OPINION
Marshall Jackson (“Jackson”) appeals the denial of his post-conviction relief petition. We affirm.
In October 1974, Jackson was charged with robbery 1 and auto banditry 2 in connection with an armed attack on a bar owner on October 18, 1974. On March 3, 1975, Jackson plead guilty to the offense of theft over $100, 3 a lesser included offense of robbery. At the guilty plea hearing, Jackson’s attorney stated that the plea agreement included a waiver of the right to trial by jury, a guilty plea to the lesser included offense, and that Jackson would be required to testify as a state witness against a co-defendant. The state agreed that Jackson would be pleading to “the crime of Theft from a Person, one (1) to ten (10) years” and added that the auto banditry charge would be “nolle prossed” at the time of sentencing. In addition to accepting the plea, ordering a pre-sentence report and setting the matter for sentencing on March 27, 1975, the trial judge asked Jackson, “You understand fully by entering this plea that you will be sentenced to one (1) to ten (10) years?” Jackson responded, ‘Tes.” (R.38).
At the sentencing hearing on March 27, 1975, Jackson’s attorney made a statement on Jackson’s behalf and Jackson spoke on his own behalf. The trial court, after indicating that it had reviewed the pre-sentence report, sentenced Jackson to not less thаn one (1) year nor more than ten (10) years and ordered him committed to the Department of Correction for assignment to a proper institution. The trial court withheld execution of the sentence until April 25, 1975 and subsequently rescheduled the matter for May 30, 1975.
The written order of the trial court indicated that on May 30,1975, Jackson appeared in court without counsel for the reason that his attorney was “no longer in the practice of law.” (R.28A). Further, the order stated that the trial court “after reviewing the pre-sentence investigation report now sentences the defendant, Marshall Jackson, to not less that one nor more than ten years. Sеntence suspended. The defendant is placed on probation for a period of two (2) years.” (R.28).
Jackson filed a pro se petition for post-conviction relief on May 10,1988 (hereinafter “original petition”). His grounds for relief were stated as “[a]ll of my rights were not provided under I.C. 35-34-1-1-3 which is now I.C. 35-35-1-2.” (R.55). On April 16, 1993, Jackson filed pro se 4 a handwritten motion to amend his petition for post-conviction relief (hereinafter “first amendment”), alleging several grounds for relief, including: that his guilty plea was not knowing, voluntary and intelligent; ineffective assistance of counsel due to a conflict of interest; that he was unaware that he was waiving his rights; that the court violated the plea agreement by plaсing him on probation; insufficient factual basis for his plea; and that he was deprived of counsel at his sentencing hearing.
On July 2,1993, Jackson filed a motion for leave to amend his petition for postconvietion relief (hereinafter “second amendment”). Although phrased three different ways in the petition, the only ground for relief was that the trial court had accepted Jackson’s plea agreement without ordering, receiving and considering the pre-sentence report.
On August 10, 1993, Jackson filed another amended petition for post-conviction relief (hereinafter “third petition”).
5
The third amendment indicated that the original post-
On the trial court’s own motion, the hearing on the petition for post-conviction relief was continued until November 3, 1993. On November 3, 1993, the state appeared and Jackson appeared pro se. The only evidence Jackson offered was transcripts of the guilty plea and sentencing hearings and a case chronologiсal summary. On January 25, 1996, the post-conviction court entered findings of fact and conclusions of law and denied Jackson’s petition. However, the post-con-vietion court addressed only the issue of whether Jackson was properly informed of his rights at the guilty plea hearing (as raised in the original petition) and whether the trial court had jurisdiction to accept Jackson’s guilty plea pursuant to a plea agreement without having received and reviewed the pre-sentence report (as raised in the second amendment). Although the post-conviction court acknowledged that Jackson’s first amendment raised nine specific claims of error, 7 it indicated that as finally amended, by the second amendment, the petition raised only one ground. Jackson appeals the denial of his post-conviction relief petition. Additional facts will be supplied as needed.
