Tyree v. State

• Decision Date: 01 February 1988
• Docket Number: No. 27A02-8606-CR-00220,27A02-8606-CR-00220
• Citation: 518 N.E.2d 814
• Parties: Marvin Glen TYREE, Appellant (Defendant Below), v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 814

518 N.E.2d 814

Marvin Glen TYREE, Appellant (Defendant Below), v. STATE of Indiana, Appellee.

No. 27A02-8606-CR-00220.

Court of Appeals of Indiana Second District.

Feb. 1, 1988.

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Marvin Glen Tyree (Tyree) appeals a jury conviction of burglary, a class B felony, and theft, a class D felony.

We reverse.

Tyree originally entered into a plea agreement whereby he agreed to enter a plea of guilty to the charge of burglary in exchange for the State's recommendation of an eight-year sentence and dismissal of the theft charge. At the guilty plea hearing, the following exchange took place between the court and Tyree.

"Q. Tell me what you did to make you guilty.

A. I was there when--when it happened.

Q. You were there when it happened. What does that mean?

A. Guilty.

Q. Well, tell me what went on, Glen.

A. Drove up to the house and parked down the street. Took the window out. And went in.

Q. Did you go in?

A. Yes.

Q. What'd you go in for? What was your intent when you went in?

A. Intent to robbery I guess.

Q. Did you actually take anything?

A. Yes, sir.

Q. What'd you take?

A. A T.V. set and a kerosene heater.

Q. Okay." Record at 225, 226.

The court accepted Tyree's plea. Before being sentenced, Tyree moved to withdraw his guilty plea, alleging that it was unknowingly and involuntarily entered. Tyree claimed that he had entered the plea only at the insistence of his attorney and that he was innocent of the charged offenses. The trial court permitted Tyree to withdraw the plea. At the subsequent trial, the trial court allowed the State to impeach Tyree's testimony with the statements forming the factual basis for the plea made at the guilty plea hearing. The jury found Tyree guilty and he was sentenced to concurrent sentences of ten and two years.

Tyree first argues that the trial court erred by allowing the State to use his testimony at the guilty plea hearing for impeachment purposes. Tyree contends that the use of testimony given in connection with a subsequently withdrawn guilty plea is a violation of I.C. 35-35-1-4(d) (Burns Code Ed.Repl.1985), which provides as follows:

"A plea of guilty, or guilty but mentally ill at the time of the crime, which is not accepted by the court or is withdrawn shall not be admissible as evidence in any criminal, civil, or administrative proceeding."

The State argues that the prosecutor did not present evidence of the guilty plea. The State points out that while statements made by Tyree at the guilty plea hearing were offered into evidence, the prosecutor took care not to mention the fact that Tyree had previously pled guilty.

In order to resolve this issue, we are required to determine whether statements providing a factual basis for a guilty plea constitute a part of the guilty plea. In short, we must define "plea of guilty" for the purposes of I.C. 35-35-1-4(d). Our Supreme Court has held that "[a] guilty plea is a conviction; nothing remains but to give judgment and determine punishment." McKrill v. State (1983) Ind., 452 N.E.2d 946, 949. A conviction requires proof that the defendant committed the elements of the charged offense. Phillips v. State (1973) 260 Ind. 321, 295 N.E.2d 592. Similarly, a guilty plea requires the establishment of a factual basis supporting the plea. I.C. 35-35-1-3(b) (Burns Code Ed.Repl.1985). There can be no conviction without proof and there can be no guilty plea without a factual basis. Accordingly, the establishment of a factual basis is inseparable from the actual entry of the plea of guilty. Because of this fact, the statements made by the defendant at the guilty plea hearing establishing the factual basis for the plea are no more admissible than the fact that the defendant pled guilty.

Our holding is buttressed by substantial authority from other jurisdictions which have considered the issue and from legal scholars. In People v. George (1976) 69 Mich.App. 403, 245 N.W.2d 65, the Court of Appeals of Michigan addressed an argument similar to that proffered by the State in this case.

"We view the prosecutor's distinction as one without any real significance. Admittedly, introducing only the factual statement of the defendant into evidence infringes the defendant's right to have his guilty plea vacated less than introducing the fact of the prior plea itself. But as the Minnesota Supreme Court has noted, 'it can be said that no one familiar with courtrooms could believe that the jury did not understand that a plea of guilty had been entered.' State v. Hook, 174 Minn. 590, 592, 219 N.W. 926, 927 (1928). We hasten to add that we do not think that jurors today are so naive as to think that a criminal defendant walks into a courtroom and answers questions by a judge with a court reporter present without pleading guilty.

