McDowell v. State

• Decision Date: 13 July 1981
• Docket Number: No. 180S3,180S3
• Parties: Frederick Van McDOWELL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1229

422 N.E.2d 1229

Frederick Van McDOWELL, Appellant, v. STATE of Indiana, Appellee.

No. 180S3.

Supreme Court of Indiana.

July 13, 1981.

Harriette Bailey Conn, Public Defender, Howard N. Bernstein, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On February 6, 1974, a Marion County Grand Jury issued an indictment charging Frederick Van McDowell, James Owens, and Clifford Kirksey, with Felony Murder and First Degree Murder. On May 1, 1974, Appellant McDowell filed a motion for change of venue from the county which was granted on May 2, 1974, and the cause was venued to the Hancock Superior Court. On September 23, 1974, co-defendants James Owens and Clifford Kirksey indicated to the trial court that plea bargains had been negotiated with the State of Indiana and their contemporaneous motions for separate trials were granted.

On November 19, 1974, a jury was selected and sworn. The trial court indicated to defendant McDowell its preliminary instructions Nos. 1 through 11. Defendant McDowell did not object to the trial court's instructions, nor did he tender Preliminary Instructions. The trial court then read its preliminary instructions to the jury. The State of Indiana made an opening statement. Defendant McDowell waived making an opening statement. The State began presentation of its case, during which Defendant McDowell made a motion for mistrial which was argued and denied. The State continued presentation of its case until November 20, 1974. On November 20, 1974, out of the presence of the jury and after the testimony and cross examination of four witnesses, one of whom was James Owens, and questioning by the court of Clifford Kirksey preliminary to his testifying, defendant Frederick Van McDowell moved the trial court for permission to withdraw his former plea of not guilty to Count II and to enter a plea of guilty to the offense of Second Degree Murder which was contained in that count. The State consented to the plea and the terms of the negotiated plea bargain were disclosed to the trial court. The trial court granted Defendant's motion to withdraw his former plea. Defendant then, in open court, entered his guilty plea to the offense of Second Degree Murder. The trial court granted the State's motion to incorporate the evidence presented at trial as an evidentiary basis for the plea and additionally heard a summarization of the additional evidence which would have been presented had the trial progressed. The trial court accepted the guilty plea, rendered judgment based upon the plea bargain and sentenced Appellant to a term of not less than fifteen (15) nor more than twenty-five (25) years imprisonment.

On December 16, 1974, the State filed a Motion to Dismiss Count I as to McDowell and the trial court granted this motion. On January 9, 1978, Defendant McDowell filed a pro se Petition for Post-Conviction Relief and later an amended petition was filed in which defendant was represented by the Public Defender. Hearing on appellant's Petition for Post-Conviction Relief was had and judgment rendered denying appellant's Petition. McDowell filed his Motion to Correct Errors which was overruled on October 9, 1979. Appellant appeals from this denial.

Appellant claims that the trial court failed to comply with the requirements of Ind.Code § 35-4.1-1-3 (Burns 1979 Repl.) and Ind.Code § 35-4.1-1-4 (Burns 1979 Repl.) which provide as follows:

"The court shall not accept a plea of guilty from the defendant without first addressing the defendant and

(a) Determining that he understands the nature of the charge against him;

(b) Informing him that by his plea of guilty he is admitting the truth of all facts alleged in the indictment or information or to an offense included thereunder and that upon entry of such plea the court shall proceed with judgment and sentence;

(c) Informing him that by his plea of guilty he waives his rights to a public and speedy trial by jury, to face the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to require the state to prove his guilt beyond a reasonable doubt at a trial at which the defendant may not be compelled to testify against himself;

(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;

(e) Informing him that the court is not a party to any agreement which may have been made between the prosecutor and the defense and is not bound thereby."

"(a) The court shall not accept a plea of guilty without first personally addressing the defendant and determining that the plea is voluntary. The court shall address the defendant and determine whether any promises, force or threats were used to obtain the plea.

