Jackson v. State

• Decision Date: 27 April 2005
• Docket Number: No. 43A03-0410-PC-472.,43A03-0410-PC-472.
• Parties: Edward JACKSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

826 N.E.2d 120

Edward JACKSON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 43A03-0410-PC-472.

Court of Appeals of Indiana.

April 27, 2005.

Susan K. Carpenter, Public Defender of Indiana, Brian Eisenman Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BARNES, Judge.

Case Summary

Edward Lee Jackson appeals the denial of his petition for post-conviction relief. We affirm.

Issue

We restate the sole issue before us as whether the post-conviction court properly rejected Jackson's claim that he was not advised of his constitutional rights during a guilty plea hearing conducted in 1979.

Facts

In 1979, the State charged Jackson with one count of Class B felony child molesting and one count of Class C felony child molesting. Later that same year, Jackson agreed to plead guilty to one count of Class D felony child molesting. The trial court sentenced him to two years of incarceration, both suspended, and one year of probation.

In July 2003, Jackson filed a pro se petition for post-conviction relief challenging his 1979 guilty plea and conviction, which subsequently was amended by counsel. The amended petition alleged that there was not a sufficient record of the 1979 guilty plea hearing to demonstrate that Jackson was advised of his Boykin rights before pleading guilty. The State filed an answer in which, among other things, it asserted the affirmative defense of laches. It later withdrew that defense.

At the hearing on Jackson's petition, evidence was presented that the tape recording of the 1979 guilty plea hearing could not be located, although the recording of the subsequent sentencing hearing was found. Jackson also testified that he could not remember the guilty plea hearing. Additionally, the 1979 trial judge, prosecutor, and defense attorney all testified or presented affidavits that they could not specifically remember Jackson's guilty plea hearing. The trial judge and defense attorney, however, did testify to the effect that as a matter of practice defendants who pled guilty in that trial court were adequately advised of their rights. Furthermore, the court reporter present at the 1979 guilty plea hearing had made shorthand notes stating, "constitutional rights — no question about rights." Tr. p. 14. The chronological case summary also states, "having been advised of his Constitutional rights [Jackson] does now tender plea of guilty to the offense of child molesting.. . ." App. p. 2.

On September 8, 2004, the post-conviction court denied Jackson's petition. It concluded that reconstruction of the record of Jackson's 1979 guilty plea hearing was possible and that Jackson had failed to establish he was not advised of his Boykin rights at that time. Jackson now appeals.

Analysis

Jackson asserts he definitively established that the official record of his guilty plea hearing was lost and that reconstruction of the record was impossible because no one present could remember details of that hearing. Jackson presents a tenable argument that he was entitled to post-conviction relief in view of the line of cases that had suggested it was proper to vacate a guilty plea if there is no recording or transcript of the guilty plea hearing and everyone present at the hearing is deceased or unable to remember details of the particular proceeding. See Corder v. State, 516 N.E.2d 71, 72 (Ind.Ct.App.1987)

. Because of a recent case from our supreme court disapproving of this approach, and a case from the United States Supreme Court that approved of an approach placing a higher burden on defendants seeking to vacate guilty pleas on collateral review, we determine that Jackson is not entitled to post-conviction relief.

We first consider Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In Boykin, a defendant pled guilty to five counts of robbery. Pursuant to Alabama law, a jury subsequently sentenced him to death. On direct appeal from the sentencing decision, the Supreme Court observed that the record failed to reveal that the defendant either was advised of or waived the following three rights when he pled guilty: the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers. Id. at 243, 89 S.Ct. at 1712. The Supreme Court reversed the convictions and imposition of the death penalty, concluding: "We cannot presume a waiver of these three important federal rights from a silent record." Id.

In subsequent years, Indiana courts addressed the Boykin holding in situations where the official record of a guilty plea hearing had been misplaced or destroyed. In Zimmerman v. State, 436 N.E.2d 1087 (Ind.1982), our supreme court discussed the consequences of a trial court's having lost the tape recording of a defendant's guilty plea hearing. Although not specifically mentioning Boykin and the three federal rights that must be knowingly waived by any defendant pleading guilty, our supreme court rejected the argument "that a lost record was per se the equivalent of a silent record." Id. at 1089. Rather, if no transcript of the hearing can be produced, our supreme court held the defendant must attempt to reconstruct the record by following the provisions of the predecessor to current Indiana Appellate Rule 31, which was Appellate Rule 7.2(A)(3)(c). Id. at 1088-89. The court held that Rule 7.2(A)(3)(c) "abrogated the old practice of ordering a new trial when the transcript of the evidence was unavailable." Id. The court, however, noted that an exception to this rule "arises when reconstruction of the record is not possible." Id. at 1089.

