Phillips v. State
| Decision Date | 04 November 1982 |
| Docket Number | No. 1182S413,1182S413 |
| Parties | William E. PHILLIPS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Defendant-Appellant William E. Phillips was charged in the Rush Circuit Court with forgery, Ind.Code Sec. 35-43-5-2 (Burns 1979). On October 12, 1979, Phillips appeared pro se before the trial court and entered a plea of guilty pursuant to a plea agreement proffered by William B. Keaton, the prosecuting attorney. Said plea agreement provided that the State would recommend that Phillips be convicted as charged and sentenced to the maximum term of eight years and that the State would not pursue against Phillips an additional forgery or habitual criminal charge. The trial court accepted the plea agreement and convicted Phillips. Phillips did not appeal. On April 25, 1980, Phillips filed a pro se Petition for Post-Conviction Relief according to Ind.R.P.C. 1. In his Petition, Phillips alleged, inter alia, that the trial court prematurely accepted his guilty plea without properly determining whether or not he had knowingly and freely waived his constitutional right to counsel. Phillips also filed a Verified Motion for Change of Venue From Judge and an Affidavit of Indigency. Special Judge John A. Westhafer was appointed to consider the Petition and a deputy public defender was appointed to represent Phillips. After conducting a hearing on February 5, 1981, the post-conviction court denied Phillips' Petition. Phillips subsequently appealed to the Fourth District Court of Appeals alleging:
(1) the trial court committed fundamental error by determining that Phillips had waived his right to counsel; and,
(2) the trial court erred by improperly sentencing Phillips to an eight year term without specifying its reason for imposing an aggravated sentence.
The Court of Appeals reversed the judgment of the post-conviction court upon finding the alleged fundamental error. We find the Fourth District Court of Appeals wrong in its judgment and accordingly vacate its opinion.
A post-conviction action under Ind.R.P.C. 1 is a special remedy whereby a party can present an error which, for various reasons, was not available or known at the time of the original trial or appeal. An Ind.R.P.C. 1 hearing is a quasi-civil hearing totally separate and distinct from the underlying criminal trial. State ex rel. Sufana v. Lake Sup. Ct., (1978) 269 Ind. 466, 470, 381 N.E.2d 475, 477; Lockhart v. State, (1971) 257 Ind. 349, 357, 274 N.E.2d 523, 528. The burden of proof in such a proceeding is upon the petitioner who must prove his right to relief by a preponderance of the evidence. Robinson v. State, (1982) Ind., 437 N.E.2d 73, 74; Herman v. State, (1979) Ind., 395 N.E.2d 249, 252; State ex rel. Sufana, supra; Lenoir v. State, (1977) 267 Ind. 212, 213, 368 N.E.2d 1356, 1357; Perkins v. State, (1975) 263 Ind. 270, 271, 329 N.E.2d 572, 573. Notwithstanding Indiana's provision for post-conviction relief, the trial court nonetheless is the sole trier of fact and the sole judge of the weight of the evidence and of the credibility of the witnesses. Accordingly, the trial court's judgment will not be disturbed in a post-conviction proceeding unless the evidence is without conflict and leads inescapably to a conclusion contrary to that reached by the trial court. Robinson, supra; Herman, supra; Perkins, supra; Johnson v. State, (1974) 262 Ind. 183, 186, 313 N.E.2d 542, 544, reh. denied.
