Emert v. State

330 N.E.2d 750, 263 Ind. 340, 1975 Ind. LEXIS 311

• Court: Indiana Supreme Court
• Decided: July 14, 1975
• Docket: 775S166
• Status: Published

Opinions

Hunter, J.

The defendant was convicted of carrying a pistol without a license in violation of Burns § 10-4736 (1956 Repl.). He was sentenced by the trial court to a determinate sentence of ten years. He thereafter filed a petition with the Marion Criminal Court, Division IV, seeking post-conviction relief from the judgment entered on his guilty plea of January 15, 1973. The trial court denied the petition and the defendant appealed the decision to the Court of Appeals, First Division. The Court of Appeals “reversed and remanded with instructions to grant petitioner relief by vacating his judgment of conviction and plea of guilty.”

The attorney general, on behalf of the state, filed petition to transfer, citing in support the case of Williams v. State, 263 Ind. 165, 325 N.E.2d 827. In Williams, this Court addresed itself to an identical question presented by this defendant. The threshold question in Williams — the same as the question here — involved a determination of what constitutes a silent record. There we determined that the defendants’ pleas were voluntarily and intelligently entered and with full knowledge of their constitutional rights based upon the written record submitted.¹

The Public Defender on behalf of the petitioner below cites Boykin v. Alabama, (1969) 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274, and Brimhall v. State, (1972) 258 Ind. 153, 279 N.E.2d 557, contending that our Ind. R. Crim. P. 10 requires the same type of record — in other words a colloquy between the trial judge and the defendant at arraignment, to determine whether a plea is voluntarily and intelligently entered with the defendant’s full knowledge of his constitutional rights. In Williams, as in this case, we find that Boykin did not explicitly require such a colloquy. In Brimhall we found that while the defendant had consulted with counsel, there was no record of testimony that he had been advised of his constitutional rights under Boykin and, additionally, neither did the record show such advice by the judge of the court. We determined in Williams that Boykin “was concerned primarily with what the record must show and not who must make the record.” In the instant appeal, the record does show a voluntary and intelligent entry of a plea of guilty made with full knowledge of the defendant’s constitutional rights.

For all the foregoing reasons, the judgment of the trial court in denying post-conviction relief is hereby affirmed.

Arterburn, J., concurs; Givan, C.J., concurs in result; Prentice, J., dissents with opinion in which DeBruler, J., concurs.

1 . If the plea had been entered after the effective date of July 26, 1973, we would have a different question entirely in this case under PL 325, Acts 1973, being Ind. Code § 35-4.1-1-3, Burns § 9-1204, which provides:

“Defendant advised by court. — The court shall not accept a plea of guilty from the defendant without first addressing the defendant and

“(a) determining that he understands the nature of the charge against him;

“(b) informing him that by his plea of guilty he is admitting the truth of all facts alleged in the indictment or information to an offense included thereunder and that upon entry of such plea the court shall proceed with judgment and sentence;

“(c) informing him that by his plea of guilty he waives his rights to a public and speedy trial by jury, to face the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to require the state to prove his guilt beyond a reasonable doubt at a trial at which the defendant may not be compelled to testify against himself;

“(d) informing him of the maximum possible sentence and minimum sentence for the offense charged and of any possible increased sentence by reason of the fact of a prior conviction or convictions, and of any possibility of the imposition of consecutive sentences;

“(e) informing him that the court is not a party to any agreement which may have been made between the prosecutor and the defense and is not bound thereby.”

If this statutory standard had been applicable at the time of defendant’s plea, and if the record was identical to the one before us, defendant would undoubtedly have presented a solid case for post-conviction relief.