ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LORINDA MEIER YOUNGCOURT STEVE CARTER
Huron, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
COURT OF APPEALS OF INDIANA
GREGORY CHARLES HALL, )
vs. ) No. 02A05-0401-PC-48
STATE OF INDIANA, )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-8207-CF-263
December 13, 2004
OPINION - FOR PUBLICATION
Appellant, Gregory Charles Hall, challenges the denial of his petition for post-conviction relief.
Upon appeal, Hall claims that the trial court erred in denying his
petition because there is no record of his having been advised of his
rights under Boykin v. Alabama, 395 U.S. 238 (1969).
We reverse and remand.
The facts most favorable to the decision of the post-conviction court reveal that
Hall was charged with Burglary as a Class C felony on July 20,
1982. On April 6, 1983, Hall entered a guilty plea. On
April 27, 1983, the trial court accepted Halls plea and imposed a five-year
suspended sentence with two years on probation. Eighteen and a half years
later, on October 25, 2001, Hall filed a petition for post-conviction relief.
On May 13, 2003, Hall filed an amended petition alleging for the first
time that he did not enter into his guilty plea knowingly, intelligently, and
voluntarily because he was not advised of his Boykin rights.
See footnote The trial
courts file contains no transcript of the April 6 or April 27, 1983
hearings. No other documents exist which indicate that Hall was advised of
Boykin rights. Therefore, on July 8, 2003, the post-conviction court conducted
a hearing with respect to reconstruction of the record of the guilty plea
hearing pursuant to Indiana Appellate Rule 31.
At this hearing, Robert L. Hines, the trial judge who had presided over
Halls guilty plea hearing, Bruce Cowen, the attorney who represented Hall at the
time, and the deputy prosecuting attorney at the time, Gregory L. Fumarolo, all
testified that they had no specific recollection of the guilty plea hearing.
Nevertheless, Judge Hines testified that he was aware at the time of Halls
hearing that defendants must be advised of their
Boykin rights and that he
recalled no instance where it was revealed that he had failed to do
so. Attorney Cowen testified that, as far as he could recall, Judge
Hiness hearings had always included the normal required advisements. Transcript at 46.
Attorney Fumarolo testified that he customarily attempted to guard against failure to
advise defendants of their Boykin rights.
However, Judge Hines testified that it was probably common practice to specifically advise
defendants who were pleading guilty, but he also stated, I dont know that
we had a customary practice. Id. at 14. Judge Hines, in
response to the question of whether the regular advisements by the court and
attorneys would have included the Boykin rights, stated, Well, I really cant answer
since I cant recall what anyone said, specifically. Id. at 16.
Attorney Fumarolo was asked, if there had been a guilty plea hearing presided
over by Judge Hines at which the Boykin rights were not mentioned, would
you have found that striking and perhaps [a] very memorable occasion? He
responded, Well, no . . . I cant . . . say
that. Id. at 29. Attorney Cowen testified that, although unlikely, it
was possible that Judge Hines did not properly advise Hall. Halls testimony
revealed nothing regarding whether he was properly advised of his rights.
On September 15, 2003, by agreement of the parties, Hall filed the affidavit
of Phyllis Reed, the court reporter at the time of Halls guilty plea.
Ms. Reeds affidavit indicated that she had reviewed the docket sheet in
Halls case and had no independent recollection of Halls guilty plea hearing.
The parties also stipulated that no other person could be shown to have
any specific recollection of Halls guilty plea hearing. On December 4, 2003, the
post-conviction court issued findings and conclusions denying Halls post-conviction petition.
Before addressing the merits of Halls claim, we note our standard of review.
Post-conviction procedures do not afford a petitioner with a super-appeal, and not
all issues are available. Timberlake v. State, 753 N.E.2d 591, 597 (Ind.
2001), cert. denied, 537 U.S. 839 (2002). Instead, subsequent collateral challenges to
convictions must be based on grounds enumerated in the post-conviction rules. Id.
The petitioner bears the burden of establishing the grounds for relief by
a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Timberlake, 753 N.E.2d
at 597. Because he is appealing from a negative judgment, to the
extent his appeal turns on factual issues, Hall must establish that the evidence
as a whole leads unerringly and unmistakably to a decision opposite that reached
by the post-conviction court. See Timberlake, 753 N.E.2d at 597. We
will disturb the post-conviction courts decision only if the evidence is without conflict
and leads only to a contrary conclusion. Id.
At the heart of Halls current argument is his claim that he was
not properly advised of his constitutional rights before pleading guilty. In Boykin,
supra, the United States Supreme Court held that it was reversible error for
the trial court to accept a guilty plea without creating a record which
affirmatively showed that the plea was knowing and voluntary. 395 U.S. at
242. Specifically, the Boykin decision requires that the record must show, or
there must be an allegation and evidence which shows, that the defendant was
informed of, and waived, three specified federal constitutional rights: the Fifth Amendment right
against self-incrimination and the Sixth Amendment rights to trial by jury and to
confront ones accusers. 395 U.S. at 243. The Boykin Court held
that the waiver of the defendants rights cannot be presumed from a silent
In Zimmerman v. State, 436 N.E.2d 1087 (Ind. 1982), the Indiana Supreme Court
was faced with a situation wherein a defendant had pleaded guilty in 1975.
