*1 Entering felony- cannot such a condone result. commit degree in this case is a included lesser offense of second bur degree glary burglary charged or not second whether penalties The constitutional the case. mandate “all shall requires proportioned to the nature of the offense” maximum for a lesser offense be less than the maximum for higher This result is offense. same mandated Constitu State, supra; tion Dembowski of the United States. v. Wil loughby Phend, Supp. (N.D. F. 1969). v. Ind. to the trial
This cause is remanded court and the trial court modify by reducing sentence ordered the maximum years. to five
Arterburn, C.J.,
Prentice, JJ., concur;
Givan and
Hunter,
opinion.
J., dissents without
Reported in
Note. —
Edward Lockhart State Indiana. 1270S302. Filed November
[No. 1971.] *2 Bailey Conn, Indiana, Public Defender of for Mrs. Harriette appellant. Sendak, Attorney General, Diamond, Darrell K.
Theodore L. Attorney General, appellee. Deputy judgment appeal Givan, an from J. This is a overruling petition a appellant’s verified to withdraw ap- judgment guilty of conviction. and set aside plea of inflicting charged physical the crime with been pellant had robbery injury engaged in commission of as defined while Stat., Repl., Appellant in Burns Ind. 10-4101. entered § guilty robbery. to the lesser included offense of Sub- sequently petition submitted his verified to withdraw he judgment conviction, set aside the appeal. for this denial of which is the basis along Appellant had been arrested with two co-defendants gave charged All three defendants as above indicated. following incriminating Appellant’s their arrest. statements doing pleas so made entered co-defendants hearing appellant. implicating After the state- statements appellant his co-defendants the entered ments of hearing on his was asked the trial At any promises or if had been judge he had been threatened get plead way him one or the him in order made to question answered “no.” fur- He To other. attorney with his that he had consulted under- stated ther charge. nature stood *3 question in appellee appel- raises the this that case the
The requirements complied the not with all of of our Rule has lant suggested appellee 1(C); appeal that however the the PC proceeding. aas PC 1 handled With nevertheless be this we (1971), 199, Langley State 256 agree. v. Ind. See N. E. 118. 538, 25 Ind. Dec. 2d appellant. of the contentions the turn to
nowWe Appellant contends that the confessions taken the first illegally appellant’s It police obtained. is claim that the were upon illegality impending confesión under fear of an “rests upon juvenile sentence, fear was influential co- which life Lockhart, upon appellant defendant as herein defendants ** appellant the no confession of introduced There was plea guilty. ap- court than his in of It thus other in evidence argue guilty attempting plea that appellant to pears freely voluntarily prior in view of the entered not was confessions. guilty involun- plea of was
Appellant
that his
also contends
Where, tary
impending
of an
life sentence.
due to the fear
alleging
his con-
here,
denied
that he has been
involun-
rights
led to an
and that
a denial has
stitutional
such
guilty,
facts and
tary
must examine the
plea of
guilty
plea
in
en-
not the
of
fact
whether or
determine
very
knowingly
freely.
voluntarily,
A situation
tered
presented
Supreme
to the
Court
at bar was
similar to the case
Brady
742,
v. U. S.
397 U. S.
in
United States
747,
In that
defendant
provision of §1201 plea. necessarily provision as a ‘but for’ of his That cause penalty the the *4 in this sense does not the caused statute coerced and invalid as an involun- the prove that tary act. encourages degree pleas guilty some at to “The State process. step in the criminal For important some
every a State’s law is alone sufficient rea- breach their people, surrendering punishment. accepting son for themselves and others, threatening apprehension charge, For by and acts both admitting Government, jar guilt. their In the them into cases, post-indictment still other accumulation of evi- the may dence convince the defendant and his that a counsel agony expense trial is not worth and to the the defendant family. pleas spite and All these are valid responsibility the motivat- State’s some of factors ing than pleas; pleas improperly compelled the no are more by decision is the a defendant at the close of the State’s evidence at trial that he must take stand or certain face conviction.” agree language equally with the
We above hold that and it is Brady, applicable Supreme at the case at bar. The Court in to page 751, continued: concerned, “Insofar the voluntariness of his is Brady (1) there is little to differentiate from the defend jurisdiction ant, judge jury in a where the range sentencing power, pleads the same who lawyer judge because his advises him that the very probably will jury; (2) be more lenient than the defendant, jurisdiction judge in a where the alone has sen tencing power, normally than with permitted by who is judge advised counsel that plead guilty more lenient with defendants who go trial; (3) who to those the defendant who is by prosecutor judge plead guilty to a charged; (4) lesser offense included in the offense pleads guilty defendant who to certain counts with the understanding charges dropped. that other will be In each Brady’s situations, case, might if these as in the defendant plead guilty possibility certainty never absent or penalty
the that could will result in a lesser than the sentence imposed after verdict of however, hold, guilty plea compelled We decline that a and invalid under the Fifth Amendment moti whenever by accept certainty desire vated probability the defendant’s or penalty of a lesser rather than face a wider range extending acquittal possibilities from to convic higher penalty tion and a authorized law for the crime charged.” appellant brought at bar fears of the In the case about surrounding circumstances cannot be considered the *5 354 require
type trial court of which the coercion would guilty permit plea. Under the cir the to withdrawl of simply placed a in situa cumstances the was judgment required as to the best a where he to make tion was say that his deci him to cannot of action for take. We course involuntary plead guilty sim situation to constituted an sion overwhelming and ply the of evidence because the existence of a threat sentence. life prosecuting certainly was within the discretion of
It exchange charge appel attorney for a in to recommend lesser 236, (1968), 251 Ind. guilty plea. Taylor lant’s v. State Appellant’s ac 825, 14 Dec. 303. 236 N. E. 2d Ind. plea a ceptance opportunity to to a lesser of this enter involuntary of the not because included offense was rendered greater threat of the offense.
