Turman v. State, No. 179S11

Docket NºNo. 179S11
Citation271 Ind. 332, 392 N.E.2d 483
Case DateAugust 01, 1979

Page 483

392 N.E.2d 483
271 Ind. 332
Vernon C. TURMAN, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 179S11.
Supreme Court of Indiana.
Aug. 1, 1979.

[271 Ind. 333]

Page 484

Harriette Bailey Conn, Public Defender, Ihor N. Boyko, Deputy Public Defender, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Gordon E. White, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The petitioner is before this Court appealing from the denial of his petition for relief under Post-Conviction Relief, Rule 1. The petitioner had previously entered a guilty plea to rape, Ind.Code § 35-13-4-3 (Burns 1975), and was sentenced to a determinate term of fifteen years. He now appeals raising the following issue:

Whether the trial court erred in determining that the guilty plea record was sufficient to support a finding that the guilty plea was knowingly, intelligently and voluntarily entered.

The facts from the record indicate that the petitioner, who was represented by counsel, entered into a plea agreement with the state. Said agreement was filed with the trial court on March 18, 1976. The plea agreement, signed by defendant, detailed certain rights which defendant waived by virtue of his guilty plea. At the time the plea agreement[271 Ind. 334] was filed, the trial judge conducted an examination of petitioner regarding certain of petitioner's rights and determining petitioner's understanding of the charge against him.

Petitioner contends that his guilty plea was not voluntarily entered. In considering the voluntariness of a guilty plea we start with the standard that the record of the guilty plea proceeding must demonstrate that the defendant was advised of his constitutional rights and knowingly and voluntarily waived them. Boykin v. Alabama, (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Our Court has consistently held that the record must provide a sufficient

Page 485

basis for the conclusion that the defendant was meaningfully informed of the specific rights enumerated in Boykin. Laird v. State, (1979) Ind., 385 N.E.2d 452; Williams v. State, (1975) 263 Ind. 165, 325 N.E.2d 827. We now hold that the record must also provide a sufficient basis for the conclusion that the defendant was meaningfully informed of the rights and law detailed in West's Ann.Ind.Code § 35-4.1-1-3 (1978).

That statute provides:

"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;

"(d) informing him of the maximum possible sentence and minimum sentence for the offense charged and of any possible increased sentence by reason of the fact of a prior conviction or convictions, and of any possibility of the imposition of consecutive sentences;

[271 Ind. 335] "(e) informing him that the court is not a party to any agreement which may have been made between the prosecutor and the defense and is not bound thereby."

The rule of Boykin, supra, and West's Ann.Ind.Code § 35-4.1-1-3 (1978) have undergone considerable interpretation by this Court of late. In Williams v. State, Supra, the record made at the post-conviction hearing established that the petitioner made a knowing and intelligent waiver of his rights. The Court held that a "defendant's guilty plea is not tainted merely because the trial court fails to repeat defendant's rights for him . . . ." 263 Ind. at 176, 325 N.E.2d at 833. The Court then emphasized that the record must provide a basis for concluding that the defendant was meaningfully informed of his Boykin rights. The Williams case involved a guilty plea entered prior to the effective date of the statute. In a footnote, the Court noted that a different result might be called for under the statute.

In Neeley v. State, (1978) Ind., 382 N.E.2d 714, this Court held that, while a strict following of West's Ann.Ind.Code § 35-4.1-1-3 (1978) would be the preferred practice, this Court will look to the entire record to determine if a defendant was fully advised of and understood his constitutional rights. In applying the rule of Neeley, this Court has held that when the record shows that a plea agreement was entered into which adequately informed the defendant of his constitutional rights, reversal is not required merely because the trial judge inadvertently failed to orally inquire whether appellant understood his right to compulsory process. Clark v. State, (1978) Ind., 383 N.E.2d 321.

With the Williams, Neeley and Clark cases in mind we now review the entire record in the case at bar as it relates to petitioner's guilty plea. The United States Supreme Court in Boykin v. Alabama, Supra, held that a defendant must be advised of his privilege against self-incrimination, his right to trial by jury and his right to confront his accusers. All of these rights are specifically enumerated in the Indiana statute. West's Ann.Ind.Code § 35-4.1-1-3(c) (1978) provides that the court shall inform the defendant

"that by his plea of guilty he waives his rights to a public and speedy trial by jury, to face the witnesses against him . . . and to require [271 Ind. 336] the state to prove his guilt beyond a reasonable doubt at a trial at which the defendant may not

Page 486

be compelled to testify against himself . . ."

At the time the trial court accepted petitioner's guilty plea and sentenced petitioner, the court inquired into petitioner's understanding of his rights. The court addressed the petitioner as follows:

Q. "All right. Now, before I can accept your plea I want to ask you if you understand certain points and I believe, Mr. Katz, you have gone over these points previously with the Defendant?"

BY MR. KATZ: "Yes, sir."

BY THE COURT:

Q. "The fact that you waive your right to a speedy and public trial and impartial jury, do you understand that?"

A. "Yes."

Furthermore, the plea agreement, signed by petitioner included the following advisements of rights he would have if he pleaded not guilty:

"6. (a) The right to a speedy and public trial by an impartial jury in the county in which each offense is alleged to have been committed . . .;

and

"7. That the defendant further understands that if he enters a plea of guilty he thereby waives his right to a trial by jury."

