On August 14, 1978, Phillip Gordon Daniels pleaded guilty to second degree murder pursuant to a plea recоmmendation which provided the State would dismiss a felony murder count and Daniels would receive a life sentence. On May 14, 1985, Daniels filed a pro se petition for post-conviction relief, which was subsequently denied. Daniels directly appeals that denial claiming his guilty plea was not entered knowingly, intelligently, and voluntarily.
An appellant is entitled to the reversal of a denial of post-conviсtion relief only when the evidence is without conflict and leads unerringly to a conclusion contrary the one reached by the trial court.
Champion v. State
(1985), Ind.,
Daniels maintains the plea was made under the сoercive pressure of Prosecutor Thomas J. Mattem’s threat of capital punishment whiсh had no legitimate basis. Daniels claims Prosecutor Mattern told him or implied to him that he would seеk the death penalty if Daniels did not plead guilty. Daniels stated he pleaded guilty to avoid the death penalty. Here, both Daniels and the State agree there was no possibility the death penalty could have been imposed.
It is true that a bargained plea, motivated by an imprоper threat, is to be deemed illusory and a denial of substantive rights.
Champion,
*1175 However, at the hearing on the post-conviction petition, Prosecutor Mattern stated while he probably talked with Daniels since Daniels was a witnеss against his co-defendant, he did not remember whether they discussed penalties. The post-conviction court found no death penalty threat was made to Daniels. In its Findings of Fact and Conclusiоns, the trial court stated:
Finally, the Court has considered and rejected the Petitioner’s claim thаt he was threatened with the death penalty. The Indiana Statute had been ruled unconstitutional аlmost one year prior to the charge against Petitioner. The only person with any memory оf such a threat was the Petitioner. Petitioner[’]s testimony that he received such a threat and didn’t tеll his attorney, or even ask his attorney of the possibility, is beyond the pale of reason.
Daniels challenges the post-conviction court’s conclusion that he was not threatened with the death penalty.
As evidence that his plea was induced by threats of the death penalty, Dаniels asserts he received no benefits in exchange for his guilty plea. He challenges the рost-conviction court’s finding that he entered his plea to allow him to receive a possibility of earlier clemency or parole claiming he did not receive that benefit. He claims he would have been eligible for clemency or parole at the same time whethеr he was convicted of murder in the first degree or murder in the second degree. However, while it may be that eligibility for clemency or parole would occur at the same time in both first and seсond degree murder, one convicted of second degree murder would be more likely to rеceive clemency or become paroled than would one convicted of murdеr in the first degree. Thus, the plea agreement did provide Daniels the benefit of an increasеd possibility of earlier clemency or parole.
A defendant may lawfully enter into any plea agreement which remains within the bounds of the charging statute whether it be for the minimum or the maximum penalty provided.
Payton v. State
(1987), Ind.,
The post conviction court is affirmed.