Lovera v. State

• Court: Indiana Appellate Court
• Writing for the Court: SHARP; HOFFMAN, C.J., and STATON
• Citation: Lovera v. State, 283 N.E.2d 795, 152 Ind.App. 377 (Ind. App. 1972)
• Decision Date: 14 June 1972
• Docket Number: No. 3,No. 272A99,272A99,3
• Parties: Raul Jaun LOVERA, Appellant, v. STATE of Indiana, Appellee

Page 795

283 N.E.2d 795

152 Ind.App. 377

Raul Jaun LOVERA, Appellant, v. STATE of Indiana, Appellee.

No. 272A99.

Court of Appeals of Indiana, Division No. 3.

June 14, 1972.

Harriette Bailey Conn, Public Defender of Indiana, Paul J. Baldoni, Deputy Public Defender, for appellant.

Theodore L. Sendak, Atty. Gen., of Indiana, Wesley T. Wilson, Deputy Atty. Gen., of Indiana, for appellee.

SHARP, Judge.

On November 5, 1969, an affidavit was filed in the City Court of South Bend, Indiana, charging the Defendant, Raul Jaun Lovera, with possession of a dangerous drug, to-wit: Marijuana. Immediately thereafter the Defendant waived arraignment in open court and entered a plea of guilty. The entire record of the proceedings in the City Court are as follows:

'Comes now Richard Thomas and files affidavit charging the defendant with the offense of Possession of a Dangerous Drug, Marijuana on November 4, 1969, which affidavit reads in the words and figures following, to-wit:

'* * *

'defendant waives being arraigned in open court and pleads guility.

'And now the Court having heard the evidence and being duly advised now finds the defendant guilty.

'And now the Court assesses defendant's fine at $100.00 and costs.

'And now the defendant is sentenced to five (5) days in the County Jail."

On November 16, 1970, the Defendant filed his Petition for Post-Conviction Relief alleging 'trial was held contrary to the due process provisions of the United States Constitution and the Constitution of the State of Indiana in that Defendant was not advised of his Constitutional Rights; he was not informed he could have counsel to represent him; if he could not afford counsel one would be provided for him'.

The facts alleged to support the above assertion are as follows:

'Defendant was arrested without a warrant and automobile in which he was riding was searched without a search warrant. The Sheriff interrogated defendant without advising him of his Constitutional Rights. Sheriff then advised defendant to plead Guilty but failed to inform defendant he should be represented by counsel and if unable to engage one an attorney would be provided free of charge.'

The Presecuting Attorney of St. Joseph County, Indiana, explicitly denied the above quoted allegations from the Defendant's Petition for Post-Conviction Relief.

A Motion to Amend the Petition for Post-Conviction Relief was also filed. Argument was held on the Petition for Post-Conviction Relief as Amended and denied on December 17, 1970. A Motion to Correct Errors was filed by the Appellant and overruled by the trial court on June 15, 1971. This appeal is taken from that ruling. On October 28, 1971, an agreed statement of the proceedings was filed in the trial court signed by the Deputy Public Defender, Prosecuting Attorney and approved by the trial judge in accord with Rule AP 7.3. Since the contents of the agreed statement is essentially all the record we have before us in this case we deem it necessary to set it forth here:

"RECORD OF THE PROCEEDINGS

'On November 4, 1969, Raul J. Lovera plead guilty to the offense of the Possession of a Dangerous Drug, to-wit: Marijuana, and was sentenced to five (5) days in the St. Joseph County Jail and fined one hundred dollars ($100.00) plus costs for a total of one hundred twenty-four dollars ($124.00).

'On December 17, 1970 at about 12:30 P.M. in the City Court of South Bend, Indiana, the Honorable George E. Herendeen entertained Mr. Raul J. Lovera's Petition for Post-Conviction Relief filed pursuant to Rule P.C. 1 on November 23, 1970, and the Amendment thereto filed on December 17, 1970, Petitioner was represented by Paul J. Baldoni, Deputy Public Defender for the State of Indiana, and Peter Nemeth, Deputy Prosecuting Attorney for St. Joseph County, represented the State.

'EVIDENCE PRESENTED BY PETITIONER

'Witnesses at the hearing on Mr. Lovera's Petition for Post-Conviction Relief were Mrs. Lovera, the former Maria Valina, Miss Pamela Allen and Mr. John Hutcheson, who had travelled from Pennsylvania to South Bend, Indiana, to testify.

