Harris v. State

• Decision Date: 22 June 1993
• Docket Number: No. 49A02-9302-PC-50,49A02-9302-PC-50
• Parties: Maurice HARRIS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. 1
• Court: Indiana Appellate Court

Page 25

616 N.E.2d 25

Maurice HARRIS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 49A02-9302-PC-50. ¹

Court of Appeals of Indiana,

First District.

June 22, 1993.

Transfer Denied Aug. 3, 1993.

Susan K. Carpenter, Public Defender, Ann M. Skinner, Deputy Public Defender, Indianapolis, for appellant-petitioner.

Pamela Carter, Atty. Gen., Julie Zandstra Frazee, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-respondent.

ROBERTSON, Judge.

Maurice Harris appeals the denial of his petition for post-conviction relief from his convictions of three counts of robbery, class C felonies, three counts of confinement, class C felonies, and one count of confinement, a class D felony.

We affirm.

On the afternoon of February 25, 1989, Harris entered the Child Life Library at Riley Children's Hospital wearing a black trash bag with eye openings and his right hand tucked under his shirt. He demanded money from the librarian and escorted her to another room where she gave him change from her purse. Harris then returned to the main room of the library and robbed two women. He then motioned all of the room's occupants, parents of and children who were seriously ill, to the back of the library and ordered them to lie down. As the librarian passed the area where a father and his son were playing video games, she communicated to them Harris' order. While the librarian was unhooking the video cassette recorder as Harris had instructed, Harris robbed the adult male of his wallet. The State charged Harris with ten separate offenses arising from the incident: three counts of robbery, each a class B felony, and seven counts of confinement, each also a class B felony.

Harris pled guilty to seven of the ten counts pursuant to a written plea agreement in which the State agreed to make no recommendation as to sentencing. At the guilty plea hearing, the court advised Harris that for each class C felony the maximum sentence could be up to eight years in prison "[a]nd with 6 Class C felonies that could be up to 48 years ..., to which [he] could add the maximum on the Class D felony of an additional 4 years ... So the maximum would be 52 years ..." The court also advised Harris of the presumptive and minimum sentences for each offense. He then asked Harris whether he understood that at the time of sentencing, the court "will consider any prior criminal history you have including a juvenile record if you have one, Mr. Harris?" Harris acknowledged that he understood.

Harris argues in this appeal that his plea of guilty to the seven counts was not intelligently and voluntarily entered because the court failed to advise him specifically of the possibility of a consecutive and enhanced sentence due to the presence of a prior conviction. To obtain relief on this claim, Harris must demonstrate by a preponderance of the evidence that the trial judge failed to give one of the statutory advisements and establish facts from which the trier of fact could conclude that the judge's omission rendered the decision to plead guilty involuntary and unintelligent. Garrett v. State (1986), Ind., 499 N.E.2d 1121, 1122.

Indiana Code 35-35-1-2(a)(3) provides that the court shall not accept a plea of guilty without first determining that the defendant has been informed of "any possible increased sentence by reason of the fact of a prior conviction or convictions ..." The purpose of this advisement is to ensure that the accused is aware of the range of penalties which could be imposed prior to pleading guilty. Garrett, 499 N.E.2d at 1123; Underhill v. State (1985), Ind., 477 N.E.2d 284, 287.

Harris has established that he did not obtain the specific advisement required by statute. He was advised of the range of penalties and the fact that his prior criminal conviction could be considered in sentencing. The court also explained to Harris by example, that the eight-year sentences on each of the six class C felony counts could be ordered served consecutively to each other and that the maximum sentence of four years on the class D felony count could be added to the others for a total of 52 years. However, Harris was not told by the court that his prior conviction could be a reason for the "possible increased sentence."