ISSUES
In appealing the denial of his petition for post-conviction relief, Jackson raises three issues:
I. Whether the post-conviction court erroneously failed to make findings of fact and conclusions of law as required by the Ind.Post-Conviction Rules.
II. Whether the post-conviction court erred in failing to find that Jackson’s guilty plea was entered into unknowingly, involuntarily and unintelligent-iy-
III. Whether the post-сonviction court erred in failing to find that Jackson received ineffective assistance of counsel.
Standard of Review
On an appeal of the post-conviction court’s decision, Jackson bears the burden of proving his claims by a preponderance of the evidence.
Weatherford v. State,
I. Findings of Fact and Conclusions of Law
Jackson argues that the post-conviction court failed to make specific findings of fact and conclusions of law on all issues presented
Thirteen years after the sentencing hearing, the petitioner filed a petition for post-conviction relief in which he claimed that the trial court judge had not informed the petitioner of all of his rights at the guilty plea hearing as required by statute. Five years after the petition was filed, the petitioner amended his petition [the first amendment] with nine specific claims of error, including a claim that he was denied the effective assistance of counsel in the trial court. Three months after that, however, the petitioner amended his petition again [the second amendment]. As finally amended, the petition raises only one ground.
(R.129) (emphasis added).
All three of Jackson’s amendments were filed in 1993, at which time Ind.Post>-Conviction Rule 1, § 4(c)
8
provided that “[a]t any time prior to entry of judgment the court may grant leave to withdraw the petition,
and
the petitioner
shall be given leave to amend the petitiоn as a matter of right.”
(Emphasis added).
See also Lewis v. State,
Having determined that the trial court erred in failing to consider the third amendment, we are confronted with the question of whether consideration of the third amendment would have required the trial court to address all grounds for relief presented collectively in the original petition and subsequent amendments. Jackson argues that the third amendment “made it perfectly clear that there were to be no deletions” and that it therefore simulated interlineation. Jackson cites
Neeley v. State,
We initially note thаt a post-conviction proceeding is a special quasi-civil remedy whereby a defendant can present error which, for various reasons, was not available at the time of original appeal.
Hamilton v. State,
However, wе also note that Ind.Trial Rule 15 is more restrictive than P-C.R. l(4)(e) on the right of a party to amend its pleading.
A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted, and the action has not been placed upon the trial calendar, he may so amend at any time within thirty [30] days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be given when justice so requires.
T.R. 15. Ind.Post-Conviction Rule l(4)(c) sets forth a more liberal amendmеnt procedure to augment the rule that all grounds for relief available to a post-conviction relief petitioner must be raised in his original petition unless “the court finds a ground for relief asserted [in a subsequent petition] which for sufficient reason was not asserted or was inadequately raised in the original petition.” IndJPost-Conviction Rule 1(8).
Despite the lack of citation, we acknowledge some merit in the state’s argument regarding the potential for confusion with multiple amendments.. Clearly, the better method, and potentially the required method in cases with differing circumstances, would have been for Jackson to consolidate all оf the arguable grounds for relief in his final amended petition. Jackson failed to do this. Although we do not agree that the third amendment is perfectly clear, Jackson did communicate to the parties in his third and final amendment, filed pro se, his intent that none of his grounds for relief be deleted. We recognize the general rule that an amended pleading supersedes the previous pleading. LaRue, supra. However, given the more liberal amendment procedure for post-conviction relief petitions and the content of Jackson’s final amendment, the failure of the trial court to address Jackson’s various grounds for relief offered collectively in his originаl petition and subsequent amendments was error. Accordingly, we find that the trial court erroneously failed to enter findings of fact and conclusions of law on all issues.
The trial court’s failure to enter specific findings of fact and conclusions of law in ruling on a petition for post-conviction relief, however, is not reversible error when the issues are sufficiently presented for review and addressed by the parties.
