Nash v. State

• Decision Date: 30 December 1981
• Docket Number: No. 3-581A119,3-581A119
• Parties: Billy NASH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 666

429 N.E.2d 666

Billy NASH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-581A119.

Court of Appeals of Indiana, Fourth District.

Dec. 30, 1981.

Harriette Bailey Conn, Public Defender, Paul Levy, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Kathleen G. Lucas, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Presiding Judge.

Billy Nash appeals the trial court's denial of his motion for post-conviction relief under Ind.Rules of Procedure, Post-Conviction Rule 1. Nash's petition primarily alleged his guilty pleas to 19 counts of Theft ¹ were not made knowingly, intelligently and voluntarily and that the trial court failed to determine if such pleas were the result of any promises or threats. We find the record reveals the trial court did not address Nash and determine whether any promises, force, or threats were used to obtain his pleas, in violation of Ind.Code 35-4.1-1-4(a). We find this failure particularly significant in light of the prosecutor's erroneous representations in plea negotiations that Nash was subject to eight habitual offender counts, for which there was no legal basis. We therefore find the guilty pleas were invalid, and the trial court's denial of Nash's petition is reversed.

FACTS

Nash was arrested and charged with the theft of 21 automobiles as a result of a "sting" operation conducted by the Indiana State Police in Hammond, Indiana. Specifically, Nash was first charged on January 19, 1978 by Information with one count of theft; on September 12, 1978 he was charged in six separate causes with a total of 17 counts of theft; and on September 21, 1978 he was charged in two separate causes with a total of three theft counts. Two counts were later dismissed, on the state's motion, as duplicitous and without sufficient evidence. Nash therefore remained charged in nine separate causes with 19 thefts which formed the objects of his guilty pleas.

The focus of the current dispute, however, is eight separate habitual offender counts, ² one appended to each of the last eight causes mentioned above. In each of On March 23, 1979, Nash pled guilty to 19 counts of theft pursuant to a recommendation from the prosecutor that Nash be sentenced to a maximum of 14 years for all counts. The trial court accepted the recommendation and Nash was placed in the custody of the Department of Corrections. While reviewing his case with a prison counselor, he first became aware that one of his two prior felony convictions had been vacated by this Court. On December 5, 1979 Nash filed a pro se petition for post-conviction relief, which was later amended, alleging his guilty pleas were void.

the eight counts the state alleged Nash had been convicted and sentenced for Theft and Automobile Banditry in December of 1975. We first note Nash was not subject to the habitual offender charges since his earlier felonies were related and obviously the second had not been committed after he had been sentenced for the first. Moreover, in March of 1978, this Court by memorandum opinion vacated Nash's auto banditry conviction which was the law of the case in the current proceedings. On remand the trial court judge who was the same judge presiding over the proceedings in the instant case, sent notice of this Court's opinion to the Indiana Department of Corrections and the warden of the Indiana State Prison in Michigan City. Nash, however, had already been released from confinement and was apparently not otherwise informed that the auto banditry conviction had been set aside.

The facts pertinent to the petition center on the state's habitual charges against Nash although his second felony conviction had been vacated six months before the Informations were filed. More importantly, as the uncontradicted testimony at the post-conviction relief hearing amply demonstrates, the habitual offender counts constituted a bargaining point in the negotiations for a sentencing recommendation with the prosecutor. Specifically, at Nash's post-conviction relief hearing, Nash's former counsel testified he was unaware that one of the underlying felonies had been vacated, and on January 12, 1979 the prosecutor offered a "plea negotiation" as follows:

"It had not been written out, but the agreement that they would offer a plea on all theft charges and a term of fourteen (14) years flat to be worked out by way of some type of a consecutive and concurrent serving of time. And the habitual charges would be dismissed. And my notes show that that agreement was struck as early as January 12, 1979. And I talked with Mr. Nash about that on January 17, 1979. My notes show that I spoke with him. I may have even spoke to him earlier than that. But I do have notes that state that I spoke to him on January 17th, concerning the plea agreement." (Emphasis added.)

