Mayberry v. State
| Decision Date | 28 August 1989 |
| Docket Number | No. 49A02-8807-PC-280,49A02-8807-PC-280 |
| Citation | 542 N.E.2d 1359 |
| Parties | Michael MAYBERRY, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below). |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender, John Pinnow, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Office of Attorney General, Indianapolis, for appellee.
Michael Mayberry appeals the denial of his petition for post-conviction relief.
We affirm.
The issue on appeal is whether Mayberry's guilty plea was not knowing, intelligent and voluntary because he:
1. asserted his innocence in a pre-sentence investigation interview;
2. was denied effective assistance of counsel; and
3. was not advised of his right against self-incrimination.
Mayberry was charged with commission of a felony while armed 1 and commission of a crime of violence while armed. 2 On March 15, 1974, Mayberry withdrew his plea of not guilty to the armed felony count and tendered a plea of guilty. The plea was pursuant to an agreement wherein the State agreed to dismiss the armed violence count and to recommend sentencing under the minor's statute. 3
At the conclusion of the guilty plea hearing, the guilty plea court accepted Mayberry's plea, ordered a pre-sentence report and set a sentencing date. Mayberry was sentenced on March 28, 1974, to an indeterminate one to ten years.
Mayberry petitioned for post-conviction relief; his amended petition was denied. Mayberry appeals that judgment.
Mayberry claims the post-conviction court erred in failing to set aside his conviction based upon his guilty plea because he asserted his innocence in a pre-sentence investigation interview. 4 The pre-sentence report filed with the guilty plea court prior to Mayberry's sentencing contained the following account:
[The defendant] related that he told the officer he was not guilty, but he knew who was.
The defendant admits to being at the scene at the time, but denies knowing a robbery was taking place. The defendant claims he was involved because he was with Tyson and Getty.
Record at 25. Mayberry did not raise any question concerning his previously accepted plea at his sentencing.
Mayberry bases his argument on existing precedents holding that a guilty plea made while the defendant continues to protest his innocence is not a valid plea. Ross v. State (1983), Ind., 456 N.E.2d 420; Harshman v. State (1953), 232 Ind. 618, 115 N.E.2d 501.
As we view it, a plea of guilty tendered by one who in the same breath protests his innocence, or declares he actually does not know whether or not he is guilty, is no plea at all. Certainly it is not a sufficient plea upon which to base a judgment of conviction. No plea of guilty should be accepted when it appears to be doubtful whether it is being intelligently, and understandingly made, or when it appears that, for any reason, the plea is wholly inconsistent with the realities of the situation.
Harshman, 115 N.E.2d at 502. Ross, 456 N.E.2d at 423.
Following this precedent, in Cross v. State (1988), Ind.App., 521 N.E.2d 360, this court reversed the denial of post-conviction relief. The guilty plea court had taken Cross's guilty plea under advisement and ordered a pre-sentence report. The report filed with the court noted that Cross had represented he was innocent to the probation officer conducting the pre-sentence investigation. At his sentencing hearing, Cross reaffirmed his desire to plead guilty. He was not questioned concerning his pre-sentence statement. The guilty plea court proceeded to accept Cross's plea and sentence him. This court held
Cross's claim of innocence, appearing in a report before the court prior to acceptance of the guilty plea, placed upon the hearing court a responsibility of further inquiry. The guilty plea as accepted, over an unaddressed protestation of innocence, was invalid.
While these cases support Mayberry's argument, they are distinguishable on the ground they either involve or assume a protestation of innocence made before a tendered guilty plea is accepted. Moreover, by grant of transfer, our supreme court, after Cross, adopted and affirmed the conflicting decision of this court in Hatcher v. State (1988), Ind.App., 523 N.E.2d 446, aff'd (1989), Ind., 540 N.E.2d 1241. Hatcher, on facts identical to Cross, held that an unsworn, out-of-court statement in a presentence investigation report was not a protestation of innocence within the meaning of Ross. In addition, in Moredock v. State (1989), Ind., 540 N.E.2d 1230, not only did our supreme court specifically decline to extend Ross to out-of-courtroom protestations of innocence, it also explicitly held the acceptance of a guilty plea from a defendant who protests his innocence to a probation officer in a presentence interview is not a basis for post-conviction relief. Accordingly, we can only conclude that Cross has been implicitly overruled.
One other case, Patton v. State (1987), Ind., 517 N.E.2d 374, involving a protestation of innocence made after an accepted guilty plea, must be discussed. Sentenced to death for murder following his guilty plea, Patton protested his lack of intent to kill to the pre-sentence interviewer after his plea had been accepted. Our supreme court, in reversing the denial of post-conviction relief, stated:
A requirement that a guilty plea manifest an unqualified admission of guilt does not exalt form over substance. It implements fundamental notions of due process essential to the fair and just administration of criminal law. It protects a defendant's right to require proof of his guilt before a jury. It also obviates a collateral attack on a judgment by a later claim the plea was too equivocal to bind the pleader and permit entry of judgment. For these reasons, we prohibit trial courts from accepting guilty pleas from people who maintain their innocence.
The Ross rule, by its language, applies only to defendants who plead guilty and maintain their innocence at the same time. Patton did not protest his innocence at the same time as he pled guilty, but he did firmly contradict his admission of guilt at the sentencing hearing. Although the plea and contradiction were separate in time, the principle of Ross must apply to the sentencing hearing in a capital case.
A trial court has the power to set aside an accepted guilty plea prior to entry of judgment. For example, the decision to permit the withdrawal of a guilty plea rests within the sound discretion of the trial court. Centers v. State (1986), Ind., 501 N.E.2d 415, 419. In a capital case, a trial court abuses its discretion when it fails to set aside a guilty plea when the defendant denies criminal intent at sentencing....
A trial court must exercise the greatest caution when accepting a guilty plea in a capital case. Although the evidence would have supported a guilty plea if Patton had admitted guilt, Patton's denial of any intent to kill Pack vitiates the guilty plea insofar as the murder conviction.
* * * * * *
The trial court should set aside a guilty plea when the defendant denies that he knowingly killed the victim. In Indiana we will not execute people who plead guilty and then protest innocence at their sentencing hearing. When the trial court heard Patton's claim of innocence, it should have set the matter for trial. The way to resolve the factual questions raised by Patton at sentencing is through submission to a trier of fact.
The court appears to carefully limit its decision in Patton to death penalty cases. Nevertheless, Mayberry would have us extend Harshman and Ross and Cross to protestations of innocence after a...
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Graham v. State
...supreme court effectively overruled Cross by the issuance of two opinions that directly conflict with Cross. See Mayberry v. State, 542 N.E.2d 1359, 1360–61 (Ind.Ct.App.1989) (citing Hatcher v. State, 540 N.E.2d 1241 (Ind.1989), and Moredock v. State, 540 N.E.2d 1230 (1989)), trans. denied.......
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