Neeley v. State

• Citation: 382 N.E.2d 714,269 Ind. 588
• Decision Date: 15 November 1978
• Docket Number: No. 1276S439,1276S439
• Parties: Thomas Lee NEELEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 714

382 N.E.2d 714

269 Ind. 588

Thomas Lee NEELEY, Appellant, v. STATE of Indiana, Appellee.

No. 1276S439.

Supreme Court of Indiana.

Nov. 15, 1978.

Harriette Bailey Conn, Public Defender, Kyle M. Payne, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Dennis K. McKinney, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Neeley pleaded guilty to robbery while armed, on February 28, 1974, in the St. Joseph Superior Court. He was sentenced to a determinate term of twenty years imprisonment. Appellant petitioned the St. Joseph Superior Court for post-conviction relief pursuant to Ind.R.P.C. 1 in July of 1975. After a hearing, this petition was denied on October 21, 1977, and the present appeal follows.

Two issues are raised in this appeal: (1) whether the trial court erroneously failed to make certain findings as required by the post-conviction rules, and; (2) whether appellant was adequately advised of the consequences of a guilty plea and the constitutional rights waived by his guilty plea.

I.

The first issue we must consider here is a procedure followed by the court pursuant to interpretation of our rule, Ind.R.P.C. 1 § 4(c). The appellant had first filed his petition under Ind.R.P.C. 1 Pro se. Later, on March 26, 1976, appellant's counsel, Deputy Public Defender Peter Bullard, filed a motion to amend by interlineation as appellant in his pro se petition had not included all possible grounds for relief according to him.

Ind.R.P.C. 1 § 4(c) provides:

"At any time prior to entry of judgment the court may grant leave to withdraw the petition, and the petitioner shall be given leave to amend the petition as a matter of right."

It was the state's contention that a proper interpretation of this section would be that appellant should first have moved to withdraw his petition, and then he would have had a right to amend it and refile it. The state's position was that since the petition was not withdrawn, the amendment by interlineation was improper and therefore, the court should strike it. The appellant contends that the rule does not contemplate the ritual of withdrawing the petition, amending it, and then refiling it. The appellant contends that this section provides for two separate actions. That is, at any time prior to judgment the petitioner may withdraw his petition and the court may grant leave to withdraw if good cause can be shown and no undue prejudice to the state results. Further, the petitioner shall be given leave to amend the petition as a matter of right at any time prior to judgment regardless of whether or not he withdraws the petition. The appellant contends that this latter provision gives the petitioner the right to amend his petition to present all questions to the court that it may feel are at issue, and has nothing to do with the withdrawal provision.

In this case, the court took the matter of the state's motion to strike the amendment by interlineation under advisement, and allowed the parties to present all of their evidence on the issues here, including those raised in the amendment by interlineation. In its judgment, the court agreed with the position taken by the state and found that the issue raised by the appellant in his amendment by interlineation had been waived, and therefore the court did not consider any relief defendant might be entitled to thereunder. The issue raised in the amendment by interlineation was that the appellant did not knowingly, voluntarily and intelligently enter a plea of guilty in the original trial because the court had failed to apprise him of certain constitutional and statutory rights, and that he was therefore denied due process of law under the Fourteenth Amendment of the United States Constitution and Article 1, § 12 of the Indiana Constitution.

We feel the appellant's interpretation of this § 4(c) of Ind.R.P.C. 1 is the correct one, and that the trial court improperly refused to consider the evidence on the issues raised in the amendment by interlineation. A proper interpretation of this rule is that the petitioner has a conditional right to withdraw a previously filed petition for post-conviction relief, but it is not an absolute right and may be granted by the trial court absent any overriding prejudice which may result to the state by allowing the petitioner to withdraw his petition. The second phrase of Ind.R.P.C. 1 § 4(c) grants the petitioner an absolute right to amend a present petition for post-conviction relief prior to judgment. This is consistent with the total purpose of the post-conviction rules which envisions simplification of the post-conviction procedures by requiring petitioner to present all of his reviewable issues in one petition, in order to avoid a multiplicity of post-conviction petitions.

