McCann v. State

• Decision Date: 07 April 1983
• Docket Number: No. 682S212,682S212
• Citation: 446 N.E.2d 1293
• Parties: John W. McCANN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1293

446 N.E.2d 1293

John W. McCANN, Appellant, v. STATE of Indiana, Appellee.

No. 682S212.

Supreme Court of Indiana.

April 7, 1983.

Susan K. Carpenter, Public Defender, Joseph Oddo, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Aimee L. Kolze, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is an appeal from an order denying a petition for post-conviction relief seeking withdrawal of a guilty plea.

Appellant, twenty-nine years of age, was arrested on March 4, 1980 upon three counts of dealing in a controlled substance under Ind.Code Sec. 35-48-4-2(1) alleging sales on two separate occasions to a detective of the Allen County Police Department. Three months later on June 6, 1980, appellant, after being brought to the court house for the start of his trial, was joined by his trial counsel who told him that the State was prepared to file a recommendation on a plea of guilty. The recommendation of the State would be that appellant receive a fifteen year sentence upon a plea of guilty to Count II which alleged a delivery of cocaine to run consecutive to a current parole revocation term being served by him, in return for which the State would dismiss Counts I and II. He agreed and with counsel appeared before the judge for further arraignment and entered a plea of guilty to Count II. The court did not accept the plea but took it under advisement and ordered a pre-sentence investigation. Thereafter on June 25, 1980 appellant appeared with counsel, and the plea agreement was openly discussed and reaffirmed by both sides. The plea was accepted and he was sentenced to fifteen years on Count II, to run consecutively with a sentence resulting from a parole violation and granted jail time credit of thirty-four days.

On August 14, 1980 appellant by the same trial counsel filed a praecipe for transcript of the plea proceedings.

On August 25, 1980 appellant by his same trial counsel filed a petition for return of personalty which was granted.

On April 27, 1981 appellant filed his pro se petition seeking to impeach his guilty plea on several grounds. On May 4, 1981 he filed a lengthy memorandum of law pro se.

On May 28, 1981 the trial court examined the petition and answer of the State and denied the petition without a hearing.

On June 9, 1981 a new attorney chosen by appellant entered his appearance for appellant. Through a motion for reconsideration new counsel convinced the court to reconsider the denial of the petition and to grant a hearing on it. The hearing was held at a later date resulting in an order denying relief. The State Public Defender has filed appellant's brief.

I.

The claim was made and rejected that the judge accepting the guilty plea had failed to comply with the mandate of Ind.Code Sec. 35-4.1-1-3(b) that the accused be informed that he is admitting the truth of facts in the charge and that judgment and sentence follow the plea. The record shows that he was expressly told that the court must determine whether he was in fact guilty and was asked to explain the factual basis of his guilty plea, which he proceeded to do and described how he sold cocaine to the detective. He was told that sentencing would follow the plea. This requirement was satisfied.

II.

The claim was also made and rejected that the judge failed to inform him that the court was not a party to the plea agreement and was not bound by it as required by Ind.Code Sec. 35-4.1-1-3(e). The exact language in the statute need not be employed, Laird v. State, (1979) Ind., 385 N.E.2d 452, yet strict compliance with the terms of the statute is required, German v. State, (1981) Ind., 428 N.E.2d 234. Appellant complains that he was not told that the court was not a "party". Appellant was expressly told that the plea bargain was not binding on the judge and that no agreement between him, his attorney and the prosecutor was binding on the court. At this time, he and the judge were engaged in an active discussion of the provisions of the agreement. These statements conveyed the idea that the court had not been a bargainer and that he had made no prior commitments. As such, they satisfied the statute.

III.

The claim was made and rejected that the June, 1980 fifteen year sentence was erroneous wherein it was ordered served consecutively to a sentence imposed on April 7, 1980 for probation violation for a March 1977 conviction. In 1977 at the time of appellant's earlier criminal conduct and conviction, a term of imprisonment was required to commence upon the date the sentence was imposed except under certain circumstances not applicable here. 1976 Public Law 148, Sec. 8, p. 788. When therefore, on April 7, 1980 the court imposed an executed sentence upon that conviction, appellant was being treated in conformity with the statute in effect in 1977 at the time of his prior criminal conduct and conviction.

