Summers v. State ( 1967 )

Mote, J.

Appellant, John Summers, together with one, James A. Smith, was charged by the affidavit of the prosecuting witness, Thomas Verplank, with the felony of aggravated assault in violation of the provisions of Chap. 22 of the Acts of 1933, § 1, p. 110, as follows:

“Whoever intentionally or knowingly and unlawfully inflicts great bodily harm or disfigurement upon another person is guilty of aggravated assault and battery and upon conviction shall be imprisoned in the state prison for not less than one (1) year nor more than five (5) years, to which may be added a fine in any amount not to exceed one thousand dollars ($1,000).” Burns’ Ind. Stat. Anno. 1956 Repl., Vol. 4, Part 2 ,§ 10-410, 1966 Cum. Pocket Supp.

It appears from the record that at the time of the alleged offense, Appellant was fifteen years of age, but soon thereafter arrived at the age of sixteen.

The Lake Juvenile Court caused to be filed in the Lake Criminal Court a printed form of waiver of jurisdiction by the first mentioned court to the latter court, in which it is stated in part, as follows:

“After full preliminary investigation of certain alleged acts committed in Lake County, Indiana on or about the 10th day of February, 1966, by the above named child (Appellant), a child under the age of eighteen (18) years and a resident of Lake County, Indiana, and which child is subject to the jurisdiction of this Court, the Court now waives jurisdiction herein and orders the said child to be held for trial under the regular procedure of the Lake County Criminal Court, And it is so Ordered. Judgment.”

It also appears from the record that upon the filing of the affidavit charging aggravated assault, the judge of the Lake Criminal Court ordered Appellant’s arrest and fixed his bond in thé sum of $3,000.00.

On March 8, 1966, an attorney entered his appearance for the Appellant. On March 18, 1966, the cause was set for trial on March 31, 1966, but on said date, at the request of Appellant’s attorney, the cause was continued. On April 29, 1966, the cause was set for trial on May 12, 1966, and on said latter date, the cause was submitted. Appellant appeared in person and by his attorney, waived arraignment and pleaded guilty to the charge, after having been advised and instructed as to his constitutional rights. It further appears from the record that the court briefly questioned Appellant, who stated: “I kicked him, but only once.”

A typed statement dated February 11, 1966, appears in the record and concerns questions asked the Appellant about the prosecuting witness, as follows:

“Q. Why did you happen to pick out this boy, Tom Verplank ?

A. Because I was mad at the Wallace (Lew Wallace High School) boys, because prior to this they beat up my younger brother, Fred, at a party in the Glen Park area.

Q. What part did you take in the attack of Tom Verplank & what did you see Jim Smith do to Verplank?

A. * * * & I kicked him on the top of his head while he was down.”

The questions and answers set forth above are found in a written statement included in the transcript, however, we do not find any offer or admission of the same in to the record. Doubtless said statement, from which this coloquy was taken, was merely filed.

Appellant pleaded guilty to the charge and the court thereupon “committed (him) to the custody of the Board of Trustees of the Indiana Reformatory, to be confined by them, according to law, for a period of not less than one year nor more than five years from this date and to pay the costs of this prosecution.”

Appellant has been admitted to bail during this appeal.

The section of the Statutes under which Appellant was charged, to which he pleaded guilty and was sentenced, is Chapter 22 of the Acts of 1933 entitled: “An Act defining the crime of aggravated assault and battery and fixing penalties,” approved March 6, 1963, effective October 1, 1963, and previously quoted herein.

This appeal is predicated on the asserted error and the denial by the lower court of Appellant’s Verified Motion for Leave to Withdraw Plea of Guilty, to which the State filed its unverified Answer and Memorandum, both of which, omitting the formal parts thereof, are as follows:

“VERIFIED MOTION FOR LEAVE TO WITHDRAW PLEA OF GUILTY.

