Sims v. State, No. 1-1280A375

• Docket Nº: No. 1-1280A375
• Citation: 422 N.E.2d 436
• Case Date: June 30, 1981
• Court: Court of Appeals of Indiana

Page 436

422 N.E.2d 436 Ronald SIMS, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee. No. 1-1280A375. Court of Appeals of Indiana, First District. June 30, 1981.

Page 437

Harriette Bailey Conn, Public Defender of Indiana, Melanie C. Conour, Deputy Public Defender, Indianapolis, for defendant-appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

NEAL, Presiding Judge.

This is an appeal by defendant-appellant Ronald Sims (Sims) from a judgment by the Vigo Circuit Court denying his petition for post-conviction relief. ¹

We affirm.

STATEMENT OF THE FACTS

On April 5, 1979, Sims was charged with burglary, a Class C felony. Initially, he entered a plea of not guilty, but on October 15, 1979, accompanied by his attorney, Sims informed the trial court he desired to withdraw his plea of not guilty and enter a plea of guilty as charged. Upon the insistence of the trial court, Sims signed a form document, namely an advisement of rights which contained an outline of a defendant's constitutional rights. The trial court neither accepted the guilty plea, nor advised Sims of his rights as required under Ind.Code 35-4.1-1-3 and Ind.Code 35-4.1-1-4, but rather took the plea under advisement and ordered a pre-sentence investigation report. The report was filed on November 5, 1979, and Sims appeared in court with his attorney on December 3, 1979, for the guilt plea hearing. Sims reaffirmed his guilty plea and the trial court engaged him in a lengthy colloquy relative to rights under the aforementioned statutes, at the conclusion of which Sims received a two year sentence. The sole issue of the P.C.R. 1 hearing questioned the adequacy of the trial court's compliance with Ind.Code 35-4.1-1-3 and Ind.Code 35-4.1-1-4.

ISSUES

Sims presents two issues for review which we have restated as follows:

I. Whether the trial court erred in failing to make special findings of facts as required by P.C.R. 1, § 6;

II. Whether the trial court erred in denying his P.C.R. 1 petition by concluding it had complied with Ind.Code 35-4.1-1-3 and Ind.Code 35-4.1-1-4 for the reasons that:

(A) The trial court read Sims his constitutional rights and then asked if he wished to waive those rights to which Sims did not respond;

(B) The trial court made no explanation of the nature of the charge as required by Ind.Code 35-4.1-1-3(a);

(C) The trial court did not conduct an adequate factual determination as required by Ind.Code 35-4.1-1-4(b);

(D) The trial court did not advise Sims that by entering a plea of guilty he was admitting the truth of the facts alleged in the information or the offense included thereunder, namely theft, as required by Ind.Code 35-4.1-1-3(b).

DISCUSSION AND DECISION

Issue I. P.C.R. 1, § 6

In post-conviction proceedings the burden of proof rests upon the petitioner to

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establish grounds for relief by a preponderance of the evidence. The judge hearing the petition is the sole judge of the weight of the evidence and the credibility of the witnesses. His decision will be reversed only where the evidence is without conflict and leads unerringly to a result not reached by the trial court. Laird v. State, (1979) Ind., 385 N.E.2d 452.

Ind.Code 35-4.1-1-3 provides in pertinent part:

"Defendant to be advised by court. The court shall not accept a plea of guilty from the defendant without first addressing the defendant and

(a) determining that he understands the nature of the charge against him;

(b) informing him that by his plea of guilty he is admitting the truth of all facts alleged in the indictment or information or to an offense included thereunder and that upon entry of such plea the court shall proceed with judgment and sentence;

(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(.)"

Ind.Code 35-4.1-1-4(b) provides:

"(b) The court shall not enter judgment upon a plea of guilty unless it is satisfied from its examination of the defendant that there is a factual basis for the plea."

As a general rule where the record discloses that the trial court, in accepting a guilty plea, did not comply with these sections the guilty plea will be set aside. Shelor v. State, (1979) Ind., 386 N.E.2d 690; Turman v. State, (1971) Ind., 392 N.E.2d 483; Collins v. State, (1979) Ind.App., 394 N.E.2d 211. We note that the facts in these cases reveal a complete absence of advice by...