Turner v. State
| Decision Date | 26 March 1991 |
| Docket Number | No. 49A02-8911-PC-605,49A02-8911-PC-605 |
| Citation | 568 N.E.2d 1046 |
| Parties | Roy TURNER, Appellant (Petitioner Below), v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender of Ind., John Pinnow, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen. of Ind., Mary Dreyer, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Roy Turner (Turner) appeals the denial of his request for post-conviction relief. We reverse.
On September 17, 1965, a charge was filed against Turner in connection with the theft of a vehicle. On that same date, the Marion County Juvenile Court found that Turner was seventeen years old and charged with an offense that would be a felony if committed by an adult. On this basis, the Juvenile Court waived jurisdiction. On September 23, 1965, Turner was formally charged with theft in Marion County Criminal Court. Turner turned eighteen on October 18, 1965.
On December 22, 1965, Turner indicated his desire to plead guilty "as charged". Record at 32. The court advised Turner of his right to either a jury or bench trial. Following testimony from the owner of the stolen vehicle, the driver, the investigating officer, and the accused, the court accepted Turner's plea. He received a six-month sentence.
Turner's post-conviction relief petition, initially filed November 10, 1987, and amended March 30, 1989, challenged the voluntariness of his guilty plea as well as the effectiveness of his counsel. Following hearings conducted May 5 and June 16, 1989, the petition was denied. Turner's appeal presents five issues, one of which is dispositive: Whether the post-conviction court erred in denying relief because there was no factual basis for the plea.
Although Turner's plea was entered prior to 1973, the effective date of I.C. 35-4.1-1-4(b) (now at 35-35-1-3(b)), a factual basis as a requisite for the plea was recognized. See Harshman v. State (1953) 232 Ind. 618, 115 N.E.2d 501; Belcher v. State (1989) 2d Dist. Ind.App., 546 N.E.2d 1276, 1279, trans. denied. At the post-conviction proceedings, the transcript of Turner's guilty plea hearing was introduced. At that hearing, Kenneth Burton had testified that on the evening of September 12, 1965, he had driven his father's car to a bowling alley. Although he had left the vehicle unlocked, he had the ignition keys with him. Kenneth testified that he had parked the car at the bowling alley at approximately 8:30 P.M. and that when he returned about forty-five minutes later, the vehicle was missing. When asked by the prosecutor whether he had given Turner permission to use the car, Kenneth responded that he had "never seen him before". Record at 35. Raymond Burton testified as well. His testimony established that he was Kenneth's father and the owner of the vehicle.
Sergeant White, the investigating officer, testified at the guilty plea hearing that:
"On October 16th I interrogated Charles Roy Turner in regards to this said car and on this date he gave an oral statement which was reduced to writing." Record at 37.
The oral statement, introduced as Exhibit One, was apparently admitted without objection at the guilty plea hearing. The officer testified that the car was recovered by another officer and that he, himself, had never seen the car. He indicated that to his knowledge the car was not damaged. The officer's statement that Turner cooperated with him concluded his testimony.
Exhibit One was not presented at the post-conviction proceedings. Turner produced an affidavit of the court reporter responsible for preparing the transcript of the guilty plea proceedings, stating in pertinent part:
A paralegal with the Public Defender's office testified at the post-conviction proceedings that she had also attempted to locate the exhibit. In addition to contacting the court reporter, the paralegal sought to locate the document through the Indianapolis Police Department. At the post-conviction proceedings, the paralegal produced an affidavit from an officer in the Identification and Records Division of the Indianapolis Police Department who stated that he was unable to locate the file. The paralegal also tried to contact the officer who testified at the guilty plea hearing, but discovered that he had died in 1984.
In addition, the paralegal attempted to contact the person who was believed to be the court reporter responsible for the original transcription of the guilty plea hearing. The paralegal testified that although she was able to obtain an address for the reporter and did send a letter, she received no reply.
At the post-conviction proceedings, Turner also presented the testimony of the prosecutor in the original case. With regard to the missing exhibit, the former deputy prosecutor testified as follows:
The prosecutor testified repeatedly that he believed that Turner had been sentenced for "joy-riding", a misdemeanor. Turner also testified that he thought he was pleading guilty to joy-riding, although he acknowledged that the original charge was for theft. Turner stated that he would not have pled guilty to theft because he was not guilty of that act. He explained that another person picked him up in the car and that Turner had no knowledge that it had been stolen.
Without the statement, there is no evidence connecting Turner to the crime of theft. Turner's testimony at the guilty plea hearing does not identify the contents of the statement or otherwise establish the connection:
The State points to this testimony, as well as that of the police officer, as establishing a factual basis, citing Stockey v. State (1987) Ind., 508 N.E.2d 793, and Snowe v. State (1989) 4th Dist. Ind.App., 533 N.E.2d 613. The instant case is markedly different from Stockey, supra. In that case, the defendant admitted guilt and acknowledged and recounted the facts surrounding the crime.
The present case is more similar to that of Snowe, supra. In that case there was no indication from the record that a factual basis had been established. Conspicuously absent was evidence connecting the defendant to the crime charged. The court noted that there was no testimony by the defendant as to the facts underlying the charge, no reading of the charges coupled with an admission by the defendant, no reference to the probable cause affidavit, and no interchange between the trial judge and the defendant regarding the nature of the charge or the effect of the plea as an admission. The Fourth District concluded that there was an inadequate showing of a factual basis.
For the same reasons, we hold that the post-conviction court erred in concluding that a factual basis had been established sufficient to allow acceptance of Turner's guilty plea. As we have noted, nothing connecting Turner to the crime of theft was presented at the post-conviction hearing. The State points to Turner's acknowledgment of the truth of the investigating officer's testimony as establishing the factual basis. Yet nothing in that testimony related Turner to the crime of theft.
The State also proffers Turner's statement as establishing the factual basis. However, there is no probative evidence of record concerning the contents of that statement. The State asserts that "Sergeant White ... testified that after police recovered the car, he questioned Petitioner and Petitioner gave him a statement admitting that he had stolen the car." Brief of Appellee at 4. This is inaccurate; while the officer referred at the guilty plea hearing to a statement made by Turner, he did not describe the contents of the statement. He certainly never characterized it as an admission.
The State deems it dispositive that Turner's statement was admitted into evidence at the guilty plea hearing. This ignores the very important fact that the statement was not able to be produced for the post-conviction hearing. It is true that the loss or unavailability of this evidence does not, per se, require that Turner's plea be vacated. Zimmerman v. State (1982) Ind., 436 N.E.2d 1087. The petitioner must first attempt to reconstruct the record under Ind. Rules of Procedure, Appellate Rule 7.2(A)(3)(c) or demonstrate that the record cannot be reconstructed. Zimmerman, supra; Wilburn v. State (1986) 1st Dist. Ind.App., 499 N.E.2d 1173, trans. denied. Where the requisite showing is made, granting of post-conviction relief is appropriate. Wilburn, supra, 499 N.E.2d 1173, 1175. Here Turner's counsel made diligent efforts to reconstruct the record with regard to Exhibit One and sufficiently demonstrated that it could...
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Turner v. State
...It held that a factual basis had not been established to justify acceptance of Turner's guilty plea by the trial court. Turner v. State (1991), Ind.App., 568 N.E.2d 1046. The State seeks transfer, contending that the Court of Appeals misinterpreted the law on guilty pleas as it existed in 1......