guilty plea hearing in Indiana

2020“In determining whether a trial court has abused its discretion in denying a motion to withdraw a guilty plea, courts must examine the statements made by the defendant at the guilty plea hearing to decide whether the plea was offered ‘freely and knowingly.’” Jeffries v. State, 966 N.E.2d 773, 777 (Ind. Ct. App. 2012) (quoting Brightman, 758 N.E.2d at 44 ). [11] Walthour first asserts that the trial court’s denial of his motion to withdraw from the plea agreement was erroneous because that agreement2 allowed him to withdraw from it prior to the court’s “acceptance” of his guilty plea.

2020In determining whether a trial court has abused its discretion in denying a motion to withdraw a guilty plea, we examine the statements made by the defendant at the guilty plea hearing to decide whether the plea was offered “‘freely and knowingly.’” Id. (quoting Coomer, 652 N.E.2d at 62 ).

2020Because the defendant was expressly told at the guilty-plea hearing he had the right to appeal his sentence, we held the appeal waiver in his plea agreement was “a nullity.” Id. at 1094 .

2020Part of the Supreme Court’s reasoning was that because the trial court properly advised Creech at the guilty plea hearing that he had waived the right to appeal his sentence and then accepted Creech’s plea and entered judgment on Creech’s plea, the erroneous advisement from the trial court at the sentencing hearing had no bearing on the validity of Creech’s plea agreement: “[b]y the time the trial court erroneously advised Creech of the possibility of appeal, Creech had already pled guilty and received the benefit of his bargain.” Id. at 77 . [21] In Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. A

2020Id. [23] Finally, in Holloway v. State, 950 N.E.2d 803 (Ind. Ct. App. 2011), we addressed a situation procedurally similar to Harper’s case, in which the guilty plea hearing and sentencing hearing were combined into one hearing.

2018Bonilla entered into a plea agreement which contained a waiver of his right to appeal his sentence but at the guilty plea hearing, the trial court told Bonilla that he “may” have waived his right to appeal, but then proceeded to “promptly advise[] Bonilla of the right to appeal and the right to an attorney.” Bonilla, 907 N.E.2d at 590 .

2023Under the second inquiry, when the juvenile’s custodial parent is present at the admission hearing, the court “must inquire of the juvenile and his parent[] . . . to insure that the waiver is voluntarily, knowingly, and intelligently given.” Bridges v. State, 260 Ind. 651 , 299 N.E.2d 616, 618 (1973); see also R.W. v. State, 901 N.E.2d 539 , 545 & n.2 (Ind. Ct. App. 2009); D.H. v. State, 688 N.E.2d 221, 224 (Ind. Ct. App. 1997); cf. Ponce, 9 N.E.3d at 1270 (holding that a post-conviction defendant has met their threshold burden for relief by demonstrating that the trial court failed to give th

2019Accordingly, a defendant who demonstrates that the trial court failed to properly give a Boykin advisement during the guilty plea hearing has met his threshold burden for obtaining post-conviction relief. 9 N.E.3d 1265, 1270 (Ind. 2014).

2020Carter v. State, 739 N.E.2d 126, 130 (Ind. 2000); see also Johnson v. State, 960 N.E.2d 844, 849 (Ind. Ct. App. 2012) (defendant was entitled to relief because he consistently maintained innocence at the guilty plea hearing and clearly denied committing the crime charged). [11] The State concedes that Wampler protested his innocence during his guilty plea hearing.

2018Carter v. State, 739 N.E.2d 126, 130 (Ind. 2000); see also Johnson v. State, 960 N.E.2d 844, 849 (Ind. Ct. App. 2012) (defendant was entitled to relief because he consistently maintained innocence at the guilty plea hearing and clearly denied committing the crime charged). [7] Gonzalez focuses on the point in his testimony at which he was asked “What did you do?” and replied, “I didn’t do nothing.” Appellant’s App. Vol. II p. 61.

2018Further, “[t]he fact that the record of a guilty plea hearing can neither be found nor reconstructed does not of itself require granting post-conviction relief.” Id. at 470 .

2012Hall v. State, 849 N.E.2d 466, 472 (Ind.2006). 2 The supreme court reasoned that “[t]he fact that the record of a guilty plea hearing can neither be found nor reconstructed does not of itself require granting post-conviction relief.” Id. at 470 .

