HOFFMAN, Presiding Judge.
On June 25, 1980, appellant Jerome Joshua was charged by indictment with felony murder, a class A felony, and robbery, a class A felony. On October 5 and 6, 1981, a jury was impaneled and preliminary instructions were read. Neither party objected to the court's instructions. In front of the jury and in the presence of the appellant, the court read the following instruction:
"To the Indictment in this case the defendants have entered pleas of not guilty, which makes it incumbent upon the State of Indiana to prove to your satisfaction, beyond a reasonable doubt, each and every material allegation of said Indictment.
"The defendants come into Court presumed to be innocent of the charges and this presumption remains with them throughout the trial and until and unless it is overcome by competent proof of guilty beyond a reasonable doubt. The burden of proof in a criminal case is upon the State alone and it never shifts to the defendants.
# y # a # #
"A reasonable doubt is a fair, actual and logical doubt that arises in your mind after an impartial consideration of all of the evidence and circumstances in the case. It should be a doubt based upon reason and common sence [sic] and not a doubt based upon imagination or speculation.
"To prove the defendant's guilt of the elements of the crime charged beyond a reasonable doubt, the evidence must be such that it would convince you of the truth of it, to such a degree of certainty that you would feel safe to act upon such conviction, without hesitation, in a matter of the highest concern and importance to you."
The State proceeded to produce evidence in proof of its case against appellant and his co-defendant, Vernon Turman. After the first morning of trial, appellant and co-defendant Turman moved for recess, and the following day they entered guilty pleas to robbery, a class B felony. °
Before entering his own guilty plea, appellant witnessed co-defendant Turman's plea of guilty. The court carefully advised Turman of his rights, including the right to have the case against him proven beyond a reasonable doubt. However, in accepting appellant's plea the court failed to similarly instruct on this reasonable doubt standard.
Additionally, the record indicates that the trial court erroneously referred to robbery as a class D rather than a class B felony. The record further establishes that the written plea agreement correctly referred to robbery as a class B felony, and that the appellant understood the minimum and maximum penalties for robbery.
Appellant now challenges the denial of his motion for post-conviction relief, alleging the following errors:
(1) whether the trial court erred in failing to advise appellant that a guilty plea waived his right to have the State prove his guilt beyond a reasonable doubt; and
(2) whether the trial court erred in erroneously referring to robbery as a class D rather than a class B felony.
Appellant first contends that the trial court's failure to specifically instruct him, that a guilty plea waived his right to have the case proven against him beyond a reasonable doubt constitutes reversible error. The Indiana plea bargain statutes specifically provide:
"Plea of guilty-Defendant to be advised by court.-The court shall not accept a plea of guilty from the defendant without first addressing the defendant and [465]*465(a) Determining that he understands the nature of the charge against him;
[[Image here]]
(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[.]"
(Emphasis added.)
Ind.Code § 85-4.1-1-3 (Burns Repl.) 19791
The Supreme Court of Indiana has held, by a 8 to 2 vote, that it is the duty of the trial court to strictly comply with the terms of this statute. German v. State, (1981) Ind., 428 N.E.2d 234. The German case further stated that:
"other cases, to the extent that they held that the statutory obligation of the trial judge to inform the defendant that a plea of guilty operates as a waiver or surrender of the above enumerated rights may be met by something short of a direct statement to that effect, are overruled."
428 N.E.2d at 237.
Following the German decision, the Supreme Court has continued to apply this form over substance construction to the plea statutes. See Davis v. State, (1983) Ind., 446 N.E.2d 1317; Early v. State, (1982) Ind., 442 N.E.2d 1071; Romine v. State, (1982) Ind., 431 N.E.2d 780. The present state of the law, no matter how illogical it may be, is best stated in Early v. State, supra. There the Supreme Court held that:
"Although the plea bargain agreement in the instant case reflects that the petitioner understood the rights therein enumerated, including the right to compulsory process, it did not come from the judge, and it did not come at the time of the waiver. In order for rights to be voluntarily waived, they must be known and understood at the time of the waiver. The waiver occurs simultaneously with the guilty plea; hence the judge must ascertain, and the record must reflect, that the defendant understands his rights and the effect of a guilty plea at that very moment. That is the critical time. What he knew or did not know at prior times, including the time when he signed the plea agreement, is immaterial except insofar as it may be an aid to the hearing judge and to us in determining what he comprehended and understood at the time the plea is given."