Herman v. State,
Insufficient Factual Basis
Jackson contended that there was an insufficient factual basis to support his guilty plea pursuant to Ind.Code § 35-4.1-l-4(b).
9
“Numerous decisions of this state’s appellate courts have recited the rule that a factual basis is sufficiently established when the prosecutor reads the charging information and the defendant admits that the allegations of the information are true. [Citations omitted].”
Melton v. State,
Jackson expressed his intent to plead guilty to the lesser offense of theft from a person. Jackson admits that the state read into evidence the factual basis and that he answered “yes” to the state’s information. (Appellant Brief, p. 18, Record, p. 40). However, he argues that his answer was the result of pressure and influence from the family and his attorney to help his brother. Jackson’s contention is without support. Whether the acknowledgment of the necessary factual basis was voluntary does not address the issue of whether the factual basis set forth was adequate. The factual basis was sufficiently established when Jackson admitted the allegations set fоrth by the prosecutor. 10
Denial of Counsel at Sentencing
Jackson contends that he was denied counsel at sentencing. We find
Guajardo v. State,
In Guajardo, the defendant claimed he was denied his sixth amendment right to assistance of counsel at his sentencing. The trial court failed to preserve a transcript of the sentencing hearing but the court docket noted the absence of counsel and the fact that defense counsel conferred with the judge prior to the sentencing hearing. No record of waiver of counsel by the defendant existed. We concluded that although the defendant had a constitutional right to presence of counsel at his sentencing hearing, the absence of counsel did not require reversal in his ease.
Guajardo’s only claimed harm was that counsel’s absence may have contributed to his losing the opportunity to continue treatment which he had been receiving.... The sentence he received was the mandatory sentence for the offense.... He served that sentence until he was paroled in 1983, more than seven years after his conviction. Indeed, more than ten years elapsed before Guajardo initiated his proceeding for post conviction relief. Under these circumstances, and because the error does not affect the validity of the conviction, the error has been mooted since nothing can be done to correct it. Resen-tencing would serve no purpose.
Id. at 177.
In Ford v. State, following entry of judgment but prior to sentencing, defendant’s counsel filed a motion for limited withdrawal based on a conflict of interest. After the trial court denied his motion and based on these same ethical considerations, defendant’s counsel did not address the court on Ford’s behalf at the sentencing hearing. The defendant contended that the trial court’s refusal denied him his constitutional right to effective representation of counsel. We held that:
Regardless of the merits of Ford’s contention, we are unable to perceive how Ford was prejudiced by the fact that his counsel did not address the court at the sentencing hearing, [footnote omitted]. Ford was sentenced to serve concurrent terms of not less than two (2) nor more than fourteen (14) years and not less than ten (10) nor more than twenty (20) years for his respective convictions for Assault and Battery with Intent to Kill and First Degree Burglary. In IC 1971, 35-7-1-1 (Bums Code Ed.), the legislature denied the trial court the power to grant probation on a conviction for the latter offense, which was the subject of the more severe sentence received by Ford. Accordingly, the inability of his lawyer to address the court could not affeсt the length of Ford’s incarceration. Ford’s sentencing was in fact little more than a ministerial ceremony.
Id. at 714.
Although Jackson was not represented by counsel on May 30, 1975, he appeared
Plea Agreement
Jackson alleged that his two year probation was contrary to his plea agreement but offered no evidence aside from his own assertion.
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“When a guilty plea is attacked because of alleged misinformation concerning sentencing, the issue of the validity of such plea is determined by a two-part test: (1) whether the defendant was aware of actual sentencing possibilities and (2) whether the accurate information would have made any difference in his decision to enter the plea.”
Disney v. State,
The postconviction court addressed Jackson’s argument raised in his second amendment that the trial court was without power to accept his plea agreement without first having received and considered a pre-sen-
II. Guilty Plea
Jackson contended in his original petition that “all of [his] rights were not provided under I.C. 35-34-1-1-3 which is now I.C. 35-35-1-2.” (R.55). In his second amendment, he argued that his plea was not entered voluntarily, knowingly and intelligently. Jackson’s statement of his ground for relief was nothing more than a contention that his rights were not provided according to statute and that his plea was not knowingly, intelligently and voluntarily entered into, in violation of the United States Constitution.
