State v. Dossett

• Decision Date: 26 October 1977
• Docket Number: No. 1-477A75,1-477A75
• Citation: 174 Ind.App. 501,368 N.E.2d 259
• Parties: STATE of Indiana, Appellant (Plaintiff), v. Thomas Everett DOSSETT, Appellee (Defendant).
• Court: Indiana Appellate Court

Page 259

368 N.E.2d 259

174 Ind.App. 501

STATE of Indiana, Appellant (Plaintiff), v. Thomas Everett DOSSETT, Appellee (Defendant).

No. 1-477A75.

Court of Appeals of Indiana, First District.

Oct. 26, 1977.

Theo. L. Sendak, Atty. Gen., Daniel Lee Pflum, Deputy Atty. Gen., Indianapolis, for appellant.

William W. Gooden, Mount Vernon, for appellee.

ROBERTSON, Chief Judge.

CASE SUMMARY

The appellant-plaintiff, State of Indiana, appeals from the judgment of the trial court sustaining the appellee-defendant, Dossett's, motion for a judgment on the evidence on Count II of the information charging Dossett under Indiana's habitual offender statutes. IC 1971, 35-8-8-1 2 (Burns Code Ed.).

The State contends that the trial court erred by sustaining Dossett's motion for judgment on the evidence as to Count II. Pursuant to the habitual criminal statutes, after a person is convicted of a felony, the State is required to prove two prior felony convictions for which the defendant was sentenced and imprisoned. The State argues that before Dossett's motion could be granted there must have been a total lack of evidence upon some essential element of this offense.

We find that the State did sustain this burden, and therefore we reverse.

In support of the action of the trial court, Dossett argues that the trial court did not err when it found that one of his prior convictions had been obtained in violation of his constitutional rights, was void, and being invalid, could not be used to enhance his sentence. Dossett relies on Burgett v. Texas (1967), 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, wherein the Supreme Court found that the certified records of a prior Tennessee conviction, "on their face raise(d) a presumption that the petitioner was denied his right to counsel in the Tennessee proceeding and therefore that his conviction was void." The Supreme Court continued:

Presuming waiver of counsel from a silent record is impermissible. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526) is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.

The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial and we are unable to say that the instructions to disregard it made the constitutional error "harmless beyond a reasonable doubt" within the meaning of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

389 U.S. at 114-115, 88 S.Ct. at 261-262, 19 L.Ed. at 324-325. Burgett had been charged under the Texas recidivist statute, and the allegations of four previous convictions, included in the indictment, were read to the jury at the commencement of the trial. He objected to the introduction of two records of one of the convictions on the grounds that in the first record, the judgment on its face showed that he had not been represented by counsel in violation of the Fourteenth Amendment, and that in the second record there was no indication counsel had been waived. The trial court struck from evidence the first record. Later, the court instructed the jury not to consider the prior offenses for any purpose whatsoever. Despite the fact that Burgett did not suffer the enhanced punishment provided by the Texas recidivist statute, the Supreme Court held that admission of the constitutionally infirm conviction was inherently prejudicial.

We agree with Dossett that a determination that the guilty plea was knowingly and voluntarily made may not be inferred from a silent record, and that such a record would result in a constitutionally infirm conviction. In Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, the Supreme Court stated:

It was error, plain on the face of the record, for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary.

A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.

In Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, we dealt with a problem of waiver of the right to counsel, a Sixth Amendment right. We held: "Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver."

We think that the same standard must be applied to determining whether a guilty plea is voluntarily made. For, as we have said, a plea of guilty is more than an admission of conduct; it is a conviction. Ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality. The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards. Douglas v. Alabama, 380 U.S. 415, 422, 85 S.Ct. 1074, 1078, 13 L.Ed.2d 934.

Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Third, is the right to confront one's accusers. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. We cannot presume a waiver of these three important federal rights from a silent record.

