Lloyd v. State, 1177S793

• Docket Nº: No. 1177S793
• Citation: 383 N.E.2d 1048, 270 Ind. 227
• Case Date: January 12, 1979
• Court: Supreme Court of Indiana

Page 1048

383 N.E.2d 1048 270 Ind. 227 Lamoine LLOYD, Appellant,
v.
STATE of Indiana, Appellee. No. 1177S793. Supreme Court of Indiana. Jan. 12, 1979.

[270 Ind. 228]

Page 1050

Harriette Bailey Conn, Public Defender, Robert H. Hendren, Deputy Public Defender, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Petitioner (Appellant) is appealing the denial of his petition for post conviction relief pursuant to Post Conviction Remedy Rule 1. He was originally charged with commission of a felony while armed, to-wit: robbery, Ind. Code § 35-12-1-1 (Burns 1975) to which he entered a plea of guilty. He was sentenced to a term of fifteen (15) years imprisonment. On appeal he presents the following issues:

(1) Whether the petitioner was competent at the time that he entered his guilty plea.

(2) Whether the trial court properly advised the petitioner of his rights at the guilty plea hearing and whether adequate inquiry was made into the factual basis for the plea.

(3) Whether the State, by failing to respond, admitted the factual averments of the petitioner's amended petition.

(4) Whether the petitioner was rendered adequate representation by his trial counsel.

Page 1051

(5) Whether the statute under which the petitioner was charged, [270 Ind. 229] was effectively repealed or superceded by additional acts of the Legislature.

ISSUE I

Petitioner was originally charged with two counts of armed robbery, two counts of robbery and jailbreaking. Subsequent to a plea bargaining agreement, he agreed to plead guilty to one count of armed robbery in exchange for the dismissal of all other charges then pending against him, and the dismissal of a charge of jailbreaking then pending against his wife.

As his first assigned error, the petitioner alleges that he was incompetent at the time he entered his guilty plea pursuant to the above agreement, as he was then under the influence of drugs and, therefore, unable to waive his rights, knowingly, voluntarily and intelligently. He further contends that the trial court was aware of the possibility of a drug problem in the jail and thus had an affirmative duty to make an inquiry at the guilty plea hearing.

In a post conviction proceeding the petitioner bears the burden of establishing his grounds of relief by a preponderance of the evidence. Post Conviction Remedy Rule 1, § 5. The judge hearing the petition is the sole judge of the weight of the evidence and the credibility of the witnesses. Carroll v. State, (1976) Ind., 355 N.E.2d 408. Only where the evidence is without conflict and leads unerringly to a result other than that reached by the trial court, will his decision be set aside. Carroll v. State, supra; Roberts v. State, (1975) 263 Ind. 53, 324 N.E.2d 265.

Conflicting evidence was presented at the post conviction hearing upon the issue of the petitioner's competency. The petitioner presented several witnesses who testified that drugs were readily available in the Grant County Jail at the time of the petitioner's incarceration there. The petitioner testified at the hearing and stated that the night before he entered his plea, he took a "hit" of "windowpane," a form of LSD, the effects of which wore off after about thirty hours. He also testified that he smoked marijuana right before going to court the next day.

The attorney who represented the petitioner at the guilty plea hearing, testified that in his opinion the petitioner never displayed any outward[270 Ind. 230] signs of being under the influence of drugs or alcohol. He further stated that the petitioner voluntarily entered into the plea bargain and that he had the ability to comprehend what he was doing at all times.

The judge who accepted the petitioner's plea also testified at the post conviction hearing. He stated that he had seen the petitioner on several occasions over the years and that he had acted the same each time. On all three occasions that the petitioner was before him on matters arising from the instant case, the judge believed that there had been a free and responsive communication between them. He saw no indication that the petitioner was under the influence of drugs at any time during these encounters.

A careful reading of the record discloses that the petitioner's testimony during the guilty plea hearing consisted of more than simple yes and no answers. He related the details of both robberies in a coherent and logical order. In addition, petitioner testified at the post conviction hearing, that he understood at the time that the guilty plea was entered that the purpose of his being there was to plead guilty pursuant to a plea bargaining agreement, and he acknowledged that the State had fully complied with that agreement. The evidence clearly sustains that the petitioner's plea was entered knowingly, voluntarily and intelligently.

Petitioner's second contention with regard to the issue of competency is that the judge who took the guilty plea had an affirmative duty to inquire into the petitioner's competency, since he was aware of the drug problem in the jail and also knew that the petitioner had had a drug problem in the past. Ind. Code § 35-5-3.1-1 (Burns

Page 1052

1975) provides that where the court, either from its own knowledge or upon the suggestion of any person, has reasonable grounds for believing that the defendant does not have sufficient comprehension to understand the proceedings or to make his defense, it shall immediately hold a hearing to determine whether the defendant has that ability. The court is given a certain amount of discretion in making that determination. Thus, although there appears to have been some circumstances that may have suggested that the defendant may have been incompetent at the time he entered his plea, we can not say that those circumstances, although presumably known to the judge, mandated a finding that reasonable grounds existed for believing the defendant to [270 Ind. 231] be incompetent. Had there been a formal claim of incompetence presented to the court, our finding could be different. However, under the circumstances of this case, it would be inappropriate for us to speculate upon the propriety of the trial judge's actions, as his position for making the assessment was better than our own. ISSUE II

Petitioner contends that he was improperly advised of his rights at the time that he entered his plea and that the trial judge failed to make an adequate inquiry into the factual basis for his plea. Ind. Code § 35-4.1-1-3 (Burns 1975) provides that the defendant be advised of certain rights which he waives by pleading guilty. Among the rights of which he must be advised and of which the petitioner alleges that he was never advised, are the right to subpoena witnesses, the right to have his guilt proven beyond a reasonable doubt and his right to a speedy trial. We disagree with petitioner's allegation that he was not so advised. The record discloses the following:

"Q. . . . You have various rights which you must waive, Mr. Lloyd, in a plea. One is the right to trial, either by court or jury. Are you willing to waive that right?

"A. Yes, sir.

"Q. You also have the right to face the people who accuse you of crime in open court and have an attorney cross-examine those witnesses as to your guilt or innocence. In pleading guilty you waive that right and are you willing to do so?

"A. Yes, sir.

"Q. You also have the right to use the power of this court to bring persons here to testify in any defense that you wish to present. . . . In pleading guilty, you waive that right also. Are you willing to do so?

"A. I would maybe like to have one individual to . . .

"By John B. Milford, Public Defender:

"Your Honor, may it please the Court, I think Lamoine may be confused as far as testifying in his defense as opposed to testifying at his sentencing. He still has a right to call people to testify at his sentencing.

"Q. Yes. You have a right to a sentencing hearing.

[270 Ind. 232] "A. Oh, well, I'll waive that then.

"Q. You also have the right not to incriminate yourself. In taking the witness stand under oath, you waive the burden of the State of Indiana of proving you guilty beyond a reasonable doubt and you...