Comes now the defendant and moves the court for leave to withdraw his plea of guilty and in support of said motion represents to the court as follows:

1. Defendant did on the 12th day of May, 1966, plead guilty to the charge of Aggravated Assault and Battery.

2. The plea of guilty was improvidently made in that the defendant was not in fact guilty of Aggravated Assault and Battery and that the defendant was not fully aware of the consequences of his act in pleading guilty to said charge.

3. Defendant is a minor child sixteen (16) years of age and had only conferred with his counsel in regard to the charge and the plea of guilty for less than thirty (30) minutes on the day the plea of guilty was entered; that prior to the time the defendant entered a plea of guilty he had never conferred with his counsel in regard to the charge or the making of such a plea of guilty.

4. That defendant has a substantial and meritorious defense to the crime of Aggravated Assault and Battery in that he did not inflict great bodily harm or disfigurement upon the complainant.

Wherefore, defendant prays that he be granted leave to withdraw his plea of guilty heretofore entered; that the court vacate and expunge from the record the judgment entered on such plea of guilty wherein the defendant was sentenced to- a term of one to five years at the Indiana State Reformatory and that this cause stand for trial at the next term of court.”

“ANSWER AND MEMORANDUM.

Comes now the State of Indiana by its Prosecuting Attorney for the 31st Judidical Circuit, Henry S. Kowalczyk, by and through his deputies, Fred L. Mock and George M. Fisher, and in Answer to Defendants Verified Motion for Leave to Withdraw Plea of Guilty states as follows:

1. The State of Indiana admits the allegations contained in rhetorical paragraph number 1.

2. The State of Indiana denies the allegations contained in rhetorical paragraphs 2, 3 and 4.

Wherefore, the State of Indiana respectfully requests the Honorable Court to deny said Defendants Verified Motion for Leave to Withdraw Plea of Guilty, and for all other just relief in the premises.

MEMORANDUM

The State of Indiana would further show the Honorable Court as follows:

1. On March 1, 1966, an affidavit was filed in and for the County of Lake, State of Indiana charging said defendant with the felony of Aggravated Assault and Battery in the Lake County Criminal Court together with a Waiver of Jurisdiction of the Lake County, Indiana Juvenile Court.

2. On March 2, 1966 an Arrest Warrant issued by the Clerk of Lake County, Indiana said defendant was placed in custody of the Sheriff of Lake County, Indiana.

3. On March 5, 1966, said defendant was released on bond from said custody.

4. On March 8, 1966, James H. Mason, Jr., an attorney who maintains an office in Gary, Lake County, Indiana, duly entered his appearance in the Lake County Criminal Court for the said defendant.

5. On May 12, 1966, the said defendant appeared in person in the Lake County Criminal Court before the Honorable John H. McKenna, Judge of the Lake County Criminal Court, and was represented by his attorney, the said James H. Mason, Jr., who was then and there present; and the said defendant did then and there enter1 his plea of guilty to the said charge.

6. The said Judge did then and there apprise himself that the said defendant was in fact represented by the said attorney; and of the fact that the said defendant had consulted with the said attorney regarding prior discussion of the said charge with said attorney; and of the fact that the said defendant was fully aware of the character and meaning of the said charge as well as of the penalties attached thereto.

7. The said Judge did then and there fully and completely apprise and instruct the said defendant as to the said charge, the penalties of the said charge, and of all rights of the said defendant, constitutionally and otherwise.

8. The said Judge did then and there fully and completely apprise himself that the said plea of the said defendant was entered voluntarily, freely and understandingly.

9. The doctor’s report was read into evidence to show that the said defendant did in fact inflict great bodily harm or disfigurement upon his victim, and the said defendant did then and there admit to the said Judge that he did in fact kick the said victim.

10. There is no abuse of discretion by refusing to grant a Motion for Leave to Withdraw Plea of Guilty where said plea was entered knowingly, voluntarily, and subsequent to being fully apprised of his rights by both the Court and his attorney who was then and there present.”

