*1 right waive, colloquy preserve record, ishe about to on the thus, opportunity diminish the for error the trial court. judgment is reversed and below the cause remanded grant Norfrey’s petition post-convic- with instructions for tion relief.
Judgment
and remanded.
reversed
JJ„
Lybrook,
Lowdermilk
concur.
Reported at
Note. — Waymond v. Charles Indiana. Filed
[No. 3-775A149. December 1976.] Bailey Conn, Indiana, Harriette Public Defender of William Deputy Bryan, Defender, appellant. B. Public for Joseph Reiswerg, Sendak, Attorney General, J. Theodore L. Deputy Attorney General, appellee. Ewing, pleaded Appellant, Charles
Garrard, J. charge carrying pistol in violation without a license *2 plea plea a from Act. The the Firearms resulted Uniform agreed executed bargain whereby the state to recommend charges felony year several other five sentence and dismiss serving Ewing. against pending he commenced the After Ewing plea sentence, petitioned pursuant set to have his aside Remedy Procedure, Rule Rules of Post-Conviction to Indiana This 1. The trial court denied relief. follows. Ewing’s plea September a on before was entered pro July procedure criminal tern. On the new containing following become effective: statute had guilty advised Plea “35-4.1-1-3 by of [9-1204]. —Defendant guilty accept plea from a of shall not court. —The court addressing and the defendant without the defendant first determining the nature of the (a) that he understands charge against him; guilty by plea ad- informing his of he is (b) him that alleged indictment or mitting the truth of all facts thereunder and an offense included information or to judg- proceed entry plea the court shall of such sentence; ment and guilty by plea waives informing of he (c) him that his by jury, public speedy to face a and his compulsory process him, for ob- against to have witnesses taining require the state in his favor and witnesses guilt at at which beyond a trial prove the defendant himself; a reasonable doubt against testify compelled to not be possible sentence informing maximum (d) him of the any charged and of for offense minimum sentence prior the fact reason of sentence possible increased any im- possibility of the convictions, and of conviction ; position sentences of consecutive any party to informing not a him the court is (e) prose- have made between agreement been which thereby. and is bound defense cutor 35-4.1-1-4 Determination of voluntariness of [9-1205]. guilty.— plea . (a) accept guilty plea The court shall not without personally addressing determining first that fendant and threats voluntary. The court shall address the de- any promises, determine whether force or plea. used were to obtain the (b) judgment upon shall not enter guilty fendant that there is a factual it is unless satisfied from its examination of de- plea. basis (c) A shall not be deemed to be involun- tary (a) solely under subsection of this section because product agreement is the and the defense.” of an prosecution between the (Emphasis added) disputed It is not present throughout proceeding, accepted that at its conclusion he Ewing’s However, arraignment plea, prose- it was the cuting attorney advised who of his constitutional charges pending. prosecutor and the It was also the Ewing’s understanding who elicited of those matters. *3 newly
That presiding the statute was effective and the regular was not the explain of the court non-compliance. It does not excuse it. Error was com- only mitted when the statute was not adhered to. viable The question appeal on requires is whether that error A reversal. appended Supreme opinion footnote to our Court’s in Wil- liams v. State (1975), 165, 325 N.E.2d has speculated might.1 it are, course, of
We aware that footnotes are comments part Upon text rather of than a Williams, the facts in it. clearly comment Nevertheless, dictum. its inclusion opinion with the is intended to benefit the bench and bar. where, here, Especially it decision, occurs ain current it respect from merits an requires intermediate court spe- cial consideration. repeated immediately 1. The footnote was thereafter in Emert v. 340,
State
Ind.
In Beneks v. Ind. Supreme the statute: Court construed only having be construed as reference “This statute must questions procedure, practice to matters which do not go case.”2 to the merits of the similarly Supreme repeated the rules of our The rule is (E) portion Appeals as a of AP. 15 : Court and Court stayed reversed, any judgment “. nor shall . . appear part, to the court or in shall whole the merits fairly tried and deter- of the cause have been mined in the court below.”
