Hinkle v. State, 02A03-9208-PC-264

• Citation: 605 N.E.2d 200
• Case Date: December 28, 1992
• Court: Court of Appeals of Indiana

Page 200

605 N.E.2d 200 Donita Ann HINKLE, Appellant-Defendant Below,
v.
STATE of Indiana, Appellee-Plaintiff Below. No. 02A03-9208-PC-264. Court of Appeals of Indiana,
Third District. Dec. 28, 1992.
Rehearing Denied Feb. 18, 1993.
Transfer Denied April 7, 1993.

Page 202

Lee A. Smith, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Office of Attorney General, Indianapolis, for appellee-plaintiff.

STATON, Judge.

Donita Hinkle appeals the denial of her petition for post conviction relief, presenting three issues for our review: ¹

I. Whether Hinkle knowingly, voluntarily and intelligently pled guilty to the charge of murder.

II. Whether there was an insufficient factual basis to support the guilty plea.

III. Whether Hinkle was denied the effective assistance of counsel.

We affirm.

On September 30, 1983, Hinkle pled guilty to the charge that she murdered her husband, Robert Hinkle. Pursuant to the terms of a plea agreement, Hinkle received a thirty year sentence. On February 1, 1989, Hinkle filed a pro se petition for post conviction relief, amended August 6, 1991. Hearing was held on December 16, 1991 and March 19, 1992. On March 26, 1992, the post conviction court denied Hinkle's petition.

Under the rules of post-conviction relief, the petitioner must establish the grounds for relief by a preponderance of the evidence. Ind. Post Conviction Rule 1(5); St. John v. State (1988), Ind.App., 529 N.E.2d 371, 374, trans. denied. Thus, to succeed on appeal from the denial of his petition, the petitioner must show that the evidence is without conflict and leads only to a conclusion opposite that of the trial court. Id.

I.

Guilty Plea

Hinkle contends that her guilty plea was not entered knowingly, intelligently and voluntarily because she was unaware of the possibility of conviction of the offense of voluntary manslaughter. The existence of sudden heat reduces what would otherwise be murder to voluntary manslaughter. IND.CODE 35-42-1-3. Sufficient provocation must exist to elicit an emotion such as anger, rage, sudden resentment or terror which would obscure the reason of an ordinary person, prevent deliberation and premeditation, and render a defendant incapable of cool reflection. Johnson v. State (1988), Ind., 518 N.E.2d 1073, 1077.

Our standard for reviewing guilty pleas was delineated in White v. State (1986), Ind., 497 N.E.2d 893. We review all the evidence before the post-conviction court upon a claim that a plea was not made voluntarily and intelligently. A petitioner's conviction will be vacated if the record fails to disclose that the defendant was advised of the right to a jury trial, right of confrontation and right to avoid self-incrimination. An omission of other advice contemplated by I.C. 35-35-1-2 supports reversal only if a petitioner demonstrates that he or she was prejudiced thereby. Id. at 905.

When confronted with a proffered guilty plea, the trial court is statutorily required to advise a defendant of the possible maximum and minimum sentences for the offense charged, not for any lesser included offenses. Gibson v. State (1983), Ind., 456 N.E.2d 1006, 1008 (emphasis added). Accord: Farrell v. State (1986), Ind., 495 N.E.2d 530, 532. Here, the record of the guilty plea hearing (admitted into evidence at the post conviction hearing) reveals that the trial court's advisements to Hinkle satisfied each of the criteria specified

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in I.C. 35-35-1-2. ² Record, p. 80. Hinkle's post conviction petition presented no grounds for relief on this issue.

II.

Factual Basis

Hinkle next claims that...