Frazier v. State , 1986 Ind. LEXIS 1050 ( 1986 )

490 N.E.2d 315 (1986)

Kenneth W. FRAZIER, Appellant,
v.
STATE of Indiana, Appellee.

No. 984S346.

Supreme Court of Indiana.

March 26, 1986.

Susan K. Carpenter, Public Defender, Paul Levy, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

Petitioner Kenneth W. Frazier was initially charged with three criminal counts: robbery (class B felony), attempted robbery (class B felony) and attempted battery (class C felony). The State also alleged that he was an habitual offender. Frazier pleaded guilty to all counts except the attempted battery, which was dismissed by the State pursuant to a plea bargain agreement. The trial court imposed an aggregate sentence of forty-two years.

Frazier raises two issues in this appeal from the trial court's denial of his subsequent petition for post-conviction relief:

(1) Whether the trial court erroneously accepted his guilty plea, and

(2) Whether the State must offer proof of two prior unrelated felonies when the defendant pleads guilty to the habitual offender count.

I. Acceptance of Guilty Plea

Petitioner argues that his guilty plea was not made voluntarily because he initially protested his innocence and then admitted the allegations solely for the purpose of permitting the court to accept his plea. He maintains that the trial court should have rejected his guilty plea and resumed the trial when he protested his innocence.

Frazier initially pleaded not guilty to the charges filed against him. The State's case in chief was interrupted by plea negotiations and then a guilty plea hearing was held. The State agreed to dismiss the attempted battery charge in exchange for Frazier's guilty plea to the remaining counts. The agreement further recited that the "entry of his/her guilty plea pursuant to this agreement ... constitutes an admission of the truth of all facts alleged in the information to which he/she pleads guilty..." The trial court prefaced the guilty plea hearing by advising Frazier that the trial could resume and defendant stated that he understood.

Petitioner stated that he understood the terms of the plea agreement and the counts to which he intended to plead guilty. Before reading the informations to the defendant the court advised him that it could not accept his guilty plea unless the facts presented in the counts were true. Defendant stated that he understood. The court read the informations and then repeated that it could not accept his plea unless the facts presented in the information were true. Defendant stated that he accepted the plea agreement but that all of the facts were not true: he did not commit all the acts for which he was charged but wanted to accept the plea agreement as it was deemed best for his future. The judge told him that she would not accept a guilty plea on that basis. Frazier responded that the facts presented were correct. The State presented a factual basis for the counts. The court then gave Frazier an opportunity to comment upon the facts presented. Defense counsel told the court that a factual discrepancy existed: his client admitted he attempted to take something from the intended victim of the attempted robbery but that the object was not the necklace which was alleged in the information. The defendant did not have any other comment and told the court that he still wished to plead guilty and still wanted the court to accept the plea agreement. Then court then recounted the specific terms of the plea agreement and inquired one more time whether defendant still wished to plead guilty; he responded affirmatively. The court then accepted the plea agreement and defendant's guilty plea. Throughout the entire guilty plea hearing the trial court repeatedly advised defendant that the trial could be resumed.

A judge may not accept a plea of guilty when the defendant both pleads guilty and maintains his innocence. Ross v. State (1983), Ind., 456 N.E.2d 420. Although defendant initially protested his innocence, the court did not enter a judgment upon his guilty plea until after an examination of the defendant and the presentation of a factual basis for his plea, to which he assented. Ind. Code § 35-35-1-3(b). We conclude that the trial court properly accepted appellant's plea.

II. Proof of Habitual Offender Status

Petitioner argues that the State did not prove that he had accumulated two prior unrelated felonies. At the guilty plea hearing defendant pleaded guilty to the habitual offender charge after the trial court read the information. The information showed the date, place and offense involved in the prior convictions. The trial prosecutor gave a detailed verbal description of the documents that he had in hand to substantive the predicate felonies. The record does not show however that they were viewed by the court and they were never introduced into evidence. However, since a defendant may plead guilty to an habitual offender charge, Neeley v. State (1983), Ind., 457 N.E.2d 532, the State is relieved of its burden of proof on that charge just as a plea of guilty eliminates the need to prove beyond a reasonable doubt the commission of the pending felony.

We note, however, that the trial court did not specify which of the two predicate felonies was being enhanced by virtue of the habitual offender determination. The cause is therefore remanded and the trial court is ordered to specify whether the robbery conviction or the attempted robbery conviction is to be enhanced by the thirty year sentence imposed for the habitual offender finding.

We remand to the trial court for correction of sentence.

Otherwise, the judgment is affirmed.