Pursifull v. State, 1--1272A106
| Docket Nº | No. 1--1272A106 |
| Citation | 301 N.E.2d 226, 157 Ind.App. 560 |
| Case Date | September 17, 1973 |
| Court | Court of Appeals of Indiana |
Page 226
v.
STATE of Indiana, Appellee (Plaintiff Below).
[157 Ind.App. 561]
Page 227
Harriette Bailey Conn, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.Theodore L. Sendak, Atty. Gen. of Ind., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.
LYBROOK, Judge.
Defendant-appellant Pursifull pleaded guilty to Non-Support of Children and was sentenced to not more than seven (7) years nor less than one (1) year of imprisonment pursuant to Acts 1913, ch. 358, § 2, Ind.Ann.Stat. § 10--1402 (Burns 1956), IC 1971, 35--14--5--2. He appeals from the denial of a Petition for Writ of Habeas Corpus which the court considered as a proceeding under Post-Conviction Remedy Rule 1.
Pursifull seeks to have his conviction set aside together with permission to withdraw his plea of guilty. His allegations of error may be incorporated into a single issue for review:
Whether the trial court erred in concluding that Pursifull's uncounselled guilty plea was entered knowingly and intelligenty.
On February 7, 1969, Pursifull appeared in court charged by affidavit with the crime of Non-Support. The affidavit and § 10--1402 of Burns Indiana Statutes were read to the defendant. The following exchange then took place between the judge and Pursifull.
'Q. Do you understand what you're--do you have an attorney?
A. No, sir, I don't think an attorney will be necessary. I'd like to waive my preliminary hearing, if it's possible, and just plead guilty to the charge of non-support.
Q. Now, before you do that--I'll allow you to do it if you want to--but before you do that I want you to know [157 Ind.App. 562] that if you're not represented by an attorney, you have the right to hire one.
A. Right.
Q. And if you're not working or can't afford one, the court will appoint one for you, so . . .
A. Well, I'm guilty of the charge of non-support, so I would like to waive my preliminary hearing and I know what I'm up against and I know what I can receive.
Q. You think you're pretty well acquainted, then, with the circumstances of the case.
Page 228
A. Well, like I say, there's two sides to the story but I am guilty of non-support, but there's a few things that--support, never has been set, for one thing, and the oldest boy doesn't have my last name, never has had my last name. He was six months old when I got out of jail but I am guilty of not paying support, but it isn't--I haven't had the job as she said I was able to pay support. I haven't been able to pay support. I've been living on a day-to-day basis most of the time.
Q. Well, I'll tell you what I'm going to do, I'll accept your plea of guilty.'
Pursifull appeared again in court on February 14, 1969 and had the following exchange with the court:
'Q. And you're the same Louis Persifull, Jr. that appeared before the court on the 7th of February, wherein you entered a plea of guilty. Is that correct?
A. Yes, sir, I entered a plea of guilty but at the time I was confused. I wonder if I could change my plea to not guilty. I don't really believe that I am 100% guilty in this matter.
Q. What I understand from you then is that the last time you were before the court there was no question about the fact that you were not supporting your family but there is a question now.
A. Nope. Well, all right. I wasn't paying support. I'm guilty of not paying support but I'm not guilty of contemptfully not paying support. I have always intended[157 Ind.App. 563] to pay support. That's reason I brought her back here.
Q. And you want to withdraw your plea of guilty and enter a plea of not guilty at this time?
A. Yes, sir.
Q. And you expect this court, then, to appoint an attorney for you?
A. Yes, sir.
Q. All right. It's your case. You are now in jail?
A. Yes, sir.
Q. Any hopes of you making a bond?
A. No, sir.
Q. All right. I'll appoint an attorney for you and have him see you at the jail sometime the first of the week.
A. Thank you, sir.'
On February 17, 1969, Pursifull again appeared in court and expressed a desire to renew his plea to guilty.
'JUDGE:
Q. Now, you had originally entered a plea of guilty and then you withdrew that Friday and asked for an attorney. And that I granted.
A. Yes, sir. I wrote the Sheriff a letter Sunday telling him that it would be a waste of time for me to see an attorney. I thought over what you said about a man knowing if he's guilty or not and I am guilty. I've had a lot of time to do some serious thinking.
Q. Of course, you understand you are entitled to an attorney if you want one.
A. I understand that, sir.
Q. Do you understand what you're charged with?
A. Yes, sir.
Q. And that you apparently have not been supporting your family according to the affidavit filed.
Page 229
A. Well, I'm guilty and that can't be changed.
Q. Did I explain your constitutional rights to you when you were here before?
[157 Ind.App. 564] A. Yes, sir, I understood my rights perfectly.
Q. Well, you present some problems to me, Mr. Pursifull....
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Barfell v. State, 3-877
...the trial court's duty to satisfy itself as to the validity of a plea is exemplified by the Court's decision in Pursifull v. State (1973), 157 Ind.App. 560, 301 N.E.2d 226. There, the record of the guilty plea hearing revealed the following colloquy between the Court and defendant "Q. Did I......
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Wise v. State, 2-976-A-351
...without having been informed of them (who solicits offenses as lesser included when they are not)." Pursifull v. State (1973) 157 Ind.App. 560, 567, 301 N.E.2d 226, 230-31. Thus, the trial court's giving instructions advising the jury aggravated assault and battery was an included offense a......
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Brooks v. State, 2--373A69
...and had never before heard the word 'mayhem'; and (4) Brimhall's attorney did not explain the charge to him. In Pursifull v. State (1973), Ind.App., 301 N.E.2d 226, there was similar failure by the court to investigate the facts surrounding the guilty plea, and in fact the evidence did not ......
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Burris v. State, 2-677A239
...case does not relieve the State of that burden. Willfulness is an essential element of the crime charged here. Pursifull v. State (1973), 157 Ind.App. 560, 301 N.E.2d 226. In addition, the State must prove that the Defendant was "able . . . by personal service, labor, or earnings" to suppor......