Furthermore, when a guilty plea is vacated it is a nullity. People v. Street, supra, 288 Mich. at 408, 284 N.W. 926 [ (1939) ]; Kercheval v. United States, supra, 274 U.S. at 224, 47 S.Ct. 582 [at 583, 71 L.Ed. 1009 (1927) ]. That means that everything that transpired pursuant to the guilty plea is a nullity. We find it impossible to separate the plea taking into valid and invalid parts." 245 N.W.2d at 67.

In Sanders v. State (1983) Miss., 435 So.2d 1177, the Supreme Court of Mississippi dealt with a situation in which a portion of a form entitled "Confession of Guilt" entered in connection with a subsequently withdrawn guilty plea had been offered into evidence at the defendant's trial. The Mississippi rule governing the admissibility of withdrawn guilty pleas was virtually identical to the Indiana statute. The Mississippi court held that the rule precluded "statements made with and inextricably bound up with a plea offered but never finally accepted." Id. at 1180. The court noted that the confession of guilt form, like the factual basis in Indiana, was required before a guilty plea could be accepted by the trial court. "In this setting the confession of guilt and plea of guilty are in the eyes of the law indistinguishable." Id. at 1179, n. 1.

In State v. Danneman (1986) Mo.App., 708 S.W.2d 741, the Missouri Court of Appeals considered a case with facts substantially similar to those present in this case. The court held that "[t]he use of the withdrawn plea of guilty, and statements made in connection with it, constitutes reversible error...." Id. at 743 (emphasis supplied). Like the Mississippi rule in Sanders, supra, the Missouri rule regarding the use of withdrawal of guilty pleas was virtually identical to I.C. 35-35-1-4(d).

Additionally, I.C. 35-35-1-4(d) was adopted from the American Bar Association's Minimum Standards on Pleas of Guilty. Ind.Code of Crim.Proc. Sec. 35-4.1-1-6, Criminal Law Study Commission Comments (Proposed Final Draft 1972 at 182). The A.B.A. standard has since been amended to read as follows:

"A plea of guilty or nolo contendere which is not accepted or has been withdrawn, and any statements made by the defendant in connection with entering such a plea of guilty or nolo contendere, should not be received against the defendant in any criminal or civil action or administrative proceedings, except that such statements may be admitted against a defendant in a criminal proceeding for perjury or false statement if the statements were made by the defendant under oath, on the record, and in the presence of counsel." Standards Relating to Pleas of Guilty Sec. 14-2.2 (1980). ¹

The added phrase "any statement made by the defendant in connection with such a plea of guilty ..." is explained in the commentary to the standard: "To permit the use of such statements for impeachment (or, even worse, as substantive evidence) would be to undermine the allowance of withdrawal of the plea and would place the accused in a dilemma inconsistent with the decision to award the accused a new trial." Id. commentary at 62. ² The changes in the A.B.A. standard should be regarded as clarifications rather than additions. The history of the standard points out that "[i]f the plea itself is not admissible, then the defendant's statements made while entering the plea should be excluded as well." Id. history of standard at 59. Such a result was clearly intended in the original standard from which the Indiana statute was adapted.

Yet another reason for prohibiting the use of such statements exists. It is based upon the defendant's privilege against self-incrimination. As Professors LaFave and Israel note in their hornbook on criminal procedure:

"[T]he compelling of such information from the defendant is justified by the fact that the plea constitutes a waiver of the privilege against self-incrimination as to the offense to which the plea was entered, a justification which no longer exists when the plea has been overturned. 'Since the existence of the plea allows such compulsion, the plea's withdrawal arguably results in the defendant having been compelled to incriminate himself and, therefore, the statements should be excluded.' " 2 LaFave & Israel, Criminal Procedure Sec. 20.5, at 675 (1984).

We find the authorities cited above compelling. While there is some authority suggesting that statements made at the guilty plea hearing should be admissible for impeachment, ³ we are convinced that such use of the statements is inconsistent with the defendant's right to withdraw his guilty plea. The rationale supporting the inadmissibility of such statements is especially persuasive in cases in which, as here, the guilty plea has been withdrawn on the grounds that it was involuntarily entered. See Mincey v. Arizona (1978) 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290. Accordingly, we hold that when a defendant has withdrawn a plea of guilty, statements forming the factual basis for the plea made...