Following Zimmerman, it was understood that if a defendant provided sufficient evidence that it was impossible to reconstruct the lost record of a guilty plea hearing, then vacation of the conviction entered pursuant to the plea was required. See Ray v. State, 496 N.E.2d 93, 99 (Ind. Ct.App.1986),

trans. denied; Corder, 516 N.E.2d at 72; Patton v. State, 537 N.E.2d 513, 515 (Ind.Ct.App.1989). Sometimes, convictions would be upheld despite the loss of a record and the impossibility of reconstructing it if the State sufficiently established the affirmative defense of laches. See Wilburn v. State, 499 N.E.2d 1173, 1175-78 (Ind.Ct.App.1986),

trans. denied. Our supreme court cited and discussed Zimmerman in 1996, at which time it said "when a defendant seeks post-conviction relief alleging his guilty plea was not voluntarily made, the loss of a record will require the vacation of the plea and a new trial only when reconstruction of the record through Appellate Rule 7.2 is impossible." Curry v. State, 674 N.E.2d 160, 162 (Ind.1996). Curry specifically held that the defendant did not meet his burden of proving that reconstruction of his guilty plea hearing was impossible because he "did not establish that all of the persons present at the guilty plea hearing had died or could not remember details of the proceedings." Id. at 163. Curry in no way indicated that Zimmerman was overruled or no longer valid precedent; in fact, Curry seemed to leave open the possibility that a defendant could be entitled to post-conviction relief from a guilty plea conviction if the record was lost, the defendant established that no one present at the guilty plea hearing was still alive or could remember the specifics of the defendant's hearing, and the State could not prove laches.

We are now informed that Zimmerman is no longer valid precedent and has not been since 1986. The author of this opinion also authored Graves v. State, 784 N.E.2d 959 (Ind.Ct.App.2003). Our supreme court granted transfer in that case and recently issued its opinion, in which it essentially asserted that we improperly relied upon Zimmerman as good law because it was overruled by White v. State, 497 N.E.2d 893 (Ind.1986). Graves v. State, 823 N.E.2d 1193, 1194 (Ind., 2005). We are compelled to note that White makes no mention of Zimmerman throughout the entire opinion. What White plainly did overrule was German v. State, 428 N.E.2d 234 (Ind.1981). That case concerned the extent of non-Boykin advisements a trial judge must give to a defendant who is pleading guilty and the effect of a failure to give such advisements when the plea is challenged in a post-conviction proceeding — automatic vacation of the guilty plea. German, 428 N.E.2d at 236-37. German did not address the reconstruction of guilty plea hearing records and the effect of being unable to reconstruct a record.¹

We are aware White holds that a post-conviction petitioner seeking relief from a guilty plea-based conviction "needs to plead specific facts from which a finder of fact could conclude by a preponderance of the evidence that the trial judge's failure to make a full inquiry in accordance with § 35-35-1-2(a) rendered his decision involuntary or unintelligent." 497 N.E.2d at 905. The very next sentence, however, states, "Of course, unless the record reveals that the defendant knew or was advised at the time of his plea that he was waiving his right to a jury trial, his right of confrontation and his right against self-incrimination, Boykin will require that his conviction be vacated." Id. It does not appear that White's holding was intended to apply to Boykin rights.

Our supreme court also states in footnote three of Graves that Zimmerman was implicitly overruled by State v. Scales, 593 N.E.2d 181 (Ind.1992). The express holding of Scales was to reject the State's argument that Indiana Criminal Rule 10, which requires trial courts to maintain misdemeanor guilty plea records for ten years, created an absolute ten-year statute of limitations for filing post-conviction challenges to a misdemeanor conviction. Id. at 184-85. With respect to "implicit" overrulings generally, it is respectfully observed that they are not...