Thus, “prejudice of the defendant” the substantial affect, potentially, merits alleged must at least error concept applies cases well confessed cause. although ones, what “merits” of constitutes the as contested the latter. from those of the former differ somewhat concerning acceptance of a statutory sections Here the They clearly part of procedural. are a statute are concerning crimi- amend IC title 35 “An act to entitled *4 procedure.” nal Reporter quotation in this contains the form. 2. The Northeastern “preference.” appears 329, “reference” the word In 208 Ind. approval (1955), Ind.
passage
quoted
in Madison
State
with
v.
234
However,
517, 527,130
the same error occurs. 130
39.
N.E.2d
N.E.2d
repeats “preference.”
“reference,”
We have
and
Traditionally requisites cardinal merits —of a —the
guilty plea proceeding
plea
knowingly,
are that the
be
voluntarily
intelligently
See, e.g.
and
entered.
Crooks
In v. Alabama (1969), U.S. United Supreme States Court intelligent, found it essential to an voluntary plea that a criminal accused be aware of his con- guaranteed stitutionally rights against self-incrimination; by jury; a trial and to confront his accusers. The court held necessary that a waiver of intelligent these to an voluntary plea, that such a waiver pre- could not be sumed where the record was silent as to the accused’s knowl- edge that he had such or that he understood them.3 represent legislative
IC 35-4.1-1-3 a similar Indiana, expanding mandate for the matters an accused must knowing, of to voluntary plea. aware insure Turning the trial court function in a proceeding, elementary it is an absolute that the.court must decide—and decide the record made —that knowledge understanding shown, Where are we .have held implicit expressed proceed intent a waive in an accused’s desire to guilty. *5 598 However, State, supra.4 voluntary.
knowing v. Williams and Boykin Court considering progeny, the carefully and its after recognized rights substantial concluded that the in Williams regarded constitutionally rec Boykin, required, what the in understood, not who must make the defendant ord must show record. carry inquiry that statute we must now In view of the de- step In the Court underscored the further. Williams one judge advising only sirability of the trial defendant. Not image practice present courts, a it better of the that does By placing correctness of helps insure the the result. to participant spectator, rather role of than he will responses any hesitancy more to possibly be attuned Furthermore, appears it part of the accused. at least on the argument a capable of such method confer an addi- should, fact, If he the accused. be benefit tional rights if an of his rights, of his and awareness unaware actually plead guilty in his make a difference desire would not), might many times it would then it be (conceding that objection likely much more argued would be voiced advising impartial arbiter, judge, were him if the understanding. other inquiring desires of his On carefully explained hand, are an accused’s where meaningfully fully it is elicited that he court and desires waive those nevertheless understands and formally presence plead guilty, and all this is done unduly substance appears form over court; exalt of the of the been the merits have on to contend rights of seriously and substantial affected than the simply someone other prejudiced because been have questions. a all or few asked relieving interpreted said, however, “Nothing we have 4. duty decide, on the basis of evidence absolute court of its the trial in the record voluntarily it, is made whether defendant’s before understanding^.” at 833. N.E.2d 325 599 has in- determination whether been telligently voluntarily primarily is entered factual. Our accepted appellate standards of review to the trial defer produced on from court such a decision unless the evidence only contrary conclusion reached reasonable to that court. Roberts v. State N.E.2d Ind. Thus, the trial when confronted with PCR seeking petition plea upon grounds set that the aside a *6 plea intelligently voluntarily entered, was not and it conducts hearing upon allegations a those to determine their truth. prerequisites plea If the court that determines the for a valid duty met, not were is to the If its vacate there is a question sufficiency given about the the to ac- advice an plea intelligently tendered, his cused and whether was the among court should consider the facts and circumstances exactly told, what the record discloses the was accused what responses were, and the extent to which trial the understanding established accused’s the con- the time. In sidering sufficiency support the of the evidence to the utimate clearly conclusion, germane it is to consider to the extent which judge participated actively proceeding. If the court by simple preponderance concludes a of the evidence that the intelligently plea was voluntarily given, not and hand, be set should aside. On the other the court deter- petitioner mines has failed to establish his claim preponderance petition the evidence, should denied. it reweigh In neither event is our function on credibility evidence redetermine the of witnesses. it is determined
When that a criminal defendant must be specific things aware of certain as a sine qua non to his ability intelligently voluntarily plead guilty, decide to require it is sensible to the record disclose that when entered, specifics. he was aware of To those only proliferation otherwise hold results in the of need- appeals, deprives appellate less court of a sound basis this, Boykin underscore
