Kendrick v. State
| Decision Date | 14 January 1988 |
| Docket Number | No. 49A02-8705-PC-203,49A02-8705-PC-203 |
| Citation | 517 N.E.2d 810 |
| Parties | James KENDRICK, Appellant (Petitioner Below) v. STATE of Indiana, Appellee (Respondent Below). |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender, John Pinnow, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Michael G. Worden, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
James Kendrick appeals the denial of his petition for post-conviction relief.
We affirm.
James Kendrick was charged by information filed on April 9, 1980, with three counts of knowingly delivering heroin, class B felonies. 1 On June 2, 1980, the State added a fourth habitual offender count. On April 6, 1981, Kendrick pled guilty to one count pursuant to a plea agreement wherein Kendrick accepted an eight year sentence in exchange for the State's dismissal of the remaining three counts. On May 26, 1981, Kendrick was sentenced to eight years imprisonment.
At the time of his plea, forgery and theft charges were pending against Kendrick in another division of the Marion County Superior Court in Cause CR 81-106B. On June 4, 1981, other criminal charges were filed against him in Cause CR 81-126D. Kendrick pled guilty, under another plea agreement, to one count in each of the unrelated causes. In the agreement, Kendrick accepted two, seven-year consecutive sentences. The sentences were also to run consecutively to the eight-year sentence in this cause.
Kendrick asserts the guilty plea court failed to advise him of the possibility of consecutive sentences, an advisement prescribed by IC 35-4.1-1-3(d) (Burns 1979). In addition, Kendrick argues he was prejudiced by the omission because he otherwise would not have pled guilty. He therefore asserts his plea was involuntary, unknowing, and unintelligent.
In order to sustain his burden, a petitioner for post-conviction relief must establish that the guilty plea court failed to give a statutory advisement and that the omitted advisement, if given, would have changed his decision to plead guilty. White v. State (1986), Ind., 497 N.E.2d 893. Thus, to prevail upon appeal, petitioner must establish that "the evidence as a whole leads unerringly and unmistakeably to a conclusion opposite that reached by the [post-conviction hearing] court." Sage v. State (1986), Ind., 501 N.E.2d 427, 429 citing Lowe v. State (1983), Ind., 455 N.E.2d 1126.
The guilty plea court did not advise Kendrick of the possibility of consecutive sentences. That omission is erroneous because other charges were pending against him at the time of his plea. It was possible those other charges could have been reduced to judgment and sentencing prior to Kendrick's sentencing in this cause; therefore, a consecutive sentence in this cause was theoretically possible. The issue, then, is whether the post-conviction relief court erred in finding Kendrick failed to meet his additional burden of proving that, had he been given the omitted advisement, he would have changed his plea. It did not.
The thrust of Kendrick's claim is he would not have pled guilty had he known of the possibility that the sentences resulting from his later pleas could run consecutive...
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Kendrick v. State
...relief in the form of permission to withdraw a plea of guilty. The Court of Appeals affirmed the judgment in Kendrick v. State (1988), Ind.App., 517 N.E.2d 810. Appellant's petition to transfer is now Appellant entered his plea of guilty to one of several counts pending in a single cause in......