Pitman v. State
| Decision Date | 30 November 1977 |
| Docket Number | No. 2-1076A411,2-1076A411 |
| Citation | 174 Ind.App. 670,369 N.E.2d 689 |
| Parties | Roger PITMAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
Jack A. Quirk, Muncie, for appellant.
Theo. L. Sendak, Atty. Gen., Daniel Lee Pflum, Deputy Atty. Gen., Indianapolis, for appellee.
Roger Pitman appeals from the denial of his Petition For Post Conviction Relief claiming the record fails to disclose that he was fully informed of his constitutional rights before he plead guilty to a charge of Second Degree Burglary. 1
We reverse.
On October 23, 1974, an information was filed charging Pitman with Second Degree Burglary. At the arraignment on November 12, Pitman, assisted by counsel, entered a plea of guilty and the following exchange took place:
Pitman's plea was accepted and he received a sentence of two to five years. A few days later he petitioned the trial court for post-conviction relief pursuant to Post-Conviction Remedy Rule 1, which was denied. From that denial he later filed a belated Motion to Correct Errors.
We need consider only one issue: 2
Did he knowingly waive his privilege against self-incrimination at the guilty plea hearing?
The crucial fact in this case is that Pitman plead guilty on November 12, 1974, after the effective date of IC 35-4.1-1-3, which, among other things, requires specific advisement of an accused's "Boykin" rights.
Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, had previously established standards that must be complied with at a guilty plea hearing:
Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Second, is the right to trial by jury. Third, is the right to confront one's accusers. We cannot presume a waiver of these three important federal rights from a silent record. (Emphasis supplied). (Citation omitted).
Our Supreme Court followed Boykin in Brimhall v. State (1972), 258 Ind. 153, 279 N.E.2d 557, reversing a conviction because "There is nothing in this record to indicate that the appellant was advised of his rights under the State and Federal Constitutions, and nothing to indicate that he intentionally and fully waived those rights." Also see Maleck v. State (1977), Ind., 358 N.E.2d 116, in which the conviction was reversed because the defendant was not "fully" advised of his rights; and Bonner v. State (1973), 156 Ind.App. 513, 297 N.E.2d 867, in which a conviction was reversed because of failure to inform the defendant of two of the three Boykin rights; and more recently to the same effect, Hollingshead v. State (1977), Ind., 365 N.E.2d 1215.
Then, if there was any doubt as to what rights should be included in advising an accused of the constitutional rights he was waiving by pleading guilty, any such doubt was dispelled by the passage in 1973 of IC 35-4.1-1-3, which in pertinent part provides:
(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. (Emphasis supplied).
Absent from this record, and contrary to the statute, is any showing that Pitman was informed of his right to avoid self-incrimination.
In reversing the conviction for failure of the court to advise Pitman of his right against self-incrimination, we observe that the trial judge also failed to comply with other parts of the statute governing guilty pleas. 3
The...
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