Summary
In Gross v. State, (1975) 167 Ind. App. 318, 338 N.E.2d 663, 665, Judge Staton cited Dube v. State, (1971) 257 Ind. 398, 275 N.E.2d 7, in writing that "[c]ertainly, the mere expectation of a lesser sentence does not make a guilty plea involuntary."
Summary of this case from Smith v. StateOpinion
No. 2-1074A240.
Filed December 22, 1975.
1. CRIMINAL LAW — Post-conviction Relief — Burden of Proof. — Defendant had burden of proof at hearing on petition for post-conviction relief. p. 321.
2. APPEAL — Denial of Post-conviction Relief — Standard of Review. — On review of denial of post-conviction relief, Court of Appeals may not weigh evidence or judge credibility of witnesses, but may consider only evidence most favorable to State, and only when evidence is without conflict and leads to but one reasonable conclusion contrary to that reached by trier of fact will decision be reversed as contrary to law. p. 321.
3. CRIMINAL LAW — Expectation of Lesser Sentence — Does Not Make Guilty Plea Involuntary. — Mere expectation of sentence lesser than that imposed does not make guilty plea involuntary. p. 321.
4. CRIMINAL LAW — Greater Sentence Than Recommended by Prosecutor — Does Not Make Guilty Plea Involuntary. — Guilty plea does not become involuntary because trial court imposes more severe sentence than that recommended by prosecutor. p. 321.
5. CRIMINAL LAW — Guilty Plea — Not Rendered Involuntary Due To Attorney's Assurance of Suspended Sentence. — Where State had recommended that defendant be given one to ten-year suspended sentence and five-year probationary period, and trial court had advised defendant that it was not bound by prosecutor's recommendation and that there was no guarantee that suspended sentence would be given, defendant's guilty plea to theft charge was not involuntary, despite contention that plea was not knowingly and intelligently entered because defendant, who received one to ten years with no suspension, had allegedly been assured by his attorney that he would receive a suspended sentence. p. 321.
6. CRIMINAL LAW — Refusal to Allow Withdrawal of Guilty Plea — Not An Abuse of Discretion. — There was no abuse of discretion on part of trial court when it did not sua sponte allow defendant to withdraw his plea of guilty to theft, where prosecutor had fully complied with his promises under plea bargain agreement, but defendant had not made "clean-up statement" as he had promised in plea bargain. p. 322.
7. CRIMINAL LAW — Guilty Plea May Be Withdrawn — Where Prosecutor Fails to Abide By Plea Agreement. — Trial court must allow petitioner to withdraw his guilty plea upon failure of prosecutor to abide by terms of a plea agreement if such leave is sought by petitioner. p. 322.
8. CRIMINAL LAW — Guilty Plea — Not Voluntary If Defendant Denied Competent Counsel. — A guilty plea is not voluntarily, intelligently, and knowingly entered if defendant has been denied competent counsel. p. 323.
9. CRIMINAL LAW — Competency of Counsel — Presumption of Competency. — There is presumption that defense counsel has fully discharged his duty until there is showing that his conduct made a mockery of justice. p. 323.
10. CRIMINAL LAW — Competency of Counsel — Record Contained No Evidence of Incompetency of Counsel. — Record contained no evidence that defendant's counsel was incompetent, despite contention by defendant, on appeal from denial of post-conviction relief, that he had not received effective assistance of counsel because counsel had not familiarized himself with "cleanup statement" requirement of plea bargain and because counsel had not requested that defendant be allowed to withdraw guilty plea when executed sentence was imposed. p. 323.
Defendant-Appellant takes this appeal from the denial of his petition for post-conviction relief following his plea of guilty to the charge of theft.
From the Marion Criminal Court, Division Four, John B. Wilson, Jr., Judge.
Affirmed by the Third District.
Harriette Bailey Conn, Public Defender of Indiana, Carr L. Darden, Sr., Deputy Public Defender, for appellant.
Theodore L. Sendak, Attorney General, Walter F. Lockhart, Deputy Attorney General, for appellee.
Theo K. Gross's petition for post-conviction relief was denied. He had entered a plea of guilty with the expectation of receiving a one to ten year suspended sentence for theft. Instead, he received a one to ten year sentence with no suspension. His appeal from the denial of his post-conviction relief petition raises these issues:
I. Was his guilty plea knowingly and intelligently entered?
II. Did the trial court abuse its discretion?
III. Did Gross receive effective assistance of counsel?
Our opinion affirms the trial court's judgment which denied Gross's post-conviction relief petition.
I.
Guilty Plea
On appeal, Gross contends that his guilty plea was not knowingly and intelligently entered because he had been assured by his attorney that he would receive a suspended [1, 2] sentence. Gross had the burden of proof at his post-conviction relief hearing. The right to relief may be established by a preponderance of the evidence. Indiana Rules of Procedure, Post-Conviction Remedy Rule 1, § 5. See also IC 1971, 35-4.1-1-6(e) (Burns Code Ed.). Upon review of the denial of post-conviction relief upon this issue, we may not weigh the evidence nor judge the credibility of the witnesses. Perkins v. State (1975), 263 Ind. 270, 329 N.E.2d 572. We may consider only the evidence most favorable to the State, and it is only when the evidence is without conflict and leads to but one reasonable conclusion and the trier of fact reached a contrary conclusion, that the decision will be reversed as being contrary to law. Barron v. State (1975), 164 Ind. App. 638, 330 N.E.2d 141; Hoskins v. State (1973), 261 Ind. 291, 302 N.E.2d 499.