442 N.E.2d at 1072.
Two Justices have continued to dissent from the results reached by the majority's mechanistic construction and application of this statute. These cases have produced results which go beyond the United States Supreme Court cases, including Boykin v. Alabama, (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and North Carolina v. Alford, (1970) 400 U.S. 25, 91 S.Ct. 160, 27 L,Ed.2d 162. The results are also clearly irreconcilable with earlier Indiana cases construing this statute, such as McDowell v. State, (1981) Ind., 422 N.E.2d 1229. The rationale behind the Indiana statute is to insure that when a defendant enters a guilty plea, he understands all of his rights enumerated in the plea agreement and freely, voluntarily, and knowingly waives all such rights.
Free access — add to your briefcase to read the full text and ask questions with AI
HOFFMAN, Presiding Judge.
On June 25, 1980, appellant Jerome Joshua was charged by indictment with felony murder, a class A felony, and robbery, a class A felony. On October 5 and 6, 1981, a jury was impaneled and preliminary instructions were read. Neither party objected to the court's instructions. In front of the jury and in the presence of the appellant, the court read the following instruction:
"To the Indictment in this case the defendants have entered pleas of not guilty, which makes it incumbent upon the State of Indiana to prove to your satisfaction, beyond a reasonable doubt, each and every material allegation of said Indictment.
"The defendants come into Court presumed to be innocent of the charges and this presumption remains with them throughout the trial and until and unless it is overcome by competent proof of guilty beyond a reasonable doubt. The burden of proof in a criminal case is upon the State alone and it never shifts to the defendants.
# y # a # #
"A reasonable doubt is a fair, actual and logical doubt that arises in your mind after an impartial consideration of all of the evidence and circumstances in the case. It should be a doubt based upon reason and common sence [sic] and not a doubt based upon imagination or speculation.
"To prove the defendant's guilt of the elements of the crime charged beyond a reasonable doubt, the evidence must be such that it would convince you of the truth of it, to such a degree of certainty that you would feel safe to act upon such conviction, without hesitation, in a matter of the highest concern and importance to you."
The State proceeded to produce evidence in proof of its case against appellant and his co-defendant, Vernon Turman. After the first morning of trial, appellant and co-defendant Turman moved for recess, and the following day they entered guilty pleas to robbery, a class B felony. °
Before entering his own guilty plea, appellant witnessed co-defendant Turman's plea of guilty. The court carefully advised Turman of his rights, including the right to have the case against him proven beyond a reasonable doubt. However, in accepting appellant's plea the court failed to similarly instruct on this reasonable doubt standard.
Additionally, the record indicates that the trial court erroneously referred to robbery as a class D rather than a class B felony. The record further establishes that the written plea agreement correctly referred to robbery as a class B felony, and that the appellant understood the minimum and maximum penalties for robbery.
Appellant now challenges the denial of his motion for post-conviction relief, alleging the following errors:
(1) whether the trial court erred in failing to advise appellant that a guilty plea waived his right to have the State prove his guilt beyond a reasonable doubt; and
(2) whether the trial court erred in erroneously referring to robbery as a class D rather than a class B felony.
Appellant first contends that the trial court's failure to specifically instruct him, that a guilty plea waived his right to have the case proven against him beyond a reasonable doubt constitutes reversible error. The Indiana plea bargain statutes specifically provide:
"Plea of guilty-Defendant to be advised by court.-The court shall not accept a plea of guilty from the defendant without first addressing the defendant and [465]*465(a) Determining that he understands the nature of the charge against him;
[[Image here]]
(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[.]"
(Emphasis added.)