Appellant operated own a states his confession also inducing plea him a coercive force to enter Supreme McMann Court the United States in v. Richardson 763, 759, 1441, pages 90 S. L. 2d S. Ct. U. Ed. stated: . his . For the defendant who considers confession against involuntary trial, at a and hence him unusable
tendering guilty improbable a seem a most would would to contest alternative. The sensible course be his guilt, prevail trial, appeal, or, at on his confession claim in a collateral on acquittal, proceeding, necessary, and win if however, might guilty he The books are full of cases in be. elsewhere, has New York and this where defendant made prevailed. pleads If he and has nevertheless choice hardly on the confession can blamed which proper part evidence no his view was inadmissible in by hypothesis case. Since evidence aside State’s is weak and defendant has no from the confession rea plead, plea in of his to1 such sons own circumstances nothing present than refusal federal is to fendant less claims by guilty in the first instance —a choice state de any, benefits, if of a to take the pursue claim in his coerced-confession collateral then allegations Surely proceedings. later confession incredible, involuntary appear rendered his would an intel plain bypass whether his remedies state incompetently ligent depends act on he was so whether concerning he should advised counsel the forum which present will first claim that the Constitution his federal plead. afford him another chance guilty by a plea of explanation “A more credible prior go except confes- defendant for his who would to trial permit prediction his admissions sion is that the law will against At least the to be used probability fession as him the trier of fact. being permitted the con- to use State’s *6 him that is to convince evidence sufficient strong that State’s contest and case too advantageous Nothing train is the most in this course. distinguished suggests plea, events the defendant’s is an involuntary peti- confession, from his tion act. His later asserting collateral a coerced confession relief admissibility induced his is. at most a claim that mistakenly his confession was assessed and that since he was erroneously advised, applicable then law either under the announced, later was an unintel- or under the law ligent Constitution, however, does not act. voidable pleas render so vulnerable.” freely Appellant that his not also contends was entered voluntarily because he did not understand nature of although charge against represented by him, gone he claims trial court should have into ex- counsel interrogation of him to determine or not he tended whether charge. nature of in fact understood the in this discloses the An examination of the record case fol- exchange lowing judge defendants, and the in- between the cluding appellant: Lockhart, you lawyer? now,
“COURT: And do have A. No sir.”
[*] [*] [*] you you want Mister to consult with “COURT: Do Smith also?
A. Yes sir. you Alright, Smith, let Mister we will these COURT: take jury boys to room and consult with them.” * * *. day) (Later in same boys these have show that let the record
“COURT: We will attorney.” with their consulted “COURT: Now, then, your [*] name Edward [*] [*] Lockhart? A. Yes sir. age? your full And
COURT: Twenty. A. already you advised as Alright, been
COURT: have you, against an charges filed were what appointed to attorney, represent has been Mister Smith you? Yes sir.” A. Smith, charge Robbery, Mister
COURT: On your client? you consulted with Yes, your Honor. SMITH: Alright. Now—
COURT: you him as to advise Did ATTORNEY: PROSECUTING ? law Yes, I did. SMITH: your you you advised have been I ask
COURT: will rights ? constitutional Yes sir. A. *7 drug any you of effects or nar- Are under the
COURT: anything of that kind? cotics or A. No. anything you promised or been threatened Have
COURT: get you plea way enter a one to to or order in other?
A. No. having your attorney consulted with Mis Court: After COURT: ready you say you Smith, to are want to ter Robbery charge plea ? in this enter Yes sir. A. your plea? what And
COURT: Guilty. A. purpose Smith, of the for the Mister record
COURT: you consulted with again, here? have Mister Lockhart sir, SMITH: I Yes have. any questions And
COURT: is there other Mister Lock- hart, you any want to ask in about case way? ” (No answer) days appellant brought later Three was into court for sentencing plea. following on his exchange At that time appellant: occurred court between the and the Now, Lockhart, you plea “COURT: Edward entered a of Guilty here, day December, on the sixth of nine- sixty eight, charge teen to the of the crime of Robbery. you any change Do to make in your any way? plea, in
A. No sir. say you You any COURT: then —we will ask if there’s anything you say reason or why have to toas pronounced sentence should not your upon now Guilty plea Robbery to heretofore en- tered?