However, we can address this issue on the merits without remanding this cause to the trial court to make findings and conclusions on issues raised in the amendment by interlineation, as all of the evidence is in the record. As stated above, the trial court took the state's motion to strike under advisement and permitted the parties to put all of their evidence in the record. A complete transcript of the guilty plea and the sentencing of the appellant as well as the testimony of all the parties including appellant on this issue or in the record. Furthermore, appellant himself has asked the court to review this issue on the merits and brief all of the issues on the merits. We therefore consider all issues raised by appellant on the merits, including those raised in his amendment by interlineation.

II.

The essential claim in this appeal is that appellant was denied due process of law, because he was not adequately advised either of the consequences of his guilty plea or of the constitutional rights waived by his guilty plea.

The record of appellant's 1974 guilty plea demonstrates that appellant pleaded guilty to robbery while armed, in return for the state's dropping of two other charges, inflicting injury in the commission of an armed robbery and assault with intent to kill. Appellant was told by the prosecutor, through his attorney, that the prosecutor would recommend a ten-year sentence for this crime to the judge. This offer was phrased in terms of a recommendation by the prosecutor, and appellant was aware of that. The record demonstrates that the prosecutor in fact recommended to the judge that appellant be sentenced to a minimum of ten years imprisonment. Further, the record demonstrates that appellant was advised by the judge, at the time of the guilty plea, that the judge was not bound by the prosecutor's recommendation. Appellant replied that he understood all this and had no questions. After appellant entered his guilty plea, the judge sentenced appellant to twenty years imprisonment, instead of ten years. Appellant's understanding of this transaction is borne out by his testimony at the post-conviction hearing, under questioning by his attorney Mr. Bullard:

Q. All right, how was it phrased to you to make you think you were going to get a ten year sentence?

A. He (Neeley's trial attorney) said he talked to the prosecutor, Mr. Ready, and he said he was going to recommend that I get a ten flat.

Q. Mr. Ready was going to recommend that you get a ten flat?

A. Right.

Q. (N)ow referring to the transcript of your guilty plea, I mean, its apparent from this transcript that you were advised that there was the recommendation of the state, is that correct?

A. Yes.

Q. And I believe the Court also specifically advised you that the Court is not bound by the recommendation of the State. Do you recall the Judge saying that to you?

A. Yes, I do.

Q. All right, now, did you understand what that meant at the time?

A. Well, I understood what I thought I understood, he didn't have to go by what Mr. Ready recommended.

Entered in 1974, this guilty plea was entered before the effective date of Ind.Code § 35-5-6-2 (Burns Supp. 1978), which was July 29, 1975. After that date, if the judge rejects the prosecutor's initial recommendation, subsequent recommendations may be filed. At any rate, the law is clear that the trial judge is not bound by the promises or recommendations made by the prosecuting attorney. Watson v. State (1973) 261 Ind. 97, 300 N.E.2d 354. Appellant was advised of this rule, advised of his alternatives and of the consequences of a guilty plea, and proceeded to plead guilty. We thus find that appellant was fully advised of the consequences of his plea and was not, as he claims here, tricked or wrongfully induced, and that his plea was knowing, voluntary, and intelligent in this respect.

As to the claim that appellant was not fully advised of the constitutional rights waived by a guilty plea, appellant's argument focuses on this language from Boykin v. Alabama, (1969) 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279:

"Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Third, is the right to confront one's accusers. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923."

This court has held that the above language mandates that the defendant, at a guilty plea, be personally advised by the trial judge of the three constitutional trial rights enumerated in Boykin. Hollingshed v. State, (1977) Ind., 365 N.E.2d 1215; Williams v. State, (1977) Ind., 363 N.E.2d 971. Further, the present guilty plea was entered after the effective date of Ind.Code § 35-4.1-1-3 (Burns 1975), which codifies this language from Boykin and also makes advisement...