Maleck v. State, 1276S451

• Decision Date: 16 December 1976
• Docket Number: No. 1276S451,1276S451
• Citation: 358 N.E.2d 116,265 Ind. 604
• Parties: Richard Allen MALECK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 116

358 N.E.2d 116

265 Ind. 604

Richard Allen MALECK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1276S451.

Supreme Court of Indiana.

Dec. 16, 1976.

Harriette Bailey Conn, Public Defender, Peter W. Bullard, Deputy Public Defender, Indianapolis, for appellant.

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

OPINION ON PETITION FOR TRANSFER

HUNTER, Justice.

Appellant Maleck, hereinafter petitioner, was charged with assault and battery with intent to rape. He was arraigned on May 8, 1973. The record entry for that date states, '(T)he defendant is now interrogated by the Court and instructed as to his constitutional rights and now waives the reading of the affidavit, waives trial by Jury and for his plea herein says that he is not guilty.' There is no verbatim transcription of the arraignment. On July 12, 1973, petitioner sought leave of court to withdraw his plea. The record entry for that date states, 'The Court now grants leave to the defendant to withdraw his not guilty plea herein. The Court re-advises the defendant of his rights and the defendant for his plea herein says that he is guilty . . ..' The verbatim transcript of this hearing shows the petitioner was not advised of his right to trial by jury, his right against self-incrimination nor his right to confront his accusers. The trial court, however, accepted petitioner's guilty plea and he was sentenced on August 15, 1973. Thereafter petitioner sought post-conviction relief alleging he was not adequately advised of his constitutional rights before the court accepted his plea. The trial court denied his petition and the Court of Appeals affirmed that judgment. Maleck v. State, (1976) Ind.App., 352 N.E.2d 540. The petition for transfer is hereby granted.

Before a guilty plea can be accepted, the trial judge must assure himself that the plea is voluntary, knowing and intelligent. In order to effectuate this determination, a defendant must be advised of his constitutional right to trial by jury, his rights against self-incrimination and his right to confront his accusers. Boykin v. Alabama, (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; Williams v. State, (1975) Ind., 325 N.E.2d 827. In implementing this protection, our rules require a verbatim transcript of the guilty plea arraignment. This is to preserve the evidence taken and facilitate review of any later proceeding questioning the validity of the arraignment. Ind.R.Crim.P. 10.

Whether an adequate advisement of rights at a previous hearing renders the acceptance of a subsequent guilty plea proper, has not been considered by this Court. As pointed out by the public defender's brief, specific language of our cases not dealing with this particular question tend to support the view that it does not. Williams, supra; Conley v. State, (1972) 259 Ind. 29, 284 N.E.2d 803; Brimhall v. State, (1972) 258 Ind. 153, 279 N.E.2d 557. In any event, we now hold it necessary for the trial judge to fully advise a defendant of his rights at the time a guilty plea is tendered, or have a record before him which demonstrates a full advisement. Only 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. This is not an undue burden to place upon the trial court. The defendant is on the verge of committing years of his life to confinement. The little time necessary for the trial judge to advise a defendant at the time of his plea is a modicum relative to the significant consequences to a defendant.

Reversed and remanded to the trial court for proceedings not inconsistent with this opinion.

DE BRULER and PRENTICE, JJ., concur.

ARTERBURN, J., dissents with opinion in which GIVAN, C.J., concurs.

ARTERBURN, Justice (dissenting).

This is a case of assault and battery with intent to rape. The Defendant on a plea of guilty was sentenced on August 15, 1973. The Court of Appeals (Garrard, J.) affirmed the trial court's denial of a post conviction remedy. It is on petition to transfer in this court.

The only question presented is whether or not the petitioner was adequately advised when he pleaded guilty. When the Defendant was first arraigned he pleaded not guilty. The record shows a docket entry stating that he was 'instructed as to his constitutional rights' at that time. He later asked leave to change his plea to guilty and the record shows 'the Court readvises the defendant of his rights.'

If an accused is arraigned more than once in a particular case, the constitutional requirements are met if the defendant received adequate advice at any one of the arraignments. Fraley v. State, (1975) Ind.App., 323 N.E.2d 239. The burden is on the defendant in a post conviction proceeding to establish his right to relief. Here, that means establishing that he was not properly advised.

Our rule, Criminal Rule 10, which requires the court to make a transcript of the advice it gives to a defendant at the time he pleads guilty, is a meritorious rule. However, it is not a constitutional provision. The constitutional provision provides for a fair trial and hearing, not that a full transcript be made of the hearing.

The majority states that the transcript of the guilty plea hearing shows that the petitioner was not advised of his right to trial by jury, his right against self-incrimination, and his right to be confronted by his accusers. Yet the majority opinion does not state that the Defendant, who has the burden of proof, showed that he was not otherwise advised as to these rights. Nor does the record show that the Defendant denied he knew he had a right to a jury trial, etc., and would not have pleaded guilty if he had had such knowledge. What advantage is there to the right to be confronted by one's accusers when one knows he is guilty and he voluntarily pleads guilty?

If the Defendant had shown here that he was an ignorant man and that his attorney did not advise him that he could have a jury trial, etc., we might have a case of prejudicial error. But it is straining at a fiction to assume that the Defendant was that ignorant or unadvised, having employed counsel of his own choosing when he pleaded guilty.

The evidence does show the questioning by the court at the Defendant's second arraignment, and that the Defendant stated he wished to withdraw...