APPEAL FROM THE PORTER SUPERIOR COURT, The Honorable Bruce W. Douglas, Judge, Cause No. 81-PSCR-118
Staton, Canover, P.j., and Garrard, P.j., Concur.
David Zavesky appeals pro se the denial of his petition for post conviction relief. This appeal raises two (2) issues:
1. Whether the trial court erred in concluding that a factual basis existed for his guilty plea.
2. Whether the court erred in concluding his guilty plea was entered voluntarily and intelligently.
On October 7, 1982, Zavesky pleaded guilty to theft, a class D felony, pursuant to a plea agreement under which the State agreed to dismiss the charge of burglary, a class C felony, and agreed to recommend a determinate sentence of four (4) years. The trial Judge at the change of plea and sentencing hearing approved the plea recommendation, entered a judgment of guilty to theft, a class D felony, and sentenced Zavesky to four (4) years.
Zavesky contends that a factual basis for his guilty plea did not exist because the trial Judge did not examine Zavesky on the evidence pursuant to IC 35-4.1-1-4(b), now IC 35-35-1-3(b). However, Zavesky's argument does not raise an error. Case law has interpreted the statute to mean that "a trial court may not accept a guilty plea unless it is satisfied there is a sufficient factual basis for the plea." Dearman v. State (1986), Ind., 500 N.E.2d 1161, 1163. Evidence other than the sworn testimony of the defendant can serve as an adequate basis for accepting a guilty plea. Id.
In this case, the evidence considered by the trial Judge was the Probable Cause Affidavit. Zavesky did not object to the admission of the affidavit into evidence, nor does he claim the affidavit contains insufficient evidence of guilt. As noted above, the trial Judge did not err by considering only the Probable Cause Affidavit in determining that a factual basis existed for Zavesky's guilty plea. Id.