Joseph v. State

• Decision Date: 01 October 1985
• Docket Number: No. 1084S407,1084S407
• Citation: 483 N.E.2d 32
• Parties: Richard B. JOSEPH, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 32

483 N.E.2d 32

Richard B. JOSEPH, Appellant, v. STATE of Indiana, Appellee.

No. 1084S407.

Supreme Court of Indiana.

Oct. 1, 1985.

Susan Carpenter, Public Defender, Novella L. Nedeff, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Richard B. Joseph entered a guilty plea to robbery, a class B felony, in the Ripley Circuit Court and was sentenced to a term of seventeen (17) years by the trial judge. He subsequently filed a petition for post-conviction relief pursuant to Ind.R.App.P. 4(A)(7) and Ind.R.P.C. 1, Sec. 7. Said petition was denied by the trial court and Joseph now directly appeals.

Two issues are presented for our review in this direct appeal as follows:

1. error of the trial court in denying petition for post-conviction relief based on a finding that Joseph had knowingly waived his right to be represented by counsel; and

2. alleged failure of the trial court to advise Joseph before accepting his guilty plea of the effect of prior convictions on his sentence pursuant to Ind.Code Sec. 35-4.1-1-3(d) (Burns Repl.1979) [repealed by Acts 1981, P.L. 298, Sec. 9, effective September 1, 1982; amended and recodified as Ind.Code Sec. 35-35-1-2].

We first note that in a proceeding for post-conviction relief, the petitioner has the burden of establishing his gounds for relief by a preponderance of the evidence. Ind.R.P.C. 1, Sec. 5. To prevail on appeal from the denial of his petition, the appellant must satisfy the court that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the trial court. Higgason v. State, (1982) Ind., 435 N.E.2d 558; Lagenour v. State, (1980) Ind., 414 N.E.2d 295; Sotelo v. State, (1980) 273 Ind. 694, 408 N.E.2d 1215.

I

Appellant Joseph entered a plea of guilty at an early stage in this cause which, he argues, implies the trial court did not adequately advise him as to what he was doing and that he was hurried into a conviction. The facts tend to show, however, that the early efforts of Defendant to enter a guilty plea were as much his own idea as the trial court's idea. He saw an advantage in an early conviction and sentence for this charge and in this county based on his interest in a female companion and charges against him in several other counties. Appellant had told the Sheriff at the jail that he was guilty of the robbery with which he was charged and wanted to plead guilty to it, but that he did not want his female companion to be charged as she was innocent. Although Appellant did not talk to the prosecuting attorney, there seemed to be an understanding that the matter would soon be discussed. Appellant was brought to the probable cause hearing where evidence was presented to the trial judge to support the State's request for a warrant against Appellant charging him with Class B robbery. The trial judge explained to Defendant his practice of having a defendant present during the probable cause hearings. He further informed Defendant that although the law does not require a defendant be present, by allowing him to be, a defendant can observe what transpires and participate if he desires.

Following the probable cause hearing, the trial judge found there was probable cause for the charging and arrest of Defendant and ordered a warrant for Defendant's arrest. After the warrant was served, the trial court immediately began a preliminary hearing. Again, the judge advised the defendant that this was done as soon as possible so that the defendant could be advised of what procedures he could expect as well as his rights and what he could do to protect himself. The judge further indicated to Defendant the hearing could be postponed upon request. Defendant indicated that he was willing to proceed immediately and that he wanted to plead guilty. The trial judge advised Defendant to all of his rights and the waivers involved in a guilty plea. He mentioned the fact that he was aware Defendant wished to plead guilty and to protect his female friend. The defendant stated this was true. Upon being questioned by the court, Defendant said he was not pleading guilty merely to protect his female friend, although he wanted to do that, but was pleading guilty because he was, in fact, guilty. The trial judge then asked the prosecutor what his intentions were with regard to the woman. The prosecutor stated he had not filed charges against the female and did not intend to if the defendant pleaded guilty. The judge, explaining to Defendant there were no charges pending against the woman and that no facts had been presented to him upon which he could make any finding to charge her, stated he would never approve a warrant for her arrest based on these charges. He advised the defendant, however, that the prosecutor, not the judge, decides what charges are brought against people and that he did not know whether or not other charges involving other crimes might be brought against the woman. The defendant stated he understood, yet was willing to plead guilty and be sentenced because he was, in fact, guilty. At the beginning and at several times during these discussions, the judge instructed the defendant in detail as to all of his rights and the waivers involved, including his right to a court appointed attorney to represent him at all stages if he was indigent. Defendant was asked whether he wanted to be represented by, advised by, or to consult with, an attorney, to which he responded in the negative. Defendant, informed that if he went ahead with the plea and sentencing he could cease at any time and consult with an attorney or have one appointed for him, stated again he did not want to consult with an attorney or have one appointed but desired to proceed without an attorney. Three or four times during these proceedings Defendant stated he understood his right to an attorney and what an attorney could do for him, but that he desired to plead guilty and be sentenced without the help of an attorney. The defendant was instructed concerning his Miranda rights, was told the crime with which he was charged was robbery, a class B felony, and was advised as to the minimum and maximum penalties that could be imposed for that crime. When he informed the court he wished to proceed without counsel, the trial court put him under oath and questioned him in detail. Again he was asked whether or not he wanted to be represented by or consult with an attorney and he stated that he did not. He said he understood the maximum and minimum penalties, and in discussing them with the judge, portrayed his understanding that a class B felony carries a term of ten (10) years to which an additional ten (10) could be added or from which four years could be subtracted. Thus, the term could run from six to twenty (20) years. Defendant was also advised in detail that in pleading guilty he was waiving his right to a trial by jury, the right to be faced by the witnesses and to cross-examine them, the right to call his own witnesses, and was admitting as true all facts pleaded in the charges against him, thereby subjecting himself to being sentenced by the judges within the limits of the maximum and minimum penalties.

During these discussions, the defendant volunteered that he was wanted in several other counties for various charges including robbery, kidnapping and jailbreak. He stated he had escaped from two county jails, one of them because the prosecutor had indicated to him he was going to try several felonies separately so that Defendant could be found an habitual criminal. Defendant stated he had one felony conviction from 1975 and openly discussed with the trial judge the charges pending against him in other counties. By his discussions he demonstrated he was well aware of the fact he could still...