Stoltz v. State, 53A04-9504-PC-146

Citation657 N.E.2d 188
Case DateNovember 14, 1995
CourtCourt of Appeals of Indiana

DARDEN, Judge.


Robert M. Stoltz appeals from the trial court's denial of his petition for post-conviction relief.

We affirm.


I. Whether Stoltz's guilty plea was voluntary.

II. Whether Stoltz was denied effective assistance of counsel.


On June 12, 1986, Stoltz pleaded guilty to operating a vehicle with a blood alcohol level greater than .10, a class D felony. At the guilty plea hearing, the trial court carefully advised Stoltz of the nature of the charges against him. Specifically, the trial court apprised Stoltz of the applicable punishment range, taking into consideration the fact that Stoltz had a previous conviction for operating while intoxicated within five years of the instant offense. The trial court also advised Stoltz that it could suspend his driver's license for a period of two years. Further, the trial court advised Stoltz that he was under no compulsion to plead guilty, that he was entitled to a speedy public trial by jury, that the State of Indiana had the burden of proving his guilt, that he had a right to remain silent and to confront and cross examine witnesses, and that he could compel the attendance of witnesses.

On September 8, 1986, the trial court accepted Stoltz's guilty plea and imposed a two year sentence, suspended all but five days of the sentence, and suspended Stoltz's driver's license for ninety days. On April 25, 1994, Stoltz filed a petition for post-conviction relief. After a November 28, 1994, hearing, the post-conviction court denied Stoltz's petition on December 29, 1994.


A petitioner bears the burden of establishing grounds for post-conviction relief by a preponderance of the evidence. Ind.Post-Conviction Rule 1(5); Weatherford v. State (1993), Ind., 619 N.E.2d 915, 917, reh'g denied. In reviewing the judgment of a post-conviction court, we consider only the evidence and reasonable inferences supporting its judgment. Id. The post-conviction court acts as the sole judge of the evidence and the credibility of witnesses. Id. Accordingly, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the trial court to prevail on appeal from a denial of post-conviction relief. Id.

I. Guilty Plea

Stoltz claims his guilty plea was not voluntarily given because the trial court did not specifically advise him that the instant conviction would result in the ten year suspension of his driver's license by the Bureau of Motor Vehicles (BMV) for being a habitual traffic violator. 1 Thus, he claims, the post-conviction court erred in denying his request for relief.

A petitioner who claims that his plea was involuntary and unintelligent must plead specific facts from which a finder of fact could conclude by a preponderance of the evidence that the trial court's failure to make a full inquiry in accordance with Ind.Code 35-35-1-2(a) rendered his decision involuntary or unintelligent. White v. State (1986), Ind., 497 N.E.2d 893, 905. I.C. 35-35-1-2 provides:

(a) The court shall not accept a plea of guilty or guilty but mentally ill at the time of the crime without first determining that the defendant:

(1) understands the nature of the charge against him;

(2) has been informed that by his plea he waives his rights to:

(A) a public and speedy trial by jury;

(B) confront and cross-examine the witnesses against him;

(C) have compulsory process for obtaining witnesses in his favor; and

(D) 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;

(3) has been informed of the maximum possible sentence and minimum sentence for the crime charged and any possible increased sentence by reason of the fact of a prior conviction or convictions, and any possibility of the imposition of consecutive sentences; and

(4) has been informed that if:

(A) there is a plea agreement as defined by IC 35-35-3-1; and

(B) the court accepts the plea;

the court is bound by the terms of the plea agreement.

(b) A defendant in a misdemeanor case may waive the rights under subsection (a) by signing a written waiver.

(c) 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.

(Emphasis added).

In Wright v. State (1986), Ind.App., 495 N.E.2d 804, reh'g denied, trans. denied, we addressed an argument similar to that advanced here by Stoltz. There, Defendant alleged his guilty plea was not entered knowingly, intelligently, and voluntarily because the trial court failed to advise him of license suspension ramifications before accepting his guilty plea. Thus, Defendant argued, the trial court did not inform him of all possible minimum and maximum sentences as required by I.C. 35-35-1-2(a)(3). We determined Defendant's claim had "no merit since the advisement of an administrative license suspension possibility is not required by I.C. 35-35-1-2, but instead is an ancillary matter...." Id. at 805.

More recently, in Allender v. State (1990), Ind.App., 560 N.E.2d 545, Defendant contended his guilty plea was not knowing, voluntary and intelligent because the trial court did not advise him that his driver's license could be suspended for ten years if the BMV determined him to be a habitual traffic offender. Noting that then Ind.Code 9-4-7-9 merely required the trial court to advise the Defendant that a record of his conviction would be forwarded to the BMV to become a part of Defendant's driving record, 2 we found:

Nothing in the statute requires the trial court to advise a defendant of the administrative action the Bureau may take. Further Allender does not assert that the advisement is constitutionally required and we can think of nothing to support such an assertion.