Odom v. State,
Our standard for reviewing guilty pleas was delineated in White v. State (1986), Ind.,497 N.E.2d 893 . See Hinkle v. State (1992), Ind.App.,605 N.E.2d 200 , 202, reh’g. denied, trans. denied. A petitioner’s conviction will be vacated if the record fails to disclose that the defendant was advised of the right to a jury trial, right of confrontation and right to avoid self-incrimination. An omission of other advice contemplated by I.C. § 35-35-1-2 supports reversal only if a petitioner demonstrates that he or she was prejudiced thereby. Id.
Id. at 381.
Our review of the transcript of the guilty plea does not support Jackson’s contention that he was not advised of his right to trial by jury, right to confront and cross-examine witnesses and right against self-incrimination. If a trial court does not inform a defendant of his
Boykin
rights, a conviction will be vacated without a showing of prejudice to defendant.
State v. Lime,
Q Do you wish to waive your constitutional right to trial by Jury?
A Yes.
Q You have discussed it with Mr. Wlek-linski [Jackson’s counsel]?
A Yes, I have.
Q And in the trial of this case Mr. Jackson, do you understand that you have also the right to have the witnesses in the case appear in Court so that you may cross examine them and confront them here in court.
A Yes, sir.
Q You have a right to bring your own witnesses and if you need the sbupoena [sic] powers of the Court to bring those witnesses in that is available to you, do you understand that?
A Yes, Your Honor.
Q You cannot be compelled to testify int his [sic] case, the constitution protects you against self incrimination Mr. Jackson and if you choose not to testify that would not be considered in determing [sic] your guilt or innocence, is that clear?
A Yes, sir.
(R. 143-44). Jackson’s relinquishment of his Boykin rights is clear from the face of the transcript of the guilty plea hearing.
Jackson also asserts that a failure to offer advisement in strict accordance with statute entitled him to relief. Even if the trial judge failed to give an advisement in accordance
III. Ineffective Assistance of Counsel
Jackson alleged that he received ineffective assistance because his attorney had a conflict of interest by representing Jackson’s brother, who was a co-defendant. For Jackson to prevail on a claim of ineffective assistance of counsel, he must show that: (1) counsel’s performance fell below an objective standard of reasonableness; and (2) but for counsel’s deficient performance the result of the proceedings would have been different.
Hendrickson v. State,
The evidence provided at the post-conviction hearing consisted of the transcripts of the guilty plea and sentencing hearings. Assuming,
arguendo,
that аn actual conflict of interest existed, Jackson failed to show that the conflict adversely affected his representation. Jackson’s attorney negotiated a plea by which Jackson received a one to ten year sentence with all time suspended despite his facing an initial charge which carried a possible penalty of ten to twenty-five years. Additionally, Jackson failed to show there was a reasonable probability that, but for counsel’s representation of Jackson’s brother, he would have refused to plead guilty and would have insisted on going to trial. Jackson indicated that his attorney and his family were сoncerned for the welfare of his brother and offered a bald assertion that he was prejudiced in that he did not want to plead guilty and wanted a trial. The record of his guilty plea does not support his assertion. Jackson had ample opportunity and invitation from the trial court to express his desire to exercise his right to trial. Clearly Jackson has not provided convincing evidence to rebut the strong presumption that counsel was competent.
Jarrett v. State,
CONCLUSION
As to the grounds for relief which were not addressed by the post-conviction court, Jackson failed to establish that he was entitled to relief. Regarding the grounds which were addressed by the post-conviction court, we affirm the denial of Jackson’s petition for postconviction relief.
Affirmed.
