State v. Sanders, 49A02-9108-PC-324

• Decision Date: 27 February 1992
• Docket Number: No. 49A02-9108-PC-324,49A02-9108-PC-324
• Parties: STATE of Indiana, Appellant-Respondent, v. Fred C. SANDERS, Appellee-Petitioner. 1
• Court: Indiana Appellate Court

Page 166

587 N.E.2d 166

STATE of Indiana, Appellant-Respondent, v. Fred C. SANDERS, Appellee-Petitioner.

No. 49A02-9108-PC-324. ¹

Court of Appeals of Indiana First District.

Feb. 27, 1992.

Jeffrey Modisett, Marion County Prosecutor, A. Frank Gleaves III, Deputy Pros. Atty., Office of the Marion County Prosecutor, Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellant-respondent.

Douglass R. Shortridge, Indianapolis, for appellee-petitioner.

ROBERTSON, Judge.

The State of Indiana appeals from an order granting Fred C. Sanders' petition for post-conviction relief. Sanders pled guilty to involuntary manslaughter for killing a police officer by shooting him in the back with a shotgun. He was sentenced to seven (7) years imprisonment. Sanders convinced the post-conviction court that his guilty plea was not entered knowingly, voluntarily, and intelligently because he had not received real notice of the true nature of the crime of involuntary manslaughter and was under the mistaken impression that self-defense was not available as a defense to involuntary manslaughter. We affirm.

FACTS

The factual basis for Sanders' plea was established at the guilty plea hearing by the reading of an abbreviated version of the affidavit of probable cause into the record as follows:

Detective Norman Matthews swears or affirms that: On August 14th, 1988, at 21:19 a complainant called the Indianapolis Police Department in reference to a dog chasing neighborhood children. Officer Matthew Faber responded to the run and proceeded to [the complainant's address]. [The complainant] directed the officer to [the residence of Fred Carl Sanders, a white male, age 44] who the neighbors stated had three dogs that ran loose in the neighborhood chasing the children. Officer Faber approached the residence and confronted Mr. Sanders attempting to explain to him about the laws governing his dogs. At this time Mr. Sanders asked the Officer if he was under arrest to which the Officer stated 'No'. Mr. Sanders turned and headed towards the house. Officer Faber yelled for the subject to stop but he continued into the residence at which time the Officer radioed for assistance. Officer Faber was able to wedge his foot in the door in an attempt to further stop the subject from fleeing. Sgt. Kent Knapp arrived on the scene to assist and, observing the officer pushing on the door, went to help him. Shortly after, Officer Larry Fender arrived on the scene and joined the other two officers at the front door of that residence in an attempt to effect the arrest. Officers Robert Ward and Marcus Kennedy also arrived at the scene and decided to go to the back to see if they could gain entry. At one point, Sgt. Knapp was able to reach into Sanders was charged with murder. The State filed the necessary pleadings to seek the death penalty alleging that Sanders' crime was a capital offense as Officer Faber was a law enforcement officer murdered in the line of duty. The State later dropped this capital murder count. In addition to the murder charge, Sanders was charged with two counts of attempted murder and one count of resisting law enforcement with bodily injury.

the front door far enough to get a grip on the subject but was unable to hold him. The officers in front of the residence sprayed CS repellent and swung a night stick in an effort to make the subject back off the door. Again, the subject was grabbed by Officer Faber, when the door opened enough, but again lost his grip and balance, falling to the floor. At this time, the subject fled backwards, towards the bedroom, reappearing with a 12 gauge shotgun and fired one blast at the officer as he was getting off the floor, striking him in the upper back. Sgt. Knapp and Officer Fender drew their weapons and returned fire, striking the subject in the upper chest and legs. Officer Faber never unholstered his weapon. Officer Robert Ward suffered lacerations to his hand after he attempted to enter the rear of the residence although it is uncertain at [the time this affidavit was executed] whether it was from shotgun pellets or the window he had broken. Officer Matthew Faber [was in critical condition at the hospital for nine (9) days and then died on August 23, 1988]. An autopsy was performed by Dr. Clark which resulted in the cause of death to be respiratory failure due to the gunshot wound to the chest which Officer Matthew J. Faber suffered in this incident, all of which occurred In Indianapolis, Marion County, Indiana.

