Early v. State , 442 N.E.2d 1071 ( 1982 )

PRENTICE, Justice.

Petitioner (Appellant) was convicted of Robbery, Ind.Code § 35-42-5-1 (Burns 1979) and sentenced to fifteen (15) years imprisonment. One issue raised by this appeal from the denial of a petition for post-conviction relief compels us to reverse the judgment of the trial court and to order Petitioner’s guilty plea vacated.

On October 5, 1978, Petitioner was charged with Robbery of a fast-food restaurant. He signed a plea bargain agreement with the State and, on April 10, 1979, entered a plea of guilty to the charge. At that time, the trial court examined Petitioner regarding this guilty plea and determined that Petitioner understood his constitutional rights and the charge against him. The guilty plea was then accepted by the court. Petitioner contends that his guilty plea was not knowingly, voluntarily, and intelligently made due to the trial court’s failure to comply with Ind.Code § 35-4.1-1-3 (Burns 1979).

Petitioner has the burden of proof and stands in the shoes of one appealing from a negative judgment. I.R.P.C. 1 § 5, Lamb v. State, (1975) 263 Ind. 137, 325 N.E.2d 180. The trial judge, as trier of fact, is the sole judge of the weight of the evidence and the credibility of the witnesses. Rufer v. State, (1980) Ind., 413 N.E.2d 880, 882. It is only where the evidence is without conflict and leads to but one conclusion, and the trial court has reached an opposite conclusion, that the decision will be disturbed as being contrary to law. Walker v. State, (1978) 267 Ind. 649, 651, 372 N.E.2d 739, 740.

The plea bargain agreement contained a paragraph in which each and every advisement required by subsection (a), (b), and (c) of Ind.Code § 35-4.1-1-3 was set forth, and the petitioner had placed his initials following each stated right, indicating that he understood it.

At the guilty plea hearing, the judge undertook to comply with the requirements of the aforementioned statute, either from notes or memory or perhaps from a copy of the statute. In so doing, he, unfortunately, failed to advise Petitioner of his right to have compulsory process for obtaining witnesses; and it is his contention that under the mandatory wording of the statute and our holding in German v. State, (1981) Ind., 428 N.E.2d 234 (C.J. Givan and J. Pivarnik dissenting) it cannot be said that his guilty plea was made knowingly and intelligently.

The State counters that, without regard to the deficiency in the advisements, the petitioner was aware of such rights, as evidenced by his acknowledgment in the plea bargain agreement, which agreement was before the Court.

The case, therefore, resembles both German, supra, and Clark v. State, (1978) 270 Ind. 104, 383 N.E.2d 321. In Clark and German the appellants had executed plea agreements whereby they acknowledged their rights as enumerated therein. We affirmed in Clark, notwithstanding that the judge who had taken the guilty plea had failed to advise the appellant of his right to compulsory process. However, it there appeared that the plea agreement was before the Court and that the judge, through extensive questioning with respect to it, had determined that the appellant did understand all of his rights and did voluntarily waive them.

The circumstances of the plea hearing in the case before us are quite similar to those of Clark, but an essential link is missing. Although the plea agreement was before the court, in interrogating and advising the petitioner, the judge made no references to any of its terms, separately or collectively, to determine whether or not Petitioner knew and understood its contents. There is nothing in the record, other than the written plea agreement itself, from which the trial court could have determined that Petitioner knew of his right to compulsory process, and we clearly held in German, that a term of the written plea agreement may not be considered an adequate substitute for the personal advisement required by the statute.

Although we will not hold the plea hearing judge to particular language in carrying out the mandate of the statute, if its simple language is utilized, together with simple questions, to ascertain that the defendant does, in fact, understand the meaning of each advisement and simple explanations, when necessary, defendants who plead guilty will not only be fully advised and competent to plead, but the record will also clearly reflect as much; and judicial time and effort can be conserved.

Although the plea bargain agreement in the instant case reflects that the petitioner understood the rights therein enumerated, including the right to compulsory process, it did not come from the judge, and it did not come at the time of. the waiver. In order for rights to be voluntarily waived, they must be known and understood at the time of the waiver. The waiver occurs simultaneously with the guilty plea; hence the judge must ascertain, and the record must refíect, that the defendant understands his rights and the effect of a guilty plea at that very moment. That is the critical time. What he knew or did not know at prior times, including the time when he signed the plea agreement, is immaterial except insofar as it may be an aid to the hearing judge and to us in determining what he comprehended and understood at the time the plea is given.

Although we are aware that the petitioner probably understood the one right which the guilty plea hearing judge inadvertently omitted from his advisements, the record discloses that no advisement thereon was given, either directly or by reference to the plea agreement contents, at the time the plea was taken. The conclusion of the post conviction hearing judge that the petitioner had been adequately advised at the guilty plea hearing and knowingly, intelligently and voluntarily entered his plea of guilty is not supported by any evidence and is contrary to the evidence. The judgment denying relief to the petitioner is, therefore, contrary to law, is ordered reversed; and the cause is remanded with instructions to vacate Petitioner’s guilty plea.

DeBRULER, J., concurs. HUNTER, J., concurring in part, dissenting in part and concurring in result with opinion. PIVARNIK, J., dissents with opinion in which GIVAN, C.J., concurs.