395 U.S. at 242-243, 89 S.Ct. at 1711-1712, 23 L.Ed.2d at 279. (Emphasis added).

Our Indiana Supreme Court, after noting the federal criminal procedural rule requiring a guilty plea record, observed:

This reasoning is persuasive and was given constitutional dimension in Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, where the U.S. Supreme Court held that in order to satisfy the constitutional requirements of due process, the record of the entry of the plea must demonstrate a knowing and intelligent waiver by the accused of his constitutional rights. Since the Boykin case, presuming waiver from a silent record in a guilty plea case is impermissible.

Brimhall v. State (1972), 258 Ind. 153, 164-165, 279 N.E.2d 557, 564. Finally, this court has interpreted the minimum requirements of Boykin to necessitate that an individual admonishment as to each of the accused's rights as enumerated in Boykin be revealed in the record. Bonner v. State (1973), 156 Ind.App. 513, 297 N.E.2d 867; see: Williams v. State (1975), Ind., 325 N.E.2d 827; Anderson v. State (1975), Ind., 335 N.E.2d 225.

Dossett was sentenced on his guilty plea on March 11, 1971. Case law prior to such plea required the trial court to make a record sufficient "to establish that (accused's) constitutional rights were protected or that he freely and understandingly entered his plea of guilty." Thacker v. State (1970), 254 Ind. 665, 669, 262 N.E.2d 189, 191; see also: Dube v. State (1971), 257 Ind. 398, 275 N.E.2d 7; Goff v. State (1960), 240 Ind. 267, 163 N.E.2d 888; Dearing v. State (1951), 229 Ind. 131, 95 N.E.2d 832; Campbell v. State (1951), 229 Ind. 198, 96 N.E.2d 876.

Because the record must reveal that he knowingly and intelligently waived his constitutional rights, failure to provide such a record would be error and would mandate reversal. Bonner, supra.

Although failure of the trial court to preserve a record demonstrating a constitutionally valid waiver requires reversal of the guilty plea conviction in Indiana, the failure to accord the defendant constitutional rights does not render the judgment void or subject to collateral attack. Dowd v. Superior Court of La Porte County (1941), 219 Ind. 17, 36 N.E.2d 765; Dowd v. Anderson (1942), 220 Ind. 6, 40 N.E.2d 658.

Generally, a party to a judgment may not collaterally attack the final judgment of a court of competent jurisdiction when the record is regular on its face. Dowd v. Anderson, supra; Winstead v. Koonce (1961), 241 Ind. 440, 172 N.E.2d 859. Such judgment is entitled to full faith and credit by courts of coordinate jurisdiction until set aside, either by appeal or by direct proceeding brought in the court rendering it for that purpose. Steenburg v. Kyle (1919), 188 Ind. 26, 121 N.E. 537; Lane v. Hobbs (1965), 246 Ind. 640, 208 N.E.2d 182, cert. denied, 383 U.S. 967, 86 S.Ct. 1272, 16 L.Ed.2d 308. Where a court has jurisdiction of the subject matter and of the person of the defendant, and it renders a judgment not in excess of the jurisdiction or power of the court, no judgment it may render within the issues is void, however erroneous it may be. City of Huntington v. Northern Indiana Power Co. (1937), 211 Ind. 502, 5 N.E.2d 889; Koepke v. Hill (1901), 157 Ind. 172, 60 N.E. 1039 ("These were all questions of law and if the court had jurisdiction to decide them correctly, it likewise had jurisdiction to decide them erroneously," 157 Ind. at 178, 60 N.E. at 1041); Smith v. Hess (1884), 91 Ind. 424.

It follows that only errors affecting jurisdiction or the power or authority of the trial court to enter a judgment may be the basis of a collateral attack. Lehman v. Montgomery (1954), 233 Ind. 393, 120 N.E.2d 172; ¹ Dowd v. Todd (1962), 243 Ind. 232, 184 N.E.2d 4; Bailey v. Lane (1966), 247 Ind. 193, 214 N.E.2d 174. In Dowd v. Anderson, 220 Ind. at 7-8, 40 N.E.2d at 658-659:

(Anderson) was held on a...