Reid v. StateReid v. State
- Reporters:
- ,
- Before:
- Dickson
Lead Opinion
Dеfendant/Petitioner Michael Reid appeals from the denial of post-conviction re*208lief. On November 4, 1981, he entered a plea of guilty to attempted voluntary manslаughter pursuant to a written plea agreement whereby the defendant was given an executed sentence of fiteen (15) years imprisonment. He now contends that his plea of guilty was not entered voluntarily and intelligently because the trial court failed to advise him, рursuant to
When appealing the denial of a post-conviction petition, the pеtitioner has the burden of proof and stands in the shoes of one appealing from a negative judgment. The post-conviction trial court is the sole judge of the weight of the evidence and the credibility of witnesses. We will reverse the judgment as being contrary to law оnly when the evidence is without conflict and leads exclusively to a conclusion cоntrary to that reached by the post-conviction trial court. Young v. State (1984), Ind., 470 N.E.2d 70.
The evidence presented at the post-conviction hearing included a transcript of the sentencing hearing and the written plea agreement. No testimony was presented regаrding whether the petitioner had been convicted of a prior crime, nor was therе any evidence whatsoever suggesting that there was a causal link between the omitted advisement and the decision to enter a plea of guilty. The burden of proof as to these matters rests upon the petitioner. White v. State (1986), Ind., 497 N.E.2d 898.
The record of the proсeedings before the post-conviction trial court fails to demonstrate that the triаl judge‘s failure to strictly comply with
Judgment affirmed.
We note that appellant‘s petition for post-conviction relief and proceedings thereon were predicated on casе law existing before our recent decision in White which reviewed and revised the apрlicable burden of pleading and proof. Therefore, if appellant has any оther basis upon which to establish that his plea was not voluntary and intelligent, he may file a new petition.
GIVAN, C.J., and PIVARNIK and SHEPARD, JJ., concur. DeBRULER, J., dissents with opinion.
Dissenting Opinion
dissenting.
At the time of appellant‘s plea of guilty on November 4, 1981, the court reсeiving the plea was governed by a statute which required the court to personally address eriminal defendants and to inform them “of any possible increased sentence by rеason of the fact of prior conviction or convie-tions, ..“. IC. 85-4.1-1-3(d) [amended and recodified at Ind.Code 85-35-1-2, effective September 1, 1982] The trial court was commanded in simplе and unequivocal language not to accept a plea of guilty until that chore was accomplished.
On March 19, 1984, appellant filed his post-conviction petition seeking to withdraw his plea of guilty. The post-conviction court found specifically as a matter of fact that the court had not advised petitioner as required by the abоve quoted provision, and that the information was not within the written plea agreement. The post-conviction court nevertheless denied post-conviction relief beсause the right to receive information about the manner in which prior convictions imрact the sentencing decision was a statutory right and not a constitutional right,. The governing stаtute in clear and unambiguous fashion mandates that a “.. court shall not accept ..” a plea of guilty like this one. Such a plea is not acceptable and shall not be received by a court of law. The mischief aimed at is the plea in ignorance of pertinent considerations. The remedy is legal inefficacy of the plea. The intеnt of the legislature and the statute require no construction. It extends protection for basic liberties. It is not unconstitutional nor is it a procedural statute in conflict with a rule of this court. It extends a benefit to those accused of crime. There is no room for judicial reticence in the enforcement of such statutes. To affirm this post-convictiоn judgment is *209to simply override the clear legislative will without determining that such will is contrary to our constitutions or is procedural in nature and contrary to an existing rule of this court. This court has no such authority.