Much legal skirmishing followed resulting in the present seven (7) volume record filed in this appeal. On January 31, 1989, Sanders pled guilty to involuntary manslaughter as a lesser-included offense of murder in satisfaction of all the pending charges. He was never formally charged with involuntary manslaughter. On March 3, 1989, Sanders was sentenced to an enhanced term of seven (7) years imprisonment.

Additional facts are supplied as necessary.

DECISION

A post-conviction proceeding is a special quasi-civil remedy whereby a defendant can present an error which, for various reasons, was not available or known at the time of the original criminal proceedings. McHugh v. State (1984), Ind., 471 N.E.2d 293. Post-conviction proceedings are totally separate and distinct from the underlying criminal proceedings. Phillips v. State (1982), Ind., 441 N.E.2d 201. Post-conviction proceedings are governed by the rules and statutes applicable to civil proceedings and the petitioner has the burden of proving his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1 Sec. 5; State v. Clanton (1982), Ind.App., 443 N.E.2d 1204. The post-conviction court is the sole judge of the weight of the evidence and the credibility of the witnesses. Stewart v. State (1988), Ind., 517 N.E.2d 1230.

When the State appeals from an order granting post-conviction relief, the standard of review for a negative civil judgment does not apply. Id. Our review of civil cases tried by the court without a jury is governed by Ind. Trial Rule 52(A) which reads, in pertinent part, as follows:

On appeal of claims tried by the court without a jury or with an advisory jury, at law or in equity, the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

The judgment of a trial court sitting without a jury will only be set aside if it is clearly erroneous; that is, that the record contains no facts or inferences supporting the judgment. National Advertising Co. v. Wilson Auto Parts, Inc. (1991), Ind.App., 569 N.E.2d 997.

The guilty plea court shall not accept a plea of guilty without first determining that the defendant understands the nature of the charge against him. Ind.Code 35-35-1-2(a)(1). A guilty plea must be knowingly, voluntarily, and intelligently entered. Snowe v. State (1989), Ind.App., 533 N.E.2d 613. The trial court must determine on the record that the defendant knows and understands the nature of the charge against him. Id.

A guilty plea is not voluntary if the defendant fails to receive adequate notice of the offense to which he pleads guilty. Henderson v. Morgan (1976), 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108. The defendant's plea of guilty cannot be voluntary in the sense that it constitutes an intelligent admission that he committed the offense unless the defendant received "real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process." Id. at 645, 646, 96 S.Ct. at 2257-58.

The requirement that the guilty plea court determine that the defendant is aware of the true nature of the offense to which he pleads guilty need not be satisfied by an advisement by the court of the separate elements of the offense; however, that is the encouraged method of satisfying the requirement. DeVillez v. State (1981), 275 Ind. 263, 416 N.E.2d 846. An admission of facts which constitutes an admission of each element of the offense will satisfy the requirement that the defendant understands the true nature of the charge. Id. In DeVillez, the defendant was charged with accessory before the fact to first degree murder in the killing of her husband. She entered a plea of guilty to the lesser-included offense of second degree murder although she was never formally charged with second degree murder. Our supreme court held that the record of the guilty plea hearing clearly indicated that the defendant was on notice of the true nature of second degree murder as she had admitted in a written factual statement and admission that she had hired a man to murder her husband and had assisted him in doing so.

In Brooks v. State (1974), 161 Ind.App. 552, 316 N.E.2d 688, this court issued the ominous warning:

When, however, a defendant is not pleading guilty to the specific crime charged, but rather to a lesser included offense, it is unwise indeed for the court not to advise on the elements of the included offense. To do otherwise is to invite reversal in the event that the defendant thereafter alleges that he did not understand the nature of the offense to which he has pleaded, as opposed to the crime charged.

161 Ind.App. at 560, 316 N.E.2d at 693.

In the present case, Sanders pled guilty to involuntary manslaughter as a lesser-included offense of murder. It is well-established that involuntary manslaughter is considered to be a lesser-included offense of murder. Jewell v. State (1989), Ind., 539 N.E.2d 959. However, Sanders was never formally charged by information or otherwise with involuntary manslaughter.

At the guilty plea hearing, the statute defining involuntary manslaughter statute was read into the record as follows:

Pursuant to Indiana Code 35-42-1-4, entitled Involuntary Manslaughter, 'A person who kills another human being while committing or attempting to commit...