Owens v. State

• Decision Date: 26 November 1986
• Docket Number: No. 2-885-A-257,2-885-A-257
• Citation: 500 N.E.2d 756
• Parties: Stephan A. OWENS, Appellant (Petitioner Below), v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 756

500 N.E.2d 756

Stephan A. OWENS, Appellant (Petitioner Below), v. STATE of Indiana, Appellee.

No. 2-885-A-257.

Court of Appeals of Indiana Second District.

Nov. 26, 1986.

Susan K. Carpenter, Public Defender, Richard Ranucci, Sp. Asst. to Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

On April 3, 1973, Stephan A. Owens (Owens) was charged with robbery. Just prior to commencement of trial on August 22, 1973, Owens withdrew his not guilty plea and agreed to plead guilty to theft of over $100 in exchange for the State's recommendation of an indeterminate, suspended sentence of one to ten years, plus restitution of $500. The plea agreement was oral. At the guilty plea hearing, on August 7, 1973, Owens received numerous advisements, executed a written waiver of jury trial, and entered his plea of guilty.

Owens appeals from a denial of post-conviction relief and presents several multi-faceted issues which we have distilled into the following:

(1) Whether the trial judge's failure to advise Owens that his sentence could be enhanced by reason of prior convictions constitutes fundamental error, which permits presentation of the issue for the first time on appeal.

(2) Whether the post-conviction court erred in denying Owens' motion to amend the post-conviction petition after the hearing on the merits but prior to the entry of judgment.

(3) Whether counsel in the appeal from denial of his first post-conviction petition rendered ineffective assistance in failing to assert error concerning the advisement of the right to a public and speedy jury trial.

(4) Whether the cumulative effect of the alleged errors rendered Owens' guilty plea involuntary, unknowing and unintelligent.

At the outset, we deem it necessary to address Owens' contention that the failure to parrot the guilty plea statute constitutes fundamental error. It is not the omitted advisement which constitutes error, but rather the impact of the omission upon the knowing, intelligent and voluntary character of the plea. See Blankenship v. State (1984) Ind., 465 N.E.2d 714.

The indiscriminate labeling of error as "fundamental" has been used and misused in attempts to obtain review of issues mistakenly or negligently omitted from earlier requests for relief. As originally conceived, fundamental error is error that is so egregious that it denies the defendant due process and constitutes an affront to the integrity of the judicial system. Roberts v. State (1986) Ind., 492 N.E.2d 310; Terry v. State (1984) Ind., 465 N.E.2d 1085. A faulty or omitted advisement may result in an involuntary plea giving rise to an instance of "fundamental" error because a defendant cannot meaningfully and intelligently waive rights of which he is not aware. Brown v. State (1982) 4th Dist. Ind.App., 435 N.E.2d 582, cited with approval in Gosnell v. State (1985) Ind., 483 N.E.2d 445, 447.

However, mere characterization of error as "fundamental" will not necessarily trigger an automatic review and reversal. In a related context, our Supreme Court has stated that error which was available upon direct appeal will not be the basis for a subsequent post-conviction petition. Bailey v. State (1985) Ind., 472 N.E.2d 1260. To do otherwise would

" 'unreservedly hold the door open for appellate review under the post-conviction remedy rules, regardless of the circumstances which preceded, [and] perforce characterize post conviction relief as some sort of 'super appeal' contrary to its intended function.' " 472 N.E.2d at 1263, quoting Langley v. State (1971) 256 Ind. 199, 210, 267 N.E.2d 538, 544. See also Cummings v. State (1986) Ind., 495 N.E.2d 181.

Bailey 's analysis is equally applicable in the context of post-conviction petitions addressing the validity of convictions pursuant to guilty pleas. See Ind. Rules of Procedure, Post-Conviction Rule 1, Sec. 8, and Mosley v. State (1985) Ind., 477 N.E.2d 867, 868 ("a petitioner is estopped to raise, in a subsequent petition, an issue available to him when he filed a previous petition in which he verified that he had raised 'every ground known' for relief"). See also Robinson v. State (1986) Ind., 493 N.E.2d 765, 767, (the Court, in dictum, stated that it would "not review an issue that is not specifically raised and argued in the brief on post-conviction appeal"). The Robinson court cited Dixon v. State (1984) Ind., 470 N.E.2d 728, which like Bailey, supra, addressed the waiver of issues available but not presented on direct appeal. ¹ Robinson, however, involved a second post-conviction petition, filed subsequent to the denial of an earlier petition which challenged the Defendant's plea of guilty to murder.