Over four years later, he petitioned for post-conviction relief claiming that his
plea was not knowingly, voluntarily, and intelligently entered. In the time between
his plea hearing and the petition, the tape recording of the hearing had
been lost or inadvertently destroyed. However, the trial judge who had accepted
the plea and the prosecutor who appeared at the hearing indicated that they
had made copious notes of the hearing. Id. at 1087. The
post-conviction court therefore ordered the State to submit a reconstructed record pursuant to
former Indiana Appellate Rule 7.2(A)(3)(c).
See footnote The State submitted such a record over
the petitioners objection. Upon appeal, the
Zimmerman court concluded that the loss
of a record or transcript of a guilty plea hearing does not require
a vacation of the plea, per se, because the Appellate Rules provide a
means to produce a record for review upon appeal. Id. at 1088.
The court noted that an exception to this rule was where reconstruction
of the record was not possible. Id. at 1089. Because the
petitioner in Zimmerman had not availed himself of the provisions of the Appellate
Rules allowing him to reconstruct the record, but instead stood upon his mistaken
belief that a lost record was the equivalent of a silent record, the
court affirmed the denial of his petition. Id.
Following the precedent laid in Zimmerman was Wilburn v. State, 499 N.E.2d 1173
(Ind. Ct. App. 1986), trans. denied. In Wilburn, the defendant had pleaded
guilty in 1976 and filed a post-conviction petition in 1984 claiming a violation
of his Boykin rights. To support his claim, the petitioner submitted: an
affidavit of the court reporter stating that the tape recording of his hearing
was defective, the affidavit of the former deputy prosecutor stating that he had
insufficient memory of the hearing to reconstruct the record, and the affidavit of
Wilburns former defense attorney stating he could not remember whether the petitioner had
been advised by the trial judge. The trial judge had died in
1981. Wilburn himself was unable to testify as to what advisements he
was given. The First District of this court held that it was
error for the post-conviction court to have concluded that Wilburn failed to prove
that he was not properly advised. Id. at 1175. Citing former
Appellate Rule 7.2(A)(3)(c) and Zimmerman, the court stated that where the record of
the guilty plea hearing can neither be found nor reconstructed, granting post-conviction relief
and ordering a new trial is the appropriate remedy. Id. The
court concluded that Wilburn had submitted evidence that reconstruction of the record was
impossible because all parties present at the guilty plea hearing either had died
or could not remember the details. Id. The court held that
it could not infer that the trial court had properly advised Wilburn.
Id. Indeed, the court later stated that it would assume advisements were
not given when the absence of a record has been proven.
A similar determination was made in Corder v. State, 516 N.E.2d 71 (Ind.
Ct. App. 1987), wherein the defendant pleaded guilty in 1978 and brought a
petition for post-conviction relief in 1985 claiming that he had not been advised
of his Boykin rights. The record of Corders plea hearing no longer
existed. The court observed that, pursuant to Zimmerman, the loss of the
transcript or record of the plea hearing does not per se require the
vacation of the guilty plea, and that the petitioner must attempt to reconstruct
the record pursuant to the Appellate Rules, if possible. Id. at 72.
The court held that reconstruction of the record in that case was
impossible because Corder had presented uncontested evidence that all the parties present at
the guilty plea hearing were either dead or could not remember the details
of the proceeding. Id. As did the Wilburn court, the Corder
court held because Boykin requires advisements on the record, it could not infer
that Corder had been advised of his rights.
A case in which it was held that reconstruction of the record was
not impossible is Curry v. State, 674 N.E.2d 160 (Ind. 1996). Curry
had pleaded guilty to operating while intoxicated in 1980. In 1993, he
filed for post-conviction relief after learning that the tape recordings of his hearing
had been recycled and no longer existed. Curry thus claimed that there
was no record demonstrating that he had been advised pursuant to Boykin.
Our Supreme Court affirmed the post-conviction courts denial of Currys petition. The
Curry court cited Zimmerman and Appellate Rule 7.2(A)(3)(c) and stated, a determination that
it is impossible to reconstruct the record will be a rare finding, as
compliance with Appellate Rule 7.2 will almost always provide a basis by which
the merits of the claim may be determined. 674 N.E.2d at 162.
The court noted that Curry failed to present either an actual or
reconstructed record upon which his claim could be determined. Thus, the record
was not silent as to whether Curry was properly advised. Instead, there
was no record. Id. The Curry court also rejected the claim
that reconstruction of the record was impossible. To support his claim of
impossibility, Curry had presented only his own testimony and an affidavit that the
record had been discarded. The post-conviction judge, who had originally accepted Currys
plea, had found that the record was not impossible to reconstruct, stating that
although he had no specific recollection of the matter, it was most likely
that Curry had been represented by counsel. Id. at 163. The
Curry court distinguished the case from Corder and Wilburn, noting that, unlike the
defendants in those cases, Curry had not established that all of the persons
present at the guilty plea hearing had died or could not remember the
details of the proceeding. Id. Indeed, the court noted that Currys
own recollection of events could have formed the basis for an affidavit to
reconstruct the record pursuant to Appellate Rule 7.2(A)(3)(c). Furthermore, Curry acknowledged that
neither the probation officer, the deputy prosecutor, nor other persons potentially present at
the guilty plea hearing had been contacted in order to determine if they
had any memory or notes regarding the hearing. Id. at 164.
