Hunter v. State

• Decision Date: 30 April 1985
• Docket Number: No. 1-185A6,1-185A6
• Citation: 477 N.E.2d 317
• Parties: Ricky Lee HUNTER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 317

477 N.E.2d 317

Ricky Lee HUNTER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-185A6.

Court of Appeals of Indiana,

First District.

April 30, 1985.

Robert Canada, Evansville, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Marguerite M. Sweeney, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Presiding Judge.

STATEMENT OF THE CASE

Defendant-appellant, Ricky Lee Hunter (Hunter) appeals the denial of his petition for post-conviction relief under Post Conviction Remedies, Rule 1 (PC 1).

We reverse and remand for an evidentiary hearing.

FACTS

Hunter pleaded guilty and was sentenced on November 18, 1983, to a term of six (6) years for confinement with two (2) years suspended with probation. He filed his PC 1 petition on July 20, 1984, alleging in paragraphs four, eight and nine that as a result of plea negotiations with the prosecuting attorney, he was to receive drug and alcohol treatment while in prison. There was no allegation in the petition that any plea agreement was in writing or that it was ever presented to the court. On appeal, Hunter concedes that any plea agreement was oral and was never presented to the court. On August 17, 1984, the trial court made the following record:

"Court having reviewed petition for PCR, now finds that the petition fails to set forth any contentions for vacating or setting aside or correcting the sentence of which the court had or has any jurisdiction whatsoever. Petition denied."

Record at 9. On August 29, Hunter filed his motion to correct errors alleging only that the summary disposition was contrary to law and prayed for an evidentiary hearing, which was denied.

ISSUE

The issue in this case, which we have restated, is whether it was error for the trial court to deny Hunter's petition summarily without an evidentiary hearing.

DISCUSSION AND DECISION

It is the purpose of Post-Conviction Remedy Rule 1 to present every convicted person with a vehicle for a full and fair review of bona fide claims of illegality not reviewable by direct appeal. ¹ Lamb v. State (1975), 263 Ind. 137, 325 N.E.2d 180 (DeBruler, J., dissenting). The proper method for challenging the validity of a guilty plea is by a PC 1 petition. Lock v. State (1975), 264 Ind. 25, 338 N.E.2d 262. Guilty pleas which are improperly induced and not voluntary are properly attacked by means of a PC 1 petition.

The issue in this case is not whether an alleged oral plea bargain is enforceable, or whether an alleged promise to the defendant was capable of being carried out. Rather, the issue is whether or not the defendant's guilty plea was induced by a promise which either was not or could not be performed thereby rendering the guilty plea not knowingly, intelligently, and voluntarily entered. Because the true issue is dependent upon a factual determination which could be made only as the result of an evidentiary hearing, it was error to dispose of Hunter's post-conviction petition summarily without a hearing on the merits.

The court may deny a petition for post-conviction relief without further proceedings if the pleadings conclusively show the petitioner is entitled to no relief. PC 1, Section 4(f); Frazier v. State (1975), 263 Ind. 614, 335 N.E.2d 623. A hearing on a petition for post-conviction relief is required only when an issue of material fact is preserved. Where the allegations of the petition conclusively show that the petitioner is entitled to no relief, a hearing is unnecessary. Colvin v. State (1982), 441 N.E.2d 1353. On the other hand, an evidentiary hearing is required when issues of fact are raised, and this is true even if it is unlikely the petitioner will be able to produce evidence sufficient to establish his claim. Bailey v. State (1983), Ind., 447 N.E.2d 1088; Jennings v. State (1979), 270 Ind. 696, 389 N.E.2d 281. The allegations of the petition must be examined to determine if a factual question requiring an evidentiary hearing was raised.

Hunter alleged that a plea agreement was negotiated between himself, his attorney, and the prosecutor whereby he was to be provided drug and alcohol treatment while in prison and that it was the understanding of all parties that the state would provide such treatment, and that such treatment has not been provided. He does not allege such plea agreement was in writing as required by Indiana Code section 35-35-3-3. ² We agree that under the statute, a plea agreement not in writing as so required may not be enforced. Naked City, Inc. v. State (1984), Ind.App., 460 N.E.2d 151. But that is not the issue here. Hunter does not seek specific enforcement of the alleged plea agreement, but he seeks to have his guilty plea vacated on the grounds it was induced by the representations of the prosecutor and, therefore, not voluntary. This is a factual issue.