While a defendant may be entitled to judicial review of issues originally omitted through no fault of his, it is inappropriate to permit a defendant, without valid justification, to litigate the validity of his guilty plea in piece-meal fashion.

This appeal is premised upon the denial of relief requested in Owens' third post-conviction petition. The first petition was filed pro se on December 16, 1980, and denial of relief there requested was affirmed by this Court in a memorandum decision issued July 28, 1982. Owens was represented by counsel in that appeal. Owens' second petition, filed September 12, 1983, also pro se, was dismissed September 26, 1983, upon motion by the State, for failure to comply with the requirements of Post Conviction Rule 1, Section 3. Shortly thereafter, on October 17, 1983, Owens filed the third petition, alleging substantially the same grounds as in the first petition--that his 1973 guilty plea was not knowing, intelligent or voluntary due to omitted or defective advisements at the time of the guilty plea. At the hearing on this petition, Owens' oral motion to amend the petition was granted; however, two subsequent motions to amend, filed after the hearing but prior to judgment, were denied. Inasmuch as Owens' appeal challenges virtually every advisement required to be given by I.C. 35-4.1-1-3 (repealed), ² including some disposed of in the earlier appeal, we will be so bold as to presume that this decision will end all further litigation with respect to Owens' 1973 guilty plea. See White v. State (1986) Ind., 497 N.E.2d 893. ³

I.

Owens first argues that the trial judge was required to advise him that his sentence could be increased by reason of prior convictions. Owens contends that the failure to so advise constitutes fundamental error and renders his guilty plea unknowing, unintelligent and involuntary.

Judge Shields and Chief Judge Buchanan reject appellant's argument with respect to this issue upon grounds that appellant has waived it. The author of this opinion would not dispose of the issue on that basis. Rather, I would determine that the advisement which Owens received was adequate and fulfilled the purpose of the statute. Hence, under my approach, Owens' contention that the error was "fundamental," and, therefore, not subject to a claim of waiver need not be addressed.

At the time Owens pleaded guilty to theft of over $100, the statutory penalty provided for a fine not to exceed five thousand dollars, or imprisonment for an indeterminate term of "not less than one year nor more than ten years, or both." Ind.Ann.Stat. Sec. 10-3039(3) (Burns Supp.1975). See also Langley v. State (1971) 256 Ind. 199, 267 N.E.2d 538.

In Wright v. State (1986) Ind., 490 N.E.2d 732, 734, the Court held that a guilty plea is not vitiated because the trial court failed to advise a defendant concerning the effect of prior convictions if, in fact, the sentence pursuant to the plea agreement was not subject to enhancement. The Court stated that omission of this advisement did not affect the character of the plea because the "trial court had no power to diminish or enlarge an indeterminate sentence." 490 N.E.2d at 734, quoting Stonebreaker v. State (1985) Ind., 476 N.E.2d 837, 839.

Owens pleaded guilty to a crime calling for an indeterminate sentence of one to ten years, the only penalty provided by statute, in exchange for the State's recommendation that the sentence be suspended. As in Wright, supra, 490 N.E.2d 732, Owens' sentence could not be enhanced or enlarged. Our Supreme Court's holdings in Wright and Stonebreaker, supra, 476 N.E.2d 837, indicate that at least with respect to pre-German guilty pleas, the advisements were strictly required only where clearly applicable to the particular plea. I would therefore hold that Owens was adequately advised in this respect.

II.

Owens next argues that error occurred with respect to the post-conviction court's refusal to permit Owens to amend the petition after hearing upon the petition but prior to entry of judgment thereon.

Post Conviction Rule 1, Sec. 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."

The provisions in Sec. 4(c) are severable and do not require that a petitioner first ask leave to withdraw the petition, but "grants the petitioner an absolute right to amend a present petition for post-conviction relief prior to judgment." Neeley, supra, 382 N.E.2d at 716. "This is consistent with the total purpose of the post-conviction rules which envisions simplification of the post-conviction procedure by requiring petitioner to present all of his reviewable issues in one petition, in order to avoid a multiplicity of post-conviction petitions." Id.

However, although the trial court erred in refusing to permit the amendment, Owens is not entitled to have the guilty plea set aside. The trial court's refusal did not impact upon the plea. At most, Owens is entitled to review of the issues presented by the amendment. Owens argues that the trial court failed to advise him

(1) of the...