Vanderberg v. State
| Decision Date | 11 May 1982 |
| Docket Number | No. 3-781A174,3-781A174 |
| Citation | 434 N.E.2d 936 |
| Parties | William Jack VANDERBERG, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender, Ihor N. Boyko, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Stephan E. Wolter, Deputy Atty. Gen., Indianapolis, for appellee.
William Jack VanDerberg appeals the trial court's denial of his petition for post-conviction relief under Ind.Rules of Procedure, Post-Conviction Rule 1. Issues raised in this appeal are:
(1) whether VanDerberg's guilty plea was knowingly, intelligently and voluntarily entered;
(2) whether a sufficient factual basis for the guilty plea was established; and
(3) whether VanDerberg was denied his right to the effective assistance of counsel.
VanDerberg was charged with possession of marijuana, a class D felony and with being an habitual offender. On October 4, 1979 the State filed a recommendation calling for a plea of guilty to possession of marijuana under 30 grams, a class A misdemeanor and the dismissal of the habitual offender count. Pursuant to the recommendation, VanDerberg would receive a suspended sentence of one year and sixty days in the county jail with probation to follow. The trial court reviewed VanDerberg's record, and, in light of VanDerberg's two prior felony convictions, determined that the State's recommendation should not be accepted until a hearing was conducted on VanDerberg's motion to suppress evidence. The recommendation was never accepted by the court.
On June 26, 1980 VanDerberg pled guilty to the possession charge. On July 9, 1980 VanDerberg, while pleading not guilty to the habitual count, admitted that he had been convicted of three prior felonies. VanDerberg was sentenced to the presumptive term of two years for the class D felony with an additional two years for aggravating circumstances. As aggravating circumstances, the trial court found two prior felony convictions. No finding was made with regard to the habitual offender count. VanDerberg thereafter filed his petition for post-conviction relief.
In a post-conviction proceeding the burden is upon the petitioner to establish his grounds for relief by a preponderance of the evidence. Ind.Rules of Procedure, Post-Conviction Rule 1, § 5. The judge hearing the petition is the sole judge of the weight of the evidence and the credibility of the witnesses. The trial court's decision will be set aside only where the evidence is without conflict and leads unerringly to a result other than that reached by the trial court. Lloyd v. State (1979), Ind., 383 N.E.2d 1048.
VanDerberg initially argues that his guilty plea was not knowingly, intelligently, and voluntarily entered due to the trial court's failure to inform him of any possible increased sentence by reason of the fact of his prior felony convictions pursuant to IC 1971, 35-4.1-1-3(d) (Burns 1979 Repl.). VanDerberg cites Bullock v. State (1980), Ind.App., 406 N.E.2d 1220 in support of his argument.
IC 1971, 35-4.1-1-3 provides:
"Plea of Guilty-Defendant 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;
(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."
Section 3(d) of the statute requires the court to inform a defendant of: 1) the maximum and minimum statutory sentences for the offense charged; 2) any possible increased sentence by reason of a prior conviction or convictions; and 3) any possibility of the imposition of consecutive sentences. The statute thus covers three general situations: 1) where a presumptive sentence may be decreased or increased because of mitigating or aggravating circumstances; 2) where a statutory maximum sentence for the offense charged may be increased further because of a prior conviction or convictions, e.g., driving while intoxicated IC 1971, 9-4-1-54 (1981 Burns Supp.) and habitual offender status; 1 and 3) where a defendant pleads guilty to multiple counts and such aggravating circumstances appear as to favor imposition of consecutive sentences.
In the present case, VanDerberg was informed that the presumptive sentence for a class D felony was two years, to which an additional two years could be imposed for aggravating circumstances. Contrary to VanDerberg's assertion, the trial court did not have to inform him that his prior convictions could result in the aggravated sentence. A trial court needs to discuss the prior convictions only when there is a possibility that the maximum sentence provided for in the individual sentencing statutes may be increased because of a prior conviction or convictions. Once the trial court informs a defendant of the maximum sentence for the offense charged, it fulfills its statutory obligation. Trial courts need not inform a defendant of the aggravating circumstances which could result in an increase to the presumptive sentence. To the extent that Bullock v. State, supra, holds otherwise, it misconstrues IC 1971, 35-4.1-1-3.
The record indicates that the trial court erred in failing to inform VanDerberg that because of his prior felony convictions, and the habitual offender count filed by the State, he was subject to an additional term of thirty years. The trial court did not enter a finding on the habitual offender charge, nor was VanDerberg sentenced on this count. VanDerberg has therefore failed to establish how he was prejudiced by the trial court's error. Reversible error does not exist absent prejudice to a defendant. Mitchell v. State (1979), Ind., 398 N.E.2d 1254. It should be noted however that although the trial court did not make a finding on the habitual offender count or sentence VanDerberg on the charge, it also did not dismiss the charge. It is apparent from the trial judge's statements at the sentencing hearing that his intent was to dismiss the habitual charge. This case is therefore remanded to the trial court for the purpose of entering an order dismissing the habitual count.
The next issues raised by VanDerberg concern the factual basis for his guilty plea....
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...decrease the presumptive sentence. In support of its position the State relies upon the Court of Appeals decision in VanDerberg v. State, (1982) Ind.App., 434 N.E.2d 936 (Trans. denied). In VanDerberg the appellate court held that "the trial court did not have to inform him [the Defendant] ......
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...requisite advisements about the penalty had not been made. See Brown v. State, (1983) Ind., 443 N.E.2d 316, 318; Vanderberg v. State, (1982) Ind.App., 434 N.E.2d 936, 938-39. Petitioner, completely unschooled in the law, could not have been expected to raise such an objection. Further, comp......