The evidence before the instant post-conviction court revealed that Phillips appeared before the trial judge in the original criminal proceeding four different times and on each occasion stated that he understood his right to have counsel but desired to proceed pro se. Phillips' first appearance before the trial judge was for arraignment on October 3, 1979. At that time, the trial court explained to Phillips that the offense of forgery was a class C felony punishable by a fine of up to $10,000 and a prison term of five years which could be aggravated to eight or mitigated to two years. Phillips responded that he understood. Prosecutor Keaton then stated that since Phillips had been previously convicted of two felonies, the State would contemplate pursuing a habitual criminal charge against Phillips should he be convicted of the charged forgery. The trial court accordingly advised Phillips that if he were ultimately found to be a habitual criminal, he would receive an additional thirty years of incarceration. The trial court further advised Phillips that he either could plead guilty or not guilty to the forgery charge, and explained to him his respective rights. Phillips was specifically informed that should he plead not guilty, he would have the right to a speedy and public trial by jury, the right to see, hear and question all witnesses against him, the right to present evidence in his favor and the right to personally testify or to remain silent. The court also informed Phillips that he would have the right to order into court evidence or witnesses in his favor, the right to require the State to prove the charge against him beyond a reasonable doubt, and the right to have a qualified attorney defend him. Phillips stated to the trial court that he understood all of these rights and that he had no questions about any of them. The court further explained that if he pleaded guilty, he would waive these rights and would stand convicted without a trial. Phillips stated that he understood this also. The trial court then stated to Phillips that should he be convicted, a sentence would not be imposed until after the probation department had conducted a pre-sentence investigation into his past employment, education, previous criminal record and other aspects of his background which might suggest the most appropriate sentence. Phillips again stated that he understood what the trial court was telling him. There subsequently was the following colloquy between the trial judge, Phillips and Prosecutor Keaton:
"Q. One of the rights mentioned to you is the right to have an attorney. Do you have an attorney?
A. No sir.
Q. Do you expect to get an attorney?
A. Well, I don't know sir. I mean, I'd like to talk it over with my wife, as I was telling Mr. Keaton I'd like to talk it over with my wife and tell her what Mr. Keaton said and then see, I mean....
Q. Do I understand there's been some discussion between you and Mr. Keaton this morning as to some possible agreement?
A. Yes sir, we've talked.
MR. KEATON: I've made an offer, Your Honor.
Q. You have made a plea offer to him?
MR. KEATON: Yes.
Q. All right. You understand, Mr. Phillips, that if you do decide that you want an attorney and cannot afford one, I would have to ask you some more questions, but if you want an attorney and can't afford one and I find that you can't afford one, one would be appointed for you. Do you understand that?
A. Yes sir.
Q. Okay. If I understand you correctly, what you're asking is you'd like to have another couple of days and would like to talk to your wife about what Mr. Keaton has talked to you about this morning before you reach any decision at all as to ....?
A. Yes sir, if that's possible.
Q. It certainly is...."
The arraignment hearing was thereupon continued until October 9, 1979, when Phillips again appeared before the trial court and stated that he desired additional time to talk with his wife. Accordingly, the trial court further continued the arraignment until October 12, 1979.
Phillips appeared before the trial court for the third time on October 12, 1979. The following colloquy then ensued between the trial judge and Phillips:
"Q. The matter was set for arraignment this morning and the State has now filed with me two documents, one entitled Motion to Enter A Plea of Guilty and another one entitled Recommendation, each of which purports to bear your signature. Did you sign those documents?
A. Yes sir.
Q. The Motion to Enter A Plea of Guilty indicates that the State has advised you basically the same thing that I did. Your various rights including your right to counsel and the Recommendation indicates that the ... that in the event you enter a plea of guilty and are found guilty, the State will recommend to the Court that you receive a sentence of eight years which would be executed, but the State would not file some other charges against you. Is that your understanding sir?
A. Yes sir.
Q. Now, we've had you in here twice, this is the third time and each time you made some mention of wanting to talk ... well, the first two times at least, with your wife and/or an attorney. According to what I know, at least, you have not talked with an attorney, is that correct?
A. Yes.
Q. Do you wish to talk with an attorney?
A. Well ... not now, I don't guess, no.
Q. Well, I just want to be sure that you understand that you have the right to talk to an attorney. You have the right to make your own ... the decision to make your own deal with the State of Indiana as you have apparently done, but you also, by so doing, are in effect giving up your right to have and talk with an attorney and I want to be sure you understand that?
A. I understand that.
Q. You do understand that?
A. Yes sir.
Q. And you also understand, I hope and recall, that if you did want to talk to an attorney and couldn't afford one, the Court would appoint an attorney to represent you and you could still talk to an attorney, right?
A. Yes sir.
Q. And understanding this, is it still your desire to file the Motion to Enter A Plea of Guilty and to enter into this Recommendation with the State?
A. Yes sir.
Q. All right ...."
The trial judge subsequently read to Phillips the charging Information after noting that a copy of it was lying in...
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