Wehner v. State, 03A04-9608-PC-307

• Citation: 684 N.E.2d 539
• Case Date: August 20, 1997
• Court: Court of Appeals of Indiana

Page 539

684 N.E.2d 539 Troy E. WEHNER, Appellant-Petitioner,
v.
STATE of Indiana, Appellee-Respondent. No. 03A04-9608-PC-307. Court of Appeals of Indiana. Aug. 20, 1997.

J. Andrew Woods, Loveall and Woods, Franklin, for appellant-petitioner.

Jeffrey A. Modisett, Attorney General, Andrew L. Hedges, Deputy Attorney General, Indianapolis, for appellee-respondent.

OPINION

CHEZEM, Judge.

Case Summary

Appellant-Petitioner, Troy Wehner ("Wehner") appeals the trial court's denial of his petition for post-conviction relief. We affirm.

Issue

Wehner presents one issue for our review which we rephrase as: whether the waiver of his rights was conducted properly prior to his entering a guilty plea to Reckless Driving, a class B misdemeanor.

Facts and Procedural History

On June 8, 1987, then sixteen-year-old Wehner was ticketed for Reckless Driving. On July 13, 1987, the State sent Wehner a notice indicating that charges of Reckless Driving had been filed against him. When Wehner appeared for a September 23, 1987 initial hearing, the trial court read an en masse advisement of rights to all those present in the courtroom. After inquiring as to Wehner's age and being informed of his desire to plead guilty, the trial judge reviewed a waiver of rights, withdrawal of plea of not guilty, and a plea of guilty with him. The trial court proceeded to lay a factual basis for Wehner's guilty plea, then entered judgment and sentence. While it appears that Wehner's

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father was present, the record is devoid of any evidence indicating that Wehner's father waived Wehner's rights on his behalf. Rather, Wehner unilaterally waived his own rights.

On March 29, 1996, Wehner filed his first petition for post-conviction relief. At the post-conviction hearing, Wehner testified that at the time he pled guilty to Reckless Driving, (1) he was not represented by an attorney; (2) he did not review his constitutional rights with his father; (3) he did not understand that the State was required to prove him guilty beyond a reasonable doubt; (4) he did not understand he had a right to a jury trial; (5) he did not understand he had the right to have witnesses called on his behalf; (6) his initial hearing was the first time he had ever appeared in a court of law; and (7) he was a nervous sixteen-year-old. In an April 29, 1996 order, the court stated: "The court having this matter under advisement now denies the defendant's motion for post-conviction relief." (R. 4). Wehner appeals that denial.

Discussion and Decision

Wehner argues that the court committed fundamental error in denying his petition for post-conviction relief because his guilty plea was defective. In support, he cites Beldon v. State, 657 N.E.2d 1241, 1244 (Ind.Ct.App.1995), trans. denied, for its proposition that, "By statute, a child cannot unilaterally waive his constitutional rights." Id. at 1244 (citing Ind.Code § 31-6-7-3 ¹ and Sills v. State, 463 N.E.2d 228, 231 (Ind.1984), overruled on other grounds, Wright v. State, 658 N.E.2d 563, 570 (Ind.1995)). Rather than disagreeing with Beldon 's application to the present case, the State asserts on appeal that Wehner's claim is barred by laches. ²

"In post-conviction proceedings, the defendant-petitioner has the burden of establishing his grounds for relief." Curry v. State, 674 N.E.2d 160, 161 (Ind.1996). Thus, because Wehner now appeals from a denial of relief, he is appealing from a negative judgment. When appealing a negative judgment, the defendant must convince us that the evidence presented during the post-conviction proceedings is without conflict and, as a whole, leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Id.

In Beldon, the sixteen-year-old defendant appeared without counsel or a parent for his initial hearing on September 16, 1988. After receiving an en masse advisement of his fundamental rights and a waiver of rights form, Beldon indicated to the court his desire to plead guilty to operating a motor vehicle with a blood alcohol content of .10 or greater, a class C misdemeanor. He then signed the waiver form, and the trial court accepted his plea....