*1 thе grant of a summary judgment. He alleged that the city street was negligently DAVIS, Robert L. Appellant
designed, constructed and maintained so (Petitioner below), that he was not able to determine exactly where the end of the street was. There
was not enough Indiana, STATE of Appellee evidence before the trial when summary (Respondent grant- below). ed to establish conclusively any of the alle- No. 581S145. gations of negligence in this regard. While plaintiff Supreme acknowledged that Cоurt of he knew Indiana. street was a dead-end, he stated that he April13, was not aware of the exact place where the dead-end road met the Church driveway. I
agree with Judge Garrard that summary
judgment is an ill-suited device for resolv-
ing the merits of tort claims sounding in
negligence.
Furthermore, I do not agree with the
majority's broad holding that an affidavit which contradicts testimony in prior depo-
sition is always insufficient to defeat a mo-
tion for summary judgment where the only
issue of fact raised by the affidavit is the
credibility of the affiant. This holding require
would the trial court to become a
fact-finder as to the credibility of the affi-
ant before granting the summary judgment
motion which is contrary to our prior case
law. The trial judge may not weigh the
evidence in a summary judgment proceed-
ing. Carrell v. Ellingwood, (1981)Ind.App.,
In case, there was a conflict between
testimony plaintiff's deposition and affi-
davit that created a genuine issue of mate-
rial fact in addition to the factual question
of the City's negligence. As Judge Staton pointed
has out, if plaintiff's affidavit was
presented in faith, bad our Trial Rules pre-
scribe relief. Ind.R.Tr.P. 56(G). I feel that the trial court erred grant-
ing the City's motion for summary judg-
ment and the Church's motion for summary
judgment. I find that the Court of Ap-
peals' opinion reversing these judgments is
correct. I would deny transfer.
Linley Pearson, E. Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.
HUNTER, Justice.
petitioner,
Davis,
Robert L.
is before
*3
this Court appealing from the denial of his
petition for
Relief,
Post-Conviction
Rule 1.
Therеin,
sought
relief from judgments
entered on his plea of guilty to rape, Ind.
Code
(Burns
§ 85-18-4-8
1975) and a jury's
conviction of him for the crime of kidnap
ping, Ind.Code
(Burns
§ 35-1-55-1
On his direct appeal, this Court affirmed
the trial court's judgments.
State,
Davis v.
(1976)
476,
1. Whether the trial court erred in deny- ing petitioner's motion that facts alleged in petition for relief be admitted; deemed 2. Whether petitioner's guilty plea to the offense of rape was voluntary and knowingly and made; intelligently
3. Whether the trial court erred in sen- tencing petitioner for both rape and kidnap- ping;
4. Whether petitioner received compe- representation tent by counsel at his guilty plea hearing and at his trial on the kidnap- ping charges;
5. Whether evidence of the guilty plea was properly admitted at the trial on the kidnapping charge; and
6. Whether the court erred when it con- cluded that a sentence of imprisonment life for kidnapping did not constitute eruel and unusual punishment. At the outset it is recognized that
Harriette Bailey Conn, Susan K. Carpen- petitioner had the burden of proving his ter, Public Defender, grounds for relief by a prеponderance Indianapolis, for ap- pellant. the evidence at the post-conviction relief
1320
1,
thereof,
In
he relies on Ind.R.P.C.
support
5;
1,
Turman v.
proceeding.
Ind.RP.C.
§
Ind.,
judge, this Court reversed the that hе wished with his counsel and stated the court and remanded the cause for a new charge to the plea to enter a (1979 hearing. supra Davis v. deci- rape. sion). carefully questioned petitioner The court judge, petitioner On remand before a new plea the factual basis of the to establish allegations did not assert that the contained threats, that there had been no determined petition in his should be deemed admitted force, plea. used to obtain the оr coercion respond for the failure of the state to with- that he was aware acknowledged Instead, thirty days. proceeded he the pros- would continue with that state hearing on the merits of those factual alle- kidnapping charge after the ecution of the gations, which culminated in the court's de- given. guilty plea for nial petition. of his of the constitution- petitioner court advised waiving, but inad- rights al which he asserts, however,
Petitioner here that right him of his petition vеrtently second court which considered his failed to advise wit- obtaining allegations compulsory process should have deemed the factual have tardy response. admitted due to the state's nesses. This Court has repeatedly empha IV.
sized that the record must show that the
Petitioner next alleges that he was de-
trial court informed the accused person of nied
right
to effective assistance of
all the constitutional rights he is waiving by counsel
at the
bargain hearing аnd at
direct statements at the time of the guilty
the trial on the kidnapping charge. Due to
plea. Strict compliance with our
our finding
statute is
on
above,
Issue II
we do not
demanded of our trial
need to
courts in
consider any allegations
order to
of error
assigned
determine that
guilty plea.
waiver of fundamental
rights
constitutional
is knowingly and intel
Petitioner alleges that his counsel was
ligently given. Early
(1982) Ind.,
ineffective at the trial on the kidnapping
Romine v.