(b) The court shall not enter judgment upon a plea of guilty unless it is satisfied from its examination of the defendant that there is a factual basis for the plea.

(c) A plea of guilty shall not be deemed to be involuntary under subsection (a) of this section solely because it is the product of an agreement between the prosecution and the defense."

Appellant argues specifically that the trial court did not advise him pursuant to Ind.Code § 35-4.1-1-3(c) that by his plea of guilty he waived his right to face the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he may not be compelled to testify against himself. He concedes that he was advised of his right to a public and speedy trial by jury. The trial court made the following pertinent findings of fact:

" * * *

3. The proceedings before the Court during the trial of the cause to the point where petitioner entered his plea of guilty were incorporated as a part of the guilty plea hearing held on November 20, 1974.

4. The petitioner from shortly after his indictment by the Marion County Grand Jury to and including the date of his sentencing was represented by Robert G. Mann, an attorney of Indianapolis, Indiana, and was further represented from November 13, 1974 to and including the date of his sentencing by George J. Lewis who was appointed as pauper local counsel to aid in the defense of the petitioner.

5. The petitioner did not appeal the judgment of conviction entered against him in this cause.

6. The trial proceedings which occurred prior to the entry of petitioner's plea of guilty involved voir dire examination of prospective jurors and the selection of a jury to try the case, the reading of the preliminary instructions to the jury previously settled by the Court with the parties, opening statements and the presentation of a portion of the evidence of State of Indiana against the petitioner and during such proceedings the petitioner was physically present therefor. The Court read to the jury a preliminary instruction in the hearing and presence of the defendant which stated that the State of Indiana had the burden to prove the petitioner's guilt beyond a reasonable doubt. During the course of the State of Indiana's presentation of evidence, the petitioner was in the actual process of confronting his accusers and aware that he was doing so in a trial before a jury.

7. At this guilty plea hearing the petitioner was advised that by a plea of guilty he was waiving his rights to a public and a speedy trial before a jury and stated that he understood such waiver. The petitioner was further advised that he was by a plea of guilty admitting the truth of all the facts in the indictment necessary to show his guilt of the offense of Second Degree Murder and he indicated that he understood such to be the case. The petitioner was further advised that there would be no further trial, the jury would be sent home and his guilt determined because he said he was guilty of such offense and he indicated that he understood such to be the case.

8. The petitioner stated at his guilty plea hearing he knew the maximum and minimum possible sentences for the offenses of First and Second Degree Murder; the Court was not bound by the plea bargain agreement and he understood the plea bargain and the charges pending against him in the case.

9. At his guilty plea hearing, the Court did not specifically advise the petitioner that by a plea of guilty he was waiving his rights to face the witnesses against him, have compulsory process for obtaining witnesses in his favor or require the State of Indiana to prove his guilt beyond a reasonable doubt at a trial at which he could not be compelled to testify against himself, pursuant to IC 35-4.1-1-3.

10. The record including the portion of the trial of the cause preceding petitioner's plea of guilty which was before the Court at the time petitioner entered his plea of guilty disclosed to the Court that the petitioner was aware of the existence of the following rights and that a guilty plea would waive those rights:

Jury trial

Confrontation of accusers

Self incrimination and proof beyond a reasonable doubt."

The trial court made Conclusions of Law as follows:

"1. Petitioner's waiver of trial by jury and acknowledgment that he would not receive a trial and that his guilt would be determined because he said he was guilty constitutes a waiver of his rights to a trial by jury, controntation (sic) of his accusers, freedom from self incrimination and proof of his guilt by the State of Indiana beyond a reasonable doubt.

2. Petitioner knowingly, intelligently and voluntarily waived his rights to a trial by jury, confrontation of his accusers, self incrimination and proof of guilt by the State of Indiana beyond a reasonable doubt, and his plea of guilty to the offense of Second Degree Murder...