Ind.Code § 85-4.1-1-3 (Burns Repl.) 19791
The Supreme Court of Indiana has held, by a 8 to 2 vote, that it is the duty of the trial court to strictly comply with the terms of this statute. German v. State, (1981) Ind., 428 N.E.2d 234. The German case further stated that:
"other cases, to the extent that they held that the statutory obligation of the trial judge to inform the defendant that a plea of guilty operates as a waiver or surrender of the above enumerated rights may be met by something short of a direct statement to that effect, are overruled."
428 N.E.2d at 237.
Following the German decision, the Supreme Court has continued to apply this form over substance construction to the plea statutes. See Davis v. State, (1983) Ind., 446 N.E.2d 1317; Early v. State, (1982) Ind., 442 N.E.2d 1071; Romine v. State, (1982) Ind., 431 N.E.2d 780. The present state of the law, no matter how illogical it may be, is best stated in Early v. State, supra. There the Supreme Court held that:
"Although the plea bargain agreement in the instant case reflects that the petitioner understood the rights therein enumerated, including the right to compulsory process, it did not come from the judge, and it did not come at the time of the waiver. In order for rights to be voluntarily waived, they must be known and understood at the time of the waiver. The waiver occurs simultaneously with the guilty plea; hence the judge must ascertain, and the record must reflect, that the defendant understands his rights and the effect of a guilty plea at that very moment. That is the critical time. What he knew or did not know at prior times, including the time when he signed the plea agreement, is immaterial except insofar as it may be an aid to the hearing judge and to us in determining what he comprehended and understood at the time the plea is given."
442 N.E.2d at 1072.
Two Justices have continued to dissent from the results reached by the majority's mechanistic construction and application of this statute. These cases have produced results which go beyond the United States Supreme Court cases, including Boykin v. Alabama, (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and North Carolina v. Alford, (1970) 400 U.S. 25, 91 S.Ct. 160, 27 L,Ed.2d 162. The results are also clearly irreconcilable with earlier Indiana cases construing this statute, such as McDowell v. State, (1981) Ind., 422 N.E.2d 1229. The rationale behind the Indiana statute is to insure that when a defendant enters a guilty plea, he understands all of his rights enumerated in the plea agreement and freely, voluntarily, and knowingly waives all such rights. To the extent that present case law requires the ritualistic invocation of these rights at the time the plea is entered, it goes beyond the intention of the State's Legislature.
To exemplify the results reached under the present construction, one need only review the cases reported. Most recently, in Beahan v. State, (1983) Ind.App., 449 N.E.2d 1183, this Court reversed a guilty plea where the trial court failed to contemporaneously advise the defendant of her right to have the State prove her guilt beyond a reasonable doubt. However, the [466]*466record clearly indicated that defendant was not only advised of this right, but exercised that right at trial before entering a guilty plea. Her plea was, without a doubt, entered voluntarily and knowingly.
In Davis v. State, supra, and Early v. State, supra, the Supreme Court reversed guilty pleas because defendants were not advised of their right to have compulsory process for obtaining witnesses. The records produced in both cases indicated that not only did the defendants understand this right, but they actually exercised that right during contemporaneous trials. It is difficult to believe that these defendants did not know of this right, or realize that the right was waived by entering a plea of guilty.
In the case at hand, the record establishes that appellant was informed of his right to have the State prove guilt beyond a reasonable doubt during the preliminary instructions. He again was informed of this right while witnessing his co-defendant's guilty plea, immediately prior to his own plea. For all practical purposes, this plea was knowingly and voluntarily entered, and appellant clearly understood that his rights were thereby waived.
While this seems to be a proper result, it is not the law in Indiana. Because the trial judge failed to inform appellant of the right to be proven guilty beyond a reasonable doubt, at the time of the waiver and entry of his guilty plea, this Court is constrained to reverse.
Because the judgment is reversed, appellant's second alleged error need not be considered.
The judgment of the trial court is reversed and remanded, with instructions to vacate the guilty plea, and permit the defendant to enter a plea of not guilty, setting the matter for trial.
GARRARD, J., concurs in result.
STATON, J., concurs in result with opinion.