Emerson v. State

Garrard, J.

Emerson filed a petition for post conviction relief alleging reversible error in the refusal of the trial court to permit him to withdraw a guilty plea which had been entered May 16,1974. Relief was denied and Emerson appeals.

When Emerson entered his plea of guilty to a reduced charge of robbery, IC 1971, 35-4.1-1-6 (c) providing for the withdrawal of such pleas after judgment and sentence, was in effect. The statute, which is set out below, provides that after judgment and sentence, a plea may not be withdrawn as a matter of right. Withdrawal, however, shall be permitted if the accused establishes that withdrawal of the plea is necessary to correct manifest injustice.¹

The only ground asserted by Emerson to secure vacation of his plea is that the plea was not knowingly and voluntarily entered because he thought he would be sentenced under the provisions of the minors sentencing act, IC 1971, 35-8-3-1.

In Dube v. State (1971), 257 Ind. 398, 275 N.E.2d 7, and again in Watson v. State (1973), 261 Ind. 97, 300 N.E. 354, our Supreme Court recognized that the failure of the trial court to adequately advise an accused at arraignment regarding the consequences of a plea bargain would deprive the plea of the knowing and voluntary character necessary to sustain it.

Both decisions, however, expressly recognize that the trial judge is not, and should not be, bound by recommendations made by law enforcement officers. Furthermore, it is the statutory policy of our state to provide for sentencing in felony cases only after a pre-sentence investigation has been conducted and the information thus secured has been reviewed by the court. See, IC 1971, 35-8-1A-9 (Bums Code Ed.) That report might disclose factors thitherto unknown by all but the accused and which might bear great significance upon proper disposition of the case.²

Thus, the question presented by Emerson’s appeal is whether the facts and circumstances surrounding his plea demonstrate that it was not knowingly and voluntarily entered into so as to have made it obligatory for the trial court to have vacated the plea to correct manifest injustice.³ In considering this question, it must be borne in mind that Emerson had the burden of proof and now stands in the shoes of one appealing from a negative judgment.

In both Dube and Watson the accused was arraigned and his guilty plea was accepted without any disclosure of the existence of a plea bargain or its contents. Furthermore, it was undisputed that when the plea was tendered, the accused believed in good faith that the bargain would be honored. Under these facts, the court logically held that a necessary ingredient of voluntariness, understanding the consequences of the plea, was lacking.

The facts now before us differ substantially from those in Dube and Watson. In open court Emerson executed and tendered a written motion to withdraw his previously entered plea of not guilty and enter a plea of guilty. That motion disclosed the existence of the plea bargain and that the prosecuting attorney had agreed to recommend sentencing under the minors sentencing statute. The motion also contained the following:

“(7) I understand that even though the prosecuting attorney may have agreed to make a recommendation as to my sentence the Court is not a party to that agreement and is not required to follow that recommendation; that the sentence imposed by the Court may be greater than, the same as, or less than the sentence recommended by the prosecutor. I understand also that if I plead GUILTY my punishment could be the same as, greater than or less than if I had pleaded NOT GUILTY, had stood trial and been convicted by a Court or Jury.”

When the motion was tendered, the trial judge examined Emerson regarding his understanding of his constitutional rights and explained the charges against him. The plea bargain recommendation was disclosed and the judge explained both the statutory penalty for robbery and the choice of penalties that might be imposed under the minors sentencing statute. He then ascertained that Emerson was under twenty-one and had not been previously convicted of a felony, and was thus eligible to be sentenced as a minor. The following colloquy then accurred:

“Q. Then you would be eligible, but that does not guarantee that you will be sentenced under the minor statute, do you understand that?

A. Yes, sir.

Q. If you were sentenced under the minor statute, I could give you up to year [sic] or one to ten years, but this is my decision and I’ll base my decision upon the pre-sentence report, upon anything you want to tell me, your attorney wants to tell me, or anybody that wants to tell me at the time of sentencing. Then I’ll decide whether I give you one to ten, or one day to a year, or ten to twenty-five years, do you understand ?

A. Yes, sir.

Q. Do you have any questions about anything that we have discussed or what you are doing here today?

A. No, sir.

Q. Is this what you want to do ?

A. Yes, sir.”

On this record we cannot say that all reasonable men must conclude that Emerson’s plea was not voluntarily and knowingly entered because he was unaware that the court might not impose sentence under the minors sentencing statute.

Therefore, the decision must be affirmed.

Hoffman, J., concurs; Staton, P.J., dissents with opinion.

1 . “(c) After judgment and sentence upon a plea of guilty, the convicted person may not as a matter of right withdraw such plea. Provided, however, upon motion of the convicted person the court shall vacate the judgment and allow the withdrawal whenever the convicted person proves that withdrawal is necessary to correct a manifest injustice. A motion to vacate judgment and withdraw the plea made pursuant to this subsection shall be treated by the court as a petition for post-conviction relief pursuant to the post-conviction remedies rules of the Indiana Supreme Court and the provisions of such rules shall govern the procedure upon such petition except as expressly otherwise provided herein. For purposes of this subsection, withdrawal of the plea of guilty is necessary to correct a manifest injustice whenever:

(1) the convicted person was denied the effective assistance of counsel;

(2) the plea was not entered or ratified by the convicted person;

(3) the plea was not knowingly and voluntarily made;

(4) the prosecuting attorney failed to abide by the terms of a plea agreement;

(5) the plea and judgment of conviction thereon are void or voidable for any other reason.

The motion to vacate the judgment and withdraw the plea need not allege, and it need not be proven, that the convicted person is innocent of "the crime charged or that he has a valid defense.”

2 . Thus, in view of the formal recognition of plea bargains now afforded by statute, IC 1971, 35-5-6-2 (Acts 1975) provides for securing the pre-sentence investigation when the prosecutor advises the court of the existence of a recommendation.

3 . The motion was not made until after sentence had been pronounced. Where the motion is made before sentencing, the court may allow withdrawal of the plea for any fair and just reason unless the state has been substantially prejudiced by reliance upon the plea. IC 1971, 35-4.1-1-6 (b).