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01/28/88 DONALD LEE STEWART v. STATE INDIANA

Filed: January 28, 1988.

DONALD LEE STEWART, APPELLANT (PETITIONER BELOW)
v.
STATE OF INDIANA, APPELLEE (RESPONDENT BELOW)



APPEAL FROM THE MARION COUNTY SUPERIOR COURT, CRIMINAL DIVISION FOUR, No. CR82-199D, The Honorable Ralph M. May, Judge.

Pivarnik, J., Shepard, C. J., DeBruler, Givan, and Dickson, JJ., concur.

Author: Pivarnik

PIVARNIK, J.

On November 4, 1982, Defendant-Appellant Donald L. Stewart was charged in Marion County Superior Court, Criminal Division Four, with burglary and theft. On April 29, 1983, Stewart entered a plea of guilty to burglary, a class B felony, and the theft charge was dismissed pursuant to Stewart's plea agreement. On May 27, 1983, Stewart was sentenced to a term of twelve (12) years imprisonment.

On February 29, 1984, Stewart filed a pro se Petition for Post-Conviction Relief. The petition was twice amended, once pro se and once by counsel. The court denied Stewart's petition on March 6, 1985. Stewart directly appeals that denial raising five issues for our review:

1. failing to advise Stewart of the possible sentencing consequences of his guilty plea;

2. sufficiency of a factual basis supporting the conviction;

3. sufficiency of the reasons set forth for increasing Stewart's sentence two (2) years above the presumptive term;

4. effective assistance of trial counsel; and

5. validity of guilty plea despite alleged inaccuracies in the probable cause affidavit.

A post-conviction action under Ind.R.P.C. 1 is a special quasi-civil remedy whereby a party can present an error which, for various reasons, was not available or known at the time of the original trial or appeal. Mato v. State (1985), Ind., 478 N.E.2d 57, 60. As such, the petitioner in a post-conviction proceeding bears the burden to prove any grounds for relief by a preponderance of the evidence. The Judge who presides over the post-conviction hearing possesses exclusive authority to weigh the evidence and determine the credibility of the witnesses. The reviewing court will therefore not set aside the trial court's ruling on a post-conviction petition unless the evidence is without conflict and leads solely to a result different from that reached by the trial court. Id.

I

Stewart alleges his guilty plea is invalid because the court failed to advise him of the possibility of imposition of consecutive sentences prior to acceptance of his guilty plea. The present standard of review on guilty pleas requires a showing of prejudice by the petitioner. White v. State (1986), Ind., 497 N.E.2d 893, 905. "A petitioner who claims that his plea was involuntary and unintelligent but can only establish that the trial Judge failed to give an advisement in accordance with § 35-35-1-2 has not met his burden of proof. He needs to plead specific facts from which a finder of fact could conclude by a preponderance of the evidence that the trial Judge's failure to make a full inquiry in accordance with § 35-35-1-2(a) rendered his decision involuntary or unintelligent." White, 497 N.E.2d at 905.

Stewart contends imposition of consecutive sentences was an imminent possibility because he was facing two separate charges in this cause, as well as a third charge pending in another cause. Stewart was not sentenced to any consecutive terms by the trial court. Neither does he claim or show he received any consecutive terms as a result of this action. The court was bound by the plea agreement which stated Stewart would receive a twelve (12) year sentence, to be served concurrently with his sentence in a felony case pending in another court. This he received. Additionally, the record indicates Stewart was advised by the court his sentence could be ...


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