The 1959 Indiana General Assembly, by Chapter 264, p. 632, enacted and there came into force on July 1, 1959 “An act concerning presenting investigations of defendants convicted of felonies” and by Chapter 175, Acts of 1961, declaring an emergency, the 1959 Act was amended to include subdivision 2 of § -1 infra §§ 9-2251—9-2252, Burns’ Ind. Stat. Anno., 1956 Repl., 1966 Cum. Pocket Supp., as follows:

“Precommitment investigations — ‘Felony’ and ‘criminal court of record’ defined.—As used in this act (§§ 9-2251— 9-2252) :

1. The term ‘felony’ shall mean any crime the punishment for which may be one or more years of imprisonment in a penal or correctional institution.

2. The term ‘criminal court of record’ shall mean any court of record having criminal jurisdiction. (Acts 1959, chap. 264, § 1, p. 632; 1961, chap. 175, § 1, p. 390.)

Precommitment investigations—Procedure—Copy of report sent to penal institution.—No defendant convicted of a felony shall be committed by any criminal court of record before a written precommitment investigation report, prepared by a probation officer, is presented to and considered by the sentencing court. Whenever precommitment investigation is required, the probation officer making the investigation shall inquire into the circumstances of the offense and shall make such investigation as is prescribed by the state probation director of the department of correction. All local and state police agencies shall be required to furnish to the probation officer such records as the probation officer may request. Where in the opinion of the sentencing court, or the investigating authority, it is desirable, the precommitment investigation may include a physical and mental examination of the defendant. If a defendant is thereafter committed to any penal and correctional institution the investigating agency shall send a written report of its precommitment investigation to the penal institution at the time of commitment. (Acts 1959, ch. 264, § 2, p. 632.)”

This Court has had occasion to pass upon the meaning, force and effect of the above set forth 1959 Act, as amended by the 1961 Act, in Ware v. State (1963) 243 Ind. 639, 189 N. E. 2d 704, 375 U. S. 934, 11 Law Ed. 265, 84 Sup. Ct. 337, and the failure to follow the above-quoted provision. Judge Achor, speaking for the majority, said:

“The provision of the above statute is mandatory. Failure of the trial court to comply with its terms is therefore, under the facts of this case, a proper cause for redress to this court. The order of commitment made, without such precommitment investigation and report, must be vacated.”

We are not unaware of the language in Wagner v. State (1963) 243 Ind. 570, 188 N. E. 2d 914 (handed down by this Court on April 1, 1963 immediately prior to Ware v. State, supra, which was handed down on April 24, 1963) involving an assignment of an independent error instead of including the same in a motion for a new trial and which was held to constitute a waiver.

As the above-quoted statute definitely provides, and in accordance with Ware v. State, supra, precommitment investigations and reports prepared by probation officers, presented to and considered by the sentencing court, is mandatory. Since the record before us does not disclose compliance with the mandatory provisions of the statute, it is our opinion that no lawful judgment may be entered and this Court is required to guarantee such right to the Appellant.

We must state that where the liberty of one so young as the Appellant comes before us, we consider it our duty to be ever alert to the possibilities of an inappropriate sentence, when applied to the facts, or the lack of same, contained in the record. On the other hand, we are constrained to say that trial courts should exercise care in the making of a record which may come to courts of appellate jurisdiction, so that a full and complete recording of all stages of the proceedings in a criminal matter particularly, as well as all the evidence made available below, will be placed before us. To do otherwise, places us in the position of speculation, in which we cannot and will not engage.

In view of what we have stated, we think justice and equal justice better will be served if this cause is presented to us, if necessary, with a full and complete record, so that this Court may approach its duties with all of the knowledge made available to the trial court.

Since the plea of guilty was predicated upon a record which fails to show a compliance with the procedure in juvenile cases, the petition to withdraw the plea of guilty should have been granted. Therefore, the judgment is hereby reversed and the cause is remanded to the trial court which shall vacate the judgment and thereafter remand the cause to the Juvenile Court for proceedings consistent with this opinion.

Arterbum and Jackson, JJ., concur. Hunter, C. J., concurs in result only, with separate opinion.