'Mr. John Hutcheson, after being sworn, testified as follows:

'On the morning of November 5, 1969, he (Mr. Hutcheson) along with Mr. Lovera and several other individuals were brought from the County Jail to the South Bend City Court by a Sheriff's Deputy of the St. Joseph County Sheriff's Department. Judge Herendeen entered the courtroom, everyone rose, and then were seated. Mr. Hutcheson faintly remembered that Judge Herendeen might have addressed all those then present concerning their constitutional rights. The Judge then proceeded to dispose of several individuals who were charged with public intoxication; after which each person charged with the Possession of a Dangerous Drug, to-wit: Marijuana, was called individually before the bench by Judge Herendeen. In all there were twelve (12). After having their affidavits read to them, they all waived arraignment and each pled guilty. Judge Herendeen then delivered a "sermon" to all twelve (12) persons who were charged with the Possession of a Dangerous Drug, to-wit: Marijuana. This entire proceeding, including a three (3) minute recess, took one-half (1/2) hour.

'Judge Herendeen did not advise each accused individually, specifically Mr. Lovera, as to his constitutional rights. Further, Judge Herendeen did not apprise himself of the fact that Mr. Lovera was an alien who would be liable for deportation following his plea of guilty to the charge of the Possession of a Dangerous Drug, to-wit: Marijuana.'

'Miss Pamela Allen and Mrs. Lovera (the former Miss Maria Valina) testified as follows:

'On the morning of November 5, 1969, they were together brought into the South Bend City Court by a matron of the Sheriff's Department. When they arrived, Judge Herendeen and the other male defendants were already present in the courtroom.

'Judge Herendeen called Mr. Lovera before him, read to him the affidavit charging him with the Possession of a Dangerous Drug, to-wit: Marijuana, and Mr. Lovera pled guilty and waived his right to arraignment, accepted Mr. Lovera's guilty plea without specificaly advising said defendant concerning his constitutional rights. In fact, Judge Herendeen followed this same procedure in relation to the other eleven (11) co-defendants. Further, Judge Herendeen, at no time, informed Mr. Lovera that, since he was an alien, on his plea of guilty he could be cited for deportation.

'Judge Herendeen, having accepted guilty pleas of all twelve (12) co-defendants, concluded the proceedings by delivering a "sermon" to all of them.' 'mr. Raul J. Lovera, after having been sworn, testified in his own behalf as follows:

'On the morning of November 5, 1969, he (along with several other male co-defendants, including Mr. John Hutcheson) was transferred by a Sheriff's Deputy from the St. Joseph County Jail to the South Bend City Court. When they arrived Judge Herendeen was not present in the courtroom. Shortly thereafter, Judge Herendeen entered the courtroom, everyone rose, then was seated. The Judge then disposed of several public intoxication cases.

'After several co-defendants had pled guilty, Mr. Lovera was called before Judge Herendeen, waived arraignment, and entered his plea of guilty to the charge of Possession of a Dangerous Drug, to-wit: Marijuana. He was not advised by the court of his constitutional rights or that he could be cited for deportation because of said plea. Further, Mr. Lovera stated that he had, in fact, been cited for deportation because of said conviction. In short, in no manner did Judge Herendeen ever attempt to apprise himself of the fact that Mr. Lovera was pleading knowingly and with full knowledge of the consequences of his guilty plea.

'Following the above-described procedure in all twelve (12) cases, Judge Herendeen accepted the guilty pleas of all twelve (12) co-defendant. Afterwards he delivered a "sermon" to all twelve (12) co-defendants.'

'That was all of the evidence presented by the petitioner.

'EVIDENCE PRESENTED BY THE STATE

'The State did not present any evidence.

'OTHER EVIDENCE RECEIVED BY THE COURT

'City Judge George Herendeen stated that he distinctly recalled advising Mr. Raul J. Lovera of his constitutional rights at the time of arraignment on November 5, 1969. He further stated that he did not advise Mr. Lovera that on his plea of guilty he could be cited for deportation. Judge Herendeen also indicated that he had no knowledge that Mr. Lovera could be cited for deportation upon a plea of guilty.

'RULING

'The court then denied Mr. Lovera's Petition for Post-Conviction Relief."

We do not agree with the Appellant that the trial judge had a specific obligation to determine that the Appellant was an alien and to advise him specifically of the effect of a guilty plea in that regard. This may be decided properly on more generally accepted principles.

A plea of guilty is in itself a conviction. It must therefore be made by the accused freely and understandingly so that the rights afforded under Article 1, Section 13 of the Indiana Constitution can be deemed intelligently waived. Thacker v. State, Ind., 262 N.E.2d 189 (1970). An intelligent waiver of these rights is possible only when the court has first informed the accused of his rights in a criminal prosecution. Gates v. State, 243 Ind. 325, 183 N.E.2d 601 (1962). It is the duty of the trial court to determine whether a guilty plea is entered freely and understandingly. Mislik v. State, 184 Ind. 72, 110 N.E. 551 (1915).

The above rights were recently summarized in Brady v. U.S., 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

The trial court must be especially vigilant in any case where an accused is not represented by counsel to determine that the accused's plea of guilty is intelligently made. Harris v. State, 203 Ind. 505, 181 N.E. 33 (1932); Von Moltke v. Gillies, 332 U.S. 709, 68 S.Ct. 316, 92 L.Ed. 309 (1949).

The affidavit in this case was...