Maleck v. State, No. 1276S451

• Docket Nº: No. 1276S451
• Citation: 358 N.E.2d 116, 265 Ind. 604
• Case Date: December 16, 1976

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.

[265 Ind. 605]

Page 117

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[265 Ind. 606] 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

Page 118

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 [265 Ind. 607] 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...