Howard v. State

• Decision Date: 08 December 1975
• Docket Number: No. 1--475A77,1--475A77
• Citation: Howard v. State, 338 N.E.2d 308, 167 Ind.App. 165 (Ind. App. 1975)
• Parties: Ray D. HOWARD, Petitioner-Appellant, v. STATE of Indiana, Respondent-Appellee.
• Court: Indiana Appellate Court

Page 308

338 N.E.2d 308

167 Ind.App. 165

Ray D. HOWARD, Petitioner-Appellant, v.STATE of Indiana, Respondent-Appellee.

No. 1--475A77.

Court of Appeals of Indiana, First District.

Dec. 8, 1975.

Harriette Bailey Conn, Public Defender, Darrell F. Ellis, Deputy Public Defender, Indianapolis, for petitioner-appellant.

Theodore L. Sendak, Atty. Gen., John R. O'Bryan, Deputy Atty. Gen., Indianapolis, for respondent-appellee.

Before LYBROOK, J., ROBERTSON, C.J., and LOWDERMILK, J.

PER CURIAM:

Petitioner-appellant Howard appeals from an adverse ruling on his Petition for Post-Conviction Relief, claiming his guilty plea was not knowingly and voluntarily entered.

We reverse.

On April 15, 1971, Howard pleaded guilty to the crime of assault and battery with intent to commit the felony of robbery, and was sentenced to an indeterminate term of not less than one (1) nor more than ten (10) years.He contends that his guilty plea was not knowingly and voluntarily entered, in that he was not advised of his constitutional right to confront his accusers and his right against compulsory self-incrimination.

In Boykin v. Alabama(1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, the United States Supreme Court decided that the record of a guilty plea hearing must affirmatively show that the defendant was advised that he waives by his plea three important federal constitutional rights.Under Boykin, the defendant must be advised of his right to confront his accusers, his right against compulsory self-incrimination and his right to a jury trial.

As stated in Williams v. State (1975), Ind., 325 N.E.2d 827, at 832:

'The essence of Boykin is that the record must affirmatively show that a defendant entering a guilty plea does so voluntarily and intelligently.Moreover, a plea could not be presumed to be made intelligently and understandingly where the record did not show that defendant knew the federal rights which would be lost by his plea.'

If the record of a guilty plea hearing fails to show that the defendant was advised of his federal rights when he pleaded guilty, reversal is required.¹Garcia v. State (1975), Ind.App., 326 N.E.2d 822;Williams v. State (1975), Ind., 325 N.E.2d 827;Sharpe v. State (1974), Ind.App., 316 N.E.2d 410;Thomas v. State (1974), Ind.App., 306 N.E.2d 136;Bonner v. State (1973), Ind.App., 297 N.E.2d 867.

In the case at bar, Howard pleaded guilty without counsel and was not advised by the trial court of his right to confront his accusers before entering his plea.²This omission is fatal.

The judgment below is reversed and the cause remanded to the trial court with instructions to grant Howard's Petition for Post-Conviction Relief.

Reversed and remanded.

1The three important federal constitutional rights which an accused must be advised of before pleading guilty are akin to rights afforded under Article 1, Section 13andSection 14 of the Indiana Constitution.See, Bonner v. State (1973), Ind.App., 297 N.E.2d 867, 872;Lovera v. State (1972), Ind.App., 283 N.E.2d 795, 798.

2The guilty plea in this case was...