Patton v. State, 49A04-8809-PC-320

• Decision Date: 26 April 1989
• Docket Number: No. 49A04-8809-PC-320,49A04-8809-PC-320
• Parties: Juan PATTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

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537 N.E.2d 513 Juan PATTON, Appellant,
v.
STATE of Indiana, Appellee. No. 49A04-8809-PC-320. Court of Appeals of Indiana,
Fourth District. April 26, 1989.

Susan K. Carpenter, Public Defender, Valerie K. Young, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Wendy Stone Messer, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

On June 27, 1973, defendant-appellant Juan Patton pled guilty to a violation of the Offenses Against Property Act (Vehicle Theft) and the court sentenced him to an indeterminate period of 1 to 10 years imprisonment. Patton filed a pro se petition for post-conviction relief on September 24, 1985, challenging his guilty plea and the accompanying proceedings. After a hearing, the court denied Patton's petition and this appeal ensued. The issues on appeal restated, are as follows:

I. Whether the trial court erred in denying Patton post-conviction relief given that the record of his guilty plea hearing has been lost or destroyed and cannot be reconstructed.

II. Whether Patton received effective assistance of counsel in his post-conviction relief action.

We reverse.

FACTS

Sometime prior to June, 1973, Patton entered into a plea agreement with the State of Indiana. He agreed to plead guilty to theft of a motor vehicle and in return the State agreed to recommend a 1 to 10 year sentence, suspended, with one year probation. At the sentencing hearing on June 27, 1973, the court accepted Patton's guilty plea, but rejected the plea agreement. The court sentenced Patton to an indeterminate period of 1 to 10 years imprisonment. More than 12 years later, on September 24, 1985, Patton filed a pro se petition for post-conviction relief alleging that his guilty plea was not knowingly, intelligently and voluntarily entered and that the court failed to give him the proper advisements pursuant to I.C. Sec. 35-4.1-1-3. Deputy State Public Defender, Michael Freese, was

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assigned to Patton's post-conviction case initially, but withdrew his appearance upon learning that Patton had retained private counsel. At the evidentiary hearing on June 20, 1986, Patton was represented by attorney William Erbecker.

The evidence presented at the hearing consisted of testimony from Erbecker and Freese. Before testifying, Erbecker explained to the court that several portions of the record in Patton's cause were missing, hampering Patton's ability to present errors that occurred at his guilty plea hearing. Erbecker testified that he spoke with the court reporter and Freese prior to the hearing regarding the missing portions of the record in Patton's cause. Based on those conversations, he concluded that there were no records remaining from Patton's guilty plea proceeding, except the transcript of the sentencing hearing. The transcript of the sentencing hearing was admitted into evidence at this time as was a letter from Erbecker to Freese, requesting copies of the written plea agreement and the guilty plea hearing transcript.

Freese testified that during the time he represented Patton, he had attempted to obtain the documents from the original plea proceeding. His letter to the clerk and court reporter requesting these documents was admitted into evidence. Freese stated that he received only a one page minute sheet entry in response to his letter. That minute entry, admitted into evidence, indicated that the court's original file had been reduced to microfilm. Patton presented no further evidence. The State declined to put on evidence, but asked the court to take judicial notice of Indiana Rules of Procedure, Appellate Rule 7.2(A)(3)(c), which details the procedure for recreation of a record when a transcript is unavailable. There were no closing arguments but, before the hearing ended, Erbecker requested permission to file a short memorandum in support of Patton's contentions. The court granted this request, noting that Erbecker should review A.R. 7.2(A)(3)(c) prior to submitting the brief. Erbecker stated that he would review this rule as well as pertinent case law where guilty plea transcripts have been lost or destroyed. Erbecker filed the memorandum on August 11, 1986. The memorandum contained no discussion of A.R. 7.2(A)(3)(c) or of case law where transcripts have been lost or destroyed. On September 30, 1986, the court denied Patton's petition entering the following findings of fact and conclusions of law:

"FINDINGS OF FACT AND CONCLUSIONS OF LAW

This cause came on to be heard by the Court on Petitioner's Petition for Post-Conviction Relief, and the Court being duly advised in the premises now makes its findings of fact and conclusions of law in accordance with Rule PC 1 Section 6 of the Indiana Rules of Procedure:

FINDINGS OF FACT

1. Petitioner was charged by way of Information with Vehicle Theft on February 12, 1973 as a result of an incident on December 2, 1972.

2. On June 27, 1973, Petitioner withdrew his previously-entered plea of not guilty and entered a plea of guilty pursuant to an agreement reached with the State where the State would recommend a sentence of one (1) year probation.