(1982) charge because he failed to interview cer-
431 N.E2d
tain witnesses, he was
German v.
during
trial,
ill
(1981) Ind.,
issue is the mockery
justice
test as modi
by
fied
adequate
the
legal representation
IIH.
State,
standard. Darnell
(1982) Ind.,
v.
435
Petitioner argued in
petition
for
250;
State,
N.E.2d
Cottingham v.
(1978)269
post-conviction relief that
the trial Ind.
which He witnesses. depositions of ments and the life sen- alleges that finally and petitioner on behalf of the offense of witnesses for called he received tence which pre- punishment they that were well and unusual shows is cruel kidnapping the record case where of his that circumstances no evidence testify. There is under pared to allegedly injury no was used weapon charts no certain problem with visibility clearly been set- has This issue occurred. presenta- great that it hindered was so The position. petitioner's contrary tled nothing to show There is tion of the case. charged, was petitioner under which statute a supported have would that the evidence a life sen- made sentenced convicted and Petition- hearing. competency for a motion kid- for all convictions mandatory tence which re- any prejudice er not show does regardless then defined napping keep him alleged failure to sulted from the injury used or an weapon was whether the direct progress informed about (Burns 85-1-55-1 Ind.Code § occurred. - appeal. General our Indiana 1975). Subsequently, of our revision in its substantial Assembly Furthermore, attorney of kid- Code, the crime redefined Criminal so hearing, testify post-conviction at the criminal con- crime of added the napping, inferring justified in the trial court was range of sen- finement, revised would not have corrobo attorney the result crimes with for these tences led to which the acts and omissions rated se- substantially less are penalties now representation. alleged inadequate life sentence. pеtitioner's vere than State, (1982) v. Cobbs 85-42-8-3 through 85-42-3-1 Code §§ 212, 368 State, (1977) 267 Ind. Lenoir Repl). (Burns The record shows N.E.2d 1856. clearly held that have We for prepared well attorney tioner's kidnap those cases where not a as a whole was trial and that the trial 1, 1977, prior final October ping became justice. mockery of statutes, revised date of the the effective not de court's decision change does not statutory ameliorative is clear of counsel nied effective assistancе not entitled and the defendant apply the record. ly supported by *6 v. modified. Owens his sentence have 969; Ind., Watford State, (1981) 419 N.E.2d v. 262, 384 N.E.2d State, (1979) 270 Ind. v. held that sentenc similarly 1080. We have next contends Petitioner at the time law in effect testimony ing under the erroneously admitted trial court committed, pursuant than rather We crime was evidence. guilty plea into about his ef subsequently of a terms to ameliorative contention since find no merit to this statute, vindic not constitute the reference does himsеlf first introduced fective tioner State, supra; Lynk v. justice. tive Owens testimony. He his own guilty plea to the in In the Ind., 751. State, (1979) 398 N.E.2d v. the whole directly about also testified over case, was sentenced petitioner instant acts which consti including the transaction effective date year prior part apparently rape. tuted the This was is no Accordingly, there revised statute. victim that the strategy claiming of his in imprisonment of life in the sentence error him and was accompanied voluntаrily had kidnapping. the offense of obvious forcibly kidnapped. Petitioner reasons, of this object to the admission ly foregoing did not For all of affirming this re error in court testimony any alleged so of the trial judgment cause and the be reversed plea must guilty v. gard Harden waived. peti- to vacate State, (1981) instructions 215; v. with Ind., Brown remanded 441N.E.2d of The plea. tioner's 333; 417 N.E.2d Strickland is affirmed. things in all other trial Judgment reversed in part and affirmed dence is without conflict and leads unerr part. ingly to a result not rеached by the trial Turman, court. supra; Henson v. State, DeBRULER and PRENTICE, JJ., (1979) Ind., concur. Laird, supra; Hoskins v. (1973) 261 PIVARNIK, J., concurs in part, and dis- Ind.R.P.C. 1. sents in part, w1thopinion in AN, which GIV The post-conviction C.J., hearing court concurs. made detailed findings regarding the entry of the guilty plea in question here and it is helpful PIVARNIK, Justice, concurring in part and dissenting in part. to set them out: I dissent from the majority opinion only (15) That immediately prior to the jury II, Issue in which it finds that peti- trial of January 1976, under Cause tioner's of guilty to the charge of rape Number $75-$75(2) Petitioner, by coun- must be vacated. I concur in the majority sel, moved the Court to withdraw his plea opinion in all other respects. of not guilty to rape in order to allow him plead I cannot agree count, which petitioner said carried his motion granted burden of showing (Record Court guilty plea to the charge Proceedings-hereinafter of rape was not "Record"- knowingly and intel page ligently made since the record does not show that That expressly in thereаfter the Court inquired formed petitioner his