for real and Williams review. demonstrating clearly neces- that the of a record the absence trial sary specifics discussed, not defer we will were question of ability factual the broader court’s to determine voluntariness. reasoning support requirement
The same does not prohibit would the trial court’s factual determination voluntarily intelligently based whether entered provided de- whether or someone else gave necessary impact who fendant with the advice. bearing upon subjective fact- the advice have a question the accused did understand oriented whether however, guilty. not, voluntarily plead did choose to It does impact upon appear any he either what have substantial intelligent plea, or make an must understand be able to to make a must to enable us what the record demonstrate meaningful appears Accordingly, to be no sub- review. there depriving of its function stantial basis ad- facts on the of who determine ultimate basis did vising questioning. *7 consequences of his and the
When advised question plea, that to he of his the record indicates each unambiguously promptly responded that he un- recipient derstood. He indicated he was agreed plea bargain a under which the state felony charges exchange pending other in for the dismiss being advised, clearly plead After he indicated his desire to guilty. appears any It that he has to demonstrate harm failed failing comply from the error of the court in provide portions 35-4.1-1-3 and 4 which of IC regarding judge personally defendant shall- address the plea. Therefore, consequences of his the error not reversible error. is so, question must be considered. One of the
Even another appellate functions of courts administrative control trial procedures. function, the exercise In we are mandating occasionally justified judgment reversal of a prophylactic a or conviction as device to insure trial court procedure. proper Does our adherence administrative func- support action conversely, tion such in this case? if Stated encouraged disregard fail to will courts be we reverse legislative directive admonition Williams that j udge inquiry trial conduct ? legislature clearly think not. act of the
We directs the judge to address the defendant and him advise of the deliberately matters A enumerated. who refused to so would violate Canon 2A of the do Code of Judicial Conduct: respect comply
“A should with the law and should conduct himself at all times pro- in a manner that public integrity motes impartiality confidence in the judiciary.” appears Indeed, No such assertion objection this case. no prosecutor advising was made the defendant nor was requested personally. the court to do so considering potential In administrative sanction, must we impact also look to the reversal would have the class Ewing’s appeal fairly typical many cases involved. requests post-conviction petition relief. The was filed year nearly hearing after was entered and the thereafter; approximately was held three months As time lapses, interest, forgetful witnesses lose become and become Upon vacating difficult to locate. years months or committed, after offense the court is confronted with more the mere cost of a full than blown It trial. often prospect confronted with the going of a readily evidence once longer free because available is no speculation While such will not hand. deter us for a moment granting a new trial where substantial doubt has arisen from *8 validity regarding of the merits of the conviction— 602 operate a deterrent does by plea initial trial —it
whether appears. doubt when no such are not factors, we we believe of
Upon both consideration that our to insure of reversal impose sanction required to therefore We comply the statute. properly courts will by trial court not committed reversible error hold Ewing hearing that post-conviction relief it found at the when his entitled to withdraw that he was to establish failed him of his personally advised has not because by required the statute.5 Ewing. by remaining allegations raised turn then We right him of his used to advise complains of the words He right silent. his to remain his accusers and to confront adequate Barron v. State language found Similar 141, Janigon App. 330 N.E.2d (1975), 164 Ind. v. cannot App. 330 We 164 Ind. N.E.2d 389. (1975), finding that prejudicial the court’s say error there was reject authorities, Ewing we also same understood. On pre-printed questionnaire. objection Ewing’s use failure Also, no in the court’s can find reversible error we expressly told was not because aside the to set rights by guilty pleading or that waived his that he bargain agree court was not bound again emphasize that statute should ment. We provide fully complied Its the accused with. terms guilty by pleading he waives the informed that shall be (c). However, 1971, 35-4.1-1-3 we have in IC enumerated is, course, implicit a waiver that such held heretofore understanding electing plead with a full act of (1975), App. rights. 336 Vernor v. State one’s therefore, conclude, footnote was Williams added 5. We dramatically good reason, reason was to underscore the de- but advising judge personally sirability the accused the trial securing non-understanding pleas factually this is risk also, Norfrey App. Compare, v. State Ind. done. N.E.2d *9 Ewing Furthermore, N.E.2d while was not told that by bargain the was bound bargain, court the the fact, by was, was forth Again, set followed the court. Ewing cannot claim harm.
