Opinion
No. 2-1183A417.
February 21, 1985.
Appeal from the Marion Superior Court, Charles C. Daugherty, J.
Susan K. Carpenter, Public Defender of Ind., William L. Touchette, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen. of Ind., Cheryl L. Greiner, Deputy Atty. Gen., Indianapolis, for appellee.
OPINION ON PETITION FOR REHEARING
Doren L. Martin (Martin) petitions for rehearing of our decision and opinion in Martin v. State (1984) 2d Dist., Ind. App., 470 N.E.2d 733. Based upon Williams v. State (1984) Ind., 468 N.E.2d 1036, we held that a review of the entire record of the guilty plea proceedings indicated that Martin's guilty plea was entered knowingly, intelligently and voluntarily.
In Williams, our Supreme Court declined to apply German v. State (1981) Ind., 428 N.E.2d 234, to a guilty plea proceeding conducted prior to the German decision. Instead, the court relied upon the test enunciated in Neeley v. State (1978) 269 Ind. 588, 382 N.E.2d 714, and looked "to the entire record to determine if petitioner was fully advised of and understood his constitutional rights." Williams, supra, 468 N.E.2d at 1037.
In German, our Supreme Court held that strict compliance with the terms of I.C. 35-4.1-1-3 was required to insure that a defendant is adequately informed of the consequences of his guilty plea. 428 N.E.2d at 236. [I.C. 35-4.1-1-3 repealed effective September 1, 1982. Current law is at I.C. 35-35-1-2 (Burns Code Ed.Supp. 1984).]
Martin's guilty plea hearing, held in 1975, also occurred prior to the German decision. At the guilty plea hearing, Martin was not personally advised of his right to confront and cross-examine witnesses, to have compulsory process for witnesses in his favor, and of his right to a public and speedy trial. Applying the Neeley standard, however, we determined that a review of the entire record, including the written plea agreement, indicated that Martin was adequately informed and knew the consequences of his guilty plea. In light of Johnson v. State (1984) Ind., 471 N.E.2d 1107, we are now inclined to agree that Martin is entitled to have this guilty plea vacated.
Johnson, supra, involved a guilty plea entered on May 10, 1978, prior to the decision in German. Johnson filed his petition for post-conviction relief alleging in part that he had not been advised that by pleading guilty he was waiving certain constitutional rights, such as the right to a public and speedy trial. Although these rights were set forth in the plea agreement signed by Johnson, our Supreme Court granted the relief requested. In vacating the guilty plea, the court stated that the trial court must inform "the accused person of all the constitutional rights he is waiving by direct statements at the time of the guilty plea." Id., 471 N.E.2d at 1108. The court further stated that the statutory advisement of rights is "an absolute prerequisite to the acceptance of a guilty plea." Id. at 1108.
The implication of the Johnson opinion casts doubt upon the efficacy of Williams, supra, 468 N.E.2d 1036, in that it gives retroactive application to German, supra, 428 N.E.2d 234. To the extent that our original opinion relied upon Williams, supra, it was apparently erroneous. However, in light of the split vote in Johnson, we are unable to so state with absolute certainty. Nevertheless we feel constrained to our result by our Supreme Court's most recent pronouncement in Johnson. If it is to be otherwise, that court will no doubt clarify the matter.
Accordingly, we grant the Petition for Rehearing and vacate our earlier mandate directing the trial court to modify the judgment to reflect a conviction of attempted armed robbery. This cause is now remanded with instructions to set aside the guilty plea and the judgment entered thereon.
BUCHANAN, C.J., and SHIELDS, J. concur.