A. sir.” No exchange quite appellant Erom the above it clear the represented by and had counsel been advised as to the nature charge consequences plea his days having fact that three after entered his appel- change still indicatd to the court that lant did not wish to previous plea is further indication that his was en- freely voluntarily, and that tered he had a full under- standing consequences. hearing petition
At the
on his
withdraw his
judgment
and set aside
conviction the
had the
proof
burden of
show his
was not en-
voluntarily, knowingly
freely.
tered
Penn
State
359, 177
242 Ind.
N.
2d
nothing
E.
889. We see
presumption
in this record
overcome
the trial
denying appellant’s
properly
petition.
acted
Dobson
*8
267,
(1961), 242 Ind.
Although the in this case that admonitions we find questions that sufficient to ascertain court were the trial point plea voluntarily, out we appellant had entered his improved upon. used the trial court could be procedure 274, 238, Ed. Boykin Ala. 395 U. S. 23 L. 2d In beginning page stated, 1709, at 243: 89 the Court S. Ct. facing imprison an or at for acused death stake “What utmost of which courts are demands the solicitude ment canvassing capable the matter with the accused understanding of what the has a full make sure he consequence. and of its When the plea connotes function, adequate discharges a he record judge for that leaves may sought (Garner any later v Louisi that be review 207, 248; 157, 173, 219, L 2d 82 Ct Ed S ana, 368 US 605, 326, 330, Patterson, 610, L18 Ed 2d Specht v US pro 1209), spin-off of collateral forestalls Ct 87 S murky ceedings probe memories.7” seek to reads as follows: 7 above indicated Footnote majority of criminal ‘A convictions are obtained “7. If these convictions are to insu after attack, trial court is best lated from advised to an on the record examination of the conduct defend include, alia, attempt should inter an ant which satisfy that the defendant itself understands nature of right jury trial, charges, the acts sufficient to charged per the offenses which and the constitute range of Commonwealth rel. sentences.’ ex West v missible Rundle, A 102, 105-106, (1968).” 2d 428 Pa 197-198 though represented in the case at bar defendant is Even highly counsel, it is by competent recommended may possible record which serve at make the best demonstrate that accused was af times to future rights. pertinent constitutional all forded court did not hold the trial err in at we the case bar In overruling petition to withdraw appellant’s verified judgment of conviction. guilty and aside set therefore, is, affirmed. trial court *9 Prentice, concur; JJ., De- C.J., Arterburn, and Hunter and opinion. Bruler, J., with dissents
Dissenting Opinion majority opinion wherein I dissent from DeBruler, J. adequate to arraignment is states it that the record “freely and appellant of show that the entered Amendment understanding^” required by the Fourteenth as Constitution, Boykin v. Alabama of the United States 238, 274, and cases 1709, L. Ed. 2d 395 U. 23 S. S. Ct. 108, 11 E. Court, (1938), 213 Ind. N. in this Loucks v. State 2d 694. appel-
A constitutes waiver several rights: (1) privi- lant’s federal and The state constitutional lege against guaranteed by Fifth and self-incrimination 1, and Art. Fourteenth U. S. Amendments Constitution right (2) 14 of The the Indiana Constitution. § jury guaranteed by 1, Indiana Constitution. as Art. § guaranteed by right (3) The accusers as to confront his U. Sixth Fourteenth Amendments to the S. Constitution and Constitution. of the Indiana Art. § Boykin Alabama, supra, Supreme In the United States may rights be inferred that a of these not Court held waiver arraign then, record. The issue is whether from silent freely appellant in this demonstrates ment record case rights by pleading knowingly waived these only portion as follows: of the record relevant Smith, charge Robbery, Mister On this “COURT: your you client? consulted with your Yes, Honor. SMITH: Altright. Now—
COURT: you advise him to Did ATTORNEY: PROSECUTING the law? Yes, I did.
SMITH: you you your COURT: I ask will have been advised rights? constitutional A. sir.” Yes rights we find
Before could waived these record would pos- have to show that he he was advised that rights. showing sessed such no There is such case. duty appear It trial court to make it on the properly record that a criminal defendant was advised of his rights freely understandingly by plead- waived them ing guilty, and cannot assume the defendant has obtained this information from other some source. *10 Reported in 274 N. E. 2d 523.
Note. — Peters, Francis, et v. Poor etc., al. Sisters Saint Hospital
Inc., Association, Indiana Amicus Curiae. 1171S320. Filed November [No. 1971.]