Therefore, Curry failed to present a record of the hearing and had not
demonstrated that his record was silent regarding whether he had received the necessary
Boykin advisements. Id.
The State argues that the legal landscape created by Corder and Wilburn was
altered by the decision of the United States Supreme Court in Parke v.
Raley, 506 U.S. 20 (1992). In Parke, the defendant challenged two of
the convictions that were being used to support the charge that he was
a persistent felon under Kentucky law. Specifically, the defendant claimed that the
two prior convictions were invalid in that there was no proof that he
had been advised of his Boykin rights before pleading guilty. The case
eventually made its way to the United States Supreme Court to decide whether
Kentuckys procedure for determining the validity of a prior conviction under the persistent
felon law violated the defendants due process rights. Under the relevant Kentucky
law, when a defendant challenges a previous conviction, the Commonwealth must prove the
existence of the judgment upon which it intends to rely. See 506
U.S. at 24. Once this is done, a presumption of regularity attaches,
and the burden shifts to the defendant to produce evidence that his rights
were infringed or some procedural irregularity occurred in the earlier proceeding. Id.
If the defendant so refutes the presumption of regularity, the burden shifts
back to the Commonwealth to affirmatively show that the underlying judgment was entered
in a manner that did protect the defendants rights. Id.
In response to the question of whether Kentuckys system was valid under Boykin,
the Justices stated that in their view, Kentuckys burden-shifting rule easily passes constitutional
muster. Id. at 28. The Parke Court found no tension between
the Kentucky procedure and Boykin. The Court noted that the case before
it involved collateral review, not direct review as in Boykin, and stated, To
import Boykins presumption of invalidity into this very different context would, in our
view, improperly ignore another presumption deeply rooted in our jurisprudence: the presumption of
regularity that attaches to final judgments, even when the question is waiver of
constitutional rights. Parke, 506 U.S. at 29. The Parke Court further
noted that the case before it was not a case where an extant
transcript was suspiciously silent, but rather a case where no transcript or other
records existed at all:
The circumstance of a missing or nonexistent record is, we suspect, not atypical,
particularly when the prior conviction is several years old. But Boykin colloquies
have been required for nearly a quarter century. On collateral review, we
think it defies logic to presume from the mere unavailability of a transcript
(assuming no allegation that the unavailability is due to governmental misconduct) that the
defendant was not advised of his rights. Id. at 30.
The Court further noted that the presumption of regularity that attaches to final
judgments makes it appropriate to assign the burden of proof to the defendant.
Id. at 31. As observed by the Parke Court, If raising
a Boykin claim and pointing to a missing record suffices to place the
entire burden of proof on the government, the prosecution will not infrequently be
forced to expend considerable effort and expense attempting to reconstruct records from farflung
[sic] States where procedures are unfamiliar and memories unreliable. Id. at 32.
Hall argues that Parke may be distinguished from the present case in that
he, unlike the respondent in Parke, is not attacking a prior conviction in
a recidivist proceeding but is instead challenging his guilty plea by the only
means available to hima petition for post-conviction relief. See Tumulty v. State,
666 N.E.2d 394 (Ind. 1996) (holding that defendant who pleads guilty may not
challenge the validity of a plea upon direct appeal but must instead avail
himself of post-conviction procedures). We acknowledge that Halls case is not identical
to that present in Parke.
See footnote The Court in
Parke stated that the
attack in that case was collateral in that the respondent sought to deprive
his prior convictions of their normal force and effect in a proceeding that
had an independent purpose other than to overturn the prior judgments. 506
U.S. at 30 (citing Blacks Law Dictionary 261 (6th ed. 1990)).
It has often been stated that post-conviction procedures are collateral attacks. See
e.g., Matheney v. State, 688 N.E.2d 883, 890 (Ind. 1997) (stating that post-conviction
rules create a narrow remedy for subsequent collateral challenges to convictions), cert. denied,
525 U.S. 1148 (1999). However, we conclude that post-conviction procedures are not
collateral in the sense used in Parke; a post-conviction proceeding has no independent
purpose other than to overturn the prior conviction. Cf. Parke, 506 U.S.
at 30. This is especially so when post-conviction procedures are the sole
avenue for appellate review. Therefore, we are not confident that Parke has
affected the holdings of Corder and Wilburn. Moreover, our Supreme Court cited
to both of these cases in Curry, a case decided after Parke, without
any indication that either Corder or Wilburn were no longer valid precedent and
without applying the burden-shifting rule of Parke.
The dissent concludes that Parke should apply to post-conviction challenges to guilty pleas
where the defendant has served his sentence. See infra, slip op. at
24. In such a case, the dissent reasons, the defendant necessarily must
have an independent purpose in filing his petition other than overturning the prior
conviction. See id. We believe the dissent misreads the Parke decision.