The State made a recommendation for a one to ten year sentence suspended and a five year probationary period. The trial court advised Gross that there was no guarantee that a [3-5] suspended sentence would be given and that the trial court was not bound by the prosecutor's recommendation. Gross and his wife testified that their attorney had advised them that the trial court was not bound by the plea bargain. Certainly, the mere expectation of a lesser sentence does not make a guilty plea involuntary. Dube v. State (1971), 257 Ind. 398, 275 N.E.2d 7; see Brady v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. There is no evidence in this case of promises or threats which induce the guilty plea. See Machibroda v. United States (1962), 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473; Watson v. State (1973), 261 Ind. 97, 300 N.E.2d 354; Dube v. State, supra. The prosecutor performed his part of the plea bargain. If the trial court gives a more severe sentence than recommended by the prosecutor, the guilty plea does not become involuntary. See Haver v. State (1974), 162 Ind. App. 93, 317 N.E.2d 884.
In 1975, the Indiana Legislature passed IC 1971, 35-5-6-2 (Burns Code Ed. 1975 Supp.) which now requires the trial court to advise the defendant if he will accept the prosecutor's sentencing recommendation prior to the acceptance of defendant's guilty plea:
"(a) No recommendation may be made by the prosecutor to a court on a felony charge except (1) in writing, and (2) before the defendant enters a plea of guilty. The recommendation shall be shown as filed, and, if its contents indicate that the prosecutor anticipates that the defendant intends to enter a plea of guilty to a felony charge, the court shall order the presentence report required by IC 1971, 35-4.1-4-9 and may hear evidence on the recommendation.
"(b) Neither the content of the recommendation, the presentence report nor the hearing shall be a part of the official record of the case unless the court approves the recommendation. If the recommendation is not accepted, the court shall reject the same before the case may be tried. If the court rejects the recommendation, subsequent recommendations may be filed with the court, subject to the same requirements this chapter [35-5-6-1 — 35-5-6-3] imposes upon the initial recommendation. If the court accepts a recommendation, it shall be bound by its terms."
Hopefully, strict adherence to the requirements of IC 1971, 35-5-6-2 by trial courts will considerably reduce the number of post-conviction relief petitions and appeals asserting the right to withdrawal of petitioner's guilty plea because of promises regarding sentencing.
II.
Abuse of Discretion
After the State made its recommendation in accordance with the plea bargain, the trial court learned through a police officer that Gross had not made a "clean-up statement" as he [6, 7] had promised under the plea bargain. The prosecutor had fully complied with his promises made under the plea bargaining agreement. See Santobello v. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427; IC 1971, 35-4.1-1-6(c) (4) (Burns Code Ed.). We have examined the record, and we find no abuse of discretion on the part of the trial court when it did not sua sponte allow Gross to withdraw his guilty plea.
See the American Bar Association Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 1.8 (1968) listing several considerations which are appropriate for the trial court to consider in determining whether granting sentencing concessions serves the public interest in the administration of justice.
Santobello v. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 leaves it to the discretion of the state court to either specifically enforce the prosecution's part of the plea bargain or allow withdrawal of defendant's guilty plea. However, pursuant to IC 1971, 35-4.1-1-6(c) (4), the trial court must allow petitioner to withdraw his guilty plea upon failure of the prosecutor to abide by the terms of a plea agreement if this relief is sought by petitioner.
III.
Competent Counsel
Gross's final contention of error is that he did not receive effective assistance of counsel because his counsel did not familiarize himself with the "clean-up statement" [8, 9] requirement and because he did not request that Gross be allowed to withdraw his guilty plea when he received an executed sentence. A guilty plea is not voluntarily, intelligently, and knowingly entered if the defendant has been denied competent counsel. Harmer v. State (1975), 165 Ind. App. 468, 332 N.E.2d 815. However, there is a presumption that a defense counsel has fully discharged his duty until there is some showing that his conduct made a mockery of justice. Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686; Haddock v. State (1973), 260 Ind. 593, 298 N.E.2d 418; Barron v. State (1975), 164 Ind. App. 638, 330 N.E.2d 141.
Gross's defense counsel expressed surprise at the sentencing hearing that the "clean-up statement" had not been given. Nevertheless, he attempted to mitigate Gross's [10] non-compliance with the plea bargain. As to whose responsibility it was to see that the "clean-up statement" was given, the evidence is conflicting. There was no motion to withdraw the guilty plea. Defense counsel may have considered any such motion a useless act. See Haver v. State, supra. We have carefully examined the record, and we find no evidence of incompetency on the part of Gross's defense counsel.
Judgment affirmed.
Hoffman, J., and Garrard, J., concur.
NOTE. — Reported at 338 N.E.2d 663.