Lombardo v. State
| Decision Date | 28 December 1981 |
| Docket Number | No. 681S154,681S154 |
| Citation | 429 N.E.2d 243 |
| Parties | Stephen Lewis LOMBARDO, a/k/a Harvey W. Stone, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Woodrow S. Nasser, Terre Haute, for appellant.
Linley Pearson, Atty. Gen., Kathleen G. Lucas, Deputy Atty. Gen., Indianapolis, for appellee.
On May 25, 1979, appellant Stephen Lewis Lombardo a/k/a Harvey W. Stone, withdrew a former plea of Not Guilty and entered a plea of Guilty to a count of Murder. On June 11, 1979, judgment was entered and Appellant was sentenced to a period of forty (40) years imprisonment. On September 16, 1980, appellant filed a Petition for Post-Conviction Relief. Hearing was had on the Petition on October 31, 1980 and the Petition was denied. This appeal follows denial of Appellant's Motion to Correct Errors.
On February 10, 1979, Town Marshal John Waterman and Investigator Jay Hood stopped a blue Plymouth automobile as it was travelling through Farmersburg, Indiana. The driver appeared to be intoxicated as the car weaved on the street. Shortly after the car was stopped by Waterman and Hood, Town Marshal Clarence Kistner arrived on the scene as did Deputy Sheriff Murl Singleton and Town Marshal Donnie Daniels. Stephen Lewis Lombardo a/k/a Harvey W. Stone, appellant, and Mike Nelson were the occupants of the blue Plymouth. Kistner was asked by Murl Singleton to explain a breathalizer test to appellant and they walked over to Kistner's police car. Kistner tried to get Appellant into the car. Appellant refused and kept saying that he needed to go to the bathroom. Daniels and Singleton told Kistner not to let him go because they were afraid that he might be using this as an excuse to "flush some dope" or "he could have had a gun." When told that he could not go to the bathroom Appellant kept saying that he would not go to jail. He shoved Kistner and tried to go around him. He then grabbed Kistner's .357 Magnum service revolver which was snapped into a holster on Kistner's right side. They struggled for control of the gun. Singleton and Waterman tried to aid Kistner. Appellant gained control of the weapon and pulled the trigger. The gun discharged into Kistner's face. He fell to the ground dead. Appellant continued to try to pull the trigger after Kistner had been shot.
Pursuant to a plea agreement with the State Appellant asked to change his plea of not guilty to one of guilty. The judge questioned Appellant extensively as to whether he was voluntarily and freely changing his plea. He responded that he understood the rights explained to him and that he wanted to plead guilty. Appellant then admitted that he had knowingly and intentionally shot and killed Clarence Kistner.
Appellant raises two main issues for our review on appeal. He claims that the trial court erred when it denied his Petition for Post Conviction Relief because his guilty plea was accepted without an adequate factual basis and his guilty plea was not voluntarily and intelligently made.
Appellant claims that the trial court failed to establish a factual basis for the entry of his plea of guilty to the charge of Murder. The court must comply with Ind.Code 35-4.1-1-3 (Burns 1979 Repl.) and Ind.Code 35-4.1-1-4 (Burns 1979 Repl.) in accepting a guilty plea. Ind.Code 35-4.1-1-3 (Burns 1979 Repl.) provides:
"The court shall not accept a plea of guilty from the defendant without first addressing the defendant and
(a) Determining that he understands the nature of the charge against him;
(b) Informing him that by his plea of guilty he is admitting the truth of all facts alleged in the indictment or information or to an offense included thereunder and that upon entry of such plea the court shall proceed with judgment and sentence;
(c) Informing him that by his plea of guilty he waives his rights to a public and speedy trial by jury, to face the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to require the state to prove his guilt beyond a reasonable doubt at a trial at which the defendant may not be compelled to testify against himself;
(d) Informing him of the maximum possible sentence and minimum sentence for the offense charged and of any possible increased sentence by reason of the fact of a prior conviction or convictions, and of any possibility of the imposition of consecutive sentences;
(e) Informing him that the court is not a party to any agreement which may have been made between the prosecutor and the defense and is not bound thereby."
Ind.Code 35-4.1-1-4 (Burns 1979 Repl.) provides:
"(a) The court shall not accept a plea of guilty without first personally addressing the defendant and determining that the plea is voluntary. The court shall address the defendant and determine whether any promises, force or threats were used to obtain the plea.
(b) The court shall not enter judgment upon a plea of guilty unless it is satisfied from its examination of the defendant that there is a factual basis for the plea.
(c) A plea of guilty shall not be deemed to be involuntary under subsection (a) of this section solely because it is the product of an agreement between the prosecution and the defense."
The trial court questioned the appellant as to whether he had been treated for or was suffering from any mental or emotional disability and whether he was under the influence of alcohol or drugs. The appellant answered no to these questions. The court then advised him in detail and specifically enumerated his rights. Appellant responded that he understood his rights and that he understood he was giving up rights by pleading guilty. The record shows that Appellant was fully advised of his rights and Appellant is not arguing that he was not so advised. Rather, he claims that the court accepted his guilty plea without an adequate factual basis as required by Ind.Code 35-4.1-1-4(b) (Burns 1979 Repl.). He argues that the required intent was not shown, offers theories regarding the shooting and the angle of the bullet, and cites authorities which hold that a guilty plea should not be accepted when accompanied by protestations of innocence. He claims that his counsel's statements at the sentencing hearing to the effect that the defense was prepared, had witnesses to present and that a jury might have acquitted him, amount to a protestation of innocence which should have prevented the trial judge from accepting the guilty plea. There is no merit to these arguments.
The record clearly shows that the appellant was fully advised of his rights and was questioned thoroughly in regard to his understanding of them and the effect of his plea of guilty. The following record is relevant to the issues presented in this appeal and set out in part, the court's questioning and the appellant's answers.
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Buchanan v. State
...the criminal information filed against him, such admission is sufficient to establish a factual basis for the plea. Lombardo v. State (1981), Ind., 429 N.E.2d 243; Lloyd, supra. Here, as the Record indicates, Buchanan stated he understood the elements the State would be required to prove, a......
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Ross v. State
...and 35-35-1-3 and the present trial and appellate approach is to deal with this issue within that framework. Cf. Lombardo v. State, (1981) Ind., 429 N.E.2d 243. I therefore believe that a better bright line for judges and lawyers would be the one drawn by the admonition, "STICK TO THE STATU......
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Lowe v. State
...admission as to the truth of the informations suffice to establish a factual basis for the entry of his guilty pleas. See Lombardo v. State, (1981) Ind., 429 N.E.2d 243; Lloyd v. State, (1979) 270 Ind. 227, 383 N.E.2d 1048. This procedure satisfies Ind.Code Sec. 35-4.1-1-4(b). Lowe further ......
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Johnson v. State
...contained within the criminal information, those admissions are sufficient to establish a factual basis for his plea. Lombardo v. State, (1981) Ind., 429 N.E.2d 243; Lloyd v. State, (1979) 270 Ind. 227, 383 N.E.2d 1048. There was sufficient evidence here to show that the court established a......