Neville v. State, 1081S300
| Decision Date | 08 October 1982 |
| Docket Number | No. 1081S300,1081S300 |
| Citation | 439 N.E.2d 1358 |
| Parties | Rocky NEVILLE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender of Ind., Carr L. Darden, Sp. Asst. Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.
Petitioner (Appellant) was convicted of Burglary, Ind.Code Sec. 35-43-2-1 (Burns 1979) and sentenced to fifteen (15) years imprisonment. This appeal from the denial of a petition for post-conviction relief seeks review from two issues:
(1) Whether the plea of guilty was induced by the promise of a suspended sentence.
(2) Whether the trial court erred in sentencing the petitioner.
On April 14, 1978, petitioner and an accomplice broke into a residence with the intent to commit theft therein, but were interrupted by the owner of the gnsidence. After they threatened the owner, they fled, taking with them certain finger rings found in the residence. Shortly thereafter, they were arrested.
At trial, the accomplice was found guilty of burglary and sentenced to fifteen (15) years imprisonment. Before petitioner could be brought to trial, plea negotiations were held, and the petitioner entered a plea of guilty. He was subsequently sentenced to the same period of imprisonment as was the accomplice.
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Petitioner contends that his guilty plea was not voluntary because it was induced "A guilty plea, if induced by promises * * * which deprive it of the character of a voluntary act, is void." Machibroda v. United States, (1962) 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473, 478. However, the frustration of an expectation of a lesser penalty, without more, will not affect the validity of the plea. Dube v. State, (1971) 257 Ind. 398, 275 N.E.2d 7.
by a promise of leniency. He claims that the prosecutor promised that he would receive a sentence less than the sentence received by his accomplice.
In essence, the question presented is whether the facts and circumstances surrounding the petitioner's plea demonstrate that it was not voluntary, because it had been induced by a promise, in which case the trial court would have been required to vacate it. Petitioner had the burden of proof and stands in the shoes of one appealing from a negative judgment. Lamb v. State, (1975) 263 Ind. 137, 325 N.E.2d 180. The trial judge, as trier of the facts, is the sole judge of the weight of the evidence and the credibility of the witnesses. Rufer v. State, (1980) Ind., 413 N.E.2d 880, 882. 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. Walker v. State, (1978) 267 Ind. 649, 651, 372 N.E.2d 739, 740.
Defendant cites a series of cases, including Dube, supra, and Watson v. State, (1973) 261 Ind. 97, 300 N.E.2d 354. However, the facts of those cases differ substantially from those of the petitioner's case. The record of the guilty plea hearing reflects that the court specifically asked him whether or not any promise had been made to him and he replied negatively. He repeated that response at the post conviction hearing, and the prosecutor gave a like response. The court also advised the petitioner, at the guilty plea hearing, that recommendations of the prosecutor were not binding upon the court, and he said that he understood.
The most that can be said in petitioner's behalf is that the record discloses that he may have had an expectation of receiving a sentence less severe than that imposed upon his co-defendant who stood trial and was found guilty and was also sentenced to fifteen (15) years imprisonment. He has not come close to carrying his burden of proof.
Petitioner contends that the trial court erred in increasing his sentence by five years beyond the basic presumptive term provided by Ind.Code Sec. 35-50-2-5 (Burns 1979). As we have recently written, "Factors listed as aggravating * * * are ultimate facts and require a finding of subsidiary facts to support them." Page v. State, (1981) Ind., 424 N.E.2d 1021, 1023, Kern v. State, (1981) Ind., 426 N.E.2d 385, both of which were decided subsequent to the rendition of the sentence...
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...the decision will be disturbed as being contrary to law." Young v. State (1984), Ind., 470 N.E.2d 70, 71-72; see also, Neville v. State (1982), Ind., 439 N.E.2d 1358, 1360 and cases there Although the advisements given to Martin by the court at the guilty plea hearing did not comport to the......
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