*1 suggests majority jury Second, the the that would have through reasoning element erected this use its faculties together. of the two instructions In order consideration an for the definition of element of offense to arise reasoning fashion, satisfy necessary process, due and language process required by have be steps process delineated. and that instructions no Such is the case with these two instructions. There not one There no statement direct reference in other. exception to the do one creates other. two symbolic similar would indicate their not contain terms which larger statutory part relationship. instruction is preliminary instruction 2-P which contained numbered degree murder, volun- definitions of indictment and the second manslaughter. manslaughter involuntary not tary It part instructions. The transferred intent reread of the final as only, it also a final instruction was read as instruction among final instruc- jury form went to the in written jury they presented to the in which were The order tions. relationship. jury special to their would not alert may jury it was short, may have discovered or may instructions, by presented puzzle with a these two puzzle may which that discovered rules or not have may at the solved, may arrived or not have was to be beyond required be necessary that it satisfied conclusion premeditated malice “there was a reasonable doubt Noelke, purpose kill intended victim.” Reported at N.E.2d 1209. Note. — Hollingshed v. State of Indiana. Johnnie (No. August 2, 1977.) Filed 976S301. *2 Bailey Conn,
Harriette Indiana, Eugene Public Defender of Hollander, Deputy C. Defender, appellant. Public for Sendak, Attorney
Theodore L. General, Steiner, David L. Deputy Attorney General, appellee. for appeal J. This arises from a the denial of
DeBruler, petition post-conviction by for sought appellant relief which permission plea guilty. plea withdraw a The was en- tered February before Honorable Saul I. Rabb on degree charge to the upon offense second murder of first degree Appellant murder. received a fifteen to sentence of twenty-five years post-conviction upon
The petition verified ap- was based pellant’s plea claim knowingly, that he had not made in- telligently voluntarily, in that court had not rights relinquish him informed of the he which guilty. pleading responded its State answer guilty plea proceedings appellant record showed that Dougherty to no relief. The Honorable William J. was entitled hearing. petition denied the without
Appellant’s plea decision in was entered after Alabama, 395 U.S. S.Ct. after the 1970 L.Ed.2d 274. It was likewise entered proceeding appli found defective State, in Brimhall standards cation of Therefore N.E.2d appellant proceeding entered which record, in order of waiver must serve office was advised of do so demonstrate (1977) 266 Williams v. enumerated (1976), 971; Ind. 395; State, (1975) 263 Ind. Williams N.E.2d Brimhall v. plea proceeding and the order book relating proceeding entries before the court were only reference to an advisement of
below. *3 entry in matter is the book this written made in order reflecting proceeding plea and consists the such of conclusory general, statement, “The the court advises de rights.” transcript plea of of the fendant constitutional proceeding hand, complete on the certified to as true Judge reporter Rabb, court no advisement the contains for this of mentioned in In order record the plea provide adequate voluntary, must be and the therefore it appellant the conclusion “that mean sufficient for was basis Boykin.” ingfully specific rights in informed of the enumerated supra, Avery Williams we con one. It order book sidered record like consisted this of entry import like devoid an advisement and a of of rights. concluded: of There we now, proceedings us “The record the before nothing might ap- one conclude that
contains
pellant
and to have the
self-incrimination,
from which
right
of the
to confront witnesses
was informed
against
privilege
compulsory
benefit of the
required by the Fifth and
and as
Sixth
ap-
Constitution,
States
made
Amendments
plicable
through
process
to the State of Indiana
the due
Amendment, upon
clause of
Fourteenth
such record
appellant
pleas
is entitled
and to
withdraw
plead anew.”
The State there in the case Anderson v. reaching
which would warrant us in a different conclusion. proposition There reaffirmed basic Court proceeding know- show ing voluntary waiver of before a showing upheld. can be an affirmative Court found such very in that from the one record. That record different variety us, circum- before in that it reflected a events and princi- wholly However, the stances absent from record. ples applied by those Anderson are same as we Court apply today. judgment court reversed and the case is grant petition.