3. On the same day, the Court held a hearing pursuant to Petitioner's plea of guilty.

4. Petitioner was represented by counsel, Paul Rumple, at said hearing.

5. On July 23, 1973, the Court accepted Petitioner's plea of guilty and sentenced Petitioner to one (1) to ten (10) years imprisonment not, however, under the Minor Statute.

6. On September 24, 1985, Petitioner filed his Petition on September 30, 1985, in the following words and figures, to-wit:

(H.I.)

7. The State filed its Answer to Petitioner's Petition on September 30, 1985, in the following words and figures, to-wit:

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(H.I.)

8. On April 29, 1986, Petitioner filed a Motion for Production of Tapes Made of Plea Agreement Transcript of Guilty Plea, Pre-Sentence Report and Sentencing Transcript, in the following words and figures, to-wit:

(H.I.)

9. On June 20, 1986, the Court conducted an evidentiary hearing on the issues raised in Petitioner's Petition; Petitioner appeared in person and by counsel, William Erbecker.

10. At said hearing Petitioner introduced into evidence several exhibits and called Michael Freese and William Erbecker as witnesses:

a. Michael Freese testified that he had originally entered an appearance on behalf of Petitioner and had, in accord with his standard procedure, attempted to obtain transcripts of Petitioner's guilty plea and sentencing hearings. Mr. Freese further testified that he was told by the official Court reporter that the record of the guilty plea hearing was lost or destroyed.

b. William Erbecker testified that he, as Petitioner's counsel, had also attempted to obtain the transcripts, but was only able to obtain a transcript of the sentencing hearing.

11. Petitioner did not introduce any affidavits or other statements.

12. The State presented no evidence.

CONCLUSIONS OF LAW

1. The law is with the State of Indiana and against the Petitioner.

2. Petitioner has failed to meet his burden of proof as to the allegations in his Petition for Post-Conviction Relief.

3. Petitioner has failed to comport with Indiana Appellate Rule 7.2(A)(3)(c) as required by law.

4. The record in this matter is not silent, but is partially incomplete due to the loss or destruction of the recordings.

WHEREFORE, it is ORDERED, ADJUDGED, and DECREED that the Petitioner's Petition for Post-Conviction Relief should be and is hereby denied."

(R. 88-90).

Approximately nine months after his petition was denied, Patton filed for permission to file a belated motion to correct errors. This motion was granted and Patton filed a belated motion to correct errors on June 23, 1988. This motion was overruled on June 27, 1988 and this appeal followed. (Additional facts appear below where relevant).

ISSUE I

First, Patton claims that the trial court erred in denying him post-conviction relief, given that the record of his guilty plea hearing has been lost or destroyed and cannot be reconstructed. Here, Patton sought review of his guilty plea entered June 27, 1973. The recording of his guilty plea hearing was either lost or destroyed. (See Court's Conclusion No. 4). Procedural rules and a substantial body of case law exist which govern this situation. Indiana Rules of Procedure, Criminal Rule 10, requires that a record be made of guilty plea proceedings, to facilitate review in any later proceedings questioning the validity of the plea. Zimmerman v. State (1982), Ind., 436 N.E.2d 1087, 1088. If the record of a guilty plea proceeding is lost, the petitioner must either (1) attempt to reconstruct the record pursuant to A.R. 7.2(A)(3)(c) or, (2) present evidence which establishes that reconstruction is not possible. Id.; Gallagher v. State (1980), 274 Ind. 235, 410 N.E.2d 1290, 1293. It is only when reconstruction of the record is not possible that a new trial will be ordered. ¹ Gallagher, supra; Graham v. State (1984), Ind.App., 468 N.E.2d 604, 605.

Patton admits that he did not attempt to reconstruct the record pursuant to A.R.

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7.2(A)(3)(c) or, present evidence that reconstruction was not possible at the post-conviction relief hearing. However, he contends that this evidence was attached to his Belated Motion to Correct Errors in the form of affidavits pursuant to Ind. Rules of Procedure, Trial Rule 59(H).

At his initial guilty plea hearing, Patton was represented by Paul Rumple, and the State was represented by A. Thomas Cobb, Deputy Prosecuting Attorney. Judge Harold Kohlmeyer presided over the proceeding and the court reporter was Jennifer Hylden. All of these individuals executed affidavits stating that they had no independent recollection of the details of Patton's guilty plea hearing and therefore, could not reconstruct the record in this cause. These affidavits were attached to Patton's Belated Motion to Correct Errors along with...