In Santobello v. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, the defendant pleaded guilty to a lesser included offense and the prosecutor agreed to make no recommendation as to sentencing. At the sentencing, before a different judge, a different prosecutor recommended the maximum sentence. The United States Supreme Court vacated the conviction. Chief Justice Burger, writing for the majority, stated that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." 404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433. However, the court remanded to the state court to determine whether the appropriate relief would be enforcement of the agreement or allowing withdrawal of the guilty plea. Here, our statute and case law will not permit enforcement of the agreement, Naked City, 460 N.E.2d at 156, but vacating the guilty plea is an appropriate remedy if, in fact, Hunter's guilty plea was improperly induced. As Justice Douglas observed in his concurring opinion in Santobello, "a prosecutor's promise may deprive a guilty plea of the 'character of a voluntary act.' " 404 U.S. at 266, 92 S.Ct. at 501, 30 L.Ed.2d at 435. Justice Douglas further observed:

"The lower courts, however, have uniformly held that a prisoner is entitled to some form of relief when he shows that the prosecutor reneged on his sentencing agreement made in connection with a plea bargain, most jurisdictions preferring vacation of the plea on the ground of 'involuntariness,' while a few permit only specific enforcement. [Citation omitted.]"

404 U.S. at 266, 92 S.Ct. at 501, 30 L.Ed.2d at 435-36.

The United States Supreme Court in the recent case of Mabry v. Johnson (1984) --- U.S. ----, 104 S.Ct. 2543, 81 L.Ed.2d 437, while holding the guilty plea in question valid, nevertheless recognized that a guilty plea " 'must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known' " and "when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand." 104 S.Ct. at 2547.

In Dube v. State (1971), 257 Ind. 398, 275 N.E.2d 7, the defendant pleaded guilty to forgery pursuant to a deal whereby Dube was to cooperate with authorities and testify against other members of the forgery ring and the prosecutor would recommend a suspended sentence. Dube was told that the judge always follows the prosecutor's recommendations. Dube had expressed a fear for his life if he were imprisoned. The trial judge did not follow the prosecutor's sentencing recommendation, and sent Dube to prison. Dube appealed from the denial of his petition for post-conviction relief and our supreme court reversed. The court stated that "[t]he essential question is whether Dube's plea of guilty was voluntarily, knowingly, and freely made or whether it was induced by the promise of a suspended sentence." 257 Ind. at 402, 275 N.E.2d at 9. Our supreme court further observed that "[t]he evidence in the case at bar indicates Dube's plea of guilty was tainted by assurances that the judge always went along with the prosecutor's recommendations thus making the voluntariness of his plea highly questionable." 257 Ind. at 406, 275 N.E.2d at 11. The court reversed and ordered the trial court to allow Dube to withdraw his guilty plea.

Hunter also relies on Henry v. State (1977), 175 Ind.App. 212, 370 N.E.2d 972, (Hoffman, J., dissenting), where the defendant pleaded guilty in reliance upon the prosecutor's sentence recommendation, which was not in writing, and which the trial court did not follow. Because the trial court did not advise Henry the prosecutor's recommendation was not in writing and could not be filed after the plea was accepted, Henry's plea was involuntary. This court, in Henry, stated that the plea agreement not being in writing, as required by statute, could not be specifically enforced, but nevertheless ordered the trial court to vacate its judgment and allow her to withdraw her guilty plea.

In Sherwood v. State (1983), Ind., 453 N.E.2d 187, the defendant pleaded guilty to murder pursuant to a plea agreement wherein the state agreed to dismiss an habitual offender count. His petition for post-conviction relief was summarily denied by the trial court. His post-conviction petition was predicated upon alleged incompetency of counsel because his lawyer told him he would be placed in a hospital to do his time. Our supreme court held a factual issue requiring an evidentiary hearing was raised and reversed the trial court's summary denial of the petition.

The cases of Naked City; Davis v. State (1981), Ind.App., 418 N.E.2d 256; and Bullock v. State (1979), Ind.App., 397 N.E.2d 310, at first blush might appear to reach contrary results, but they are clearly distinguishable and inapposite. In Naked City, the defendant sought modification of his sentence in accordance with an alleged oral agreement. The...