Silvers v. State, 285S66

• Citation: 499 N.E.2d 249
• Decision Date: 06 November 1986
• Docket Number: No. 285S66,285S66
• Parties: Dwayne B. SILVERS, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Supreme Court of Indiana

Page 249

499 N.E.2d 249

Dwayne B. SILVERS, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 285S66.

Supreme Court of Indiana.

Nov. 6, 1986.

Robert G. Andree, Jr., Bloomington, for appellant.

Linley E. Pearson, Atty. Gen., Marguerite M. Sweeney, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

Petitioner Dwayne B. Silvers pled guilty on Aug. 1, 1983, to one count of murder, Ind.Code Sec. 35-42-1-1 (Burns 1985 Repl.) and two counts of attempted murder, a class A felony, Ind.Code Sec. 35-42-1-1, Sec. 35-41-5-1 (Burns 1985 Repl.). Pursuant to his plea agreement with the State, Silvers was sentenced to concurrent terms of imprisonment of 35 years on each count. He appeals from the denial of his petition for post-conviction relief. His petition alleged that his guilty plea was not voluntary and intelligent, that the trial court did not find an adequate factual basis for the plea agreement and that the trial court improperly failed to set forth a statement of aggravating and mitigating circumstances explaining the sentence imposed.

Silvers claims his plea was involuntary and unintelligent because the trial court did not advise him of his rights at the time of his plea as required by Ind.Code Sec. 35-35-1-2 (Burns 1983 Supp.). He claims the trial court failed to inform him of the maximum and minimum possible sentences for the crimes charged, that prior convictions could increase his sentence, and that the court was not a party to, nor bound by, the plea agreement.

Silvers, as petitioner, bore the burden of establishing his grounds for relief by a preponderance of the evidence. Rule PC 1, Section 5, Ind. Rules of Procedure for Post-Conviction Remedies. The trial court which heard the post-conviction proceeding is the sole judge of the weight of the evidence and the credibility of witnesses. We reverse only when the evidence is without conflict and leads exclusively to a conclusion contrary to that reached by the post-conviction court. Young v. State (1984), Ind., 470 N.E.2d 70.

The transcript of the guilty plea hearing shows the following exchange:

THE COURT: The State of Indiana has a statute that says should you be found guilty of murder or attempted murder--they're class A felonies--the punishment should be a period of imprisonment for a fixed term of thirty years with not more than twenty years added for aggravating circumstances or not more than ten years substracted for mitigating circumstances. In addition you may be fined not more than $10,000. That's for the Class A felony. For the murder the statute provides a person who commits murder shall be imprisoned for a fixed term of forty years with not more than twenty years added for aggravating circumstances or not more than ten years substracted for mitigating circumstances. In addition you may be fined not more than $10,000. The punishment for a charge of murder, should you plead guilty or be found guilty, is not suspendable ... Do you understand the punishment provided by statute for each of the three offenses that have been charged against you?

MR. SILVERS: Yes, Your Honor.

THE COURT: Do you have any questions about that punishment?

MR. SILVERS: No, Your Honor.

THE COURT: There is a written recommendation. It has been executed by the prosecutor and if I accept a plea of guilty by you I am bound by the terms of that written recommendation....

The transcript of the guilty plea hearing demonstrates that the trial court advised Silvers in compliance with Ind.Code Sec. 35-35-1-2. Although the words "minimum" and "maximum" were not used, the trial court effectively advised Silvers of the range of sentences for the charged offenses. Ind.Code Sec. 35-35-1-2(a)(3). The trial court also conveyed to Silvers that it was not a party to nor bound by the terms of the plea agreement. Ind.Code Sec. 35-35-1-2(a)(4)(B). The objective of this statutory advisement is fairness to the accused. That goal may be achieved by portraying the court's role as independent of the plea agreement and by insuring that the acceptance of the plea and the sentence received are within the expectancies of the accused. DeVillez v. State (1981), 275 Ind. 263, 416 N.E.2d 846. The trial court created this perception of independence by noting that the document was "executed" by the prosecutor and that the court would be bound to its terms after accepting the plea.

The transcript does not contain any reference to the possibility of an increased sentence resulting from prior convictions, an advisement required by Ind.Code Sec. 35-35-1-2(a)(3). However, Silvers had no adult record and only two alcohol-related juvenile offenses. The court is not required to advise the accused of the effects of prior convictions unless those convictions bear directly upon the length of sentence imposed under the plea agreement. Creager v. State (1985), Ind., 479 N.E.2d 47. The plea agreement stated a specific mitigated sentence for murder and specific aggravated sentences for the attempted murders. The record does not indicate that the trial court even considered Silvers' record. Because Silvers' juvenile offenses did not affect the length of his prison terms under the plea agreement, the trial court was not required to advise him that prior convictions could increase his sentence.

Silvers also claims the trial court failed to make certain advisements not required by statute but which he claims are "essential to an informed judgment prior to entering a plea of guilty." Specifically, Silvers claims the trial court should have informed him that: (1) by his pleas of guilty he was admitting the truth of all facts alleged in the information; (2) upon the entry of his pleas of guilty, the court would proceed with judgment and sentence; (3) that he had a right to continued representation by an attorney and (4) that he was forfeiting his right to appeal a conviction obtained through trial and that he had the right to avail himself of post-conviction relief.

Though the prior guilty plea statute, Ind.Code Sec. 35-4.1-1-3, required that the defendant be advised he was admitting the facts alleged in the information, this advisement is not required by Ind.Code Sec. 35-35-1-2. In any event, during the guilty plea hearing, the prosecutor outlined the evidence which he would have introduced if the case had gone to trial. In response to the court's inquiry, Silvers stated that he did not dispute the facts as presented by the prosecutor. Where the defendant acknowledges the truth of a statement which contains the facts constituting the crimes charged, he cannot maintain in a post-conviction hearing that he was not advised that his guilty plea would be an admission to the truth of the facts contained in the information. Sims v. State (1981), Ind.App., 422 N.E.2d 436.

The trial court's failure to...