Likens v. State

Decision Date12 July 1978
Docket NumberNo. 3-1076A238,3-1076A238
Citation177 Ind.App. 101,378 N.E.2d 24
PartiesPhillip Harvey LIKENS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

Harriette Bailey Conn, Public Defender, Ihor N. Boyko, Deputy Public Defender, Indianapolis, for defendant-appellant.

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

GARRARD, Judge.

As the result of a plea bargain appellant Likens pleaded guilty to charges of rape and robbery. 1 In return a count for commission of a felony while armed and a separate robbery charge were dismissed. Likens was sentenced to 2 to 21 years imprisonment on the charge of rape and to 10 to 25 years on the robbery charge. Three months later he petitioned for post conviction relief. This is a belated appeal from the denial of his PC 1 petition.

I. Motions for default and summary judgment.

During the course of the post conviction hearing it was discovered that the state had not filed an answer to Likens' petition as prescribed by PC 1, § 4(a). Thereupon the state moved for permission to file an answer in denial, either orally or in writing. Likens, on the other hand, moved for default and for summary disposition under § 4(f). The court permitted the state to orally deny the petition, precluded it from asserting any new matters and denied both of Likens' motions. These denials are assigned as error.

PC 1, § 4(a) requires the state to respond to a PC 1 petition within thirty days or such further reasonable time as the court may fix. In addition, "(t) he court may make appropriate orders for amendment of the petition or answer, for filing further pleadings or motions, or for extending the time of filing any pleading."

Granting a default is a matter within the sound discretion of the court and is reviewable only for abuse. Payne v. Doss (1976), Ind.App., 354 N.E.2d 346; Green v. Karol (1976), Ind.App., 344 N.E.2d 106. Likens asserts no surprise from the state's position or the evidence produced. In fact it appears that his counsel and the prosecutor had conferred for three hours before the hearing and both were prepared to proceed. The absence of a written answer was not even noticed until the hearing was under way. It appears that the purpose of requiring an answer, i. e. to advise the petitioner of the state's position regarding his claims, was satisfied. Compare State v. Kolb (1974), 162 Ind.App. 115, 318 N.E.2d 382 where the state was precluded from asserting the procedural sufficiency of a petition by failing to assert it by answer.

We find that Likens has failed to demonstrate that the court abused its discretion in refusing a default. Moreover, there was no error in refusing summary disposition. Since there was no default granted, Likens was not entitled to have the allegations of his petition taken as true. Because the proceeding challenged a sentence imposed following a guilty plea, the court was required to make the transcript of the arraignment a part of the record. PC 1, § 4(d). There were genuine issues of material fact which precluded judgment as a matter of law. King v. State (1974), 161 Ind.App. 196, 314 N.E.2d 805.

II. Advisement of constitutional rights.

Likens asserts that the court failed to adequately advise him of the rights he would waive in entering a plea of guilty. He alleges that he was not told he was waiving his privilege against self-incrimination or the right to confront his accusers.

The arraignment record at the proceeding when the plea was accepted 2 discloses the court advised Likens of the following:

"At a trial and during this trial, one of your fundamental constitutional rights is, that you may not be compelled to testify or give any evidence against yourself."

"You are giving up your right to face the witnesses here in court . . .. And you are also giving up your right to have your attorney cross-examine the witnesses."

The court then inquired, "Do you understand those things that you are giving up." Likens responded that he did.

Likens' assertions are meritless.

III. Assertion of innocence.

Likens next asserts that his guilty plea should not have been accepted because at sentencing he asserted his innocence. In support he cites Harshman v. State (1953), 232 Ind. 618, 115 N.E.2d 501.

We first note that neither at sentencing nor at any other time did Likens assert he was innocent of any of the crimes charged. What he did do at the sentencing hearing was assert no memory of committing the offense. 3 In Harshman a guilty plea was set aside where the defendant at the guilty plea proceeding asserted no memory of committing the offense on the ground of intoxication. However, several factors distinguish the acceptance of Likens' plea from that in Harshman.

