Henry v. State
| Decision Date | 27 December 1977 |
| Docket Number | No. 3-577A130,3-577A130 |
| Citation | 175 Ind.App. 212,370 N.E.2d 972 |
| Parties | Jacquelyne (sic ) HENRY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
James P. Dunn, Fort Wayne, for appellant.
Theodore L. Sendak, Atty. Gen., Jack R. O'Neill, Deputy Atty. Gen., Indianapolis, for appellee.
Jacqueline Henry was charged with armed robbery. On June 21, 1976, she pleaded not guilty, but on July 6, 1976 Henry withdrew that plea and entered a plea of guilty. As the trial court prepared to accept her guilty plea, the following colloquy occurred:
Henry went on to testify as to her involvement in the crime, and the trial court accepted her plea. On August 2, 1976, the trial court sentenced her to ten years in prison. Henry filed motions to correct her sentence and to withdraw her plea; both of her motions were based on the argument that her plea was entered in reliance upon the prosecutor's recommendation that she would be sentenced under the Minor's Sentencing Act. 1 The trial court denied both of these motions and later denied her petition for post-conviction relief.
The only issue Henry raises on appeal is whether the trial court erred in not following the expressed plea agreement procedure detailed in IC 1971, 35-5-6-2 (Burns Code Ed., Supp.1977), when it accepted her plea. Although the trial court did not err in following the expressed plea agreement procedure of the statute, we do conclude that Henry's plea was involuntary, since she was not advised by the trial court that no written recommendation had been made or filed by the State; therefore we reverse on the ground that Henry was not adequately advised of the consequences of her plea. The trial court knew when it accepted Henry's guilty plea that she was relying on the prosecutor's recommendation, but it did not advise her that the prosecutor filed no such recommendation and would be precluded from doing so under 35-5-6-2 after it accepted her plea.
The plea agreement statute, 35-5-6-2, was promulgated in 1975 and consists of two sections. Section (a) sets forth the conditions under which the prosecutor may recommend 2 sentencing pursuant to a plea agreement:
The prosecutor is thus precluded from making plea agreement recommendations which are not in writing and filed before the defendant enters a guilty plea.
Section (b) of the statute details the procedure to be followed by the trial court in acting upon the prosecutor's recommendation:
We agree with the State's contention that the trial court was not bound to follow the procedure outlined in 35-5-6-2 because no written recommendation from the prosecutor was ever filed with it. As no written recommendation was filed, either before or after Henry entered her guilty plea, there was nothing for the court to act upon. However, because Henry's plea was induced by an alleged recommendation from the prosecutor that she be sentenced pursuant to the Minor's Sentencing Act, she should have been advised that no such recommendation was before the court and could not be received by the trial court after entry of her plea.
The Supreme Court of the United States recognized in Brady v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, that entry of a guilty plea is a "grave and solemn act," and that it should be accepted "only with care and discernment." Id. at 748, 90 S.Ct. 1463. Because entry of the plea results in the waiver of numerous constitutional rights, the Court wrote, it must be a voluntary, knowing and intelligent act "done with sufficient awareness of the relevant circumstances and likely consequences." Id. One relevant circumstance is the possibility of a heavier sentence following a guilty verdict after a trial. Id. at 749, 90 S.Ct. at 1469.
Our Indiana Supreme Court observed in Dube v. State (1971), 257 Ind. 398, 275 N.E.2d 7, that the failure of a trial court to advise a defendant of the consequences of his guilty plea deprives that plea of its knowing and voluntary character; an understanding of the consequences is a necessary ingredient of voluntariness. See also Watson v. State (1973), 261 Ind. 97, 300 N.E.2d 354; Emerson v. State (1976), Ind.App., 348 N.E.2d 48. An adequate advisement of consequences includes informing the defendant that the trial court is not bound by any plea agreement reached and that it could impose on him a harsher sentence than that recommended by the prosecutor. This admonishment was properly given in Henry's case.
With the promulgation of 35-5-6-2, however, another duty is imparted to the trial court; something more is required, in proper cases, to make the advisement of consequences adequate and to thus sustain the plea's voluntary and knowing character. Because the statute directs that any recommendation be filed before the defendant enters a guilty plea, the trial court will know before it accepts that plea whether a recommendation has been made. Hence, where a defendant states to the trial court that her plea of guilty is induced by a prosecutor's recommendation of a lighter sentence, and the trial court is aware that no such recommendation has been filed, the trial court has a duty to advise her of this critical fact so necessary to her guilty plea decision. It should further advise her that the prosecutor is precluded from making a recommendation after the trial court accepts her plea. Reliance, in entering a guilty plea, on a recommendation never made in accordance with 35-5-6-2, is an involuntary guilty plea.
When the trial court prepared to accept Henry's guilty plea, it had no indication in the record before it that a...
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...criminal charge would be brought by the state. 9 There were no recommendations to the court regarding sentencing. While Henry v. State (1977), Ind.App., 370 N.E.2d 972, held that a plea is involuntary where the requirements of IC 35-5-6-2 have not been met, Henry dealt with a defendant who ......
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