2026See Butler, 658 N.E.2d at 77 (a guilty-plea hearing need not amount to “a veritable bench trial”).

2016Id. (citing Lowe v. State, 455 N.E.2d 1126, 1129 (Ind. 1983) (defendant’s admission of guilt after prosecutor read all allegations adequately established factual basis)). [33] At the guilty plea hearing, the court read the charging informations, and Milligan indicated that he understood that pleading guilty constituted an admission of the truth of the material facts.

2020Part of the Supreme Court’s reasoning was that because the trial court properly advised Creech at the guilty plea hearing that he had waived the right to appeal his sentence and then accepted Creech’s plea and entered judgment on Creech’s plea, the erroneous advisement from the trial court at the sentencing hearing had no bearing on the validity of Creech’s plea agreement: “[b]y the time the trial court erroneously advised Creech of the possibility of appeal, Creech had already pled guilty and received the benefit of his bargain.” Id. at 77 . [21] In Ricci v. State, 894 N.E.2d 1089 (Ind. Ct. A

2017Further, although the trial judge erroneously advised the defendant at the end of the sentencing hearing that he had a right to appeal, our supreme court concluded the advisement had no effect on his plea because “[the Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-265 | October 30, 2017 Page 5 of 6 defendant] had already pled guilty and received the benefit of his bargain.” Id. at 77 .1 [9] Here, Leffler executed a valid waiver of his right to appeal his sentence and the trial court advised him that he was waiving this right at the guilty plea hearing.

2020“In determining whether a trial court has abused its discretion in denying a motion to withdraw a guilty plea, courts must examine the statements made by the defendant at the guilty plea hearing to decide whether the plea was offered ‘freely and knowingly.’” Jeffries v. State, 966 N.E.2d 773, 777 (Ind. Ct. App. 2012) (quoting Brightman, 758 N.E.2d at 44 ). [11] Walthour first asserts that the trial court’s denial of his motion to withdraw from the plea agreement was erroneous because that agreement2 allowed him to withdraw from it prior to the court’s “acceptance” of his guilty plea.

2019“In determining whether a trial court has abused its discretion in denying a motion to withdraw a guilty plea, we examine the statements made by the defendant at the guilty plea hearing to decide whether the plea was offered ‘freely and knowingly.’” Id. (quoting Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001)). [14] Here, the record demonstrates Turner’s statements at the change of plea hearing were offered freely and knowingly.

2020In determining whether a trial court has abused its discretion in denying a motion to withdraw a guilty plea, we examine the statements made by the defendant at the guilty plea hearing to decide whether the plea was offered “‘freely and knowingly.’” Id. (quoting Coomer, 652 N.E.2d at 62 ).

2017See Coomer, 652 N.E.2d at 63 (holding that the refusal to allow defendant to withdraw his guilty plea did not constitute manifest injustice); Jeffries v. State, 966 N.E.2d 773, 778 (Ind. Ct. App. 2012) (“Instances of manifest injustice may include any of the following, none of which are present here: a defendant is denied the effective assistance of counsel, the plea was not entered or ratified by the defendant, the plea was not knowingly and voluntarily made, the prosecutor failed to abide by the terms of the plea agreement, or the plea and judgment of conviction are void or voidable.”), tran

2006This Court disagreed holding, “the loss of a record or transcript of a guilty plea hearing does not require a vacation of the plea, per se.” Id. at 1088 .

2005In Zimmerman v. State, 436 N.E.2d 1087 (Ind.1982), our supreme court discussed the consequences of a trial court’s having lost the tape recording of a defendant’s guilty plea hearing.

2017“And where the record of the guilty plea hearing itself does not establish that a defendant was properly advised of and waived his rights, evidence outside of that record may be used to establish a defendant’s understanding.” Id. [12] Ison insists that nothing short of his formal waiver after count-specific advisements in successive hearings is sufficient; however, “a formal advisement and waiver are not required.” Dewitt, 755 N.E.2d at 171 .

2012“Rather, Boykin only requires a conviction to be vacated if the defendant did not know or was not advised at the time of his plea that he was waiving his Boykin rights.” Id. at 171 (emphasis in original). 4 Here, the trial court did not formally advise Musselwhite of his Boykin rights at the guilty plea hearing; rather, the court determined that Musselwhite had reviewed a written advisement form with his attorney.

