Norfrey v. State, 1--476A64

• Citation: 358 N.E.2d 202,171 Ind.App. 589
• Decision Date: 27 December 1976
• Docket Number: No. 1--476A64,1--476A64
• Parties: John Rick NORFREY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 202

358 N.E.2d 202

171 Ind.App. 589

John Rick NORFREY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1--476A64.

Court of Appeals of Indiana, First District.

Dec. 27, 1976.

Rehearing Denied Jan. 18, 1977.

Harriette Bailey Conn, Public Defender, Darrell F. Ellis, Deputy Public Defender, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for plaintiff-appellee.

ROBERTSON, Chief Judge.

Defendant-appellant, John Rick Norfrey (Norfrey), brings this appeal from the denial of his petition for post-conviction relief, Ind. Rules of Procedure, Post-Conviction Remedy Rule 1 (PCR. 1), wherein he contended that his guilty plea to a charge of robbery was not knowingly and intelligently entered.

We reverse and remand.

The essence of this appeal is the contention that the trial court did not comply with the provisions of IC 1971, 35--4.1--1--3 (Burns Code Ed.) and that, as a consequence, the trial court was entitled neither to presence the guilty plea was knowingly and intelligently entered nor to accept the guilty plea.

IC 1971, 35--4.1--1--3 which became effective July 26, 1973, provides:

'Plea of guilty--Defendant advised by court.--The court shall not accept a plea of guilty from the defendant without first addressing the defendant and

(a) determining that he understands the nature of the charge against him;

(b) informing him that by his plea of guilty he is admitting the truth of all facts alleged in the indictment or information or to an offense included thereunder and that upon entry of such plea the court shall proceed with judgment and sentence;

(c) informing him that by his plea of guilty he waives his rights to a public and speedy trial by jury, to face the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to 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;

(d) informing him of the maximum possible sentence and minimum sentence for the offense charged and of any possible increased sentence by reason of the fact of a prior conviction or convictions, and of any possibility of the imposition of consecutive sentences;

(e) Informing him that the court is not a party to any agreement which may have been made between the prosecutor and the defense and is not bound thereby.'

The record indicates that at the hearing on September 24, 1973, wherein Norfrey entered his guilty plea, the trial court inquired of Norfrey as to whether he had been coerced or promised anything to change his plea, whether he understood that he was admitting the essential allegations of the charge, and whether he had consulted with his attorney. Thus, the trial court did comply with the aforementioned statue, but only in part.

The language of IC 1971, 35--4.1--1--3 is unequivocal. There is no latitude given a trial court to vary from the express requirements of the statute. Howard v. State (1975), Ind.App., 338 N.E.2d 308 n.2 states that the 'statute places an affirmative duty on the trial court'. Other decisions leave no doubt that trial court must comply with the statute. Williams v. State (1975), Ind., 325 N.E.2d 827 n.1; Emert v. State (1975), Ind., 330 N.E.2d 750 n.1.

We are aware that in the course of the PCR hearing two exhibits were accepted into evidence which made it abundantly clear that Norfrey did knowingly and intelligently enter his guilty plea. Those exhibits were statements dated September 18, 1973 and September 20, 1973,...