Id. at 546.

Nevertheless, Stoltz claims the trial court's failure to advise him concerning license suspension ramifications does, in fact, amount to a violation of his Fifth Amendment due process rights. Stoltz's claim is based upon the mandatory nature of then Ind.Code 9-12-2-1 (now Ind.Code 9-30-10-5) which provided in pertinent part:

(a) Whenever it appears from the records maintained in the bureau that a person's driving record brings him within the definition of an habitual violator under 9-12-1-4, the commissioner shall mail a notice to the person's last known address that informs the person that his driving privileges will be suspended in thirty (30) days because the person is an habitual violator according to the records of the bureau.

(b) Thirty (30) days after the commissioner has mailed a notice under this section, he shall suspend the person's driving privileges....

(Emphasis added). Thus, Stoltz notes, because he "automatically became an habitual traffic violator on the date of this [his third] conviction ... the ten (10) year driver's license suspension was a definite, immediate and automatic consequence of his plea of guilty." Brief of Appellant at 5. Therefore, "as a matter of Due Process, [the trial court] must advise him of all direct consequences of his guilty plea, which in this case includes the ten (10) year driver's license suspension." Appellant's Brief at 12.

In support of his contention, Stoltz directs our attention to federal case law, including Torrey v. Estelle (1988), 9th Cir., 842 F.2d 234, wherein Defendant claimed his Fifth Amendment due process rights were violated because the trial court failed to advise him at the time he pleaded guilty that he could be resentenced to state prison if he did not behave himself while in the custody of the Youth Authority. Referencing the standard enunciated by the Supreme Court in Brady v. United States (1970), 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747: a guilty plea is voluntary only if it is "entered by one fully aware of the direct consequences of his plea," Defendant claimed that his state prison sentence was clearly a direct consequence of his plea. In determining that Defendant's state prison sentence was actually a collateral consequence of his plea and, therefore, not violative of Defendant's right to due process, the 9th Circuit found:

The distinction between a direct and collateral consequence of a plea " 'turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment.' " George v. Black, 732 F.2d 108, 110 (8th Cir.1984) (quoting Cuthrell v. Director Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973)). Under this standard, direct consequences include a mandatory special parole term, United States v. Harris, 534 F.2d 141 (9th Cir.1976); ineligibility for parole, Munich v. United States, 337 F.2d 356, 361 (9th Cir.1964); and the maximum punishment provided by law, [U.S. ex rel.] Pebworth [v. Conte ], 489 F.2d at 267 [ (9th Cir.1974) ].

In contrast, collateral consequences include the possibility that sentences may run consecutively, United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir.), cert. denied, U.S. , 108 S.Ct. 107, 98 L.Ed.2d 66 (1987); the possibility of revocation of parole, Sanchez [v. United States ], 572 F.2d at 211 [ (9th Cir.1977) ]; potential deportation, Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir.), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976); civil tax liability, [United States v.] King, 618 F.2d at 553 [ (9th Cir.1980) ]; the likelihood of an undesirable military discharge, Redwine v. Zuckert, ...

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  • State v. Carney, 97-874
    • United States
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    ...Villa v. State, 456 A.2d 1229, 1231 (Del.1983) (license revocation is not a criminal penalty or punishment); Stoltz v. State, 657 N.E.2d 188, 192 (Ind.Ct.App.1995) (even though suspension of license was automatic upon plea of guilty to operating while intoxicated, it was a collateral conseq......
  • Clayton v. State, 79A04-9604-PC-146
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    ...assistance of counsel and its effect on the guilty plea. The dissent argues that summary denial is warranted under Stoltz v. State, 657 N.E.2d 188 (Ind.Ct.App.1995). In Stoltz, a panel of this court held that the defendant failed to establish ineffective assistance of counsel when he did no......
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    • December 12, 2006
    ...N.E.2d at 1000. A guilty plea is voluntary only if entered by one fully aware of the direct consequences of his plea. Stoltz v. State, 657 N.E.2d 188, 191 (Ind. Ct. App. 1995) (quoting Brady v. United States, 397 U.S. 742 (1970)). "A petitioner who claims that his plea was involuntary or un......
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    ...a full inquiry in accordance with Indiana Code section 35-35-1-2 rendered his decision involuntary or unintelligent. Stoltz v. State, 657 N.E.2d 188, 190 (Ind.Ct.App. 1995) (citing White v. State, 497 N.E.2d 893, 905 (Ind. 1986)). At the time Hook pleaded guilty, Indiana Code section 35-35-......
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