2004Id.

1996See DeVilles, 416 N.E.2d 846 ." Sanders, 596 N.E.2d at 228 .

2023The trial court accepted Sanders’s guilty plea and sentenced him “to a term of seven years imprisonment.” Id. at 226 . [17] Sanders subsequently sought PCR, with his counsel arguing that his “guilty plea should be set aside because at the time of the guilty plea hearing there was no charging document (either information or indictment) that charged Sanders with involuntary manslaughter.” Id.

2023The trial court accepted Sanders’s guilty plea and sentenced him “to a term of seven years imprisonment.” Id. at 226 . [17] Sanders subsequently sought PCR, with his counsel arguing that his “guilty plea should be set aside because at the time of the guilty plea hearing there was no charging document (either information or indictment) that charged Sanders with involuntary manslaughter.” Id.

2023See Hayes v. State, 906 N.E.2d 819, 820-821 (Ind. 2009) (observing that the defendant submitted an “open” guilty plea and holding that “he did not (and under Tumulty v. State, [ 666 N.E.2d 394 (Ind. 1996),] could Court of Appeals of Indiana | Opinion 23A-CR-739 | October 10, 2023 Page 8 of 15 not), appeal his convictions”) (footnote omitted); Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004) (“A person who pleads guilty is not permitted to challenge the propriety of that conviction on direct appeal.”); Tumulty, 666 N.E.2d at 395 (observing that the defendant told the trial court he wished to p

2006Collins v. State, 817 N.E.2d 230 ; see also Welches v. State, 844 N.E.2d 559, 561 (Ind.Ct.App. 2006) ("the post-conviction court would have had no jurisdiction to consider the propriety of Welches' sentence"). *140 In the instant case, however, the trial court improperly advised Jackson at the guilty plea hearing: [W]hen you enter a plea of guilty you give up your right to appeal.

2019See Johnson v. State , 734 N.E.2d 242 , 245 (Ind. 2000) (noting that the answers the defendant gave "while pleading guilty belie his later assertion that the only reason he entered a guilty plea is because his counsel pressured him").

2018We find Smith’s argument to be unpersuasive for several reasons. [20] First, the answers Smith provided, under oath, in response to the trial court’s questioning at the guilty plea hearing—specifically, that he had not been forced to accept the plea and that he was satisfied with his public defender’s representation—“belie his later assertion that the only reason he entered a guilty plea is because his counsel pressured him.” Johnson, 734 N.E.2d at 245 .

2018Although we agree the sentencing dates are omitted from Adamson’s factual basis, we disagree that this entitles him to relief on his petition for post-conviction relief. [14] In Weatherford v. State, 619 N.E.2d 915, 917-18 (Ind. 1993), our supreme court held a post-conviction petitioner who challenges the propriety of his adjudication as an habitual offender may not prevail simply by putting the State to its proof as though the case were being tried or appealed in the first instance.

1995In Weatherford v. State (1993), Ind., 619 N.E.2d 915 , our supreme court held that, to prevail upon a claim such as Long’s in a post-conviction proceeding, the petitioner must do more than demonstrate that there was a technical deficiency at the guilty plea hearing with respect to the habitual offender factual basis.

2015Id. (citations and quotation marks omitted). 1 1 But “[w]here the trial court inaccurately advised the defendant at the guilty plea hearing regarding the right to appeal his sentence, we have found that the written waiver was unenforceable.” Bowling, 960 N.E.2d at 842 n.7 (emphasis supplied) (citing Bonilla v. State, 907 N.E.2d 586, 590 (Ind. Ct. App. 2009), trans. denied).

2015Id. (citations and quotation marks omitted). 1 1 But “[w]here the trial court inaccurately advised the defendant at the guilty plea hearing regarding the right to appeal his sentence, we have found that the written waiver was unenforceable.” Bowling, 960 N.E.2d at 842 n.7 (emphasis supplied) (citing Bonilla v. State, 907 N.E.2d 586, 590 (Ind. Ct. App. 2009), trans. denied).

2018Id. [3] At the guilty-plea hearing the following week, the trial court engaged in the following colloquy with Harris: THE COURT: I’m looking at a document entitled Plea Agreement, is that your signature on the very last page? [HARRIS]: Yes, ma’am.

