Hall v. State

• Citation: 849 N.E.2d 466
• Decision Date: 20 June 2006
• Docket Number: No. 02S05-0503-PC-104.,02S05-0503-PC-104.
• Parties: Gregory Charles HALL, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
• Court: Supreme Court of Indiana

Page 466

849 N.E.2d 466

Gregory Charles HALL, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).

No. 02S05-0503-PC-104.

Supreme Court of Indiana.

June 20, 2006.

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.

On Petition To Transfer from the Indiana Court of Appeals, No. 02A05-0401-PC-48

RUCKER, Justice.

A petitioner who pursues a claim for post-conviction relief challenging a plea of guilty on the ground that he was not advised of his Boykin rights is not entitled to relief solely because the guilty plea record is lost and cannot be reconstructed. Rather, the petitioner has the burden of demonstrating by a preponderance of the evidence that he is entitled to relief.

Facts and Procedural History

On July 20, 1982 Gregory Charles Hall was charged with Burglary as a Class C felony. Trial was scheduled for April 7, 1983. Although the record is not clear, apparently Hall and the State reached an agreement. That appears to be the case because the day before trial the State filed a "Notice of Recommendation" that provided "[o]n plea of guilty to Class C felony [] defendant will be sentenced to five (5) years suspended; two (2) years probation." App. at 54, 56. In any event on April 6, 1983 Hall pleaded guilty as charged. At a subsequent hearing the trial court accepted Hall's guilty plea and sentenced him to five years imprisonment, all suspended to two years probation.

Eighteen years later, on October 25, 2001, Hall filed a pro se petition for post-conviction relief challenging his burglary conviction on grounds of ineffective assistance of counsel. Thereafter, represented by counsel, Hall filed an amended petition alleging that he "was not informed of his rights to silence, to trial by jury, and to confront and cross-examine witnesses as required by Boykin v. Alabama." App. at 49. The petition also alleged (1) a transcript of Hall's guilty plea hearing does not exist, (2) the trial judge who presided over Hall's guilty plea was interviewed and has no specific recollection of the hearing, (3) the attorney who represented the State at the guilty plea hearing was also interviewed and has no specific recollection of the hearing, and (4) the Transcript of Formal Sentencing does not reflect that Hall was advised of the constitutional rights he was waiving at the time of sentencing. According to the petition, "Hall's efforts to reconstruct the record pursuant to Ind. Appellate Rule 31¹ have been unsuccessful. The plea must be vacated." Id. at 51. In a separate pleading Hall requested a hearing for the purpose of presenting sworn testimony of those present during his guilty plea hearing "in an effort to reconstruct the record of proceedings." Id. at 63. In lieu of a hearing Hall requested alternatively that he be allowed to obtain and submit affidavits. Id.

The post-conviction court granted Hall's request for a hearing. The trial judge presiding at the guilty plea hearing testified among other things that he was aware that defendants must be advised of their Boykin rights before pleading guilty and that he had no recollection of any proceeding in which it came to light that he had not advised a defendant of Boykin rights. App. at 122. The attorney who represented Hall at the guilty plea hearing testified among other things that the trial judge's guilty plea hearings had always included Boykin advisements. Id. And the deputy prosecutor who was present at Hall's guilty plea hearing testified that he was concerned to ensure that Boykin rights, as well as all other rights of a defendant, were mentioned in guilty plea hearings because any failure of advisement might be a ground for reversal. Id. After listening to witness testimony, examining exhibits, and entertaining arguments of counsel, the court issued findings of fact and conclusions of law denying Hall's petition for post-conviction relief. In addition to recounting the foregoing testimony the post-conviction court found among other things that no documents existed indicating whether Hall was or was not advised of his Boykin rights, that the court's files did not contain a transcript of the guilty plea hearing, and that neither the hearing judge, Hall's attorney at the time, nor the deputy prosecutor had any recollection of Hall's guilty plea hearing. Id. at 121. Hall appealed and in a divided opinion the Court of Appeals reversed the judgment of the post-conviction court. See Hall v. State, 819 N.E.2d 102 (Ind.Ct.App.2004). Having previously granted transfer, we now affirm the post-conviction court's judgment.