By the time appellant committed the offense to which he pleaded guilty and for which he received the present fifteen year sentence in this case, Public Law 148, Sec. 8 had been amended and courts were no longer under a mandate to require terms of imprisonment to commence upon imposition, where the sanction was for an offense committed while on probation. At the time of this offense appellant was already on probation. Therefore, when appellant received the new challenged fifteen year sentence, he was being treated in conformity with the statute in effect at the time of his new criminal conduct and conviction. The requirement that the new sentence be served consecutively to the one already being served is the penal consequence of his 1980 criminal conduct by reason of 1980 law (of which he is presumed to have notice) and is not an enhanced or more onerous penal consequence of his prior crime or violation of terms of probation and cannot be deemed violative of the ex post facto prohibition of the constitutions. Cf. Dolan v. State, (1981) Ind.App., 420 N.E.2d 1364.

Appellant relies upon Young v. State, (1980) Ind.App., 413 N.E.2d 1083 in support of this claim. There the court imposed a sentence following revocation of probation, but delayed commencement of that sentence pending completion of a new sentence. There was no statute authorizing that postponement at the time of the crime and conviction that had resulted in probation, and that postponement was therefore error. Such a postponement is not presented here. The court correctly ordered the new fifteen year sentence to be served consecutively to the previously imposed sentence.

IV.

After the petition for post-conviction was denied in the order to which this appeal is directed, appellant filed a pro se motion requesting the court to modify his sentence by granting additional credit to his new fifteen year sentence for time spent in jail pending disposition of these charges. The trial court denied the motion upon consideration of the record "and other factual circumstances." There is nothing in the record to reflect what circumstances may have been considered, no objection to the lack of specificity in the ruling, and no challenge to the ruling in the pro se motion to correct errors. This ruling, like all trial court rulings, on appeal is considered presumptively correct, and the burden is upon the complaining party to demonstrate incorrectness. In N.Y. Central Ry. Co. v. Milhiser, (1952) 231 Ind. 180, 106 N.E.2d 453, we stated:

"It has been held many times that all reasonable presumptions are indulged on appeal in favor of the rulings and judgments of a trial court, that the record must exhibit the errors for which the reversal is sought, and that a court of appeals will not presume anything in favor of appellant to sustain his alleged error." 231 Ind. at 189, 106 N.E.2d 453.

Under the circumstances the record here fails to exhibit the error in the ruling, and to set aside the order would require us to surmise that there were no factual circumstances buttressing it. A rational review of this order cannot be made.

V.

Appellant next contends that he was erroneously sentenced for dealing in heroin rather than dealing in cocaine as charged in Count II, to which he pleaded guilty. At formal sentencing, the trial judge in his verbal reference stated:

"COURT: ... I must now, upon your plea of guilty and a finding of guilty to the crime of dealing in heroin [sic] as charged, sentence you to the custody of the Indiana Department of Corrections for confinement for a period of fifteen years...."

Appellant argues that he stands convicted of an offense not charged and that his conviction cannot withstand due process scrutiny. McFarland v. State, (1979) Ind.App., 384 N.E.2d 1104. We cannot agree. All other references by the trial court in his colloquies in open court and in all necessary court papers correctly and accurately refer to appellant's conviction as one for dealing in cocaine. The length of the term of imprisonment conforms to the plea agreement. Appellant stands convicted of dealing in cocaine as charged in Count II, and not dealing in heroin. The judge simply misspoke as he talked extemporaneously, and no adverse consequences flowed to appellant therefrom. There is no basis here upon which to permit the withdrawal of the guilty plea.

VI.

The primary basis for appellant's petition for post-conviction relief is that his acceptance of the plea agreement and subsequent plea of guilty were not knowingly and intelligently given. This basis is in turn predicated upon the claim that his counsel had been ineffective in advising him to accept the agreement and plead guilty.

The person held in jail upon criminal accusation is separated from family and friends and has no means of investigating the charges against him. There is therefore a right to have the services of a lawyer to accomplish the ends of public justice. The federal right guarantees the effective services of a lawyer and is fundamental in nature. Powell v. Alabama, ...