Willoughby v. State, 2--774A181

• Docket Nº: No. 2--774A181
• Citation: 164 Ind.App. 676, 330 N.E.2d 120
• Case Date: July 03, 1975
• Court: Court of Appeals of Indiana

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.

Page 121

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(1) Whether the court erred in not finding that defendants' guilty pleas should be withdrawn because they were not voluntarily and intelligently entered.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 [164 Ind.App. 677] 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.

Page 122

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...