Williams v. State

• Decision Date: 06 March 1974
• Docket Number: No. 2--473A93,2--473A93
• Citation: 159 Ind.App. 470,307 N.E.2d 880
• Parties: Larry WILLIAMS, a/k/a Fred Williams, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 880

307 N.E.2d 880

159 Ind.App. 470

Larry WILLIAMS, a/k/a Fred Williams, Appellant, v. STATE of Indiana, Appellee.

No. 2--473A93.

Court of Appeals of Indiana, Third District.

March 6, 1974.

Rehearing Denied April 2, 1974.

Marshall E. Williams, Indianapolis, for appellant

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

I. STATEMENT ON THE APPEAL

Larry Williams attempted to withdraw his waiver of jury trial which had been a part of his plea bargaining arrangement with the State. ¹ For a plea of guilty, the State had agreed to file a second affidavit charging Williams with violation of the 1935 Firearms Act and to recommend at arraignment that Williams receive a determinate sentence of five years. The original affidavit would be nol-prossed by the State. The police officer refused to sign the second affidavit proposed by the State. At the time of his trial, Larry Williams advised the trial court that the waiver of jury trial was a compliance on his part with the plea bargain and that he now wished to withdraw the waiver. The trial court overruled the motion to withdraw the waiver of jury trial. Larry Williams was tried by the Court and found guilty of robbery. He was sentenced to a term of ten (10) to twenty-five (25) years.

Larry Williams filed an affidavit with his motion to correct errors which described the plea bargaining arrangements and the reason for their failure. No opposing affidavit was filed by the State. This motion to correct errors was overruled by the trial court. On appeal, the issue Our opinion concludes that the trial court did abuse its discretion when it refused to allow the withdrawal of the jury trial waiver which had been the result of plea bargaining with the State. We reverse.

is whether the trial court abused its discretion.

II. STATEMENT OF THE FACTS

Larry Williams had been charged by affidavit with a violation of the 1935 Narcotics Act and the crime of robbery stemming from his alleged participation in the robbery of a White Castle restaurant in Indianapolis, Indiana.

Williams' trial on the two counts of the affidavit had been docketed and continued three times prior to September 11, 1972 when he appeared with counsel and entered a signed waiver of his right to trial by jury. The waiver was summarily accepted and trial by court was scheduled for October 12, 1972. After another continuance, Williams appeared before the trial court on October 19, 1972 for trial. Immediately prior to his trial, Williams moved to withdraw his waiver of jury trial which he explained had been predicated upon a plea bargain struck with the prosecutor's office but not consummated. The court replied that the right had been waived and upon further argument, stated that in its opinion, the prior waiver had not been made in reliance upon plea negotiations. The court made no further inquiry of the defendant, defense counsel or the prosecution concerning the nature and extent of the alleged plea bargain. Larry Williams was tried by court on both counts of the affidavit, found guilty of robbery, and sentenced to the Department of Corrections for a term of not less than ten (10) nor more than twenty-five (25) years.

Williams' motion to correct errors and affidavit filed with the trial court asserted that he had been denied a fair trial. The motion contended that Williams had consented to the waiver because of a plea bargain tentatively made with the prosecutor's office. This bargain called for the filing of a second affidavit charging Williams with a violation of the 1935 Firearms Act. Williams was to waive jury trial and to plead guilty to that charge at arraignment with the State agreeing to accept that plea, recommend a determinate sentence of five (5) years and nol-pros the charges in the first affidavit. The bargain failed when the police officer refused to sign the second affidavit.

III. STATEMENT OF THE ISSUES

The issues presented on appeal by Larry Williams' motion to correct errors are:

ISSUE ONE: Did the trial court abuse its discretion and thereby deny Larry Williams a fair trial when it refused to investigate the nature and extent of the plea bargaining?

ISSUE TWO: Did the trial court in the light of pre-trial information and Larry Williams' affidavit abuse its discretion by overruling the motion to correct errors?

Our opinion concludes that both of the above issues should be answered in the affirmative.