right to com whether he understood the pulsory process for nature obtaining of the charge witnesses. of rape and Peti- The majority agrees that the tioner responded record that he (Record, shows petitioner page 187), aware of this right confirming his prior statement and demonstrated it by his at arraignment use of compulso that he understood the ry process to obtain charge witnesses in (Record, page 27), defense and Pеtitioner of the confinement charge. The thereafter again record fur stated that he under- ther shows that he was stood advised in the charge detail by after hearing the vic- the trial judge and made it tim's very testimony clear he establishing a factual ba- was voluntarily and sis for the knowingly plea (Record, pleading page 142). guilty to the crime rape, knowing his (17) That the Court also inquired of the position full well and knowing what rights Petitioner whether he understood that by he was giving up. was fully pleading guilty to the сharge he was re- aware that he was guilty of the crime of quired to be a against witness himself rape and admitted on the stand that he was (Record, page 188), whether he under- guilty but hoped to convince the trier of stood that by pleading guilty he was sub- fact that he was not guilty of confinement jecting himself to a sentence of not less *7 as well as rape. In examining the total than two (2) years and not more than record of cause, this no reason whatsoever twenty-one (21)years which said sentence is shown for vacating the conviction for was not suspendable. (Record, page 138), rape based on the guilty plea of whether he understood that by pleading tioner. The burden was with the petitioner guilty he was waiving his right to require to establish his grounds for relief by pre the State prove to to a jury beyond a ponderance of the evidence. Turman v. reasonable doubt that September 17, on State, (1979)Ind., 392 Laird v. 1975, in Monroe County, Indiana, he un- State, (1979) Ind., 385 Ind.R. lawfully and forcibly madе an assault on P.C. 1 5. Furthermore, the hearing the victim and did forcibly against and the petition relief is the her will unlawfully ravish and carnally sole judge of the weight of the evidence know (Record, her page 143), and, after and credibility of the witnesses and his deci the testimony of the victim in open Court sion will be only reversed where the evi- as to the commission of the offense by page (Record, he did was, that "in er answered
Petitioner, Petitioner whether (Record, alleged rape 188). as fact", guilty of af- responded 143), and Petitioner page theretofore, on had the Court (24) That inquiries. of said each firmatively to sup- to 14, 1976, a motion denied January inquiry the That, to in addition confession, necessarily Petitioner's press that understood Petitioner the
to whether in- been previously had he finding that him- subjecting he was guilty pleading by and silent to remain right his of formed twenty- two to of to a sentence self right that understood Petitioner that inquired Court further the (21)years, one 126). page (Record, the that undеrstood Petitioner whether Court, separate two on the (25) That which penalty determine would Court if he under- occasions, Petitioner asked 189),and (Record, page imposed be would require to right he had that stood pre- that understood Petitioner whether a reasona- beyond guilt his prove to State be have to would investigation sentence he guilty by pleading and that doubt made ble report thereof and a accomplished Petitioner and right, Peti- that 148), waiving and (Record, page was to the Court did that he he did. occasion that on each responded responded tioner 142-148). and Pe- 137-138 pages of the inquired (Record, (19) That the Court wheth- occasions separate two titioner on Peti- informed the Court (26) That guilty by pleading that er he understood maximum and the minimum of tioner jury by to a trial right waiving his he was subject- plea guilty his to which sentences Petitioner each time charge and on that 138). (Record, page himed (Record, page he did that answered the Peti- informed (27) That the Court 148). page and suspend- was not that the sentence tioner the Peti- immediately after (20) That could guilty plea of that and able rape parties to guilty pleaded tioner to order any parole of in revocation result speedy and public into a proceeded (Rece- subject might be Petitioner which which occurrence charge, kidnap on the 138-189). ord, pages all by, to, anticipated and was known not inform the Court (28) That guilty pleadеd Petitioner when parties of consecutive possibility 1438). of the and Petitioner (Record, pages rape guilty pleaded sentencing if Petitioner the Pe- of inquired (21) That the Court guilty of found thereafter by and was rape he understood whether titioner right circumstances waiving but kidnap, he was pleading guilty him on of against the event witnesses to confront the life sentence mandatory Petitioner answered charge and that advice kidnap rendered conviction 188). (Record, pаge he did immaterial. advise the did not Court (22) That the of Peti- inquired the Court (29) That compulsory right Petitioner whether tioner pleading by or that process between agreement the result that Petitioner right, but waived such concerning any the State kidnap immedi- 'did, trial on jury in the penal- as to State recommendation right thereafter, such exercise ately that it responded and Petitioner ty during behalf in his own call witnesses (Record, page 457-482). (Record, pages such trial whether inquired the Court (30) That the Pe- inquired of (23) That the Court *8 Court understood the Petitioner he he understood whether titioner follow obligation under no not be silent and to remain right had the attor- which Petitioner's recommendation by and that himself against a witness the as to make might or the ney State right the waiving guilty he was pleading responded penalty required to and would be to remain silent 189). page (Record, Petition- himself and against be a witness
