Martin v. State

• Decision Date: 14 September 1983
• Docket Number: No. 782S279,782S279
• Citation: 453 N.E.2d 199
• Parties: Doren L. MARTIN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 199

453 N.E.2d 199

Doren L. MARTIN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 782S279.

Supreme Court of Indiana.

Sept. 14, 1983.

Susan K. Carpenter, Public Defender of Indiana, Melanie C. Conour, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Stephan E. Wolter, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Petitioner (Appellant) was convicted of Burglary, Ind.Code Sec. 35-43-2-1 (Burns 1979), Theft, Ind.Code Sec. 35-43-4-2(a) (Burns Supp.1982), Robbery, Ind.Code Sec. 35-42-5-1 (Burns 1979), and of Being an Habitual Offender, Ind.Code Sec. 35-50-2-8 (Burns Supp.1982), and was sentenced to a total of forty (40) years imprisonment. This appeal from the denial of post conviction relief presents five issues, one of which is whether or not Petitioner was adequately advised of the potential penalties upon the charges at the guilty plea hearing. The record discloses that Petitioner, who was never represented by counsel, pled guilty without knowledge of all of the potential penalties that he faced.

Petitioner first appeared before the trial court on February 27, 1981, charged with Burglary, Theft, and Robbery. He had no attorney but stated that he would like to have a lawyer. He also asked: "If I ask for a lawyer, then I can't enter a plea today, right?", to which the trial court responded, "Well, sure you can enter a plea today, if you want to." The court then informed Petitioner of various rights and added:

" * * * Remember that the job of a judge or a jury is to search for the truth. Now, the truth I can't alter, at this time. Whatever the facts are, I can't change now nor can you, and whatever those facts are, will be just as binding on you or this Court today as they would be a year from now, if the case was disposed of then. So, that under that last constitutional right I told you about, certainly, you have a right to get it over with today, if you did these things. Bear in mind that the primary purpose of our system of justice is to search for the truth and once that truthful facts comes into the record, then, to apply the appropriate principles of law to those sets of facts, whatever they might be. Now, do you understand what I've said?

"A. Yes, Sir.

"Q. So, if you've done something and you want to tell us about it, you're a big boy, age 23, there's no reason why you can't. But, if you've been falsely charged and you want to make any proper defense to any of these things, then, you ought to tell me and I--I'm not going to let you get rim-racked or anything. But, you know what the facts are, I don't. Now, what do you want to do?

"A. I want to plead guilty." R. at 25-26.

The court informed Petitioner of the potential penalties, but there was no mention of the habitual offender charge, as it had not yet been filed. It was apparent, however, that Petitioner did not understand the range of sentences, because he stated that the maximum penalty was twenty-three (23) years, and the trial court, clearly in error, agreed. R. at 49. The judge then accepted the plea of guilty, ordered a pre-sentence investigation report and set sentencing for March 16, 1981.

Although there had been some discussion of one of Petitioner's prior felony convictions, at the guilty plea hearing, it was not until the sentencing hearing, when Petitioner requested probation, that the judge informed him that the sentence would not be suspended because of that prior conviction.

On March 12, 1981 the State filed Count IV, alleging that Petitioner was an habitual offender.

Ind.Code Sec. 35-4.1-1-3(d) (Burns 1979) provides:

"The court shall not accept a plea of guilty from the defendant without first addressing the defendant and * * * (d) Informing him of the maximum possible sentence and minimum sentence for the offense charged and of any possible increased sentence by reason of the fact of a prior conviction or convictions, and of any possibility of the imposition of consecutive sentences."

Strict compliance with this statute is required, in order that we may determine that any waiver of fundamental constitutional rights has been knowingly and intelligently given. Davis v. State, (1983) Ind., 446 N.E.2d 1317, 1321.

The State concedes that Petitioner was not advised of the habitual offender penalty during the guilty plea hearing but argues that the judge, at the sentencing hearing, gave Petitioner the opportunity to "back out" of the guilty plea. Assuming, arguendo, that the record supports such a conclusion, and we find that it does not, the statute's explicit language does not permit after the fact advisements. Helton v. State, (1982) Ind.App., 443 N.E.2d 1201.

At the sentencing hearing, the judge explained the habitual offender charge, and Petitioner acknowledged that he understood it and its consequences and that he had expected that it would be filed. Thereafter, the court asked if there were any reason why it should not proceed with sentencing and if Petitioner were ready for sentencing, and Petitioner responded, "yes, sir."

At no time was Petitioner represented by counsel. When the trial court posed the inquiry about sentencing, a competent attorney would have insisted that Petitioner be afforded the opportunity to withdraw his earlier plea because the requisite advisements about the penalty had not been made. See Brown v. State, (1983) Ind., 443 N.E.2d 316, 318; Vanderberg v. State, (1982) Ind.App., 434 N.E.2d 936, 938-39. Petitioner, completely unschooled in the law, could not have been expected to raise such an objection. Further, competent counsel would have informed Petitioner of all of his rights concerning the habitual offender charge, which the trial court did not do until immediately prior to pronouncing the sentence. Under Ind.Code Sec. 35-50-2-8 (Burns Supp.1982), Petitioner was entitled to have the jury, which would have determined the underlying charges upon a plea of not guilty, determine the habitual offender charge. He was not so informed until after his plea had been entered, and we do not think that the fortuity of obtaining a guilty plea prior to the filing of the habitual offender charge should have foreclosed access to that right before he even knew that he...