In discussing the collateral nature of the defendants claim in Parke, the
Court referred to the purpose of the proceeding, not the subjective motivation held
by the defendant for initiating the proceedings. See 506 U.S. at 30.
The law, not the subjective intent of the petitioner, dictates the purpose
of the proceeding, and the purpose of a petition for post-conviction relief is
to overturn the judgment. It does not become a collateral proceeding simply
because the petitioner may be seeking to avoid some collateral effects of the
Our research has revealed that the vast majority of cases which have cited
Parke decision involved situations very similar to those present in the Parke
case, i.e. challenges to the validity of prior guilty pleas used to enhance
a defendants sentence in a recidivist proceeding or to enhance the class of
the crime for being a recidivist. See e.g., United States v. Gray,
177 F.3d 86 (1st Cir. 1999) (placing Parke burden upon defendant challenging validity
of prior guilty pleas used to enhance sentence); United States v. Gilbert, 20
F.3d 94 (3rd Cir. 1994) (applying Parke burden to defendant attacking validity of
prior guilty plea used to support conviction for possession of a firearm while
being a felon). Our research has also revealed a few cases in
which the Parke burden was applied to defendants not in recidivist proceedings, but
instead upon federal habeas corpus challenges to the guilty pleas. See e.g.,
Quinones v. Matesanz, 151 F.Supp. 2d 140 (D. Mass. 2001) (applying Parke burden
to petitioner challenging validity of guilty plea where defendant had failed to directly
appeal guilty plea in state court and where two state post-conviction motions were
denied). We have discovered only two cases where the holding in Parke
was discussed in situations similar to that now before us.
In Commonwealth v. Lopez, 690 N.E.2d 809 (Mass. 1998), the court, following Parke,
placed the burden upon the defendant to prove that his guilty pleas were
constitutionally infirm. In that case, the defendant had pleaded guilty to various
crimes in 1976, 1979, 1982, and 1985. In 1995, the defendant was
convicted of a federal crime, and his prior guilty pleas were used to
enhance his federal sentence. Instead of attacking the validity of his pleas
in the federal court at the sentencing proceedings, defendant Lopez waited until after
his sentence was enhanced in federal court to file four nearly identical post-conviction
motions in Massachusetts courts seeking to withdraw his prior guilty pleas. Upon
appeal from the denial of his motions, the Lopez court noted that the
burden is ordinarily upon the Commonwealth to show that a challenged guilty plea
was valid. Id. at 812. The court stated that:
[a] far different situation exists, however, when the defendant leaves his guilty pleas
unchallenged for a lengthy period of time, so that the contemporaneous record of
the plea is lost (by proper destruction of the stenographers notes or erasure
of the tape recording pursuant to court rules), and means of reconstruction are
made impractical or impossible due to the death or retirement of judges and
court reporters, the unavailability of witnesses, the inherent weaknesses and failures of recollection,
and other factors commonly associated with the passage of time. At this
point, the absence of a record, and the inability effectively to reconstruct it,
may be directly attributed to the defendants delay and may be said to
be the defendants fault. In such a case, the defendants attack on
his pleas by means of a rule 30(b) [post-conviction] motion necessarily proceeds on
a basis extrinsic to the unavailable contemporaneous record. . . .
Integral to this reasoning is the presumption of regularity and the important policy
of finality. Rule 30(b) motions, like the motions in this case, filed
after conviction and sentencing[,] are considered collateral attacks on the final decision.
Id. at 812-13 (citations omitted).
The court further noted that placing the burden of attacking the validity of
a plea upon the defendant was particularly applicable when such challenge arises in
the context of sentence enhancement. A defendants dilatoriness in not directly challenging
his plea will often suggest that, when the plea was made, the defendant
was satisfied with his arrangement; had been counseled as to its particulars, and
could be lawfully deemed to have accepted what were the unforeseeable, but possible,
consequences. Id. at 814. After discussing the holding in Parke, the
court concluded that a collateral challenge, like the defendants, to a prior conviction
by guilty plea . . . must be accompanied by sufficient credible and
reliable evidence to rebut a presumption that the prior conviction was valid.
Id. Once a defendant meets this burden, then an evidentiary hearing may
be warranted at which the burden will be on the Commonwealth to show
that the defendants plea proceedings were conducted in a way that protected his
constitutional rights. Id.
The court in Byrd v. Shaffer, 523 S.E.2d 875 (Ga. 1999), declined to
apply the Parke burden to the defendant in a state habeas corpus challenge
to the validity of his guilty plea. The defendant later
See footnote filed a
state petition for habeas corpus, challenging the validity of his plea. The
habeas court granted relief, and the state appealed. The majority of the
Byrd court, without much discussion, affirmed the habeas court, citing Georgia precedent which
established that the state bore the burden in a habeas proceeding of establishing
that a guilty plea was knowingly, voluntarily, and intelligently made. Id. at
876 (citing Bowers v. Moore, 471 S.E.2d 869 (1996)). The court distinguished
another case, Nash v. State, 519 S.E.2d 893 (1999), which followed Parke and
placed the burden of challenging guilty pleas upon the defendant in recidivism cases
where the state seeks to use a prior guilty plea to enhance punishment.
