Lowe v. State

Decision Date23 November 1983
Docket NumberNo. 282S46,282S46
PartiesWilliam D. LOWE, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender, Ihor N. Boyko, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Petitioner, William D. Lowe, was charged on August 23, 1979 with three counts of robbery. Two of these offenses were classified as class A felonies, while one was categorized as a class B felony. Pursuant to a plea bargain agreement executed with the State, Lowe pleaded guilty to these charges, and the prosecutor in return recommended that he serve two twenty year terms of imprisonment on the class A robberies and a ten year term for the class B offense. These three sentences were to run concurrently for an aggregate of twenty years. The trial court accepted the agreement and sentenced Lowe accordingly on October 25, 1979. On June 18, 1981, Lowe filed a petition for post-conviction relief which was denied on August 27, 1981 following a hearing. He now appeals from this denial and raises these issues:

(1) Whether the trial court committed reversible error by not providing sufficient written findings of fact and conclusions of law with respect to the issues presented in Lowe's petition for post-conviction relief.

(2) Whether petitioner's guilty pleas were valid and entered in compliance with statutory requirements.

(3) Whether Lowe was denied his right to the effective assistance of counsel.

Initially we note that the burden is on the petitioner, in a post-conviction hearing, to establish his grounds for relief by a preponderance of the evidence. Ind.R.P.C 1, Sec. 5. On appeal from an adverse judgment, the petitioner must satisfy this Court that "the evidence as a whole was such that it leads unerringly and unmistakably to a decision in his favor; that is, one opposite to that reached by the trial court." Sotelo v. State, (1980) Ind., 408 N.E.2d 1215, 1216.


Lowe first contends that the trial court erred by not entering specific written findings of fact and conclusions of law with respect to all of the issues raised in the petition for post-conviction relief. He cites Indiana Rules of Procedure for Post-Conviction Remedies Rule 1, Sec. 6 which states in part, "The court shall make specific findings of fact, and conclusions of law on all issues presented." He claims that the order entered here did not comply with this mandate and was not specific enough to allow meaningful review.

The order of the presiding special judge was unfortunately general and conclusory in nature. Specificity is lacking. However, we do not find that the defects of this order require a reversal and remand for more specific findings. The facts underlying Lowe's claims are not in dispute. Lowe has stated and discussed in his brief what he believes to be the deficiencies in the record and in his trial counsel's representation of him, and the State has fully addressed these issues in its brief. A similar claim concerning the inadequacy of the findings was raised in Sims v. State, (1981) Ind.App., 422 N.E.2d 436, where the Court of Appeals found:

"The issues are clear. Therefore in the interest of judicial economy, we shall make an ultimate determination of the arguments as raised ... rather than remand the matter to the trial court for further findings." Id. 422 N.E.2d at 438.

We likewise find that the issues here are sufficiently presented for our review, and we find no reversible error.


Defendant next argues that his guilty pleas were not valid and were not entered in compliance with statutory requirements. On September 27, 1979, during a hearing on the competency of a co-defendant, Lowe tendered the plea bargain agreement reached with the State. The trial judge announced that he would not accept that agreement or make a decision about it at that time. He ordered a pre-sentence investigation report, set a date for further proceedings and questioned Lowe concerning his understanding of the agreement and whether it was entered into voluntarily. He also informed Lowe that the court was not a part of this agreement.

On October 25, 1979, Lowe appeared with counsel in open court. The trial judge examined him and advised him of his rights in accordance with Ind.Code Secs. 35-4.1-1-3 and 35-4.1-1-4 (Burns 1979 Repl.) [Acts 1973, P.L. 325, Sec. 4, p. 1750 (repealed 1982); for provisions effective September 1, 1982, see Ind.Code Secs. 35-35-1-2 and 35-35-1-3 (Burns Supp.1983) ]. Petitioner claims, however, that he should have been advised fully of all of his rights at the September 27 proceeding. The guilty plea statute makes no reference as to when the advisement of rights is to take place other than to require this colloquy before acceptance of a guilty plea from a defendant. We have found that "[o]nly when a defendant is seriously considering entering a guilty plea will the advisement be meaningful to him and for the trial judge in determining an intentional and intelligent waiver of known rights." Maleck v. State, (1976) 265 Ind. 604, 358 N.E.2d 116.

In the instant case, Lowe tendered his guilty plea and was "seriously considering" entering that plea both at the September proceeding, when the judge declined to accept the plea until he could consider a pre-sentence report, and at the October hearing, when the judge engaged him in further discussion of his rights before accepting the plea of guilty. Thus the two proceedings must be considered together to determine if Lowe was adequately advised of his rights in accordance with Ind.Code Sec. 35-4.1-1-3. There was, consequently, no requirement that Lowe be fully advised on September 27.

Lowe contends that he never entered unequivocal pleas of guilty to the three offenses charged. At the October 25 proceeding, the following dialogue ensued at the conclusion of the advisement of rights and explanation of maximum and minimum possible sentences by the judge:

"COURT: Further, this Court takes into consideration prior convictions in determining both the length of sentence and whether or not the sentences shall be served consecutively or concurrently and knowing all of these things, is it still your intention to plead guilty to these charges--three in number--of the charge of Robbery--and waive your constitutional rights that I've just explained to you. Is that still your intention?

DEFENDANT: Yes, sir."

Lowe thus unequivocally asked the judge to accept the tender of his plea of guilty. This was followed by the imposition of a judgment of conviction and sentencing without objection by the petitioner. This is sufficient to establish the entry of proper pleas of guilty.

Petitioner next claims that a proper factual basis for the entry of his guilty pleas was not established. The court asked the prosecutor to "state the basic facts in this matter," and the prosecutor read the factual allegations contained in the informations filed on the three charges. The judge then continued:

"COURT: Mr. Lowe, you've heard the prosecutor's statements; do you admit the acts as alleged by the State of Indiana?

DEFENDANT: Yes, sir.

COURT: Do you understand by your plea of guilty you are admitting to the truth of the information as filed in these various causes? Answer yes or no.


The trial judge's inquiry after the prosecutor's reading of the allegations and Lowe's 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 contends that his pleas were not knowingly, voluntarily and intelligently entered because he was not properly advised in accordance with Ind.Code Sec. 35-4.1-1-3. While strict compliance with the terms of this statute is required, German v. State, (1981) Ind., 428 N.E.2d 234 (Givan, C.J. and Pivarnik, J., dissenting), the exact language of the statute need not be used, McCann v. State, (1983) Ind., 446 N.E.2d 1293; Laird v. State, (1979) 270 Ind. 323, 385 N.E.2d 452.

Lowe first claims that he was not advised that upon entry of his guilty plea the court would proceed with judgment and sentence as required by Ind.Code Sec. 35-4.1-1-3(b). However, the judge did inform Lowe at the September 27...

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