Sides v. State, No. 2-284-A-38

Docket NºNo. 2-284-A-38
Citation482 N.E.2d 757
Case DateSeptember 12, 1985
CourtCourt of Appeals of Indiana

Page 757

482 N.E.2d 757
Anthony SIDES, Appellant (Petitioner Below),
v.
STATE of Indiana, Appellee (Respondent Below).
No. 2-284-A-38.
Court of Appeals of Indiana,
Second District.
Sept. 12, 1985.

Page 758

Susan K. Carpenter, Public Defender, Paul Levy, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

Page 759

OPINION ON PETITION FOR REHEARING

SULLIVAN, Judge.

In its Petition for Rehearing, the State, speaking through Attorney General Linley E. Pearson and his Deputy, Richard Albert Alford, seeks reconsideration of our reversal of the trial court's judgment which denied post-conviction relief. The trial court refused to set aside the appellant's guilty plea. In our opinion of July 22, 1985, 480 N.E.2d 572, we held that the decision of the Indiana Supreme Court in Hutchinson v. State (1985) Ind., 477 N.E.2d 850, compelled us to disregard an earlier opinion by this District of the Court of Appeals, Ramirez v. State (1983) 2d Dist.Ind.App., 455 N.E.2d 609, aff'd by an equally divided court (1985) --- U.S. ----, 105 S.Ct. 1860, 55 L.Ed.2d 113. We followed the mandate of the Hutchinson decision and held the trial court here had erroneously interpreted I.C. 35-50-1-2 (Burns Code Ed.Repl.1985) in advising the defendant Sides that consecutive sentencing was mandatory because he committed a second crime while free on bond pending trial upon an earlier, unrelated offense.

This Court may be somewhat appreciative of the accolades of the Attorney General and his Deputy in their statement that our Ramirez decision is a "better and fully reasoned finding of legislative intent" than are the decisions of the Indiana Supreme Court in Hutchinson v. State, supra, and Haggard v. State (1983) Ind., 445 N.E.2d 969. On the other hand, this Court might be entitled to take umbrage at the accusation of the Attorney General and his Deputy that we did not have the "fortitude to stand by" our Ramirez decision.

The Petition for Rehearing filed by the Attorney General through his Deputy urges this Court to exhibit an injudicious impertinence and audacity and to overrule decisions of the Indiana Supreme Court. We are not permitted to do so. It is perhaps appropriate to remind the Attorney General and his Deputy that the Indiana Court of Appeals is an intermediate appellate tribunal. The Indiana Court of Appeals is bound by the decisions of the Indiana Supreme Court no matter how strongly the intermediate court might disagree with the wisdom, logic, or legal analysis of the higher court. In Re Petitions to Transfer Appeals (1931) 202 Ind. 365, 174 N.E. 812; Harrison v. State (1975) 2d Dist. 166 Ind.App. 602, 337 N.E.2d 533, trans. denied 264 Ind. 708, 344 N.E.2d 293 (J. DeBruler dissenting to denial of transfer).

We suggest that the pleas of the State for a change in the law are more properly addressed to the Indiana Supreme Court.

However, the State does call our attention to an error in our opinion of July 22, 1985. We there stated:

"We agree that a defendant cannot meaningfully plead guilty if he is not properly informed of the consequences of his plea. See Catt v. State (1982) 2d Dist.Ind.App., 437 N.E.2d 1001 (defendant informed he was pleading guilty to a misdemeanor when he was actually pleading guilty to a felony). Therefore, if the advisement concerning the application of the mandatory consecutive sentences provision was erroneous, Sides' guilty plea may not be held to have been voluntarily given." 1 Ind.App., 480 N.E.2d 572, 573.

We then concluded that, according to Hutchinson, supra, 477 N.E.2d 850, the advisement was erroneous and that Sides was entitled to have his guilty plea set aside.

Page 760

After due consideration, we have determinded that our original opinion, directing that Sides' guilty plea be set aside, was in error. This conclusion necessitates vacation of our opinion, although for different reasons than those advanced by the State in its Petition for Rehearing.

The State, in its Petition for Rehearing, cites Romine v. State (1982) Ind., 431 N.E.2d 780, for the proposition that an erroneous advisement as to the particular sentence applicable does not affect the character of the guilty plea. 2 In Romine, our Supreme Court held that the misadvisement as to the applicable sentencing provision did not vitiate the guilty plea. The Romine court noted:

"Clearly the court erred in its interpretation of the statutory sentencing provision; just as clearly the court strictly complied with subsection 'd' of Ind.Code Sec. 35-4.1-1-3, supra, for the court twice stressed to defendant at the guilty plea hearing that if his pleas were accepted, the sentence for violence while armed with a deadly weapon would be imposed consecutively to the sentence for second-degree murder, as per the terms of the plea agreement petitioner had executed. In both instances petitioner indicated he understood the two sentences would not be served simultaneously if the pleas were accepted. Based on this record, the court properly rejected defendant's claim, for subsection 'd' required the court to inform him of 'the possibility of the imposition of consecutive sentences.' Ind.Code Sec. 35-4.1-1-3(d), supra. The Court's statements informed petitioner the 'possibility' would in fact occur if the pleas were accepted; the petitioner consequently fully understood the consequences of his plea, notwithstanding any misinformation regarding the statutory sentencing alternatives detailed in Ind.Code Sec. 35-23-4.1-18(d), supra." 431 N.E.2d at 782.

Thus, Romine appears to support the State's contention that a misadvisement of this nature, as opposed to a failure to advise, 3 as to the applicable sentence is harmless error.

At the time Romine was decided, the principal focus of reviewing courts was upon the proper advisement and waiver of the purely constitutional rights enumerated in Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, i.e., the privilege against compulsory self-incrimination, the right to trial by jury and the right to confront one's accusers. See e.g., Mathis...

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1 practice notes
  • Sides v. State, No. 49S02-8603-PC-309
    • United States
    • Indiana Supreme Court of Indiana
    • March 26, 1986
    ...stated the law as it existed at the time of Sides plea and affirmed the decision of the trial court. Sides v. State (1985), Ind.App., 482 N.E.2d 757. We grant transfer in order to explore further the construction of this The language under consideration, Ind.Code Sec. 35-50-1-2, provides as......
1 cases
  • Sides v. State, No. 49S02-8603-PC-309
    • United States
    • Indiana Supreme Court of Indiana
    • March 26, 1986
    ...stated the law as it existed at the time of Sides plea and affirmed the decision of the trial court. Sides v. State (1985), Ind.App., 482 N.E.2d 757. We grant transfer in order to explore further the construction of this The language under consideration, Ind.Code Sec. 35-50-1-2, provides as......

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