Byrd, 523 S.E.2d at 876 (citing Nash, 519 S.E.2d at 893).
In a concurring opinion, Justice Hunstein explained more fully that, unlike the situation
where the defendant challenges the validity of a prior guilty plea in a
[t]he situation is different in a habeas corpus proceeding filed by a defendant
who pled guilty to the challenged conviction. A habeas petitioner challenging the
voluntariness of a guilty plea can raise the issue only if it has
not already been previously defaulted, i.e., was not an issue which was raised
or could have been raised in a direct appeal from the conviction.
In those situations where no timely direct appeal was brought from a conviction
on a guilty plea, this Court has recognized that habeas corpus represents the
sole remedy for a criminal defendant who subsequently asserts that the plea was
not knowingly and voluntarily entered based on any matter which requires reference to
facts outside the record. In these situations, habeas petitioners stand in virtually
the same position as defendants who directly appealed their guilty pleas. . .
Thus, while habeas proceedings may be deemed collateral to the direct appeal, these
proceedings are not as collateral as the sentence enhancement proceedings at issue in
Nash and [Parke]. Indeed, the Louisiana Supreme Court in State v. Shelton,
621 So.2d 769 (La. 1993), on which we heavily relied in Nash, explicitly
declined to shift the burden of proof from the state in any post-conviction
proceedings other than the sentence enhancement (multiple offender) cases, leaving it to the
state to prove the constitutionality of a guilty plea in a habeas corpus
proceeding. Byrd, 523 S.E.2d at 876-77 (citations omitted).
Thus, in Lopez, the court followed Parke and placed the burden of challenging
guilty pleas in a post-conviction setting upon the defendant, whereas in Byrd, the
court distinguished the recidivist cases in which Parke had been followed from the
post-conviction habeas corpus proceeding under review in that case.
Though neither of these cases is entirely on point with the question currently
at issue before us, we agree more with the court in Byrd.
In Lopez, it was clear that the defendant was challenging his guilty pleas
because they enhanced his sentence in federal court, and it was therefore more
apparent that the defendants attack was more akin to the collateral attacks at
issue in Parke and the cases following Parke, i.e. the attack on prior
guilty pleas used to enhance a sentence on a later conviction.
See footnote The
Lopez court indeed appears to have treated the challenge before it as a
collateral attack on a prior conviction in the context of sentencing enhancement.
See 690 N.E.2d at 813-14.
In Byrd, there is some suggestion that the defendant in that case could
not have brought such a challenge upon direct appeal. See 523 S.E.2d
at 876 (Hunstein, J., concurring) (noting that the issue of the voluntariness of
the plea could only be brought in habeas proceedings where it was not
an issue which was or could have been raised in a direct appeal
from the conviction).
See footnote As here, the habeas petition in
Byrd was the
sole remedy for a criminal defendant who later asserts that the plea was
infirm. See id.
We find the reasoning of the court in Byrd to be more persuasive.
Especially in situations where the sole avenue for relief is a post-conviction
petition, such petition is not collateral in the sense used by the Court
in Parke. It is instead a direct attack on the validity of
the underlying conviction with no other independent purpose. See Parke, 506 U.S.
at 30. Although our case is similar to the Lopez case in
that the passage of time has caused memories to fade and records to
be lost or destroyed, such concerns can be duly considered when the State
pleads the affirmative defense of laches. See Wilburn, 499 N.E.2d at 1176
(finding the defendants post-conviction claim of a Boykin violation to be barred by
We therefore conclude that Hall was not required to prove that he was
not advised of his Boykin rights. Instead, given precedent and the definition
of collateral as used in Parke, we conclude that a post-conviction petitioner need
establish only that the record or transcript of the petitioners guilty plea hearings
are unavailable and that reconstruction of the record via the Appellate Rules is
impossible. Here, it is uncontested that the record of Halls guilty plea
hearing is not in existence. The State argues, and the post-conviction court
found, that reconstruction of Halls record was not impossible. We are unable
Hall established that all of the people present at the guilty plea hearing
(per the States stipulation) could not remember the details of the hearing.
Although there is no indication that Hall was not advised of his rights
under Boykin, neither is there any indication that he was. The fact
that Judge Hines might have customarily given such advisements does not establish that
Hall was given the proper advisements in the present case. Not one
witness could recall whether Hall was properly advised of his rights. We
cannot infer from this absent record that the trial court properly advised Hall.
See Corder, 516 N.E.2d at 72; Wilburn, 499 N.E.2d at 1175.
We are therefore required to reverse the post-conviction court and remand with instructions
to grant Halls amended petition for post-conviction relief, resulting in vacation of Halls
We are not unaware of the implications of our holding. The current
state of the case law would almost seem to encourage a defendant who
pleaded guilty to wait several years after his plea hearing in hope that
the transcript thereof will be destroyed or misplaced and that the participants memories
will have faded. If so, he will be able to have his
plea vacated and, if possible, be subject to a new trial. This,
of course, could be avoided if the State pleaded and established the affirmative
defense of lacheswhich for some reason was not done in the present case.
