Willoughby v. State, 2--774A181

• Decision Date: 03 July 1975
• Docket Number: No. 2--774A181,2--774A181
• Parties: William WILLOUGHBY and Henry Tillberry, Jr., Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 120

330 N.E.2d 120

164 Ind.App. 676

William WILLOUGHBY and Henry Tillberry, Jr., Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2--774A181.

Court of Appeals of Indiana, First District.

July 3, 1975.

Harriette Bailey Conn, Public Defender, Bruce H. Klang, Deputy Public Defender, Indianapolis, for appellants.

Theodore L. Sendak, Atty. Gen., Harry John Watson, III, Deputy Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

Defendants-appellants, Willoughby and Tillberry, entered guilty pleas to Safe Burglary, IC 1971, 35--1--61--1, Ind.Ann.Stat. § 10--702a (Burns 1956). After denial of relief pursuant to proceedings under Post Conviction Remedy Rule 1, they appeal, raising two issues for review:

(1) Whether the court erred in not finding that defendants' guilty pleas should be withdrawn because they were not voluntarily and intelligently entered.

(2) Whether the court improperly accepted guilty pleas to the crime of Safe Burglary when the facts at arraignment showed the court that defendants did not commit acts constituting the elements of that offense.

On November 13, 1972, two liquor stores in Frankfort were the subject of armed robberies, both apparently executed by the same three men. Two of the men, the defendants herein, were later identified, arrested and taken to jail at Frankfort. After explanation of their rights, the defendants engaged in extensive plea bargaining with the police and prosecuting attorney. A 'bargain' was finally struck to the effect that if Willoughby and Tillberry would fully disclose the details of the two robberies, including the identity of the third participant, they could plead guilty to the offense of safe burglary and receive an executed five to ten year sentence. The State promised to withdraw the charge filed and refrain from filing certain additional charges, with the proviso that if defendants later successfully pursued post conviction relief, the robbery charges could be filed or reinstated.

Throughout the several bargaining sessions many references were made by the prosecuting attorney to the possibility of tacking the sentence for robbery (10 to 25 years) onto the sentence for committing a felony while armed (5 to 30 years), resulting in a possible maximum term of 55 years. The record is replete with conversation between the prosecutor and the defendants speculating upon the possibility of a combined 55 year sentence.

Although the above offenses are proscribed by separate statutes IC 1971, 35--12--1--1, Ind.Ann.Stat. § 10--4709, (Burns Supp.1974), IC 1971, 35--13--4--6, Ind.Ann.Stat. § 10--4101 (Burns 1956), our Supreme Court has held that since Robbery is a lesser included offense of Armed Robbery, a defendant cannot receive both the greater and lesser penalties for a single offense.

In Dembowski v. State (1968), 251 Ind. 250, 240 N.E.2d 815, the Supreme Court stated:

'From a literal reading of the provisions of Burns' § 10--4709, supra, the offense of Robbery while Armed would appear to be a distinct offense, with Robbery a separate and not included offense. This Court, however, has consistently ruled that Robbery is a lesser included offense of Armed Robbery, and that it is error for a defendant to be convicted of both offenses stemming from the same acts. Carter v. State (1951), 229 Ind. 205, 96 N.E.2d 273; Kokenes v. State (1938), 213 Ind. 476, 13 N.E.2d 524; Polson v. State (1893), 137 Ind. 519, 35 N.E. 907; Taylor v. State (1968), 251 Ind. 236, 236 N.E.2d 825.'

Thus, it appears that defendants were misinformed as to the possibility of serving consecutive sentences for convictions of a greater and lesser offense. However, the record reveals that such misinformation was remedied at arraignment:

'Q. (By the Court) Mr. Pearson, was there contact with Mr. Willoughby by the Prosecutor's Office?

LINLEY E. PEARSON, PROSECUTING ATTORNEY:

Yes your Honor at the same time that I talked to Mr. Tillberry I also talked to Mr. Willoughby and the same statements that I made previously in the case of Mr. Tillberry also apply to Mr. Willoughby. I would also point out to the Court that the Prosecutor's Office told both these men that on any charge whether it be, whether it would be robbery or safe burglary or armed robbery if they arise out of two separate incidents that if convicted of both charges, two armed robbery charges, two robbery charges, or a robbery and a separate armed robbery charge that any time, or safe burglary charge, that any time served would be served concurrently, that this wouldn't be stacked on the, time wouldn't be stacked on them and they understand this I believe. . . .'

Despite the conflicting evidence on the question of the misrepresentation by the prosecutor concerning the 55 year sentence, defendants maintain that the misrepresentation was not cured and that it induced their guilty pleas. They therefore contend that the...