Redington v. State

678 N.E.2d 114, 1997 Ind. App. LEXIS 287, 1997 WL 136828
CourtIndiana Court of Appeals
DecidedMarch 27, 1997
Docket25A03-9606-PC-218
StatusPublished
Cited by16 cases

This text of 678 N.E.2d 114 (Redington v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Redington v. State, 678 N.E.2d 114, 1997 Ind. App. LEXIS 287, 1997 WL 136828 (Ind. Ct. App. 1997).

Opinions

OPINION

STATON, Judge.

John P. Redington appeals the denial of his petition for post-conviction relief. This ease presents two issues for review which we state as:

I. Whether a post-conviction relief petitioner who did not voluntarily, knowingly and intelligently waive his right to counsel before pleading guilty must demonstrate prejudice before he is entitled to relief.

II. Whether Redington voluntarily, knowingly and intelligently waived his right to counsel before he pled guilty.

We affirm in part and reverse in part.

The relevant procedural history follows. In June of 1978, Redington pled guilty to one count of Theft as a class D felony. On March 26,1993, Redington filed a petition for post-conviction relief challenging this guilty plea. At the post-conviction hearing, the State agreed that the advisement given Red-ington at his guilty plea hearing did not meet [116]*116the requirements of Wallace v. State, 172 Ind.App. 535, 361 N.E.2d 159 (1977), reh. denied, trans. denied, 267 Ind. 43, 366 N.E.2d 1176 (1977), concerning the dangers of proceeding pro se. However, the post-conviction court concluded that under White v. State, 497 N.E.2d 893 (Ind.1986), Reding-ton was required to demonstrate some type of prejudice from the deficient advisement, and that Redington failed to meet this burden. Accordingly, ■ the post-conviction court denied Redington’s petition for post-conviction relief. Notably, the post-conviction court did not make any express finding or conclusion as to whether failure to comply with Wallace at a guilty plea hearing rendered Redington’s waiver of counsel involuntary, unknowing or unintelligent. This appeal ensued.

Under the rules of post-conviction relief, the petitioner bears the burden of establishing his grounds for relief by a preponderance of the evidence. Ind. PosUConviction Rule 1, § 5; Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993), reh. denied. Since Redington had the burden of establishing his grounds for relief, he is appealing from a negative judgment. To prevail on appeal from the denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court. Id.

I.

Applicability of White

When Redington pled guilty in 1978, the Indiana Code provided that “[a] guilty plea shall not be accepted from a defendant unrepresented by counsel who has not freely and knowingly waived his right to counsel.” Ind.Code § 35-4.1-l-2(a) (1976), repealed by 1981 Ind. Acts P.L. 298, SEC. 9(a).1 The State contended, and the post-conviction court agreed, that Redington was required to plead specific facts in accordance with White from which the court could conclude that Redington would have changed his decision to plead guilty had he been properly advised of his right to counsel.2 We conclude the post-conviction court erred in applying White to the issue of waiver of counsel at a guilty plea hearing.

In White, our supreme court held that in order for a post-conviction relief petitioner to be entitled to relief when challenging his guilty plea, the petitioner must “plead specific facts from which a finder of fact could conclude by a preponderance of the evidence that the trial judge’s failure to make a full inquiry in accordance with § 35-35-1-2(a) rendered his decision [to plead guilty] involuntary or unintelligent.” White, supra, at 905. Thus, on its face, White only applies to the advisements enumerated in IC 35-35-1-2(a).3 Cases prior to White do not require a showing of prejudice in order to set aside a guilty plea where the defendant was not properly advised of his right to counsel. See Rader v. State, 181 Ind.App. 546, 393 N.E.2d 199 (1979); DeFrisco v. State, 153 Ind.App. 609, 288 N.E.2d 576 (1972). Redington and the State have not directed us to, and we did not locate, any eases applying White outside the context of 35-35-l-2(a), much less applying White to waiver of counsel. Too, in the context of waiver of counsel and proceeding to trial pro se, our courts do not require a showing of prejudice in order for a defendant to be entitled to relief where he was not properly advised and admonished concerning the right to and importance of trial counsel. [117]*117See Hagy v. State, 639 N.E.2d 693 (Ind.Ct. App.1994); Seniours v. State, 634 N.E.2d 803 (Ind.Ct.App.1994). We can decipher no legitimate reason why the result should be any different for a defendant who has pled guilty when he was not properly advised and admonished concerning his right to counsel. Accordingly, we conclude that a post-conviction relief petitioner need not comply with White once it is shown that he did not voluntarily and intelligently waive his right to counsel before pleading guilty.

II.

Voluntariness of Waiver of Counsel

Nevertheless, the predicate determination to relief is that Redington demonstrate that he did not voluntarily and intelligently waive his right to counsel before he pled guilty. We conclude that Redington’s waiver of counsel was voluntary, knowing and intelligent.

Before addressing whether Redington made a knowing, voluntary and intelligent waiver of counsel before pleading guilty, it is necessary to clarify the factual juxtaposition of this case. According to Redington, “The State conceded ... that John Redington had not been properly advised as to the importance of his right to be represented by an attorney.” Brief of Appellant at 8. This statement is, at best, a quite liberal interpretation of the State’s concession at the post-conviction hearing.4 A more careful reading of the record reveals that the State only conceded that the trial court did not “do what the Wallace case and the others say that you have to_” Record at 70. Nowhere could we find a concession by the State that Redington was not properly advised as to his right to counsel or that he did not voluntarily, knowingly and intelligently waive this right. In fact, at one point the State argued that “[njowhere in there is the advisement of the dangers of self representation, but on the other hand there is nothing in there that really indicates that it was an involuntary waiver....” Record at 71. Thus, we begin our analysis with the concession by the State, and only this concession, that Redington was not properly advised of the dangers of proceeding pro se under the standards as set forth by Wallace and its progeny.

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Redington v. State
678 N.E.2d 114 (Indiana Court of Appeals, 1997)

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Bluebook (online)
678 N.E.2d 114, 1997 Ind. App. LEXIS 287, 1997 WL 136828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/redington-v-state-indctapp-1997.