Notes
. I.C. 1971, § 35-13-4-6; Ind.Code Ann. § 10-4101 (Bums 1956).
. I.C. 1971, § 35-12-2-1; Ind.Code Ann. § 10-4710 (Bums 1956)(Bums Supp.1961).
. I.C. 1971, § 35-17-5-3; Ind.Code Ann. § 10-3030 (Bums 1956)(Bums Supp.1971).
. A deputy from the Indiana Public Defender's office entered an appearance after Jackson filed his original petition. However, prior to Jackson filing his first amendment, the post-conviction court granted the deputy public defender's motion to withdraw due to Jackson’s desire to proceed pro se.
. Jackson contends that the trial court initially misplaced or lost the third amendment. He indicates in his brief that the clerk’s office wrote to him and requested a copy of the third amendment. Jаckson’s brief contains an appendix in which he provides a copy of the clerk’s letter requesting a copy of the third amendment and a copy of the follow-up letter from the clerk's office indicating that it had located a copy of the amendment and placed it in the praecipe. We note that the copy of the third amendment which appears in the appendix to Jackson’s brief was filed marked August 10, 1993. (Appellant's Brief, A-3). The copy which appears in the record contains no file mark. Jackson apparently includes the letters within his brief in an
. In his third amendment, Jackson indicated that paragraph eight (grounds for relief) and paragraph nine (the facts which support those grounds) should be incorporated with sections J, K and L. Based on an examination of the original petition and subsequent amendments, it would appear that Jackson intended the three grounds for relief offered in the second amendment to become subsections J, K and L when added to the grounds for relief offered as letters A through I in the first amendment.
. Jackson's second amendment listed ground for relief as letters A through I (nine). However, there were not nine actual grounds for relief as some were repetitive.
. Ind.Post-Conviction Rule 1, § 4(c) was amended, effective February, 1995, to restrict the petitioner’s ability to amend the petition as a matter of right to no later than sixty days prior to the date the petition was set for trial.
. Ind.Code § 35-4. l-l-4(b) was repealed by Acts 1981, P.L.298, Sec. 9(a) and replaced by Ind.Code § 35-35-1-3, which requires the same finding.
. Jackson аrgues that his indication to the trial court that he did not enter the bar and that he drove the car made his admission an insufficient factual basis for robbery or theft. His admission of the robbery was not required for a theft conviction. Nor do we agree with Jackson that by making this distinction he was maintaining his innocence. (Appellant Brief, p. 17).
. In addition to Jackson's self-serving contention, we note that the trial court found that the plea agreement was oral and we find no reference by the parties to a written plea agreement. Jackson cites
Disney v. State,
An additional aspect of this case requires comment. Nearly the entire hearing on the petition for post-conviction relief in the trial court was devoted to an ascertainment of the terms of the plea bargain in this cause. Although indications of what some of the terms of the plea bargain might have been appear in the transcript of the sentencing hearing at which such plea bargain was consummated, both Spalding and the State were forced to rely upon thе recollections of the participants in attempting to prove such terms.
It is doubtful that the secreting of the terms of plea bargains even as they are being consummated is beneficial, for such clandestinity can lead to misapprehension, mistake or even calculated misrepresentation.
Once the propriety of plea bargaining is recognized, it becomes apparent that the interests of justice would well be served if trial courts would encourage the placing of record of all the terms of such agreements at the time they are presented to the court. In addition to the introduction into the record of an oral or written statement of the terms of the bargain, in some cases a trial judge may wish to advise a defendant who appears uncertain about revealing the terms of a plea bargain that such bargains are an accepted practice, and that for his own protection all promises made to him in return for his plea should be placed of record.
Id. at 778 (emphasis added). Prior to the effective date of the statute, plea agreements were not required to be in writing. Additionally, Judge Hoffman's comments make clear that a recitation of the terms into the record, although advantageous, was not required. Given Jackson’s burden on post-conviction relief, his bare assertion that the agreement did not contemplate probation was not sufficient to cany his burden.