IV. STATEMENT ON THE LAW

The Indiana and the United States Constitutions guarantee an accused the right to a trial by an impartial jury of his peers. Indiana Constitution, Art. 1, § 13; United States Constitution, Amendment Six and Amendment Fourteen. See also Duncan v. Louisiana (1968), 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. The right to a trial by jury has been recognized by the Supreme Court of this State as an essential element of a criminal defendant's The waiver of any constitutionally protected right at the time of trial must be voluntary, knowing and intelligently made with sufficient awareness of the relevant circumstances surrounding its entry and its consequences. Brady v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; and Lewis v. State (1972), Ind., 288 N.E.2d 138. Waiver of one's right to trial by jury is no exception; the acceptance of its entry '. . . is not to be discharged as a matter of rote, but with sound and advised discretion.' Patton v. United States, supra, 281 U.S. at 312, 50 S.Ct. at 263. We are not concerned here with a direct consideration of the standards to be employed by a trial court in the initial acceptance of such a waiver; but, we are concerned with the trial court's discretionary standard when it refused Larry Williams' attempt to withdraw his waiver. ³

right to due process of law. Kennedy v. State (1972), Ind., 280 N.E.2d 611. A defendant may choose to forfeit this right by an appropriate waiver. Patton v. United States (1930), 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854. In Indiana, the availability of such a waiver is predicated upon the approval of the State and the court. See I.C. 35--1--34--1; Ind.Stat.Ann. § 9--1803 (Burns 1956). ²

Williams repeatedly made requests to withdraw his waiver because of the breakdown in plea negotiations. When the trial court expressed its opinion that the waiver of jury trial had not been based on a plea bargain, Williams' defense counsel retorted:

'Mr. Mullin: Well, Judge, it was, and we've been here three times to try to effectuate the deal, and it has not been the Defendant's fault it was not effectuated.'

The court made no further inquiries of Williams, his counsel or the prosecution concerning the alleged plea bargain. The following dialogue mirrors the persistence of defense counsel:

'Mr. Mullin: Judge, we'll (inaudible) as long as the record shows that this man wants his case tried by jury.

'Court: All right. Let the record reflect that Defendant now requests a trial by jury, but however, in writing, witnessed by counsel, Mr. Owen Mullin, on September 11, 1972, the Defendant waived a right to a trial by jury, when the Court was ready to provide him with such. You want to take--

'Mr. Mullin: That was in line with the State's agreement, though, Judge, for a certain result in this case.

'Court: Well, I'm well aware of the bargaining and--You want to take counsel tables, gentlemen?

'Court: Does the State desire to make an opening statement prior to presenting evidence?

'Mr. Cobb: No, Your Honor, the State does not.

'Court: All right. Does the Defendant desire to make an opening statement, Mr. Mullin?

'Mr. Mullin: No, Your Honor.

'Court: All right.

'Mr. Mullin: Except he wants a trial by jury.

'Court: I understand that.

'Mr. Mullin: He'd like to withdraw that waiver.

'Court: Would you call your first witness then?'

The last statement of the court reproduced above reflects the futility of defense counsel's efforts. Williams was tried by court, found guilty of the robbery charge and sentenced accordingly.

Although the full nature of the alleged plea bargain was not described prior to the October 19, 1972 bench trial of Williams, the unopposed affidavit of defense counsel submitted to the trial court with Williams' motion to correct errors described the full nature and demise of the bargain struck. We must accept the contents of that affidavit on this appeal as true. Scharbrough v. State (1968), 249 Ind. 316, 232 N.E.2d 592. The affidavit reveals the following: Williams was to waive his right to trial by jury on the first affidavit and plead guilty to a lesser charge of a violation of the 1935 Firearms Act to be filed in a second affidavit. In return, the State had agreed to recommend a five (5) year determinate sentence on the new charge and nolle prosequi the first affidavit. The police officer refused to sign the second affidavit. It was never filed. Consequently, when Williams appeared before the trial court on October 19, 1972, he attempted to withdraw the prior waiver. The question for our determination is whether under these facts, the trial court abused its discretion.

The open use of plea bargaining as an effective tool in the administration of criminal justice is essential. Santobello v. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427; Dube v. State (1971), Ind., 275 N.E.2d 7. Indiana has begun to develop a body of law for its fair and efficient use. See Watson v. State (1973), Ind., 300 N.E.2d 354 and Moulder v. State (1972), Ind.App., 289 N.E.2d 522. Most of this development has been with final plea bargaining agreements and the entry of guilty pleas. In Dube v. State, supra, our Indiana Supreme Court concluded that the trial court had abused its discretion in failing to investigate the circumstances surrounding the entry of a guilty plea after the discovery that a 'deal' had been consummated. At issue was the trial...