Zimmerman v. State
Decision Date | 23 June 1982 |
Docket Number | No. 881S205,881S205 |
Parties | Jerry Dean ZIMMERMAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, Robert H. Hendren, Sp. Asst. Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.
Petitioner (Appellant) was convicted on two counts of Murder in the Second Degree, Ind.Code § 35-1-54-1 (Burns 1975), and was sentenced to concurrent terms of not less than fifteen (15) years nor more than twenty-five (25) years imprisonment. This appeal from the denial of post conviction relief presents but one issue.
Petitioner pled guilty on May 5, 1975. On October 11, 1979 he filed a petition for post conviction relief which alleges that the guilty plea was not knowingly, voluntarily, and intelligently entered.
In the interim the tape recording of the guilty plea hearing had been lost or inadvertently destroyed. Based upon representations of the judge, who took the plea, and the prosecutor, who was present at the hearing, that they had made copious notes of the proceeding, the trial court ordered the State to submit a record pursuant to Ind.R.App.P. 7.2(A)(3)(c). The State submitted the record, over Petitioner's objection, and the record was subsequently certified by the judge, who presided at the guilty plea hearing.
Petitioner contends that the trial court's failure to make and to retain a record of his guilty plea pursuant to Ind.R.Crim.P. 10 requires the vacation of the plea. He also contends that the post conviction court erred in resorting to Ind.R.App.P. 7.2(A)(3)(c) in order to obtain a record where there was none and that to supplement a silent record of a guilty plea in that manner is contrary to the scope and purpose of Ind.R.Crim.P. 10.
At the time of the guilty plea Ind.R.Crim.P. 10 read as follows:
At the hearing on the post conviction petition the parties stipulated
"That the guilty plea proceedings heretofore held on May 5, 1975 in the Steuben Circuit Court were recorded by electronic means on magnetic recording tape, but that said magnetic recording tape containing the sound reproduction of said proceedings cannot now be found; and that said magnetic tape recording was not lost or destroyed by any...
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Ray v. State
...certification. Ray did not claim the record was impossible to reconstruct, which would have entitled him to a new trial. Zimmerman v. State (1982), Ind., 436 N.E.2d 1087; Gallagher v. State (1980), 274 Ind. 235, 410 N.E.2d 1290. Instead, he attempted to reconstruct the record. He failed to ......
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Wilburn v. State, 22A01-8607-PC-186
...was error. The loss of a record or transcript of a guilty plea hearing does not, per se, require the plea to be vacated. Zimmerman v. State (1982), Ind., 436 N.E.2d 1087. Ind.Rules of Procedure, Appellate Rule 7.2(A)(3)(c) should first be resorted to as a means to produce a record for revie......
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Hall v. State
...record." Id. Here however we are faced not with a silent record, but a missing record, an issue this Court addressed in Zimmerman v. State, 436 N.E.2d 1087 (Ind.1982). In that case the defendant pleaded guilty to two counts of murder in 1975. Four years later he filed a petition for post-co......
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Daniels v. State
...counsel made no effort to reconstruct the record or establish that reconstruction was possible. Id. at 515 (citing Zimmerman v. State, 436 N.E.2d 1087, 1088 (Ind. 1982); Ind. Appellate Rule 7.2(A)(3)(c)). In finding a Baum violation, the Court of Appeals observed that post-conviction counse......