The judge advised petitioner "that you waive your right to confront all the witnesses against you at the trial" and the plea agreement provided that if petitioner pleaded not guilty he would have "the right to confront all witnesses against him at time of trial."

With regard to petitioner's privilege against self-incrimination, the record is somewhat muddled. The plea agreement informed the petitioner that he had the "right Not to testify without prejudice . . . ." (Emphasis added.) The judge told petitioner, "you waive the right To testify without prejudice." (Emphasis added.) Therefore, the record displays that the judge incorrectly stated the law with regard to petitioner's privilege against self-incrimination.

The Indiana statute provides that the trial court shall determine that [271 Ind. 337] the defendant understands the nature of the charge against him. West's Ann.Ind.Code § 35-4.1-1-3(a) (1978). The trial judge asked defendant:

Q. "Have you gone over the plea agreement with your counsel and do you understand the charges that have been filed against you and the consequences of your pleading guilty to the felony, count two, rape?"

A. "Yes."

The plea agreement contained a more elaborate basis for determining petitioner's understanding. The agreement provided that petitioner and the prosecutor agreed and stipulated to the following:

"1. That the defendant is charged in the within cause by information with having on the 1st day of November, 1975, committed the following crime(s): Count I, KIDNAPPING, I.C.1971, 35-1-55-1; Ind.Stat.Ann., §...

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65 practice notes
  • Barfell v. State, No. 3-877
    • United States
    • Indiana Court of Appeals of Indiana
    • December 20, 1979
    ...accept a plea of guilty . . . without first addressing the defendant and . . . " is mandatory in nature. Turman v. State (1979), Ind., 392 N.E.2d 483, 488. The trial court thus erred when it failed to inform Barfell of the State's standard of proof in the event he opted to proceed to trial.......
  • Davis v. State, No. 581S145
    • United States
    • Indiana Supreme Court of Indiana
    • April 13, 1983
    ...a preponderance of the evidence at the post-conviction relief Page 1320 proceeding. Ind.R.P.C. 1, Sec. 5; Turman v. State, (1979) Ind., 392 N.E.2d 483. In our review of the denial of a petition for post-conviction relief, this Court does not weigh the evidence or judge the credibility of wi......
  • Martin v. State, No. 785S274
    • United States
    • Indiana Supreme Court of Indiana
    • July 10, 1985
    ...to the entire record to determine if petitioner was fully advised of and understood his constitutional rights. Cf. Turman v. State, (1979) 271 Ind. 332, 392 N.E.2d "Our holding in Williams was a departure from earlier cases, see, e.g., Austin v. State, (1984) Ind., 466 N.E.2d 445, on rehear......
  • Early v. State, No. 1181S316
    • United States
    • Indiana Supreme Court of Indiana
    • December 22, 1982
    ...N.E.2d 780, 782; German v. State, (1981) Ind., 428 N.E.2d 234 (Givan, C.J., and Pivarnik, J., dissenting); Turman v. State, (1979) Ind., 392 N.E.2d 483. See also, Bullock v. State, (1981) Ind.App., 406 N.E.2d 1220; Barfell v. State, (1979) Ind.App., 399 N.E.2d The affirmative statutory duty......
  • Request a trial to view additional results
65 cases
  • Barfell v. State, No. 3-877
    • United States
    • Indiana Court of Appeals of Indiana
    • December 20, 1979
    ...accept a plea of guilty . . . without first addressing the defendant and . . . " is mandatory in nature. Turman v. State (1979), Ind., 392 N.E.2d 483, 488. The trial court thus erred when it failed to inform Barfell of the State's standard of proof in the event he opted to proceed to trial.......
  • Davis v. State, No. 581S145
    • United States
    • Indiana Supreme Court of Indiana
    • April 13, 1983
    ...a preponderance of the evidence at the post-conviction relief Page 1320 proceeding. Ind.R.P.C. 1, Sec. 5; Turman v. State, (1979) Ind., 392 N.E.2d 483. In our review of the denial of a petition for post-conviction relief, this Court does not weigh the evidence or judge the credibility of wi......
  • Martin v. State, No. 785S274
    • United States
    • Indiana Supreme Court of Indiana
    • July 10, 1985
    ...to the entire record to determine if petitioner was fully advised of and understood his constitutional rights. Cf. Turman v. State, (1979) 271 Ind. 332, 392 N.E.2d "Our holding in Williams was a departure from earlier cases, see, e.g., Austin v. State, (1984) Ind., 466 N.E.2d 445, on rehear......
  • Early v. State, No. 1181S316
    • United States
    • Indiana Supreme Court of Indiana
    • December 22, 1982
    ...N.E.2d 780, 782; German v. State, (1981) Ind., 428 N.E.2d 234 (Givan, C.J., and Pivarnik, J., dissenting); Turman v. State, (1979) Ind., 392 N.E.2d 483. See also, Bullock v. State, (1981) Ind.App., 406 N.E.2d 1220; Barfell v. State, (1979) Ind.App., 399 N.E.2d The affirmative statutory duty......
  • Request a trial to view additional results

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