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Reid v. State

499 N.E.2d 207, 1986 Ind. LEXIS 1334
Indiana Supreme Court·Decided October 28, 1986·No. 185S11·Published·Cited by 25 cases

Opinions

DICKSON, Justice.

Defendant/Petitioner Michael Reid appeals from the denial of post-conviction re[208] lief. On November 4, 1981, he entered a plea of guilty to attempted voluntary manslaughter 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, pursuant to Ind.Code § 85-35-1-2, of the possible increase in sentence by reason of prior conviction.

When appealing the denial of a post-conviction petition, the petitioner 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 only when the evidence is without conflict and leads exclusively to a conclusion contrary 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 regarding whether the petitioner had been convicted of a prior crime, nor was there 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 proceedings before the post-conviction trial court fails to demonstrate that the trial judge's failure to strictly comply with Ind.Code § 85-85-1-2 rendered involuntary or unintelligent the defendant-petitioner's decision to plead guilty.

Judgment affirmed.

We note that appellant's petition for post-conviction relief and proceedings thereon were predicated on case law existing before our recent decision in White which reviewed and revised the applicable burden of pleading and proof. Therefore, if appellant has any other 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.

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Reid v. State, 499 N.E.2d 207, 1986 Ind. LEXIS 1334 (Ind. 1986).

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