Shaw v. State

456 N.E.2d 758, 1983 Ind. App. LEXIS 3662

Opinions

ROBERTSON, Presiding Judge.

The defendant-appellant Shaw appeals from the denial of his petition for post-conviction relief. He contends that his guilty plea was not freely and voluntarily given in several respects. Because we reverse, we shall discuss only one issue.

Shaw entered a plea of guilty to operating a motor vehicle while intoxicated, a Class D Felony. The record shows that the trial judge correctly advised him of the range of penalties appropriate to a Class D Felony and then sentenced Shaw pursuant ' to IND.CODE 85-50-2-7(b) which allows penalties associated with a Class A misdemeanor to be levied. Shaw was not advised of the alternative sentencing possibility.

Our supreme court demands strict compliance with the language of IND. CODE 35-4.1-1-3 when accepting a guilty plea. German v. State, (1981) Ind., 428 N.E.2d 234.

In recognition of the supreme court's insistence of strict adherence to the | statutory scheme of accepting guilty pleas, we are forced to the conclusion that Shaw was not adequately advised of the minimum possible sentence to which he was exposed upon entering a guilty plea. See: Payton v. State, (1983) Ind.App., 451 N.E.2d 384.

We reverse the trial court and remand the case with instructions to grant Shaw's petition for post-conviction relief.

Reversed and remanded.

RATLIFF, J., concurs with separate opinion. NEAL, J., concurs in result.