Herman v. State
| Decision Date | 03 October 1979 |
| Docket Number | No. 878S158,878S158 |
| Parties | William O. HERMAN, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Harriette Bailey Conn, Public Defender, Susan K. Carpenter, Deputy Public Defender, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant Herman was charged with two counts of first degree murder in Elkhart Superior Court. On December 5, 1974, he entered pleas of guilty to two counts of second degree murder. On January 16, 1975, he was sentenced to two life terms. These convictions were never appealed. On September 22, 1975, appellant filed his Pro se petition for post-conviction relief. The State Public Defender entered her appearance and filed a motion to amend the petition which was granted. Hearings on this petition were held on March 4, 1977, and again on April 1, 1977. After the parties filed briefs and memoranda, the court, on November 28, 1977, filed findings of fact and conclusions of law and the following judgment and order:
"The court is of the opinion that from the record and all the evidence the petitioner has not by a preponderance of the evidence showed that he is entitled to any relief under his amended petition for post-conviction relief and the court now denies said petition and it is so ordered."
A motion to correct errors was subsequently filed by the appellant and denied by the court. He now raises four issues for our review on this appeal, as follows: (1) whether the sentencing court erred and abused its discretion in denying Herman's pre-sentence motion to withdraw his pleas of guilty; (2) whether the post-conviction court erred in finding the penalty imposed by the sentencing judge to be not excessive in light of the offense and the circumstances of the case; (3) whether the post-conviction court erred in finding that the failure to hold a hearing on the issue of Herman's competence to stand trial was not error; and (4) whether the post-conviction court erred in finding that appellant had been effectively represented by counsel.
On December 5, 1974, appellant appeared with counsel and, by counsel, moved that the court permit him to withdraw his pleas of not guilty and enter pleas in both cases of guilty to the lesser-included offense of second degree murder. The trial judge conducted a lengthy hearing before granting the motion. The court explained very thoroughly the nature of the charges, the constitutional rights appellant had, and the waivers he was effecting by entering guilty pleas. The court determined that the defendant fully understood the nature of the charges against him, the penalties that could be imposed upon conviction, and the constitutional rights he was waiving.
Appellant acknowledged that he fully understood all of these things, and that he wanted to waive all of his rights and enter pleas of guilty in both of the cases. He admitted in open court that he did kill both of the victims. The judge explained to him that he might receive life imprisonment or an indeterminate term of not less than fifteen nor more than twenty-five years. Herman was further told that the judge was not committed to any plea bargain and was not representing to Herman what sentence he would impose. Appellant acknowledged that he understood this, and further stated that he had received no promises and had not been subjected to threats or coercion in any manner in entering these pleas. The court then granted appellant's motion to withdraw his not guilty pleas. The guilty pleas were then accepted by the court. Sentencing was set for January 16, 1975.
Appellant does not claim that the court failed in any way to advise him of his constitutional rights or that the judge did anything improper at that time. He does not allege that he has a defense to these charges, or that he is not guilty of the charges. However, on December 19, 1974, two weeks after entering the guilty pleas, but before sentencing, the defendant filed a motion to withdraw his guilty pleas. His sole basis for this motion related to a discussion his counsel had with the prosecutor.
Appellant alleged that during the time he discussed with his attorney the possibility of entering these pleas, his counsel revealed that he had talked to the prosecuting attorney, Cosentino. The prosecutor apparently told him that it was his understanding that a person serving a life term under a conviction of second degree murder could be subject to parole in thirteen and one-half to fifteen years, while a person serving a life term under conviction of first degree murder could expect to be subject to parole in about twenty-five years. Herman's attorney, Denton, acknowledged that the prosecutor had made such a remark to him. Cosentino stated at the post-conviction hearing that he had discussed this case with Denton. He said the statement was not made as any commitment or promise to anyone and that he and Denton both understood this. Cosentino said he had no actual knowledge of what the parole board would do in either case, but had come to understand that this was the general practice. Appellant stated that he believed this to be true at that time, but had since found that persons serving a life term under either a second or first degree murder charge could expect to serve around twenty-two years before being considered for parole. There was no direct evidence as to the actual truth of any of these assertions. No evidence was presented to the court at the post-conviction relief hearing concerning the practices of the parole board.
The defendant does not claim that the trial judge or prosecutor promised him that he would receive parole at a certain time. He simply states that it was his understanding that he would have a chance at earlier parole under a second degree murder conviction than he would have had under a first degree murder conviction, even though he would have received a life term in either event.
Appellant Herman's motion to withdraw his guilty plea was based on Ind.Code (Burns 1975) § 35-4.1-1-6(b):
Appellant Herman does not contend that the court was required to act to correct a manifest injustice, as provided under subsection (c). He argues that the court abused its discretion in not allowing him to withdraw his pleas pursuant to subsection (b).
The State filed counter-affidavits, alleging that the State would be prejudiced if the defendant were allowed to withdraw his guilty pleas. The State claimed it was required to relinquish a firm setting for a jury trial on this cause because of the guilty pleas being entered. The State further showed that because of the crowded condition of the court docket, it would be some time before the State could again obtain a firm trial date for this case. In addition, the State contended, resetting the cause for trial would require renewed preparation and the recalling of witnesses that had been called before and then excused. Thus, the State argues, the whole process would be very time consuming and expensive to the citizens of Elkhart County.
The judge in the post-conviction hearing found that at the time he pleaded guilty, appellant was fully advised as to the penalties prescribed for second degree murder and acknowledged that he was aware of those penalties. The court further found that even though appellant and his attorney discussed what might be expected regarding parole release, there was no promise or commitment on which appellant relied which could have led him to have a misunderstanding as to what probable penalties he faced. Based on the facts and evidence presented at the post-conviction hearing, the court found that appellant had not supported, by a preponderance of the...
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