2018Boykin requires that a trial court accepting a guilty plea “must be satisfied that an accused is aware of his right against self-incrimination, his right to trial by jury, and his right to confront his accusers.” Winkleman v. State, 22 N.E.3d 844, 851 (Ind. Ct. App. 2014) (citing Boykin, 395 U.S. at 243 ). [16] Where a defendant demonstrates that the trial court failed to properly give a Boykin advisement during the guilty plea hearing, the defendant has met his threshold burden for obtaining PCR.

2015As our supreme court has explained: As we have previously declared: “In considering the voluntariness of a guilty plea we start with the standard that the record of the guilty plea proceeding must demonstrate that the defendant was advised of his constitutional rights and knowingly and voluntarily waived them.” Turman v. State, 271 Ind. 332 , 392 N.E.2d 483, 484 (1979) (citing Boykin [v. Alabama], 395 U.S. [238, 242 (1969)]).

1980The record reveals that the guilty plea hearing satisfied the later developed requirements of Boykin v. Alabama, (1969) 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 , Ind.Code § 35-4.1-1-3 (Burns 1979 Repl.), and Turman v. State, (1979) Ind., 392 N.E.2d 483 .

1996He also submitted an affidavit from the attorney who represented him at the guilty plea hearing, stating the attorney had “no vivid recollection of the details of that guilty plea hearing.” Id. at 72 .

1989Gallagher, supra ; Graham, supra ; Corder v. State (1987), Ind. App., 516 N.E.2d 71 . [2] Hatfield did however, locate former reporter Hylden's written shorthand notes of the guilty plea hearing, but could not transcribe them.

1996Finally in Bewley v. State, 572 N.E.2d 541 (Ind.Ct.App.1991), trans. denied, we reached the issue of whether a trial court must set aside a guilty plea in a non-capital case when the defendant maintains his innocence at a hearing after the guilty plea hearing but prior to sentencing.

1994Even in reviewing cases in which the trial court conducted a hearing on defendant's motion to withdraw his guilty plea, we have stated that "[al court may deny a motion for withdrawal of plea after the guilty plea hearing, if it finds that the plea was supported by a sufficient factual basis and was freely, knowingly, and voluntarily entered." Bewley v. State (1991), Ind.App., 572 N.E.2d 541, 544 , trans. denied.

1979See fn. 12, infra. [12] Williams v. State (1975), 263 Ind. 165 , 325 N.E.2d 827 ; Brimhall v. State (1972), 258 Ind. 153 , 279 N.E.2d 557 ; Bonner v. State (1973), 156 Ind. App. 513 , 297 N.E.2d 867 . [13] In In re Guilty Plea Cases, supra , the Michigan Supreme Court addressed a variety of questions regarding the advisement of rights due a defendant at a guilty plea hearing.

1979See fn. 12, infra. [12] Williams v. State (1975), 263 Ind. 165 , 325 N.E.2d 827 ; Brimhall v. State (1972), 258 Ind. 153 , 279 N.E.2d 557 ; Bonner v. State (1973), 156 Ind. App. 513 , 297 N.E.2d 867 . [13] In In re Guilty Plea Cases, supra , the Michigan Supreme Court addressed a variety of questions regarding the advisement of rights due a defendant at a guilty plea hearing.

2017See Coomer, 652 N.E.2d at 63 (holding that the refusal to allow defendant to withdraw his guilty plea did not constitute manifest injustice); Jeffries v. State, 966 N.E.2d 773, 778 (Ind. Ct. App. 2012) (“Instances of manifest injustice may include any of the following, none of which are present here: a defendant is denied the effective assistance of counsel, the plea was not entered or ratified by the defendant, the plea was not knowingly and voluntarily made, the prosecutor failed to abide by the terms of the plea agreement, or the plea and judgment of conviction are void or voidable.”), tran

2015McGraw, 938 N.E.2d at 1220 .

1992Williams requests our reconsideration based upon Tyree v. State (1988), Ind.App., 518 N.E.2d 814 , in which the Court held that a factual basis given during a guilty plea hearing may not be used to impeach a defendant later at trial.

1992Tyree v. State (1988), Ind. App., 518 N.E.2d 814 ; Hensley, supra. "At the subsequent trial, the trial court allowed the State to impeach Tyree's testimony with the statements forming the factual basis for the plea made at the guilty plea hearing....