Nonetheless, Harris must prove by a preponderance of the evidence that a proper advisement "of a possible increased sentence" due to his prior conviction would have affected his decision to plead guilty. He has not met this burden. Harris testified at his post-conviction hearing that he was motivated to plead guilty because he "had never hurt anyone, especially any kids" and he wanted to go on and get it over without taking the kids through any more pain. He stated that he "expected" less than 48 years because he was told he would not get more than 10 or 12 years, and that 15 years was too much. He believed (at the post-conviction hearing) that he would now be better off going to trial.

Harris does not state that had he known that his sentence could be increased by reason of his prior conviction that he would not have plead guilty, only that he did not expect to receive the forty-eight year sentence because of what he had been told. When asked whether he was advised of the possibility that the sentences could run consecutively to each other, he said he did not remember, no. Yet, the transcript of the change of plea hearing establishes that Harris was informed that the sentence on each count could be ordered to be served consecutively for a total of fifty-two years.

Harris points to statements made by the probation officer in the presentence investigation report which he says establishes his confusion over the possible sentence which could be imposed for his offenses. While the presentence report may establish that Harris was confused over the possible sentence which he could receive, an inference which is refuted by statements attributed to Harris in the update to the presentence report, the report does not establish that Harris was mistaken about the role of his prior conviction in sentencing or that his decision would have been different had he been properly advised. Accordingly, we conclude that Harris was properly denied relief upon this issue.

Harris argues next that he was denied fundamental due process and due course of law by the use at sentencing of a presentence report which was biased, inaccurate, and inflammatory. He directs us first, to the statement made in the report that "[t]he defendant has no juvenile history in Marion County, Indiana. However, he was raised in Birmingham, Alabama." Harris maintains that this statement created the misimpression that he had a juvenile history in Alabama when, in fact, he did not and that the statement prejudiced him because his criminal history was used as an aggravator at sentencing.

The probation officer's statement could only have created the misimpression envisioned by Harris if it was read in isolation from the rest of the report. The probation officer plainly stated later on in the report that she was unable to locate a criminal history anywhere but in Indianapolis, Indiana. The absence of any history as a juvenile offender is also established by the listing of arrests and offenses and their respective dates of commission. The likelihood that Harris' history as a juvenile was misconstrued is thus remote at best.

Harris points to other matters which he maintains were erroneously included: the fact that he had been divorced twice, that he argued with the probation officer over the possible sentence which could be imposed, and her conclusion that he had failed to show remorse for the victims. Indiana Code 35-38-1-9 authorizes the inclusion of a convicted person's social history and family situation and any matters which the probation officer conducting the investigation believes is relevant to the question of sentence. This would include significant relationships with other people and their duration, and the defendant's evaluation of his criminal behavior. We note that while one probation officer had the impression that Harris was not remorseful for his crime, a second reported that Harris was indeed sorry for his crime but did not believe himself to be a bad person.

Be that as it may, Harris has failed to establish how he was prejudiced by these matters. The court did not cite any of these matters as reasons for aggravating Harris' sentence and there is no indication in the record that the enhanced, consecutive sentences were in any way a result of the inclusion of these matters. Cf. Brooks v. State (1990), Ind.App., 555 N.E.2d 1348.

Harris next contends that the State violated the terms of its plea agreement by recommending the maximum sentence through the presentence report. The probation officer who prepared the report included within the section incorporating the victims' views a statement from the deputy prosecutor that the case was pitiful and that all of the victims had expressed the view that they wanted to see the defendant receive the maximum executed sentence. The update to the presentence report, which was prepared by another investigator, indicates that all but one of the victims believed Harris should receive the maximum sentence. The other felt the matter of sentencing should be left to the judge's discretion. Four of the seven victims testified at sentencing and opined that Harris ought to receive the maximum sentence. The prosecutor's statement to the probation officer, while perhaps overbroad, is independently supported by the statements of the victims themselves. The court thus had ample evidence that the recommendation of the maximum sentence was not that of the prosecution, but the victims, and not a breach of the plea agreement.

Harris maintains he received ineffective assistance of counsel in these proceedings. He presented evidence on his petition for post-conviction relief from the attorney who represented him...