We are also aware that Hall was sentenced in 1983 to a
five-year suspended sentence with two years served on probation. It is therefore
likely that the effect of our holding will be limited to some collateral
result of Halls guilty plea and felony conviction, such as a subsequent habitual
The judgment of the post-conviction court is reversed and the cause is remanded
with instructions to grant the petition for post-conviction relief, i.e. vacation of Halls
VAIDIK, J., concurs.
MAY, J., dissents with separate opinion.
COURT OF APPEALS OF INDIANA
GREGORY CHARLES HALL, )
vs. ) No. 02A05-0401-PC-48
STATE OF INDIANA, )
MAY, Judge, dissenting.
I would affirm the denial of Halls petition for post-conviction relief, and therefore
I must respectfully dissent.
As the majority notes, Indiana law does not permit a defendant who pleads
guilty to challenge his conviction on direct appeal. See Tumulty v. State,
666 N.E.2d 394 (Ind. 1996). Rather, on direct appeal, such defendants may
challenge only their sentences. To challenge the validity of their guilty pleas,
defendants must petition for post-conviction relief. Accordingly, the procedural posture under which
the State was given the burden of proof in Boykin, challenge of a
guilty plea on direct appeal from a conviction, presumably never arises in Indiana.
However, neither does Indiana law permit collateral challenges to convictions within habitual offender
proceedings. Edwards v. State, 479 N.E.2d 541, 547 (Ind. 1985). Rather,
defendants must normally challenge the predicate convictions via direct appeals or post-conviction proceedings.
Id. Predicate convictions may be challenged during habitual offender proceedings if
the predicate conviction is constitutionally invalid, but Boykin violations do not fall within
that exception. See id. at 547-48.
See footnote Accordingly, the procedural posture in
Parke, a collateral attack within an habitual offender proceeding, wherein the Supreme Court
placed the burden of proof regarding Boykin advisements on the defendant, will not
arise under Indiana law.
In essence, Indiana law provides only one method for challenging the validity of
a guilty plea a petition for post-conviction relief. Who, then, should
have the burden of proving whether a petitioner received his Boykin advisements?
Should we consider a petition for post-conviction relief analogous to (1) a direct
appeal wherein the State has the burden pursuant to Boykin, (2) a collateral
attack wherein the petitioner has the burden pursuant to Parke, or (3) some
combination thereof wherein the State sometimes has the burden and the petitioner sometimes
has the burden?
See footnote If it is some combination thereof, can we create
a rule for assignment of the burden that (1) could be consistently applied
and (2) would comport with constitutional requirements for knowing and intelligent guilty pleas,
while at the same time respecting the need for judgments to be final?See footnote
The majority declines to follow
Parke because Parke mounted his collateral attack against
his guilty plea during recidivist proceedings, while Hall claims he simply filed a
petition for post-conviction relief without having been charged as an habitual offender.
Because post-conviction proceedings are the only route for challenging guilty pleas in Indiana,
the majority believes Halls petition does not fall into Justice OConnors category of
collateral attacks having independent purpose other than to overturn the prior judgment.See footnote
See Parke, 506 U.S. at 30. I disagree, and believe Parke controls.
I find it inconceivable that Hall filed his petition for post-conviction relief without
an independent purpose other than to overturn the prior conviction, id., because Hall
is no longer suffering any direct consequences of his plea. He filed
his petition for post-conviction relief eighteen and a half years after being given
a five-year suspended sentence with two years on probation. Slip op. at
2. Any complaint he has now is undoubtedly based on his desire
to avoid some indirect negative consequence be that an habitual offender proceeding,
difficulty getting a job because of his criminal record, or inability to vote.
As I see it, any of those reasons is an independent purpose
sufficient to remove Hall from that special category of persons entitled to the
lesser burden of proof provided by Parke. See, e.g., Massachusetts v. Lopez,
690 N.E.2d 809, 814 (Mass. 1998) (following Parke to apply Boykin burden on
post-conviction petitioner who filed his state petition for post-conviction relief to challenge old
guilty pleas that had recently been used to enhance a federal sentence).
Routine reversal of convictions on technical grounds imposes substantial costs on society.
White v. State, 497 N.E.2d 893, 905 (Ind. 1986). Those costs include
the time and resources of jurors, witnesses, judges, lawyers, and prosecutors, and the
stress on victims who must re-live painful experiences during trial testimony. Id.
If time has passed, witnesses may have moved away or may have
forgotten important details of the crime, making re-trial by the State impossible.
Id. If guilty individuals routinely avoid punishment, societys view of the justice
system will become jaded and we will be unable to deter or rehabilitate
criminals. Id. Reversal of Halls conviction on technical grounds at this
late date comes at too high a cost to be justified simply by
the absence of a transcript of his guilty plea hearing.
For all these reasons, I respectfully dissent.
Boykin, the United States Supreme Court held that, before accepting
a guilty plea, a trial court must be satisfied that an accused is
aware of his rights against self-incrimination, to trial by jury, and to confront
his accusers. 395 U.S. at 243.
