indiana Appellate Rule 31.² At this hearing, Robert L. Hines, the trial judge who had presided over Hall's guilty plea hearing, Bruce Cowen, the attorney who represented Hall at the time, and the deputy prosecuting attorney at the time, Gregory L. Fumarolo, all testified that they had no specific recollection of the guilty plea hearing. Nevertheless, Judge Hines testified that he was aware at the time of Hall's hearing that defendants must be advised of their Boykin rights and that he recalled no instance where it was revealed that he had failed to do so. Attorney Cowen testified that, as far as he could recall, Judge Hines's hearings had always included "the normal required advisements." Transcript at 46. Attorney Fumarolo testified that he customarily attempted to guard against failure to advise defendants of their Boykin rights.

However, Judge Hines testified that it was "probably" common practice to specifically advise defendants who were pleading guilty, but he also stated, "I don't know that we had a customary practice." Id. at 14. Judge Hines, in response to the question of whether the regular advisements by the court and attorneys would have included the Boykin rights, stated, "Well, I really can't answer since I can't recall what anyone said, specifically." Id. at 16. Attorney Fumarolo was asked, "if there had been a guilty plea hearing presided over by Judge Hines at which the Boykin rights were not mentioned, would you have found that striking and perhaps [a] very memorable occasion?" He responded, "Well, no ... I can't ... say that." Id. at 29. Attorney Cowen testified that, although unlikely, it was possible that Judge Hines did not properly advise Hall. Hall's testimony revealed nothing regarding whether he was properly advised of his rights.

On September 15, 2003, by agreement of the parties, Hall filed the affidavit of Phyllis Reed, the court reporter at the time of Hall's guilty plea. Ms. Reed's affidavit indicated that she had reviewed the docket sheet in Hall's case and had no independent recollection of Hall's guilty plea hearing. The parties also stipulated that no other person could be shown to have any specific recollection of Hall's guilty plea hearing. On December 4, 2003, the post-conviction court issued findings and conclusions denying Hall's post-conviction petition.

Before addressing the merits of Hall's claim, we note our standard of review. Post-conviction procedures do not afford a petitioner with a super-appeal, and not all issues are available. Timberlake v. State, 753 N.E.2d 591, 597 (Ind.2001),cert. denied, 537 U.S. 839, 123 S.Ct. 162, 154 L.Ed.2d 61 (2002). Instead, subsequent collateral challenges to convictions must be based on grounds enumerated in the post-conviction rules. Id. The petitioner bears the burden of establishing the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Timberlake, 753 N.E.2d at 597. Because he is appealing from a negative judgment, to the extent his appeal turns on factual issues, Hall must establish that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. See Timberlake, 753 N.E.2d at 597. We will disturb the post-conviction court's decision only if the evidence is without conflict and leads only to a contrary conclusion. Id.

At the heart of Hall's current argument is his claim that he was not properly advised of his constitutional rights before pleading guilty. In Boykin, supra, the United States Supreme Court held that it was reversible error for the trial court to accept a guilty plea without creating a record which affirmatively showed that the plea was knowing and voluntary. 395 U.S. at 242, 89 S.Ct. 1709. Specifically, the Boykin decision requires that the record must show, or there must be an allegation and evidence which shows, that the defendant was informed of, and waived, three specified federal constitutional rights: the Fifth Amendment right against self-incrimination and the Sixth Amendment rights to trial by jury and to confront one's accusers. 395 U.S. at 243, 89 S.Ct. 1709. The Boykin Court held that the waiver of the defendant's rights cannot be presumed from a silent record. Id.

In Zimmerman v. State, 436 N.E.2d 1087 (Ind.1982), the Indiana Supreme Court was faced with a situation wherein a defendant had pleaded guilty in 1975. Over four years later, he petitioned for post-conviction relief claiming that his plea was not knowingly, voluntarily, and intelligently entered. In the time between his plea hearing and the petition, the tape recording of the hearing had been lost or inadvertently destroyed. However, the trial judge who had accepted the plea and the prosecutor who appeared at the hearing indicated that they had made "copious notes" of the hearing. Id. at 1087. The post-conviction court therefore ordered the State to submit a reconstructed record pursuant to former Indiana Appellate Rule 7.2(A)(3)(c).³ The State submitted such a record over the petitioner's objection. Upon appeal, the Zimmerman court concluded that "the loss of a record or transcript of a guilty plea hearing does not require a vacation of the plea, per se," because the Appellate Rules provide a means to produce a record for review upon appeal. Id. at 1088. The court noted that an exception to this rule was where reconstruction of the record was not possible. Id. at 1089. Because the petitioner in Zimmerman had not availed himself of the provisions of the Appellate Rules allowing him to reconstruct the record, but instead stood upon his mistaken belief that a lost record was the equivalent of a silent record, the court affirmed the denial of his petition. Id.

Following the precedent laid in Zimmerman was Wilburn v. State, 499 N.E.2d 1173 (Ind.Ct.App.1986),trans. denied. In Wilburn, the defendant had pleaded guilty in 1976 and filed a post-conviction petition in 1984 claiming a violation of his Boykin rights. To support his claim, the petitioner submitted: an affidavit of the court reporter stating that the tape recording of his hearing was defective, the affidavit of the former deputy prosecutor stating that he had insufficient memory of the hearing to reconstruct the record, and the affidavit of Wilburn's former defense attorney stating he could not remember whether the petitioner had been advised by the trial judge. The trial judge had died in 1981. Wilburn himself was unable to testify as to what advisements he was given. The First District of this court held that it was error for the post-conviction court to have concluded that Wilburn failed to prove that he was not properly advised. Id. at 1175. Citing former Appellate Rule 7.2(A)(3)(c) and Zimmerman, the court stated that where the record of the guilty plea hearing can neither be found nor reconstructed, granting post-conviction relief and ordering a new trial is the appropriate remedy. Id. The court concluded that Wilburn had submitted evidence that reconstruction of the record was impossible because "all parties present at the guilty plea hearing either had died or could not remember the details." Id. The court held that it could not infer that the trial court had properly advised Wilburn. Id. Indeed, the court later stated that it would "assume advisements were not given when the absence of a record has been proven."⁴Id. at 1176.

A similar determination was made in Corder v. State, 516 N.E.2d 71 (Ind.Ct.App.1987), wherein the defendant pleaded guilty in 1978 and brought a petition for post-conviction relief in 1985 claiming that he had not been advised of his Boykin rights. The record of Corder's plea hearing no longer existed. The court observed that, pursuant to Zimmerman, the loss of the transcript or record of the plea hearing does not per se require the vacation of the guilty plea, and that the petitioner must attempt to reconstruct the record pursuant to the Appellate Rules, if possible. Id. at 72. The court held that reconstruction of the record in that case was impossible because Corder had presented uncontested evidence that all the parties present at the guilty plea hearing were either dead or could not remember the details of the proceeding. Id. As did the Wilburn court, the Corder court...