There is additional evidence in the record that Nash's plea was also motivated by "the amount of time that might be tacked on due to the extensive number of theft charges" and because of Nash's "concern for the administration that was coming in. And their publicity position of no plea bargains." Nash's attorney also communicated his opinion to Nash that the habitual charges were vulnerable to attack, but the attorney testified that he was not "confident" of the outcome and "saw no need to attack them, since they were going to be dismissed by the plea agreement or sentence recommendation."

The record therefore demonstrates Nash's guilty pleas were the product of several considerations. It is uncontradicted, however, that the pending habitual offender charges constituted not only a partial motivation for the pleas, but an express portion of the agreement between Nash and the prosecutor.

The habitual offender counts were dismissed on March 20, 1979 three days before Nash's guilty plea hearing. However, at that hearing and in Nash's presence, the trial court queried the prosecutor on the disposition of the habitual offender charges, to which the prosecutor responded: "Habitual Offender should now be nolle prossed." At the hearing on his petition for post-conviction relief, Nash's former attorney testified "As you know, a lot of this business is hinged upon what you call plea agreement. A lot of it is not necessarily put into writing. My experience is that sometimes they are dismissed before or after. I can't recollect when, in fact, the habituals were dismissed in this case. All I knew, that it was promised to me. And I had no doubt in my mind.... I can't recall ever telling (Nash) the habitual charges were dismissed. I can recall telling him that was part of the agreement, that they would be dismissed. (Emphasis added.)

The written sentencing recommendation, submitted by the prosecutor and accepted by the trial court, made no mention of the habitual offender counts, but only recited a recommendation of a 14 year sentence in exchange for guilty pleas on all 19 theft counts.

At the conclusion of the post-conviction relief hearing, the trial court denied the petition and issued findings of fact, of which the pertinent portions are as follows:

"1. Defendant's Petition applied to all cases wherein total sentences equaled fourteen years.

....

3. The Petitioner was properly advised and aware of the number and nature of the charges pending against him as a result of conferences with his Attorney and the advisement of the Court. (See Arraignment and Guilty Plea, and Sentencing Transcripts.)

4. Petitioner's Attorney consulted with and properly counselled (sic) the Petitioner concerning the charges including that of Habitual Offinder (sic). (See Arraingment (sic) and Plea and Sentencing Transcripts).

5. Petitioner was aware that the Habitual Offender Count was dropped and this was not a material consideration in his tendered plea. (See Guilty Plea and Sentencing Transcripts: Page two, line twenty and following page 3, entirely.) ³

6. Petitioner's plea to fourteen uears (sic), was made freely and knowingly as the result of a Sentence Recommendation filed by the State and accepted by the Court which allowed the Petitioner to avoid the real possibiliity (sic) of consecutive four-year sentences on each theft count contained in nine cases.

7. The voluntariness and the motives of the Defendant in tendering his plea herein are clearly reflected in the plea and sentencing transcript and in compliance with IC 35-4.1-1-4.

...."

Nash raises several issues in his motion to correct errors. Given our disposition, however, we need only determine whether the trial court failed to determine the voluntariness of Nash's plea.

DECISION

We first note that the petitioner must prove his allegations by a preponderance of the evidence in the trial court. Mosley v. State, (1979) Ind., 390 N.E.2d 659; Davis v. State, (1981) Ind.App., 418 N.E.2d 256. Furthermore we may reverse the trial court's denial of a petition for post-conviction relief only where the evidence is without conflict and leads unerringly to a conclusion contrary to the one reached by the trial court. Mosley v. State, supra; Davis v. State, supra. In the instant case, Nash contends the trial court failed to comply with IC 35-4.1-1-4(a) which provides in pertinent part:

"Determining voluntariness and factual basis of plea. (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." (Emphasis added.)

The state does not dispute that the trial court did not address Nash at any point in the proceedings and inquire whether the plea was induced by any promises or threats. Additionally, the state acknowledges several cases where the Indiana Courts have required strict compliance with the statute involved herein. Nevertheless, the state urges a more liberal reading of the statute and...