McDonald v. State, 3--873A109

• Decision Date: 10 December 1974
• Docket Number: No. 3--873A109,3--873A109
• Citation: 162 Ind.App. 349,319 N.E.2d 655
• Parties: Steven J. McDONALD, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 655

319 N.E.2d 655

162 Ind.App. 349

Steven J. McDONALD, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3--873A109.

Court of Appeals of Indiana, Third District.

Dec. 10, 1974.

Rehearing Denied Jan. 17, 1975.

Harriette Bailey Conn, Public Defender, Peter W. Bullard, Deputy Public Defender, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

On December 16, 1970, a tavern in Kewanna, Indiana, was broken into and a quantity of beer was taken. Subsequently, an affidavit charging second degree burglary was filed against the defendant. Later a count for theft was added to the charge. Defendant entered a guilty plea to the second count and, in accord with a plea bargain, the first count was dismissed. Defendant was then sentenced to serve one to five years at the Indiana State Reformatory.

This appeal questions the denial of defendant's petition for post conviction relief pursuant to Indiana Rules of Procedure, Post-Conviction Remedy Rule 1. It presents three contentions: The plea was not intelligently and understandingly entered; defendant's original counsel did not provide adequate representation ; and upon the basis of a statement made in court by the defendant after entering his plea, the court should have determined there was no factual basis for the plea and should therefore have reversed its finding and advised defendant that he was not guilty.

The underlying factual circumstances disclose that on the night in question the defendant's stepbrother, whom defendant knew to be an escapee from Pendleton, came to the house in Fulton, Indiana, where the defendant and a friend were residing. From there all three proceeded to Kewanna by automobile where the tavern was broken into and some beer was taken. At the PCR 1 hearing the defendant testified that although he was present he had nothing to do with the break-in or theft.

In considering the trial court's rejection of defendant's petition, it must be borne in mind that the defendant is appealing from a negative judgment. Thus, our inquiry is limited to whether, considering only the evidence favorable to the state, it must be said that such evidence leads to but one reasonable conclusion, and a contrary conclusion was reached by the court. Hoskins v. State (1973), Ind., 302 N.E.2d 499.

We turn first to the contention that defendant established that his plea was not knowingly and understandingly entered. At arraignment the defendant was represented by the court-appointed attorney he had specifically requested. The court initially advised the defendant of the nature of the charge and explained that both the affidavit and the statute upon which it was based would be read. The court then advised the defendant at length of his constitutional rights and elicited from the defendant that he understood them and had no questions about any of them. The court then determined that the defendant had a copy of the charge and that he had discussed it with his attorney. He was then asked if he understood the charge. He answered, 'Yes, I do.'. The court next determined that the defendant's mind was clear and that the plea to be entered was voluntary and made of defendant's own free will. Again defendant was asked if his plea was made with full understanding. Again he responded that it was. After more questions, the court read the affidavit to the defendant and the prosecuting attorney read the statutes defining the offense and prescribing the penalties. Once again defendant was asked if he fully understood the charge. Again he answered, 'Yes, I do.'. Before permitting the defendant to plead, the court inquired whether defendant had any question that he wished to ask the court, the prosecutor or his own attorney. Defendant responded that he did not. Finally, after permitting the defendant to plead but before accepting the plea, the court asked the defendant to state in his own words what it was 'he was pleading guilty to', 'what he was admitting'. Defendant said, 'Plead guilty to the theft of two cases of beer of the value of not more than $100 at Kabitzer's Tavern, Kewanna, Indiana.' He added that this was in Fulton County and occurred about 2:00 a.m. on December 16, 1970.

This record is substantially different from the circumstances that required reversals in Brimhall v. State (1972), Ind., 279 N.E.2d 557, or Pursifull v. State (1973), Ind.App., 301 N.E.2d 226. ¹ It is sufficient to support the court's finding that the plea was understandingly entered.

Defendant next claims his original attorney inadequately represented him. However, he did not produce the attorney's affidavit or testimony at the PCR 1 hearing. From this failure the court could infer that the attorney would not have corroborated the alleged inadequate representation. See, Schmittler v. State (1950), 228 Ind. 450, 93 N.E.2d 184, cited with approval in Conley v. State (1972), Ind., 284 N.E.2d 803. In addition, it appears that the counsel originally representing defendant was specifically requested by defendant, and that during the arraignment at various times defendant advised the court that he had been given sufficient time to talk with his attorney, that he felt he was being represented by competent counsel, and that he had no questions to ask either counsel or the court. The court was justified in determining that defendant failed to carry his burden of proof on this assertion.

Finally, defendant urges that there was no factual...