White v. State, 2-1083A363

Citation497 N.E.2d 893
Decision Date10 September 1986
Docket NumberNo. 2-1083A363,2-1083A363
PartiesRandy D. WHITE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtSupreme Court of Indiana

Page 893

497 N.E.2d 893
Randy D. WHITE, Appellant (Defendant Below),
STATE of Indiana, Appellee (Plaintiff Below).
No. 2-1083A363.
Supreme Court of Indiana.
Sept. 10, 1986.
Concurring and Dissenting Opinion
Filed Sept. 15, 1986.

Page 894

Susan K. Carpenter, Public Defender, Bev Cummings, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

We turn today to a question much debated in Indiana for the past five years: when a petition for post-conviction relief alleges that a guilty plea was not made voluntarily and intelligently, by what standard should the evidence on that claim be tested? We granted transfer in this case to establish a new standard.

On September 25, 1981, appellant Randy D. White appeared with his attorney in Marion Superior Court and pleaded guilty to charges of burglary, a class B felony, and theft, a class D felony. The trial judge sentenced him to consecutive terms of ten years and two years.

In 1983, he filed a petition for post-conviction relief, alleging that his plea of guilty had not been entered knowingly, intelligently, and voluntarily 1 because the trial court failed to advise him of the minimum sentence for each of the charges pending against him, as required by Ind.Code Sec. 35-4.1-1-3(d) (Burns 1979 Repl.). This section had been repealed; the legislation enacted in its place is Ind.Code Sec. 35-35-1-2 (Burns 1983 Supp.). He also challenged the trial court's order that the sentence imposed in this cause be served consecutive to that imposed for an unrelated offense. Of course, this latter question was available to him by way of direct appeal of his sentence.

The trial court denied his petition, but the Court of Appeals held in a memorandum decision that it should have been granted and reversed. White v. State (1984), Ind.App., 465 N.E.2d 228, reh. denied, 484 N.E.2d 82 (1985). The State filed a petition for transfer to this Court.

We consider first White's motion to dismiss the State's petition for transfer. A party seeking transfer may present in his petition only those grounds contained in his request for rehearing in the Court of Appeals. Appellate Rule 11(B). White argues that the State sought rehearing by claiming that the Court of Appeals had contravened a prior ruling of this Court (Appellate Rule 11(B)(2)(a) ) but filed for transfer on the grounds that prior decisions of this Court should be re-examined (Appellate Rule 11(B)(2)(d) ). It appears from our review of the record that the State actually presented both arguments in its brief on rehearing, that White chose to respond on the merits to both arguments, and that the Court of Appeals considered both arguments in its memorandum decision on rehearing. Under these circumstances, the purposes of Appellate Rule 11 have been served, and we therefore deny White's motion to dismiss the State's petition.

As petitioner, White had the burden to prove that his plea of guilty was not voluntary and intelligent. The sole evidence he submitted to the trial court hearing his

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post-conviction petition was the transcript of his plea in 1981. It contained a lengthy discussion between White and the trial judge on a variety of questions, including:

Court: Do you understand by your plea of Guilty to Burglary, class B felony, the maximum penalty you could receive for a class B felony would be up to twenty (20) years in prison, and up to $10,000.00 fine. The maximum penalty you could receive for a class D felony is up to four (4) years imprisonment and up to $10,000.00 fine. Those are the maximum penalties. I'm not saying that's what you will receive in this case, but I have the duty to explain to you the maximum penalties under both Counts. Do you understand that?

White: Yes, sir, I understand.

Court: Have you gone over the penalty aspect of the case with Mr. Gilroy here, your lawyer?

White: Yes, sir.

Court: Have any questions about the possible penalties?

White: No, sir.

Court: On the other hand if you had a trial you might be proven Not Guilty, and completely exonerated and acquitted, that could be the other possibility if you had a trial. Do you understand that?

White: Yes, sir, I do.

White argues that under the existing case law of this Court, he is entitled to have his petition granted and his conviction set aside, citing German v. State (1981), Ind., 428 N.E.2d 234. 2 We have decided that German should be overruled and that the judgment of the trial court in this case should be affirmed.

