Vonderschmidt v. State

• Citation: 81 N.E.2d 782,226 Ind. 439
• Decision Date: 28 October 1948
• Docket Number: 28406.
• Parties: VONDERSCHMIDT v. STATE.
• Court: Supreme Court of Indiana

81 N.E.2d 782

226 Ind. 439

VONDERSCHMIDT v. STATE.

No. 28406.

Supreme Court of Indiana

October 28, 1948

Appeal from Vigo Circuit Court.

James C. Cooper, Public Defender, of Rushville, for appellant.

Cleon H. Foust, Atty. Gen., Merl M. Wall, Deputy Atty. Gen. and Martin L. Pigg, of Sullivan, for appellee.

GILKISON Judge.

This is an appeal from a judgment of the Vigo Circuit Court denying appellant's petition for writ of error coram nobis.

The record before us shows that on June 6, 1944, appellant was charged, by affidavit, in that court, with having robbed one John Trimpe of $1.41 by violence and putting him in fear, on that date. On the same date a warrant was issued for appellant's arrest, and the sheriff's return shows he was arrested and taken in custody on the same date. He was presented in court in custody of the sheriff duly arraigned, 'properly advised of his constitutional rights', 'stated to the court that he did not desire an attorney' pleaded guilty to robbery as charged, and was sentenced to the Indiana State Prison for not less than ten nor more than twenty-five years, all on the same date between 11:30 A.M. and 3:30 P.M.

At the next succeeding term of the court on September 5, following appellant filed his verified petition for writ of error coram nobis, asking that the judgment be vacated, and he be allowed to withdraw the plea of guilty, to enter a plea of not guilty, and to be tried regularly on the charge.

In this petition he avers that at the time of his arraignment:

(1) He was intoxicated and confused.

(2) He was not allowed time to prepare his defense.

(3) He did not understand the charges against him and did not competently waive his constitutional rights.

(4) He was without counsel.

(5) He was denied due process of law.

By its affirmative answer the state alleged that at his arraignment appellant was informed of his constitutional rights, waived his right to have counsel advise him, and freely entered his plea of guilty. That appellant was not intoxicated at the time of his arraignment.

Appellant's evidence is that he had been drinking heavily and continuously for about a week before the date of his arraignment. His mind was hazy and confused. He does not remember whether he was in court or not. He remembers talking with someone, but does not know if it was police officer Wimer. He thinks some police officer gave him some whiskey. He has no recollection of what the judge said to him. When he got to the prison he was treated by the prison doctor for alcoholism.

State's evidence showed that at the arraignment, he showed the effects of liquor, was highly nervous, and had the smell of liquor. Had the appearance of a man who had been drinking over a period--had the shakes. Officer Wimer said he was not intoxicated, but he had been drinking. He was nervous, he could talk but he had the shakes.

An officer who was sent up to appellant's room found a bottle of grenadine, two or three empty whiskey bottles and a pint bottle with whiskey in it. Appellant asked, and was allowed to drink this whiskey. The officers thought his condition was such that he needed it.

With this record before it the Vigo Circuit Court found against the petitioner. The issue before us is to determine whether or not this finding and judgment is erroneous.

The pertinent facts in the case are not disputed and it is our duty to apply the law to these facts. Atkinson v. States, 1920, 190 Ind. 1, 6, 128 N.E. 433.

This court has often expressed disapproval of trial courts receiving pleas of guilty from defendants charged with crime, who are not represented by competent counsel, until after reasonable inquiry into the facts to discover whether a plea of guilty is entered into freely and understandingly. Cassidy v. State, 1929, 201 Ind. 311, 321, 168 N.E. 18, 66 A.L.R. 622; Rhodes v. State, 1927, 199 Ind. 183, 194, 156 N.E. 389.

A plea of guilty should be entirely voluntary and made by one competent to know the consequences thereof and the trial court should satisfy itself of these facts before receiving it. Cassidy v. State, supra; Irwin v. State, 1942, 220, Ind. 228, 238, 41 N.E.2d 809; Harris and May v. State, 1931, 203 Ind. 505, 519, 181 N.E. 33; Mislik v. State, 1915, 184 Ind. 72, 76, 110 N.E. 551; Myers v. State, 1888, 115 Ind. 554, 558, 18 N.E. 42.

The rule is that a petition to vacate a judgment rendered upon a plea of guilty, and permit a withdrawal of the plea is addressed to the sound discretion of the trial court. East v. State, 1929, 89 Ind.App. 701, 704, 168 N.E. 28; Harris and May v. State, supra; Capps v. State, 1928, 200 Ind. 4, 6, 161 N.E. 6; Doench v. State, 1929, 89 Ind.App. 52, 54, 165 N.E. 777; Atkinson v. State, supra; Cassidy v. State, supra; Myers v. State, supra. 'But this rule cannot prevail where the defendant has been denied his rights under sections 13 and 14 of article 1 of the Constitution of Indiana.' Cassidy v. State, supra, 201 Ind. at page 319, 168 N.E. at page 21, 66 A.L.R. 622; Kuhn v. State, 1943, 222 Ind. 179, 193, 52 N.E.2d 491; Wilson v. State, 1943, 222 Ind. 63, 78, 51 N.E.2d 848, 854.

In the Wilson case last cited this court said:

'* * * But in a case involving an appellant's life or liberty we may not ignore prejudicial errors affecting his constitutional rights when, as here, they are clearly and adequately presented in appellant's brief with supporting bi...