Finally, charged Ewing represented by that he in- was competent part, argument In counsel. the seeks have us Ewing’s hearing credit account at the PCR what he pleading penalty against that he was understood to and the original arraignment. course, This, record made at the we cannot do. argument original
The remainder seeks establish charge incompetence origi- counsel’s because the firearms Ewing’s nally pressed by willing wife and she was to dismiss ignored question ability trial court it. The for her dis- charge, felony miss a criminal and looked instead to the other charges against pending Ewing then which were dismissed Ewing return The court concluded that by agree. represented well his counsel. We Affirmed.
Hoffman, concurs; J., Staton, P.J., sepa- dissents and files opinion. rate
Dissenting Opinion majority opinion. P.J. I dissent from the I would Staton, grant trial for new these two reasons: First, I do not consider Justice Hunter’s statement in Williams v 325 N.E.2d mere . may disregarded.1 which I dictum be light consider it in the directive, policy justice of a new standard of which must by all Indiana Courts in the observed administration of justice. Certainly, this was the Legisla intent the Indiana IC ture enacted 35-4.1-1-3 and when 35-4.1-1-4. statutory applicable this standard had 1. “If been time pleas, petitioners’ if the record was identical to the one before undoubtedly presented post- petitioners us, have would a solid case for relief.” conviction n negotiations; party attorney prosecuting by trial acceptance of the interest he has an permitted to control the entire negotiated. he is If printed asking questions on a guilty plea proceeding may guilty plea be obscured. form, voluntariness guilty plea presented to the example, before the For gone questions asked have over the court, prosecutor his defense with the form to the defendant Explanations have been made counsel. questions. satisfy superficially The defendant’s which understanding may predominate agreement than his rather Furthermore, given by meeting.2 de- the answers this questions printed guilty plea on the form fendant *10 by parties may as a former consummation considered agreement. objective approach guilty plea An of their by more question of voluntariness have been blunted negotiations. Only parts complicated detailed interrogation impartial objective, of when the defendant his can assure that is entered he enters voluntarily. interrogated
In.Ewing’s
only
prosecutor
plea,
him as
questions
of Most of the
were
to the voluntariness
simple “yes”
“no”. The trial court re
answered
leaving
procedure
appearance
This
has the
mained mute.
of
justice
prose
the administration
sole hands of the
attorney
cuting
acquiescent by
with the trial court as an
procedure
contrary
policy
is
This
stander.
enunciated
(1971),
by
Hunter in Dube v. State
398,
257 Ind.
275
Justice
repeated by
and later
Chief Justice-
N.E.2d 7
Givan in Watson
97,
(1973), 261 Ind.
that our court This includes plea negotiations Obviously, prosecutor there are between the Competency present. where counsel the defendant is never the defense of. defense the defendant questioned counsel.is sometimes on because his advice to elapse heavy is not on the record. The of time and a memory of defense counsel dull as to the exact case load advice every place responsibility given case. The statutes for the admin- belongs justice the trial court. istration —on
.605 abiding criminals as well as law citizens themselves fully especially cooperated criminals who have those police investigations.” statutory safeguards equally applied Unless the rather are by courts, policy than at random can never be- this reality. come a
Secondly, statutory safeguards, IC 35-4.1-1-3 35-4.1-1-4, require which the trial court to address the pointed have constitutional As overtones. out Boykin v. Alabama 23 U.S. S.Ct. L.Ed.2d federal constitutional are in- “Several. volved in a place waiver that takes when a is against entered in a state First, privilege criminal trial. is the compulsory guaranteed by self-incrimination the Fifth applicable by Amendment and the States reason of Boykin Fourteenth.” presume Court refused to a' waiver important right this constitutional from a silent record. greater law, protection .Under Indiana the de- afforded fendant.
A silent
trial court which has failed to address the de-
by
Legislature
fendant as
mandated
Indiana
can not effect
voluntary guilty plea.
The fundamental
of the de-
by
fendant must be observed
the trial court. Substantial
compliance
statutory
with the
mandate
the trial
required. Norfrey v. State (1976),
App. 590,
N.E.2d 202.
*11
Eeported at
Note. —
Neomia P. v. I.C.I. America, French Inc. Rehearing 2-176A11. Filed December [No. denied March 1977. Transfer denied June 1977.]