McKrill v. State

• Citation: 452 N.E.2d 946
• Decision Date: 31 August 1983
• Docket Number: No. 382S78,382S78
• Parties: Thomas McKRILL, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Supreme Court of Indiana

Page 946

452 N.E.2d 946

Thomas McKRILL, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 382S78.

Supreme Court of Indiana.

Aug. 31, 1983.

Susan K. Carpenter, Public Defender, Paul Levy, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Petitioner (Appellant) pled guilty to a charge of dealing in a Controlled Substance, a class B felony, Ind.Code Sec. 35-48-4-2 (Burns 1979), and was sentenced to twelve (12) years imprisonment. His petition for post conviction relief was denied following a hearing. This appeal is from the denial of such relief.

Our standard of review in appeals from the denial of post conviction relief is as follows:

"Petitioner ha(s) the burden of proof and stands in the shoes of one appealing from a negative judgment. The trial judge, as trier of the facts, is the sole judge of the weight of the evidence and the credibility of the witnesses. It is only where the evidence is without conflict and leads to but one conclusion, and the trial court has reached an opposite conclusion, that the decision will be disturbed as being contrary to law." Neville v. State, (1982) Ind., 439 N.E.2d 1358, 1360. (citations omitted).

The issues before us, therefore, are whether the Petitioner sustained his burden of proof upon the following claims of errors committed by the trial court:

1. That the guilty plea was not voluntarily, knowingly, and intelligently given.

2. That the trial court was required to determine his competency, sua sponte, prior to entertaining his guilty plea.

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ISSUE I

The record revealed that on October 21, 1977, petitioner McKrill was approached by two (2) undercover officers with the South Bend Police Department who offered him a ride to his destination. During an ensuing discussion about drugs, the agents asked McKrill if he could buy them some pot, and he told them that he could not. Next, the agents asked McKrill if he could buy them some "PCP" or "T." Petitioner said that he could, and one of the agents gave him a $10.00 bill. Petitioner then proceeded to a room in the City Motel. When he returned to the car, he gave the agents a packet subsequently determined to contain .021 grams of Phencyclidine.

The Information, charging him with two criminal counts arising from these events, was not filed until five months subsequent to the date of the offense. Counsel for McKrill filed a Motion to Dismiss charging harm to the defense arising from such delay between the events and the charge. Before a ruling was made on the Motion to Dismiss, McKrill, pursuant to a plea bargain agreement, pled guilty to Dealing in a Controlled Substance, the second count of the Information.

Petitioner contends that his guilty plea was not voluntarily, knowingly and intelligently given. He proposes to support such claim by showing a delay in the filing of the information, the entry of his plea while his previously filed motion was pending, and facts before the court that, he claims, revealed the existence of a valid defense.

With respect to his claim that the late filing of the information rendered his guilty plea invalid, Petitioner's argument is without merit. The five (5) year Statute of Limitation for a class B felony, Ind.Code Sec. 35-41-4-2 (Burns 1979), reflects the public policy as to the length of time which may elapse between the time of the offense and the charge. More importantly, however, Petitioner presented no evidence at his post conviction hearing to support his contention that he had, in fact, been prejudiced by the delay. He, therefore, failed to carry his burden of proof on this claim.

Notwithstanding the pendency of his motion to dismiss, Petitioner entered his guilty plea. By proceeding without having obtained a ruling on the motion and without protest, the Petitioner waived such ruling. Ferguson v. State, (1982) Ind., 438 N.E.2d 286, 288; Minton v. State, (1978) 269 Ind. 39, 42, 378 N.E.2d 639, 641.

With respect to Petitioner's claim of a valid defense, he argues that the trial court had before it facts which established a prima facie showing of entrapment which the State did not rebut with a showing of predisposition on his part. He contends that this prima facie showing necessitated further inquiry by the court before accepting his guilty plea.

A guilty plea is a conviction; nothing remains but to give judgment and determine punishment. Boykin v. Alabama, (1969) 395 U.S. 238, 242, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274, 279. It is an admission of guilt and a waiver of a variety of constitutional rights, Stowers v. State, (1977) 266 Ind. 403, 409, 363 N.E.2d 978, 982, including petitioner's right to raise the defense of entrapment at this stage of the proceedings. Ind.Code Sec. 35-4.1-1-3 (Burns 1979) [repealed effective Sept. 1, 1982; recodified at Ind.Code Sec. 35-35-1-2 (Burns Supp.1982) ].

Assuming arguendo, that the Petitioner had made a prima facie showing of entrapment, there was, nevertheless, sufficient evidence to show that he had been predisposed to commit the offense. Circumstances which may be considered on the issue of predisposition include:

" * * * the accused's possession of a large quantity of contraband; the ability to obtain a supply within a few minutes; knowledge of price on the criminal market and of the sources of supply; familiarity with drug terminology; possession of apparatus for manufacture; the manner of the sale itself; and the accused's readiness to participate; several different schemes to accomplish a sale; multiple sales to the officer; and solicitation, assurances, or other conduct evidencing a willingness or desire to participate in future sales." Sowers v. State, (1981) Ind.App., 416 N.E.2d 466, 469.

In light of the facts disclosed in the record that Petitioner knew where to obtain the drug quickly, that he knew the price of the drug, that he was familiar with drug terminology, that he was ready and willing to participate in the drug sale, and that he presented the officers with .021 grams of phencyclidine, a sufficient...