Standard of Review

In reviewing the judgment of a post-conviction court, appellate courts consider only the evidence and reasonable inferences supporting its judgment. Conner v. State, 711 N.E.2d 1238, 1245 (Ind.1999). The post-conviction court is the sole judge of the evidence and the credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind.2004). To prevail on appeal from denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the post-conviction court. Graves v. State, 823 N.E.2d 1193, 1197 (Ind.2005). Where, as here, the post-conviction court enters findings and conclusions in accordance with Indiana Post-Conviction Rule (1)(6), we will reverse "upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made." Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.2000) (quotation omitted), cert. denied, 534 U.S. 830, 122 S.Ct. 73, 151 L.Ed.2d 38 (2001). Only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, will its findings or conclusions be disturbed as being contrary to law. Miller v. State, 702 N.E.2d 1053, 1058 (Ind.1998).

Discussion

Hall contends the post-conviction court erred in denying his petition for relief because there is no record that he was advised of certain constitutional rights as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In Boykin, the United States Supreme Court held that it was reversible error for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary. Id. at 242, 89 S.Ct. 1709. More particularly, Boykin requires that the record must show, or there must be an allegation and evidence which show, that the defendant was informed of, and waived, three specific federal constitutional rights: the privilege against compulsory self-incrimination, right to trial by jury, and the right to confront one's accusers. Id. at 243, 89 S.Ct. 1709. The Court made clear, "[w]e cannot presume a waiver of these three important federal rights from a silent record." Id.

Here however we are faced not with a silent record, but a missing record, an issue this Court addressed in Zimmerman v. State, 436 N.E.2d 1087 (Ind.1982). In that case the defendant pleaded guilty to two counts of murder in 1975. Four years later he filed a petition for post-conviction relief alleging that his plea was not knowingly, voluntarily, and intelligently entered. In the interim the tape recording of the guilty plea hearing had been either lost or inadvertently destroyed. But both the prosecutor and the trial judge who presided over the plea hearing represented that they had made "copious notes of the proceedings." Id. at 1087. As a result the post-conviction court ordered the State to submit a record pursuant to Indiana Appellate Rule 7.2(A)(3)(c) (now Indiana Appellate Rule 31). The State submitted the record over the petitioner's objection, and the trial judge who presided at the guilty plea hearing thereafter certified the record. The petitioner appealed arguing that his plea should be vacated, in part because the post-conviction court erred in resorting to the Appellate Rules in order to obtain a record where there was none. This Court disagreed holding, "the loss of a record or transcript of a guilty plea hearing does not require a vacation of the plea, per se." Id. at 1088. And this was so because the Appellate Rules provided a means to produce a record for review on appeal. The Court noted an exception where "reconstruction of the record is not possible." Id. at 1089. However, the petitioner had not availed himself of the provisions of the Appellate Rules allowing him to participate in the reconstruction of the lost record. Instead he "stood upon his belief that a lost record was per se the equivalent of a silent record." Id. Accordingly the Court affirmed the judgment of the post-conviction court.

Zimmerman has been cited several times for the proposition that where "reconstruction of the record is not possible" a plea must be vacated.² Indeed in this case the Court of Appeals relied heavily upon Zimmerman and its progeny. But in a recent opinion this Court raised doubts about the continued validity of Zimmerman. We had this to say:

Zimmerman was decided during a period when this Court routinely set aside guilty pleas if the trial court judge failed during the plea hearing to recite to the defendant any of the advisements required by the Code. We overruled this approach toward plea hearings in White v. State, 497 N.E.2d 893, 905 (Ind.1986), holding that a petitioner needs to plead specific facts from which a finder of fact could conclude by a preponderance of the evidence that the trial judge's failure to make a full inquiry in accordance with § 35-35-1-2(a) rendered his decision involuntary or unintelligent.

Graves, 823 N.E.2d at 1195 (footnotes and internal citations omitted).³ We also noted that Zimmerman's holding that a plea must be vacated if reconstruction of the record is not possible had been implicitly overruled by ...