1325 (81) That the Court asked Petitioner points State out that the only evi- whether he had thrеatened, been coerced presented dence by at the or by induced anyone to cause him hearing about the guilty plead guilty and Petitioner responded in was his own account of the guilty plea the negative (Record, page 189). hearing and what his counsel privately ad- vised him. There was no (82) That the Court asked the Petition- corroborating evi- denee from that counsel. He er if makes many he understood that the State intend- claims about the circumstances ed prosecute the kidnapping charge plea that are not borne by out regardless record. of Petitioner's guilty plea and At point one he stated to the court that he Petitioner responded that (Record, he did did not recall questions page answers 189). that were given to him at the guilty plea (88) That thereafter the did not Court hearing and he had to rely on the transcript expressly accept Petitioner's plea of to establish what transpired. The trial guilty nor makе any finding thereon, but court specifically found that it could infer convened the jury trial on the kidnapping from the record that the petitioner was not charge (Record, pages 148-144). only informed of right of compulsory (84) That the Petitioner thereafter tes- process to obtain but he witnesses actively tified under oath in his own defense as to exercised it in the kidnapping case. the kidnap charge and volunteered that This Court has held that personal
he had already pleaded guilty to rape and
advisement
rights
prior
to a
plea,
stated that he had "no
(his)
doubt
mandated
Boykin v. Alabama, (1969)
mind" that he was going
jail
as a
238,
395
1709,
U.S.
89 S.Ct.
274,
L.Ed.2d
(Record,
result
pages 499-500), and then
and further implemented by our Legisla
described the events of the evening in
pursuant
ture
to Ind.Code
85-4.1-1-8,
§
question in detail (Record, pages 496-
did not depend on a didactic ritual recita
tion of words.
In Neeley v.
(1978)
(85) That Petitioner testified that he
588,
595-96,
pleaded guilty with the knowledge that
we held that although we prefer the triаl
he would have to be
sentenced to two
to follow Ind.Code
385-4.1-1-8 to
§
to twenty-one (21) years
jail (Record,
letter,
where the petitioner was not
page 509).
specifically advised of
right
to confront
(36) That thereafter the jury returned
against
witnesses
him pursuant to Ind.
a verdict of guilty as to kidnapping (Rec- Code 85-4.1-1-8(c),
§
the court could find
ord, page 205), though no findings were
from the entire record that the petitioner
entered by the Court on either charge was advised of and understood thе sub
until sentencing on February 19, 1976,at
stance of
right.
The same was said in
which time the Court found Petitioner
Mathis v.
(1980) Ind., 406 N.E.2d
guilty of rape pursuant to his plea and
1182, concerning the failure of the trial
guilty of kidnapping pursuant to the jury
court to specifically advise of the right to a
(Record,
verdict
page 222).
speedy trial and the right to confrontation.
(87) That Petitioner's allegations in his
In Mathis, we found that
requirements
Petition For Post-Conviction Relief and
of Boykin and Ind.Code
85-4.1-1-8 are
his testimony at the hearing thereоn are
satisfied when the
provides
record
a suffi
at odds with the Record concerning his
cient basis for the conclusion that the peti
plea of guilty and Petitioner testified at
tioner was meaningfully informed of the
the hearing on
July
1980, that it was
specific rights enumerated in Boykin and in
"true enough" that his recollection of
1188-84;
above code section.
Id. at
see
those events was not possible without ref-
also
Williams v.
erence to the Record and that he could
White
Ind.
specific
recall
advice from the Court. App.,
specifically "[that evi- competent
prove by preponderance process due that he was denied
dence fairness in violation
fundamental Amendments
Fifth and Fourteenth and the laws of Constitution
United States in that his of Indiana
the State voluntary, knowing, intelligent."
or substantially bears out the
The record judge.
findings of the his burden and there
failed to maintain that it whatever in the evidence showing
no unerringly leads
is without conflict and the trial that reached opposite
result should be affirmed
court. The trial court as all of the others
on this issue as well majority opinion.
enumerated in the
I dissent.
GIVAN, C.J., concurs in dissent. HURLEY, Appellant,
Joseph W. Indiana, Appellee.
STATE
No. 1081S303. of Indiana.
Supreme Court 13, 1983.
April