APPEAL FROM MARION SUPERIOR COURT, CRIMINAL DIVISION IV, The Honorable Patricia J. Gifford, Judge, Cause Nos. CR78-248D, CR78-249D and CR78-287D.
Givan, J., Shepard, C.j., concurs in result, DeBruler, J., Dissents, Pivarnik and Dickson, JJ., concur.
In cause number CR78-248D, appellant was charged with Confinement, a Class B felony, Robbery, a Class B felony, Criminal Deviate Conduct, a Class A felony, and Rape, a Class A felony. In cause number CR78-249D, appellant was charged with Confinement, a Class B felony, Robbery, a Class B felony, and Rape, a Class A felony. In cause number CR78-287D, appellant was charged with Escape, a Class D felony.
On April 4, 1979, appellant entered a plea of guilty in all charges. Appellant was sentenced to fifty (50) years, fifty (50) years and four (4) years, all sentences to run consecutively. On January 14, 1985, appellant filed a pro se petition for post-conviction relief. Following a hearing, the trial Judge found that at the time of accepting the plea of guilty the trial court did not advise appellant of the minimum possible sentence for the crime of escape, that he was waiving the right to require the State to prove his guilt beyond a reasonable doubt or that his sentence could be increased by the fact of a prior conviction or convictions. The trial court, however, further found that:
"[v]arious items of evidence available to the State of Indiana at the time of Petitioner's sentencing are no longer available.
i. Photo display containing the Petitioner's photograph identified by the victims.
ii. Fingerprints recovered during the investigation which were identified as the Petitioners.
iii. Hold-up [sic] notes given to the victims.
iv. Notes similar to those given to the victims found on the Petitioner at the time of his arrest.
v. A handgun found on the Petitioner at the time of his arrest similar to the handgun used to rob the victims.
vi. Handwriting comparisons made of the various hold-up [sic] notes identifying it as the Petitioner's handwriting.
e. An oral admission made to Indianapolis Police Detective Jack Ohrberg is no longer available to the State of Indiana because Ohrberg is now deceased.
f. The detective assigned to investigate the cases against the Petitioner, in reliance on the Petitioner's admission of guilt, did not retain a file ...