Maloney v. State
| Decision Date | 26 November 1996 |
| Docket Number | No. 92A03-9603-CR-85,92A03-9603-CR-85 |
| Parties | Scott L. MALONEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Scott L. Maloney signed a waiver of rights form which had been distributed en mass to a group of defendants. After signing the form, he pled guilty to operating a motor vehicle while intoxicated, a Class A misdemeanor. Later, he petitioned for post-conviction relief. The petition was denied. He appeals and raises this issue:
Did the trial court commit reversible error when it failed to have personal interaction with Maloney during the advisement of his rights.
We conclude that the trial court erred, and we reverse.
Maloney contends that his Boykin 1 rights were violated. Before he pled guilty, he was not advised by the judge of his right to a jury trial or to confront and cross-examine the witnesses against him. While standing before the trial court en mass with other charged defendants, he signed the waiver of rights form which had been distributed. There is nothing in the record which indicates any interaction between Maloney and the trial judge. There is nothing in the record to indicate that Maloney made a personal choice to enter a plea of guilty. Hanna-Womack v. State, 623 N.E.2d 439, 440 (Ind.Ct.App.1993), reh. denied (citing Zakhi v. State, 560 N.E.2d 683, 685 (Ind.Ct.App.1990)).
In Greene v. State, 670 N.E.2d 38 (Ind.Ct.App.1996), I dissented and urged that the Indiana Supreme Court overrule Poore v. State, 666 N.E.2d 415 (Ind.Ct.App.1996), trans. granted and Hadley v. State, 636 N.E.2d 173 (Ind.Ct.App.1994), trans. denied. Poore and Hadley have many of the same defects that exist in Maloney's appeal. Judge Riley now joins me in recognizing these defects and in establishing a conflict between the previously cited opinions and this opinion. Ind. Appellate Rule 11(B)(2)(c).
Our decisions have consistently held that it is fundamental error for a court to deny a defendant a jury trial without eliciting a waiver from him personally. A valid waiver cannot be made pursuant to C.R. 22 in the absence of an advisement by the trial court of the consequences of a failure to demand a trial by jury not later than ten days prior to the trial date.
Hanna-Womack, supra, at 440 (quoting Vukadinovich v. State, 529 N.E.2d 837, 839 (Ind.Ct.App.1988)).
The record must reflect that Maloney was fully advised of his rights. It must show that he was capable of reading a written advisement and of understanding the advisement. This showing on the record must be made whether the advisement is substantially oral or written. Eldridge v. State, 627 N.E.2d 844, 848 n. 3 (Ind.Ct.App.1994), trans. denied.
None of the basic advisements were personally given to Maloney. There is absolutely no interaction between the trial judge and Maloney regarding his rights under Boykin or Ind.Crim. Rule 22. The herd of defendants were given waiver forms to sign. Maloney signed his without being fully aware of the consequences. Maloney's state of mind is critical at the time of his advisement. There can be no turning back of the clock and suppositions made as to what was or should have been. The record must be clear that at the time of advisement Maloney made a personal choice and understood that choice.
Our system of criminal justice should not be viewed as callous or indifferent to an individual's rights. Nor should those individual rights be demeaned by en mass advisements which bypass the individual's personal choice to waive those rights.
Maloney's conviction is reversed and a new trial granted.
I respectfully dissent although I agree that in misdemeanor cases, preferred practice calls for the trial court to directly inquire of the defendant before accepting a guilty plea whether the defendant signed the waiver of rights form and whether he understood it. Asking those questions and securing answers on the record not only helps to insure that an ensuing guilty plea was knowingly and intelligently entered, it dissipates any future doubt about the plea.
Even so, there is no basis for reversal in the present appeal. Unlike every case cited by the majority, this case is an appeal from the denial of post-conviction relief.
I.C. 35-35-1-1(b) expressly provides that, "A defendant in a misdemeanor case may waive the rights under subsection (a) by signing a written waiver." It is undisputed that Maloney signed such a waiver and that it adequately advised him concerning the rights that he now contends the court failed to convey to him.
In cases seeking post-conviction relief it is hornbook law that the petitioner bears the burden of proof and that on appeal we will not reverse unless the evidence is without conflict and leads...
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