Melton v. State
| Decision Date | 05 April 1993 |
| Docket Number | No. 03A01-9209-PC-302,03A01-9209-PC-302 |
| Citation | 611 N.E.2d 666 |
| Parties | Jeffrey D. MELTON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
G. Max Rettig, Indianapolis, for appellant-petitioner.
Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Office of Attorney General, Indianapolis, for appellee-respondent.
Jeffrey D. Melton appeals the denial of his petition for post-conviction relief. We affirm, but remand with instructions to vacate the judgment of conviction on operating a motor vehicle while intoxicated and enter a judgment of conviction on operating a motor vehicle with a blood alcohol content of at least .10%.
In his petition for post-conviction relief, Melton alleged, among other things, that the court did not elicit an adequate factual basis for his plea, that his plea of guilty was not knowingly and intelligently made, and that the court failed to determine whether he understood the nature of the charges against him as required by Ind.Code 35-35-1-2(a)(1). Melton argues in this appeal only that the trial court lacked a sufficient factual basis to accept his plea of guilty to operating a motor vehicle with a blood alcohol content of .10 percent, a class C misdemeanor.
The record contains an information charging Melton with operating a vehicle while intoxicated on July 27, 1986, in violation of I.C. 9-11-2-2, a class A misdemeanor. A written plea agreement executed by Melton on October 27, 1986 indicates that Melton had agreed to plead guilty to "OMVI/PR (FD)" and that the State would dismiss the offenses of "OMV BAC >.10 (FD); B 0587-1356; C 0587-1356 Public Intox" in exchange for the plea. The court's judgment entry reflects a plea of guilty to the charge of operating a motor vehicle while intoxicated as a class C misdemeanor.
However, the transcript of the guilty plea hearing contains an oral representation by the State that the State had agreed to amend the charge to operating a motor vehicle with a blood alcohol content greater than .10 percent by weight of alcohol in the blood, a class C misdemeanor. Indiana Code 35-35-3-3(c) permits a plea agreement in a misdemeanor case to be submitted orally to the court. In exchange for the plea, the State recommended a specific sentence. The court asked Melton if he understood the plea agreement to be as the State had represented. Melton responded "yes." A second written plea agreement was never filed by the State.
The record also contains a form entitled "Waiver of Rights, Withdrawal of Plea of Not Guilty and Plea of Guilty," which had been executed by Melton. This form lists various constitutional rights which the signatory would be "waiving or giving up" and contains various advisements. By signing the form, Melton acknowledged under oath that he understood "that by entering a Plea of Guilty to the charge(s) against [him he was] admitting the truth of all facts alleged or stated in the indictment or information (charging papers) or to any offense included thereunder ..." Indiana Code 35-35-1-2(b) permits those advisements in I.C. 35-35-1-2(a) which are not of constitutional dimension, White v. State (1986), Ind., 497 N.E.2d 893, to be given in writing to misdemeanant defendants. However, the court still must satisfy itself that the defendant understands the charges, the rights he is waiving and the applicable sentencing provisions. Snowe v. State (1989), Ind.App., 533 N.E.2d 613. Melton told the court that he had read and understood the waiver of rights form.
At the change of plea hearing, the court asked Melton whether he "knowingly and intentionally" operated a motor vehicle while he possessed a blood alcohol content of at least .10 percent. Melton indicated that he had. No other evidence was offered to prove the actual level of alcohol in Melton's blood. Melton did not provide the State with a breath sample, either because he refused to provide one, or as the transcript of the guilty plea hearing suggests, was unable to give a breath sample because of an asthmatic condition. Melton admitted that he had consumed alcoholic beverages and that he had operated a motor vehicle. Melton's attorney stated that "the officer testified that he had uh alcohol on his breath and could not perform field sobriety tests." 1 The court asked Melton whether "this" was true and Melton answered yes. The court then accepted Melton's plea "to the amended charge of operating while intoxicated as a class C misdemeanor" and imposed the sentence recommended by the State for a plea to operating a motor vehicle with a BAC of .10 percent. The court reiterated thereafter that Melton had been convicted of operating while intoxicated and the court's judgment reflects this.
The sole issue now before this court is whether Melton's admission that he "knowingly and intentionally" operated a motor vehicle with a blood alcohol content of .10 percent provides an adequate factual basis for his plea. To obtain a conviction of operating a motor vehicle with a blood alcohol content of .10 percent, the State must prove that the defendant knowingly or intentionally operated a motor vehicle with a blood alcohol content of at least .10 percent by weight. I.C. 9-11-2-2.
Numerous decisions of this state's appellate courts have recited the rule that a factual basis is sufficiently established when the prosecutor reads the charging information and the defendant admits that the allegations of the information are true. Stewart v. State (1988), Ind., 517 N.E.2d 1230, 1232; Silvers v. State (1986), Ind., 499 N.E.2d 249, 253; Underhill v. State (1985), Ind., 477 N.E.2d 284; Lowe v. State (1983), Ind., 455 N.E.2d 1126, 1129; Carney v. State (1991), Ind.App., 580 N.E.2d 286, 289, trans. denied. An admission of facts which constitutes an admission of each element of the offense will satisfy the requirement that the defendant understands the true nature of the charge. Snowe, 533 N.E.2d at 617.
Here, a second information was not filed, but a separate information or indictment on a lesser offense to which a criminal defendant has agreed to plead is not necessary to put the defendant on notice of the charges. State v. Sanders (1992), Ind., 596 N.E.2d 225, cert. denied, --- U.S. ----, 113 S.Ct. 1385, 122 L.Ed.2d 760. The trial court, rather than the prosecutor, recited the elements of the offense, as they might be charged in an information, and asked Melton whether he admitted the facts which would constitute the crime. Melton responded affirmatively. He told the court that he had consumed alcoholic beverages on the evening in question and operated a motor vehicle. He acknowledged information contained in the probable cause affidavit, that he smelled of alcohol and failed...
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...charging information and the defendant admits that the allegations of the information are true. [Citations omitted]." Melton v. State, 611 N.E.2d 666, 669 (Ind.Ct.App.1993). An adequate factual basis for the acceptance of a guilty plea may be established by the State's presentation of evide......
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...by a reading of the information or indictment and an admission by the defendant that the allegations are true." Melton v. State, 611 N.E.2d 666, 670 (Ind.Ct.App.1993), trans. Our supreme court has held that a defendant's express acknowledgment that he was operating a vehicle while intoxicat......
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