Sides v. State

• Decision Date: 12 September 1985
• Docket Number: No. 2-284-A-38,2-284-A-38
• Citation: 482 N.E.2d 757
• Parties: Anthony SIDES, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Appellate Court

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.

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.

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.

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 v. State (1980) 273 Ind. 609, 406 N.E.2d 1182; Maleck v. State (1976) 265 Ind. 604, 358 N.E.2d 116.

In Turman v. State (1979) 271 Ind. 332, 392 N.E.2d 483, our Supreme Court reviewed a guilty plea entered pursuant to an advisement which informed the defendant that he had "the right to testify without prejudice." (Original emphasis) 392 N.E.2d at 486. The correct advisement, contained in the written plea agreement, would have informed the defendant that he had "the right not to testify without prejudice." Id. In reversing the trial court's denial of post-conviction relief, the Supreme Court stated:

"We would not ordinarily disturb the trial court's weighing of the evidence where two statements regarding the privilege of self-incrimination conflicted. However, the weight of the judge's erroneous statement in open court would certainly outweigh the impact of a contrary but correct statement of the law contained in the plea agreement entered into at an earlier date. Again we are led unerringly to a result not reached by the trial court, that petitioner was not properly advised of his privilege against self-incrimination as provided by the Fifth Amendment to the United States Constitution." 392 N.E.2d at 488.

In holding that a misadvisement concerning a Boykin right was sufficient reason to justify setting aside a guilty plea, our Supreme Court reiterated the principle that a defendant cannot knowingly, intelligently and voluntarily plead guilty unless he has been meaningfully informed of the constitutional rights waived by the guilty plea.

Until 1984, some decisions appeared to draw a distinction between the constitutional rights enumerated in Boykin, supra, 395 U.S. 238, 89 S.Ct. 1709, and the statutory advisements in I.C. 35-4.1-1-3. See Bullock v. State (1980) 1st Dist.Ind.App., 406 N.E.2d 1220, 1221 (court must inform defendant of the potential effect of prior convictions only if "they bear directly upon the length of the sentence which the court is to render upon the guilty plea."); Collins v. State (1979) 4th Dist. 182 Ind.App. 95, 394 N.E.2d 211, 214 (court suggested that failure to advise defendant that trial court was not party to nor bound by plea agreement might constitute harmless error if the court followed the State's recommendation in the plea agreement).

Similarly, by Acts 1984, P.L. 179, Sec. 1, the Indiana General Assembly attempted to codify this distinction by adding subsection (c) to I.C. 35-35-1-2 (replacing I.C. 35-4.1-1-3) to the effect that:

"Any variance from the requirements of this section that does not violate a constitutional right of the defendant is not a basis for setting aside a plea of guilty."

This effort was unavailing, however, for in Jones v. State (1984) 2d Dist.Ind.App., 467 N.E.2d 757, 760, reh. denied 469 N.E.2d 39, this court stated:

"[M]ost important for our purposes, is this recent Indiana Supreme Court language: 'Strict compliance with our statute [IC 35-35-1-2(a), (b) ] is demanded of our trial courts in order to determine that any waiver of fundamental constitutional rights is knowingly and intelligently given.' Davis v. State, (1983) Ind., 446 N.E.2d 1317, 1321 (emphasis supplied); See also Early v. State, (1982) Ind., 442 N.E.2d 1071. Implicit in this clear language are two logical conclusions. First, failure to inform the defendant of any of the rights enumerated in the guilty plea statute results in an invalid waiver of rights. And second, all of the items included in the guilty plea statute are of equal weight. All are of 'constitutional dimension'.

So, when the legislature passed the amendment saying, '[a]ny variance from the requirements of this section that does not violate a constitutional right of the defendant is not a basis for setting aside a plea of guilty', what effect did it have? Who is the keeper of...