Grimes v. State

468 N.E.2d 606, 1984 Ind. App. LEXIS 2969

• Court: Indiana Court of Appeals
• Decided: September 27, 1984
• Docket: No. 3-1083A347
• Status: Published

Opinions

GARRARD, Judge.

Grimes' appeal contends that the trial court erred in denying post conviction relief because when his guilty plea was accepted in 1979 ¹ the court (1) failed to advise him of his right to a "public" trial; (2) failed to determine whether his plea resulted from promises not appearing on the record, and (3) failed to advise Grimes that by pleading guilty he was admitting the truth of the facts alleged in the information.²

At the time of the guilty plea the court clearly advised Grimes of his right to trial by an impartial jury in the county where the offense was committed, to a speedy trial, to demand the nature of the accusation, a copy of the charge, to confront the witnesses and to have compulsory process. As in Hayenga v. State (1984), Ind., 463 N.E.2d 1383; Lowe v. State (1983), Ind., 455 N.E.2d 1126; and Garringer v. State (1983), Ind., 455 N.E.2d 335. Grimes was adequately advised concerning his right to a public trial.

During the proceeding the court asked Grimes twice if anyone had forced or coerced him in any way to enter into the agreement; if he had any questions about the agreement; if he was doing this of his own free will} whether anyone tried to "exercise any type of influence" over his decision; whether the basis of the plea bargain was primarily that no habitual criminal charge would be filed; and whether he had "made up your own mind as to the plea you want to enter?" Grimes' responses indicated that he was acting of his free will and that the court understood the agreement correctly. This record sustains the court's determination that Grimes was adequately queried about whether his plea was the result of promises not appearing on the record.

Finally Grimes contends that he was not properly advised that by pleading guilty he was admitting the truth of the facts alleged. While it is undeniable that the trial judge did not employ those precise words, he did the following: He informed Grimes of his right to trial by jury; advised him that he did not have to plead guilty to anything; that by pleading guilty he would be giving up his right to require the state to prove the charges against him beyond a reasonable doubt; that he was presumed to be innocent; and that upon a plea of guilty it would become the court's duty to impose sentence. He asked Grimes to explain in his own words what had happened, and Grimes responded that he needed some money and that he broke into the Community Action Building and found about a hundred dollars which he took. Thus Grimes was clearly advised that he was entitled to a trial where the burden would be upon the state to prove him guilty, but if he chose to plead guilty he would be giving up that right and the court would proceed to impose sentence. Secondly, the factual basis for the plea was clearly established. Under these circumstances it appears to us that the purposes of advising a defendant that by a guilty plea he admits the truth of the facts alleged have been fully complied with,. As in Hayenga, Lowe and Garringer the statutory mandate was fulfilled and the decision should be affirmed.

Affirmed.

HOFFMAN, J., concurs. STATON, P.J., dissents and files separate opinion.

1 . Thus, the plea was taken prior to the decision in German v. State (1981), Ind., 428 N.E.2d 234, the first of the "strict compliance" cases interpreting IC 35-4.1-1-3 [Repealed; for present law see IC 35-35-1-2]. We find no decision expressly considering whether the German doctrine should be applied retroactively. Compare, e.g., Linkletter v. Walker (1965), 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601. Nevertheless, our Supreme Court has clearly applied the rule retrospectively. See, e.g., Davis v. State (1983), Ind., 446 N.E.2d 1317.

2 . The post conviction court also expressly determined that Grimes was guilty of laches, and this finding is attacked on appeal. The post conviction relief hearing was conducted prior to the decision in Twyman v. State (1984), Ind., 459 N.E.2d 705 which overruled Stutzman v. State (1981), Ind.App., 427 N.E.2d 724. Since the trial court here apparently was following the Stutz man rationale, a new hearing would be required on the question of laches. We do not reach that © question since the petitioner is not entitled to relief on the merits of his claim.