Mescher v. State, 02A03-9608-CR-308

• Citation: 686 N.E.2d 413
• Decision Date: 20 October 1997
• Docket Number: No. 02A03-9608-CR-308,02A03-9608-CR-308
• Parties: Bradley A. MESCHER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 413

686 N.E.2d 413

Bradley A. MESCHER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 02A03-9608-CR-308.

Court of Appeals of Indiana.

Oct. 20, 1997.

Rehearing Denied Jan. 26, 1998.

Richard J. Thonert, Fort Wayne, for Appellant-Defendant.

Jeffrey A. Modisett, Attorney General, Rafal Ofierski, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

HOFFMAN, Judge.

Appellant-defendant Bradley A. Mescher appeals his conviction upon his plea of guilty to a charge of operating a vehicle while intoxicated. The facts relevant to the appeal are set forth below.

On May 8, 1996, Mescher was charged with operating a vehicle while intoxicated, a Class A misdemeanor. That same day, Mescher was advised of his rights by a televised advisement given to all defendants before the commencement of misdemeanor traffic court. At his individual hearing, Mescher informed the trial court that he understood the charge and his rights, and that he wished to plead guilty to operating a vehicle while intoxicated. The trial court accepted Mescher's guilty plea and scheduled sentencing for a later date.

On May 31, 1996, Mescher, by counsel Richard Thonert, filed a verified motion to withdraw his guilty plea. The trial court denied the motion without conducting a hearing. Prior to sentencing, Mescher's counsel requested a Stay Order. The motion was granted.

On appeal, Mescher raises several issues which we consolidate as follows: whether the trial court abused its discretion when it denied Mescher's motion to withdraw his guilty plea.

Mescher contends that his guilty plea was not knowingly entered. It is axiomatic a guilty plea must be knowingly, voluntarily, and intelligently entered. Snowe v. State, 533 N.E.2d 613, 615 (Ind.Ct.App.1989). IND. CODE § 35-35-1-2 (1993 Ed.) sets forth the trial court's requirement for advisement of rights at guilty plea proceedings and states, in pertinent part:

(a) The court shall not accept a plea of guilty or guilty but mentally ill at the time of the crime without first determining that the defendant:

(1) understands the nature of the charge against him;

(2) has been informed that by his plea he waives his rights to:

(A) a public and speedy trial by jury;

(B) confront and cross-examine the witnesses against him;

(C) have compulsory process for obtaining witnesses in his favor; and

(D) 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;

(3) has been informed of the maximum possible sentence and minimum sentence for the crime charged and any possible increased sentence by reason of the fact of a prior conviction or convictions, and any possibility of the imposition of consecutive sentences; ...

(c) Any variance from the requirements of this section that does not violate a constitutional right of the defendant is not a basis for setting aside a plea of guilty.

Furthermore, the record must indicate the defendant knew of and understood his rights when he entered his guilty plea. Snowe, 533 N.E.2d at 616. The trial court must determine for itself without surmise a defendant has been informed of each right he is about to waive, and the trial court must preserve the colloquy on the record. Id. In the absence of a record clearly demonstrating that the necessary specifics were discussed, we will not defer to the trial court's ability to determine the question of voluntariness.

An en masse advisement of rights by the trial court was deemed an acceptable procedure in French v. State, 472 N.E.2d 210, 212 (Ind.Ct.App.1984) and in James v. State, 454 N.E.2d 1225, 1227 (Ind.Ct.App.1983). However, the sine qua non of both cases was the personal interrogation of the defendant by the trial court to determine the defendant's understanding of his rights and the concept of waiver.

At his initial hearing, the deputy prosecutor informed Mescher that he was charged with a Class A misdemeanor: operating a vehicle while intoxicated. The prosecutor asked Mescher, "[D]id you see the advisement of rights on the videotape?" Mescher responded, "Yes sir." After Mescher stated that he wanted to plead guilty to the charge, the following colloquy took place:

[Prosecutor]: Do you realize that by pleading guilty you admit the facts of the charge of Operating While Intoxicated as I read it to you? Is that correct?

Defendant: Yes sir.

[Prosecutor]: And also by pleading guilty that you would waive, or give up, those constitutional rights that you were advised of on video tape, is that also correct?

Defendant: Yes sir.

Additionally, the information provided in the videotaped advisement of rights included a discussion on sentencing possibilities, the presumption of innocence, the right to an attorney, as well as the rights of confrontation and a trial by jury, the privilege against self-incrimination, and the waiver of rights. Mescher's admission during the initial hearing that he had seen and understood his rights contradicts his subsequent claim that his guilty plea was unknowing and unwilling.

Mescher also argues that his guilty plea was not knowing and voluntary because he did not willingly relinquish his right to counsel. When a defendant has chosen to waive his right to counsel, it is the trial court's duty to determine if the waiver was knowing and voluntary. Sedberry v. State, 610 N.E.2d 284, 286 (Ind.Ct.App.1993), trans. denied. The trial court must establish a record showing that the defendant was aware of the...