We do not discern from the States response to Halls amended petition that
the State admitted to the validity of Halls claim. Indeed, the State
appears to claim that Hall was, at some point, advised of or knew
of his rights under Boykin.
Indiana Appellate Rule 31 states in relevant part:
Statement Of Evidence When No Transcript Is Available
A. Party's Statement of Evidence. If no Transcript of all or
part of the evidence is available, a party or the partys attorney may
prepare a verified statement of the evidence from the best available sources, which
may include the partys or the attorneys recollection. The party shall then
file a motion to certify the statement of evidence with the trial court
or Administrative Agency. The statement of evidence shall be attached to the
B. Response. Any party may file a verified response to the
proposed statement of evidence within fifteen (15) days after service.
C. Certification by Trial Court or Administrative Agency. Except as provided
in Section D below, the trial court or Administrative Agency shall, after a
hearing, if necessary, certify a statement of the evidence, making any necessary modifications
to statements proposed by the parties. The certified statement of the evidence
shall become part of the Clerk's Record.
D. Controversy Regarding Action of Trial Court Judge or Administrative Officer.
If the statements or conduct of the trial court judge or administrative officer
are in controversy, and the trial court judge or administrative officer refuses to
certify the moving partys statement of evidence, the trial court judge or administrative
officer shall file an affidavit setting forth his or her recollection of the
disputed statements or conduct. All verified statements of the evidence and affidavits
shall become part of the Clerk's Record.
Appellate Rule 31 appears to call for the reconstruction of the record by
affidavit, a hearing being contemplated as a supplement to this process but not
necessarily a substitute. In his request for the hearing to reconstruct the
record, Hall stated that if the trial court preferred to reconstruct the record
by affidavit, then it should deny his request for the hearing. The
trial court, by holding the hearing, apparently preferred to reconstruct the record in
that manner. We express no opinion over whether this is the proper
manner to proceed in such cases. Because neither party claims error in
this regard, we will not further address the issue.
Footnote: The current provision governing the reconstruction of the record is Appellate
Footnote: The court made this statement in the context of determining that
the State had established the affirmative defense of laches.
Footnote: Unlike the
Wilburn court, the Corder court rejected the States defense
The Kentucky recidivist procedure would appear to be more akin to
our habitual offender statute.
In concluding that the Parke decision controls in the case before
us, Judge Mays dissent necessarily concludes that the petition for post-conviction relief filed
by Hall is a collateral attack upon the validity of his guilty
plea. This conclusion is inaccurate in that a petition for post-conviction relief, especially
in the context of an attack on the validity of a guilty plea,
which cannot be directly appealed, is not a collateral attack but is instead
a direct attack. It is direct rather than collateral in the context
of Justice OConnors opinion in Parke.
This is so because Justice OConnor was relying upon definitions of the respective
terms as set forth in the Sixth Edition of Blacks Law Dictionary.
That Edition, since altered in subsequent editions, gives the following definitions of
direct attack and collateral attack:
A direct attack on a judgment or decree is an attempt, for sufficient
cause, to have it annulled, reversed, vacated, corrected, declared void, or enjoined, in
a proceeding instituted for that specific purpose, such as an appeal, writ of
error, bill of review, or injunction to restrain its execution; distinguished from collateral
attack, which is an attempt to impeach the validity or binding force of
the judgment or decree as a side issue or in a proceeding instituted
for some other purpose. A direct attack on a judicial proceeding is
an attempt to void or correct it in some manner provided by law.
Id. at 459 (citations omitted).
Halls Petition for post-conviction relief was an attempt to void a judgment in
a manner provided by law for that specific purpose. It was therefore
a direct attack.
The opinion does not indicate how much time elapsed between the
defendants convictions and the filing of his habeas corpus petition.
Footnote: Nevertheless, it would seem to us that the purpose of the
proceedings was still a direct attack on the validity of the underlying judgment,
not a collateral attack in the federal recidivist proceeding.
Lopez court also suggested that, unlike in Indiana, a direct
challenge to the validity of a guilty plea is available in Massachusetts.
See 690 N.E.2d at 813-14 (referring to a defendants dilatoriness in not directly
challenging his plea). However, in Commonwealth v. De La Zerda, 619 N.E.2d
617, 619 (Mass. 1993), the same court observed that although a motion for
a new trial under Massachusetts Criminal Rule 30 could be treated as a
collateral post-conviction attack, such a motion also might be seen as a direct
appeal, in that such a motion provides the only avenue for appellate review
of the validity of the guilty plea. (emphasis supplied). The Lopez court
failed to address how this affected their decision.
In Georgia, a direct appeal will lie from a judgment of
conviction and sentence entered on a guilty plea only if the issue on
appeal can be resolved by facts appearing in the record.
State, 604 S.E.2d 157, 158 (Ga., Oct. 12, 2004); Smith v. State, 470
S.E.2d 436, 437 (Ga. 1996).