I. Post-Conviction Relief in Indiana

The care which Indiana courts take to protect the rights of criminal defendants has advanced considerably since the nineteenth century, when one who had pleaded guilty in open court was simply presumed to know what he was doing. The trial judge before whom such a plea was made had little duty with respect to advising the defendant of his rights or making findings about the defendant's plea. Confronted with a claim that a convicted felon was entitled to withdraw his plea because the trial court had not found him guilty, this Court said: "The prisoner, by his confession, has made a finding unnecessary. The court may take the prisoner at his word, and proceed accordingly." Griffith v. State (1871), 36 Ind. 406, 408.

Although there was a presumption that one who pleaded guilty had done so voluntarily and intelligently, our courts did not hesitate to set aside convictions when it appeared that a defendant pleaded guilty through coercion or misapprehension of the nature of the proceedings. Several generations before the U.S. Supreme Court held that states were required to do so, 3 Indiana resurrected the ancient common law writ of coram nobis as a vehicle by which to provide relief to defendants whose rights had been violated. Sanders v. State (1882), 85 Ind. 318 (prisoner whose plea is induced by fear of a lynch mob entitled to withdraw his plea and have a trial); Myers v. State (1888), 115 Ind. 554, 18 N.E. 42 (plea induced by false promises rendered to a defendant acting without legal representation should be set aside).

Having perceived the obligation to provide a way to correct manifest injustice imposed in earlier proceedings, Indiana courts have struggled with competing values: (1) the need to vindicate federal and

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state rights by correcting errors, and (2) the need to bring proceedings to a rest, especially where the passage of time reduces the possibility that a new trial will be reliable. Note, Habeas Corpus and Coram Nobis in Indiana, 26 Ind.L.J. 529 (1951).

In the twentieth century, this Court acted to require transcription of all guilty pleas and developed case law governing post-conviction proceedings. Rules of the Supreme Court of Indiana, Rule 1-11 (1946 rev.); State v. Lindsey (1952), 231 Ind. 126, 106 N.E.2d 230; Crooks v. State (1938), 214 Ind. 505, 15 N.E.2d 359. Thus, long before the leading federal cases on guilty pleas, Indiana courts recognized that fundamental fairness required something more than a docket sheet notation that the defendant appeared and pleaded.

In an effort to provide a uniform framework, the General Assembly enacted Ind.Code Sec. 35-4.1-1-3, specifying the information which a trial judge must impart to a defendant before accepting his plea of guilty, and Ind.Code Sec. 35-4.1-1-4, requiring that a trial judge make certain findings. 1973 Ind.Acts, Public Law 325. Although the statute required that the trial judge "address the defendant" and "inform him" that by pleading guilty he was waiving certain rights, this Court concluded that a defendant was not entitled to post-conviction relief where the record showed that he actually knew about the rights he was waiving. Neeley v. State, 269 Ind. 588, 382 N.E.2d 714 (defendant who testified at post-conviction hearing that pleading guilty meant he was giving up his right to confront his accusers was "advised of his right").

Subsequently, this Court overruled Neeley and held in German that the failure of the trial judge personally to inform the defendant of each of the advisements listed in Ind.Code Sec. 35-4.1-1-3 at the time he entered his plea of guilty required that the conviction be vacated and the plea set aside. Giving the same advisements through written plea bargain agreements was held to be not an "adequate substitute for a personal advisement of so fundamental a matter as the concept of waiver." German, 428 N.E.2d at 236.

The meaning of this decision was clear. Since Gary German and his co-defendant, Larry Jackson, had each signed plea agreements acknowledging the waiver of his rights, it was not ignorance which made their pleas unintelligent and involuntary. Rather, they were entitled to relief because the trial judge had not followed the Code by personally reciting the right they were waiving. In his dissent, Chief Justice Givan (with whom Justice Pivarnik joined) wrote:

The entire matter of informing defendants of their constitutional rights should be used as a safeguard to see that persons are not misled or tricked into entering pleas of guilty without full knowledge of the circumstances.

I do not think the system should be perverted to the extent that a person who is demonstrably fully informed must be granted a new trial simply because the trial judge did not engage in redundancy concerning warnings to the defendants.

German, 428 N.E.2d at 237.

The Indiana General Assembly responded to the German decision by passing Public Law 179, 1984 Ind.Acts, which added subsection 35-35-1-2(c) to the Code section on advisements:

Any variance from the requirements of this section that does not violate a constitutional right of the defendant is not a basis for setting aside a plea of guilty.

This action of the General Assembly cut at the heart of the German decision, which had described the judge's obligation to advise defendants as "statutory." 428 N.E.2d at...

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