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10/27/87 JOHN DAVID LOVE v. STATE INDIANA

Filed: October 27, 1987.

JOHN DAVID LOVE, APPELLANT (PETITIONER BELOW),
v.
STATE OF INDIANA, APPELLEE (RESPONDENT BELOW)



APPEAL FROM THE ELKHART COUNTY SUPERIOR COURT 2, The Honorable Stephen E. Platt, Special Judge, Cause Nos. 1551, 1559, 1574.

Staton, J., Hoffman, J., and Conover, J., Concur.

Author: Staton

STATON, J.

John David Love appeals the denial of his petition for post conviction relief. This appeal raises seven issues which we have consolidated and restated as:

1. Whether the trial court erred in accepting Love's guilty plea without requiring that the plea agreement be in writing.

2. Whether the trial court erred in finding that Love's guilty plea was entered voluntarily, knowingly, and intelligently.

3. Whether the trial court erred in denying Love's motion to withdraw his guilty plea.

4. Whether the trial court erred in failing to issue specific and correct findings of fact and Conclusions of law on all issues presented in Love's petition for post conviction relief.

We affirm.

On May 14, 1981, Love pleaded guilty to three counts of robbery,[Footnote 1] a class B felony, pursuant to a plea agreement under which the State would dismiss a charge of theft,[Footnote 2] a class D felony, and recommend concurrent sentences of twenty years for each count.

On June 8, 1981, Love appeared in court for his sentencing hearing and requested to withdraw his guilty plea to each count. The court denied his request and sentenced Love in accordance with the plea agreement.

Initially, we note the standard of review applied to post conviction relief proceedings. The petitioner bears the burden of establishing his grounds for relief by a preponderance of the evidence. The trial court which heard the post-conviction proceeding is the sole Judge of the weight of the evidence and the credibility of witnesses. We reverse only when the evidence is without conflict and leads exclusively to a Conclusion contrary to that reached by the post-conviction court. Silvers v. State (1986), Ind., 499 N.E.2d 249, 251. In the present case, the only evidence before the post-conviction court were the transcripts from the guilty plea and sentencing hearings. With this standard in mind, we turn to the specific allegations of error.

I.

Plea Agreement

Love contends that the trial court erred in accepting Love's guilty plea without requiring that the plea agreement be in writing. This issue was raised for the first time in Love's appellate brief. Failure to raise an alleged error in the petition for post-conviction relief waives the right to raise that error on appeal. Ind. Rules of Procedure, Post Conviction Rule 1, § 8; Layton v. State (1986), Ind., 499 N.E.2d 202, 203.

II.

Guilty Plea

Love contends his guilty plea was not entered voluntarily, knowingly and intelligently because 1) he refused to admit his guilt when entering his plea, 2) the trial Judge did not personally address him to determine if a factual basis existed for the plea, and 3) the trial Judge did not advise him that his prior convictions could be used to enhance his sentence.

A trial Judge may not accept a plea of guilty when the defendant both pleads guilty and maintains his innocence at the same time. Ross v. State (1983), Ind., 456 N.E.2d 420, 423. A review of the record does not ...


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