The basic rule guiding us in the acceptance of guilty pleas is that they must be made knowingly, voluntarily and intelligently. One of the requirements we have imposed is that there exist a factual basis for the plea. This requirement responds to the justice function of the courts. In part it is designed to assure the court that there are reasonable grounds to believe that a crime was in fact committed and the accused participated. It also serves as evidence that the proffered plea is being offered intelligently, i. e., with an understanding that the facts are such as may support a conviction if the accused is subjected to trial. Where the question before the court is not merely whether the accused is willing to plead guilty to the crime with which he is charged, these two purposes tend to diverge. With judicial recognition of plea bargaining arrangements, that divergence may result in separately identifiable issues because the element of intelligence in entering the proffered pleas may be found in the quid pro quo for the particular plea rather than the factual basis which would support a conviction on the pleaded-to offense. See, e. g., North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162; Campbell v. State (1975), 262 Ind. 594, 321 N.E.2d 560; Boles v. State (1973), 261 Ind. 354, 303 N.E.2d 645; King v. State, supra.

In Harshman the accused was not represented by counsel, who presumably would have discussed with him the nature of the charges and their relation to the facts. From the opinion it does not appear that a plea bargain was involved. No evidence was produced to establish a factual basis for the plea. On those facts coupled with the accused's statement that he had no memory of the events, the Supreme Court held the record inadequate to establish that the plea was intelligently and understandingly made.

By contrast Likens was represented by counsel when the plea was tendered and had been represented since the inception of the proceedings. At the guilty plea proceeding the state introduced the deposition of the victim describing commission of the crime and identifying Likens as the perpetrator. In return for the plea the state was dismissing both the count of the information which carried the most severe penalty and a separate robbery charge. While Likens did assert no memory of the offense, the assertion was equivocal. 4 The court was justified in determining there was a factual basis for the plea. It was also justified in determining that the plea was understandingly and intelligently entered.

IV. Advisement on sentences.

Likens asserts that his plea should have been set aside as involuntary and not intelligently made because of incompetence on the part of his trial counsel. He also asserts that the court did not adequately advise him of the sentencing consequences of his plea. In support of these contentions he claims that his counsel advised him that he would receive only a ten year determinate sentence under the plea bargain. He further contends that counsel led him to believe that if he was tried and convicted he could receive consecutive sentences. 5

It must be initially recalled that in proceedings for post conviction relief, the burden of proof rests upon the petitioner. Where the evidence or the reasonable inferences that may be drawn from it are in conflict we will not reverse the trial court's determination unless no reasonable mind acting on the evidence presented could have reached the conclusion arrived at by the court. PC 1, § 5; Roberts v. State (1975), 263 Ind. 53, 324 N.E.2d 265.

At the post conviction hearing Likens testified that his attorney advised him that upon his plea he would be sentenced to ten years "flat." The attorney testified and denied this. Likens' appeal therefore seeks to have us redetermine credibility, a task we eschew.

However, there is a more meaningful reason for denying his claim. We cannot know precisely what was said between Likens and his counsel. It is entirely possible that one misunderstood the other regarding either the legal or practical consequences of the plea.

This is the very kind of dilemma that Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and its progeny, including such statutory enactments as I.C. 35-4.1-1-3 are designed to defuse. It would be a strange paradox indeed were we to require the court to explain at length a defendant's rights and the consequences of pleading guilty and then when the court did so, vitiate the proceedings because at a prior time someone else, attorney or acquaintance, had misinformed the defendant as to one or more of those matters.

In the record before us the trial judge, before accepting the plea, advised Likens that the penalty for rape was 2 to 21 years, 6 and that the penalty for robbery was 10 to 25 years. When asked if he understood this, Likens replied that he did. When later asked if he had any questions whatever, Likens replied that he did not. Even when sentence was subsequently pronounced Likens evidenced neither surprise nor objection. Instead he thanked the court. Under these...

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  • Williams v. State
    • United States
    • Indiana Appellate Court
    • February 26, 1986
    ...an answer, to advise the petitioner of the State's position regarding his claims, was satisfied in this case. See Likens v. State (1978), 177 Ind.App. 101, 378 N.E.2d 24; see also Harrington v. State (1984) Ind.App., 466 N.E.2d 1379 (court excused the State's failure to plead laches as an a......
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