Kindred v. State

• Decision Date: 25 July 1977
• Docket Number: No. 1-1176A220,1-1176A220
• Parties: James H. KINDRED, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
• Court: Indiana Appellate Court

Page 776

365 N.E.2d 776

173 Ind.App. 624

James H. KINDRED, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).

No. 1-1176A220.

Court of Appeals of Indiana, First District.

July 25, 1977.

Harriette Bailey Conn, Public Defender, Stephen W. Dillon, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Charles D. Rodgers, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Chief Justice.

Appellant James H. Kindred brings this appeal from a denial of his motion to correct errors following a denial of his petition for post-conviction relief under Post Conviction Remedy Rule 1.

We affirm.

The first issue argued in Kindred's brief concerns the denial of his petition without a hearing by the trial court. However, this issue was not cited in his Motion to Correct Errors and is therefore waived. TR 59(G); Boles v. State (1975), Ind.App., 322 N.E.2d 722.

Kindred also argues that the trial court's judgment in overruling his motion for post-conviction relief was contrary to law in that his guilty pleas were not knowingly, voluntarily, and intelligently entered after proper advisement of his constitutional rights and a waiver of those rights. This contention is based upon IC 1971, 35-4.1-1-3 and 35-4.1-1-4 which outline the procedure to be followed by the trial court when accepting a plea of guilty. The effective date of these two statutes was in July of 1973, which date precedes the guilty pleas entered in this case by approximately 4 months.

The first statute above places a burden on the trial court to determine, before a guilty plea is accepted, that the defendant understands (1) the nature of the charges against him; (2) that he is admitting the truth of the charges contained in the indictment and that judgment and sentencing will follow; (3) he is waiving certain specified constitutional rights; (4) the nature of the sentences which may be imposed, including consecutive sentences; and (5) that the court is not bound by any plea bargain. The latter statute requires the court to personally address the defendant to determine if the plea is voluntary and if a factual basis for a guilty plea exists.

Kindred, in his post-conviction petition for relief, in his motion to correct errors, and in his brief, has pointed out no facts which would suggest that his guilty pleas were not voluntary or that he was not advised, pursuant to IC 1971, 35-4.1-1-3, that he was waiving his constitutional rights. His petition merely contains general allegations that the record is "silent" as to any advisement or waiver of his rights, and that the procedure in IC 1971, 35-4.1-1-3 was not followed. His motion to correct errors and the statement of facts filed with the motion only generally allege that the denial of the petition was contrary to law. Nowhere is a specification of defects to be found, and nowhere is a statement of the prejudice or harm resulting from such defects to be found. Furthermore, the transcript of the proceedings in which his guilty pleas were accepted totally refutes any inference that the pleas were not voluntary that he was not advised of the waiver of his rights, or that he did not acknowledge that waiver. The entire thrust of his argument centers upon the contention that a portion of the advisement as to his constitutional rights was conducted by his defense attorney, rather than by the trial judge, in violation of 35-4.1-1-3.

Kindred was originally charged in Morgan County with assault and battery with intent to kill and was allowed a change of venue to Owen County. Additional charges of carrying a pistol without a license, commission of a felony while armed, and jailbreaking were also filed against him. Although Kindred wished to represent himself, the trial court persuaded him to accept legal counsel and subsequently appointed an attorney to represent him. Trial was originally set for October 16, 1973, but was continued on the State's motion until December 3, 1973. It was on this date, just prior to voir dire, that Kindred withdrew his pleas of not guilty and, pursuant to a plea bargain with the prosecutor, entered pleas of guilty to three charges, with one charge being dismissed.

The record of proceedings on December 3 shows that the trial court removed the prospective jurors from the court room in order to allow preliminary motions by a trial counsel. At this time, Kindred's defense attorney placed Kindred on the witness stand for questioning and established on the record that Kindred was satisfied with his legal representation and did not wish his counsel to withdraw. ¹ Upon conclusion of this testimony, defense counsel moved to withdraw the not guilty pleas and enter pleas of guilty to three charges, all pursuant to a plea bargain arrangement with the prosecutor (the details of this bargain were explained to the judge at this time). In response, the judge stated that he would take the motion under advisement, pending further testimony by Kindred:

"All right. I'd like to hear from the Defendant concerning the voluntariness and his knowledge concerning the matter of which counsel has proposed to Court, and I'll take all of the action on all these under advisement until that's done."

As Kindred was still on the witness stand, his attorney proceeded to question him, on the record, as to the voluntariness of his confession and his understanding and waiver of his rights. Following this colloquy, the trial judge questioned Kindred on his education and established that Kindred was a high school graduate and had completed 18 credit hours at Indiana University. From Kindred's testimony, the judge concluded that the pleas were indeed voluntary and requested testimony from the State's witnesses to establish the factual basis of the charges. The State then presented two witnesses who testified to the facts behind all charges. After each witness, the trial judge personally asked Kindred if the facts as stated by the witnesses were true, and whether Kindred did indeed commit the crimes charged. Kindred replied affirmatively to all questions. The judge then questioned him as to his understanding that under the plea bargain, his sentence for jailbreaking would be served consecutively and not concurrently. Kindred acknowledged his understanding of that fact. He further acknowledged that his attorney had thoroughly counseled him in that regard and that this factor did not alter his intent to plead guilty. The judge again advised him that he was giving up his right to confront the witnesses against him in open court and that a jury was waiting outside if he chose to withdraw his guilty pleas. Kindred acknowledged his waiver of these rights and acknowledged that his guilty pleas were entered voluntarily after explanation of all alternatives. In conclusion, the prosecutor asked if Kindred was aware that he had the right to subpoena his own witnesses, and that he was waiving this right, to which Kindred answered affirmatively.

From a reading of the testimony preserved in the record, it is clear that the advisement of rights and waiver of those rights as required by IC 1971, 35-4.1-1-3 was performed, but that it was performed in part by Kindred's defense attorney and in part by the trial judge. The question which arises from this situation is whether the failure of the trial court to personally perform each and every advisement under that st...