As our supreme court explained:
In Indiana the general rule is that the alleged invalidity of predicate felony
convictions may not be challenged during habitual offender proceedings when the prior final
judgments are regular on their face. The habitual offender hearing is not
the proper forum to contest the validity of these prior convictions. The
proper procedure to challenge this type of predicate conviction is for the accused
to set aside the predicate conviction in a direct attack through appeal or
post-conviction relief in the court of conviction. However the accused may challenge
the predicate felony conviction in a habitual offender proceeding when the conviction is
constitutionally invalid. The conviction is deemed to be constitutionally invalid only when
the following criteria are satisfied:
(1) The court records reflecting the proceedings which led to the prior
conviction, on their face, must raise a presumption that the conviction is constitutionally
(2) The apparent constitutional infirmity must be of the type which undermines
both the integrity and reliability of the determination of guilt. Where the
conviction is based upon a guilty plea, the infirmity must affect that part
of the guilty plea which constitutes the admission of guilt.
Edwards v. State, 479 N.E.2d 541, 547 (Ind. 1985).
The court applied this standard to a
Boykin claim raised during a habitual
In this case, the record does not affirmatively show that appellant was advised
of his privilege against self-incrimination or of his right to confront his accusers.
This predicate felony conviction thus raises a presumption of constitutional infirmity in
satisfaction of the first criterion. A defendant would satisfy the second criterion
where it can be shown, for instance, that the defendant was not represented
by counsel or knowingly and intelligently waived such representation at the time of
the prior felony conviction. However, a
Boykin violation affects only the waiver
part of the guilty plea and does not undermine the integrity and reliability
of the determination of guilt. Therefore, there is no denial of due
process in relegating defendant to a direct attack to set aside the prior
conviction. Furthermore, we see no serious erosive effect from our direct attack
preference upon the rights safeguarded by Boykin.
Id. at 547-48.
We routinely refer to post-conviction proceedings as collateral attacks on a judgment,
see, e.g., majority op. at 5, and Indiana law imposes on post-conviction petitioners
the burden of proving their grounds for relief by a preponderance of the
evidence. See Post-Conviction Rule 1 § 5. However, our supreme court
has used the phrase direct attack when discussing a petition for post-conviction relief
filed to challenge the validity of a guilty plea. See, e.g., Edwards,
479 N.E.2d at 547, 548.
While the specific issue we struggle with today is new, the task
we face is not new to courts in modern democracies. We are
again faced with a need to balance two competing values: (1) the
need to vindicate federal and state rights by correcting errors, and (2) the
need to bring proceedings to a rest, especially where the passage of time
reduces the possibility that a new trial will be reliable.
State, 497 N.E.2d 893, 895-96 (Ind. 1986).
The majority provides one other reason for declining to follow
our [s]upreme [c]ourt cited to both [Wilburn and Corder] in Curry [v. State,
674 N.E.2d 160 (Ind. 1996)], a case decided after Parke, without any indication
that either Corder or Wilburn were no longer valid precedent. Slip op.
at 12. However, the issue in Curry was whether the post-conviction petitioner
had made an adequate attempt to reconstruct the record of his guilty plea
hearing. The supreme court affirmed the denial of his petition for post-conviction
relief because Curry had not demonstrated reconstruction of his plea hearing was impossible.
Curry, 674 N.E.2d at 164. As the issue before the court
in Curry did not require discussion of Parkes limitation of Boykin and as
the supreme court did not even acknowledge Parke, I would not interpret Currys
citation to Corder and Wilburn to establish the validity of those cases after
My opinion today should not be interpreted to indicate every post-conviction petitioner
whose record is missing should have the burden of proof pursuant to
Nor do I express an opinion on where the line should be
drawn to shift the burden from the State to post-conviction petitioners. I
simply would hold, based on the facts in this case, that Hall is
not in the category of persons entitled to the benefit of the presumption
created by Boykin.
Nevertheless, I note all post-conviction petitioners already have the burden of production when
they allege their guilty pleas were not knowing or intelligent because a trial
court failed to give the other non-Boykin advisements required by statute. White
v. State, 497 N.E.2d 893, 905 (Ind. 1986) (holding a post-conviction petitioner has
a burden to prove not only that the trial judge failed to give
an advisement required by statute but also that the judges failure rendered his
decision involuntary or unintelligent). The reason our supreme court shifted that burden
to petitioners is because placing the burden on the State
exposed our post-conviction relief procedures to incredible abuse. It has created a
virtual tidal wave of petitions by prisoners, some of whom have slumbered on
their rights for five or ten years. It has, by definition, afforded
relief only to prisoners who have asserted their guilt before the trial judge
and never recanted. It has visited felony convictions with all the finality
of default judgments in small claims court.
Id. at 900. Those same concerns weigh in favor of holding Parke
applies to at least some, if not all, post-conviction petitions. See also
Redington v. State, 678 N.E.2d 114 (Ind. Ct. App. 1997), rehg denied.
In addition, one statement by Justice OConnor in Parke leads me to believe
the Supreme Court might, if given the opportunity, further narrow the holding in
Boykin, such that it would apply only when a record exists that is
silent: We are therefore unprepared to say that when the government carries
the ultimate burden of persuasion and no transcript of the prior proceeding exists,
the Due Process Clause requires the Commonwealth to prove the validity of the
conviction by clear and convincing extrarecord evidence. Parke, 506 U.S. at 35.