remanded with instructions Givan, J., JJ., Prentice, concur; J., Hunter and Pivarnik, C opinion. dissents with
Dissenting Opinion respectfully majority J. I from dissent Pivarnik, opinion my for same reasons dissent Williams stated State, (1977) and herein re my position in that case. state
Here, appellant’s claim is that he advised of *4 rights them, not and that the thus did waive record is for fatally guilty plea having these reasons defective. herein accepted 1971, prior passage it been occurred of Ind. (Burns 1975), requiring, among 35-4.1-1-3 other Code § rights by things, specific Boykin judge advisement of (Burns defendant, 1975), Ind. Code 35-4.1-1-5 which §
601 surrounding recording proceedings” requires the “entire felony guilty pleas date of the above effective cases. July 26, 1973. statutes was 26, pre-July 1973 held, to a
This Court has person guilty judge plea, that while it is desirable a Boykin, ally a as enumerated advise defendant of his may Rather, other a record is a hard fast rule. not enters a defendant wise show that a who voluntarily. knowingly Anderson v. so does Maleck 583, 225, case 263 335 N.E.2d 116, requires State, (1976) 265 Ind. which v. full to be reflected in the a advisement pursuant did not overrule Anderson. Ind. R. Crim. P. August Involving guilty plea accepted on a the trial court legislature’s policy 15, 1973, our Maleck is consistent with mandatory beginning making July 26, advisement applicable require Anderson To hold the standard v. Avery overruling our decision in discussing either Anderson or our
355 395. Without statutes, new this case allowed a defendant withdraw each there no record of enumer 1971 because Boykin right being separately advised to defendant and ated contrary post-Boykin, to a series of waived. circuits, pre-Fed. 11(c) P. decisions in federal R. Crim. of each has held advisement waiver each of which sustaining right prerequisite enumerated trial States, 1976) Kloner v. (2d United Cir. on review. States, (3d v. 730; 1972) F.2d Davis United Cir. 535 F.2d 1059; 1972) v. United 1128; Coiner, (4th 468 F.2d Cir. Wade 406; Fontaine 1971) Frontero, 452 F.2d (5th v. States Cir. 1975) (6th 526 F.2d denied States, cert. United Cir. (1976) ; L.Ed.2d 743 United 96 S.Ct. U.S. 1973) 849, rev’d Dorszynski, (7th States 484 F.2d Cir. grounds, L.Ed.2d 855 S.Ct. U.S. 1974) (8th 626; Lockhart, (1974); Todd Cir. F.2d 1973) Sherman, (9th 474 F.2d Cir. States *5 602
Stinson v.
Turner,
(10th
1973)
Cir.
had advised of their defense counsel. knowing voluntary Such evidence showed a waiver, even without additional and identical advisement judge, from required as is now under Ind. Code 35-4.1- § 1975), (Burns supra 1-3 Maleck specific complete record here is While the not as the matter of trial required, advisement as is now neither entry is it silent. The record of the date the plea was entered reflects that the trial court advised the de- rights. fendant of his constitutional proceedings exchange contains an between defendant and court which defendant affirmed had consulted he attorney entry prior with his for about hours two attorney plea. This repre- was different one than that who Hollingshed stages proceeding. sented in earlier of De- Hollingshed procuring had fendant succeeded in his second attorney alleging “uncooperative” the first after in a judge. general Thus, letter reference actual Hollingshed plea, the time advisement totality circumstances, together convinces of other knowing. Anderson, me that defendant’s supra at 227. question on the of voluntariness. is the record silent
Neither promises or told court there were no Defendant guilty plea, there were threats connected with policemen promises or with the threats from connected no Supreme Boykin, United States Court The fear case. *6 underlying possibility threats or inducements about Hollings- inapplicable record, here. Defendant is thus silent questions about what answered the court’s further hed firing degree murder, and penalty admitted for second following exchanges Finally, fatal decedent. shots noteworthy are in the the court defendant and between the context: voluntariness you plead Guilty, anybody Did make or
THE COURT: doing your you ? this all on own are Guilty. nobody plead make me Didn’t HOLLINGSHED: doing your all own? You THE COURT: Right. HOLLINGSHED: doing your Are you own, this all on
THE vol- COURT: untarily? Yes. HOLLINGSHED: proceeding, petitioner post has the
In a conviction establishing grounds preponder for relief burden of Davis ance of evidence. Ind. N.E.2d
N.E.2d Colvin agree court below that I has failed unknowing claim of meet this burden with involuntary plea. judgment affirm the I would overrule trial court. Reported at 365
Note. —