*1 Gary Larry B. GERMAN and J.
Jackson, Appellants, Indiana, Appellee.
No. 680S162.
Supreme Indiana. 3, 1981. Conn, Bailey Defender,
Harriette Bernstein, N. Deputy Howard Public De- fender, Indianapolis, appellants. Sendak, Gen., Atty. Wesley Theodore L. Wilson, Gen., Deputy Atty. Indianapolis, T. appellee. DeBRULER, Justice.
This is a
consolidated
separate
denial of
but identical
*2
235
not be com-
may
1.
which
relief
post-conviction
under
himself;
testify against
plea-bar-
pelled
into
German and Jackson entered
agreements with
which
gain
the State in
the maximum
(d) informing him of
of
they agreed
plead guilty
sentence
and minimum
sentence
possible
attempting to commit a crime while armed
any
charged
possi-
the offense
for
(Ind.Code
deadly weapon
with a
35-12-1-
§
by reason of
increased sentence
ble
1, repealed)
prom-
convictions,
in return
State’s
prior
conviction or
fact of
two
ise
dismiss
other
imposition of
any possibility
of
and
inci-
arising
sentences;
each of them
out of the same
accepted
agree-
dent. The trial court
the court is
(e)
him that
ments and sentenced
defendant to fif-
each
may
any agreement
party
teen-year prison terms.
prosecutor
between
been made
have
there-
and
not bound
the defense
and
pro
In 1978
and
se
German
Jackson filed
by”
petitions
post-conviction
relief.
case,
Code 35^4.1—1-4:
then entered the
Indiana
Defender
permission
petitions,
obtained
to amend the
accept
plea
shall not
“(a) The court
represented
and
at
hear-
defendants
first
address-
personally
without
guilty
of
ing
determining
and
ing the defendant
court shall
voluntary. The
plea
raising
We treat
as
the follow-
determine
and
address
ing issues:
or threats
force
any promises,
whether
(1) Whether the trial court’s determina-
plea.
obtain the
were used to
guilty
tion
were entered vol-
judgment
not enter
(b) The
shall
court
untarily, knowingly,
intelligently
it is satisfied
unless
plea
upon
of
supported by the record.
its
from
examination
Whether
trial court’s determina-
plea.
for the
basis
there is a factual
tion that defendants’ trial counsel was com-
not be deemed
shall
(c)
plea
A
petent is supported by
record.
Because
(a) of
involuntary under subsection
issue,
of our resolution of
we do
the first
pro-
is the
solely because
section
not reach the second.
prose-
between
of an
duce
provide:
statutes
defense.”
cution
Indiana Code 35-4.1-1-3:
judge found
hearing
post-conviction
“The
plea
court shall
plea and
transcripts
guilty from the defendant
the court
hearings disclosed
addressing the defendant and
explicit-
the defendants
to advise
failed
(a) determining that he understands
were waiv-
pleading guilty
ly that
charge against
the nature of the
plea of
or that the
ing
rights;
certain
alleged in
(b)
facts
informing him
an admission
of was
offenses;
lesser included
guilty he is
all
or
admitting the truth of
information
the court
infor-
or that
indictment or
court
found
He also
mation or to an
offense included thereun-
address the defendants
had failed to
upon entry
der
of such
pleas were
them that
proceed
shall
He
or threats.
sentence;
promises
the result of
following
however,
provi-
found,
(c) informing
him that
agree-
of the identical
sion
public
guilty he waives his
to a
served
defendants
signed by the
ments
speedy
by jury,
to face
witnesses
these
them of
him,
against
compulsory process
rights:
these
waiver
favor
witnesses
“The Defendant
the state to
guaran-
Constitutions
at
and Federal
beyond a reasonable doubt
a trial
among
being
him certain
them
tee
“works a waiver of those
”
(),
public
by jury
ato
rights..
This
. .
statement
is also ini-
(),
speedy trial
to be free from self-in-
each defendant.
(), to confront and
crimination
cross-ex-
The trial
against
witnesses
amine the
possible
of the maximum
of thirty
sentence
have
for obtaining
*3
years
years
ten
and the minimum of
witnesses in his favor
require
to
the
authority
court’s
to
impose
prove
guilt
the
to
beyond
State
a
sentences.
().
reasonable doubt
He further under-
entry
guilty plea
stands that the
of his
post-conviction hearing,
In a
the
pursuant
agreement
this
to
works a waiv-
petitioner
burden is
the
to
on
establish his
rights
er of those
and constitutes an ad- grounds
by
preponderance
for relief
a
the truth
alleged
mission of
of all facts
in
5;
evidence,
1,
the
and on
pleads
the information to
which he
from an
he
adverse
must
()
the
that
amounts to a
satisfy this Court that
evidence
“the
().”
conviction
unerringly
whole was such that it leads
favor;
unmistakably to
a decision
phrase
The defendants initialed each
set-
is,
opposite
that
by
one
to that reached
the
ting
specific
The
right.
judge
forth a
also
State,
Ind.,
(1980)
trial court.” Sotelo v.
acceptance
(cid:127)found
fact
that the
of the
of the
Each statement naming particular right pleading inform is initialed guilt; defendants. The inform admitting agreements contain the statement that the he waives his appellant entry jury of the to confrontation with his accus- hold that ers, require compulsory process, require- constitutional ings complied beyond rea- on ments, should be affirmed he cannot doubt in a in which sonable the defend- that basis. compelled testify; range of to which he ant of the which is question, second As far as the subject; and inform the defendant that opinion be- dealt with to, is not bound court is not ques- disposition cause by, plea agreement. The record before adequate show- tion, there I do think us clearly shows that the trial did not ing in this case consequence inform the defendants that a was counsel on the basis reversal of pleading is the waiver of the fall back competent. I would State, Neely set out above. by this Court decided of cases large number 714, 269 Ind. 382 N.E.2d and other enti- is not a defendant the effect that cases, the extent held *4 does and if the trial perfect tled statutory obligation of the trial jus- miscarriage sham or result in a inform the defendant that so tice, should affirmed be the conviction operates as a waiver or surrender of the of counsel competency charge far be rights may above enumerated met concerned. something short of a direct statement trial court affirm I effect, are overruled. respects. in all trial court is re- with versed and this cause is remanded PIVARNIK, J., concurs. pleas, per- instructions to vacate the mit enter the defendants to trial. and set the matter for
guilty, PRENTICE, JJ., concur.
HUNTER J.,
GIVAN, opinion C. dissents PIVARNIK, J., concurs. LIPPS, Appellant Ray Buford GIVAN, Justice, dissenting. Chief Below), (Defendant from the respectfully I dissent opinion in this case. Indiana, Appellee my position It is Below). (Plaintiff the appel- advised agreement adequately lants of their on their 480S115. No. matter The entire of Indiana. Supreme Court defendants of their constitutional to see that safeguard should be used as a into enter- persons are not tricked misled or knowledge
ing pleas
of the circumstances. per- system not think should do person who
verted to extent that fully grant- must be
demonstrably
ed new trial simply because redundancy
judge did not con- engage In warnings the defendants.
cerning bar, appear would
ings complete adequate, were and ini- by appellants.