ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
C. RICHARD OREN JEFFREY A. MODISETT
Rochester, Indiana Attorney General of Indiana
SARAH E. SCHERRER
Deputy Attorney General
DANIEL E. WEBSTER, ) ) Appellant-Defendant, ) ) vs. ) No. 25A03-9807-CR-330 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
Kevin Coleman, a mutual friend, to feed and look after his dogs. Webster then drove Teresa
back to her home, dropped her off, and left. Teresa cleaned her home and then took a nap.
Later that afternoon, Webster returned to Teresa's home and stacked two cinder blocks beneath a screened window. Webster then stood upon the blocks, cut through the screen with his keys, opened the window, and entered Teresa's home. After Webster entered the house, he removed his clothing, went into Teresa's bedroom, and crawled naked into her bed. When Teresa awoke and discovered Webster naked in her bed, she immediately jumped out of her bed and ran into another room crying for assistance; Webster followed. Webster struck Teresa twice in the face with his fist, chipping one of her teeth. Webster then ripped Teresa's shirt, shorts and underwear off her body. Teresa ran naked from her home into the garage of Judy Swank ("Swank"), her neighbor, and hid underneath a table in Swank's garage. Swank covered Teresa with a blanket and asked her what had happened. Teresa informed Swank that Webster had attempted to rape her. Swank then called the police to report the attempted rape; Teresa remained under the table until the police arrived. While the women waited for the police, Webster drove past Swank's home, told Swank that he had not tried to rape Teresa, and drove off.
On November 18, 1997, the State charged Webster with burglary (with rape as the underlying felony), residential entry, and battery. On December 2, 1997, an initial hearing was held where the trial court entered a preliminary plea of not guilty on Webster's behalf. On February 25, 1998, a change-of-plea hearing was conducted where Webster withdrew his plea of not guilty for residential entry and battery and entered guilty pleas pursuant to a plea
agreement. In exchange, the State agreed to dismiss the burglary charge. However, the plea
agreement was silent as to the sentence to be imposed by the trial court for the guilty pleas.
At the guilty plea hearing, the trial court informed Webster of the nature of the charges against him and the statutes upon which the charges were based. The trial court also informed Webster that he could receive a sentence which included a fine ranging from $1.00 to $15,000.00 and up to four years in prison. The trial court then asked Webster to summarize the events that occurred in the early afternoon of July 29, 1997. Webster testified that Teresa had locked herself out of her home and that he had cut the screen window to let her inside. The trial court informed Webster that to be guilty of residential entry he could not have had Teresa's consent to enter her home. The trial court then asked Webster if he entered Teresa's home with her consent to help her get inside; he answered affirmatively. The trial court then refused to accept the plea agreement, finding an insufficient factual basis to support the residential entry charge because Webster did not admit to any criminal activity. The trial court then set this matter for trial. Webster and the State waived their right to a jury trial, requesting a bench trial.
On March 3, 1998, Webster was found guilty of burglary, residential entry, and battery. Webster was sentenced to a term of 18 years' imprisonment for burglary, with three (3) years suspended; he was also sentenced to one (1) year of imprisonment for battery, with the sentences to be served concurrently. The residential entry conviction was merged with the burglary conviction as a lesser included offense; therefore, the trial court did not sentence Webster for this conviction.
696 N.E.2d 62, 64 (Ind. Ct. App. 1998). A reversal is appropriate only where the trial court's
decision is clearly against the logic and effect of the facts and circumstances before the court.
Id. In deciding whether the trial court abused its discretion in rejecting Webster's plea, we
are required to examine the inquiry undertaken at the time and the facts established as a result
thereof. See Butler, 658 N.E.2d at 77.
Webster entered into a plea agreement in which he agreed to plead guilty to residential entry and battery, and the State agreed to dismiss the burglary charge. See IND. CODE § 35- 35-3-1. At the guilty plea hearing, the trial court asked Webster to summarize the events that purportedly took place in the early afternoon of July 29, 1997. Webster testified that Teresa had locked herself out of her home and that he had cut the screen window to enter her home to unlock the door. Webster stated that he believed that he had Teresa's consent to enter her home to unlock the door.
In order to plead guilty to residential entry, Webster had to admit that he knowingly or intentionally broke and entered Teresa's dwelling. IND. CODE § 35-43-2-1.5. A defendant's reasonable belief that he had permission of the dwelling's owner to enter is a defense to the charge of residential entry. McKinney v. State, 653 N.E.2d 115, 118 (Ind. Ct. App. 1995). Webster raised the defense sua sponte when he stated that he had entered Teresa's home with her consent. The trial court recognized that Webster's summary of the facts, if true, provided a viable defense to the residential entry charge and rendered his guilty plea untenable. In fact, Webster's version of events amounted to a claim of innocence.
defendants who assert their innocence. Harris, 671 N.E.2d at 868, citing Alford, 400 U.S.
at 38, n. 11, 91 S.Ct. at 168, n. 11, 27 L.Ed.2d at 172, n. 11. For many years, Indiana has
declined to accept a guilty plea where a defendant contemporaneously maintains his
innocence. Harris, 671 N.E.2d at 868. See Harshman v. State, 232 Ind. 618, 621, 115
N.E.2d 501, 502 (1953), wherein our supreme court stated:
[a]s we view it, a plea of guilty tendered by one who in the same breath protests his innocence, or declares he actually does not know whether or not he is guilty, is no plea at all. Certainly it is not a sufficient plea upon which to base a judgment of conviction. No plea of guilty should be accepted when it appears to be doubtful whether it is being intelligently and understandably made, or when it appears that, for any reason, the plea is wholly inconsistent with the realities of the situation.
See also Trueblood v. State, 587 N.E.2d 105, 107 (Ind. 1992), cert. denied, 506 U.S. 897, 113 S.Ct. 278,121 L.Ed.2d 205 (1992) (a trial judge commits reversible error if he accepts a plea of guilty when the defendant both pleads guilty and maintains his innocence at the same time); Ross v. State, 456 N.E.2d 420, 423 (Ind. 1983) (a judge may not accept a plea of guilty when the defendant both pleads guilty and maintains his innocence at the same time; to accept such a plea constitutes reversible error).
Here, Webster tendered a guilty plea to the charge of residential entry. Residential entry requires knowingly or intentionally breaking and entering the dwelling of another. IND. CODE § 35-43-2-1.5. However, instead of admitting that he entered Teresa's home without her authorization, he testified that he had Teresa's consent, which essentially amounted to a claim of innocence. Webster stated, "[b]ut I went in [the house] through the window, so technically to me that's residential entry, you know and I did slap her." However,
when the trial court asked Webster if Teresa consented to his assistance, he stated that "I
thought it was with her consent[.]" Although Webster was pleading guilty, he was also
claiming that he was innocent. Therefore, the trial court did not abuse its discretion when
it rejected Webster's guilty plea based on an insufficient factual basis.
of the nature of the felony." Sumner v. State, 540 N.E.2d 1253, 1254 (Ind. Ct. App. 1989),
trans. denied (1990) (emphasis in original). The evidence does not need to be
insurmountable, but it must provide a solid basis to support a reasonable inference that the
defendant intended to commit the underlying felony. Cash v. State, 557 N.E.2d 1023, 1024
(Ind. 1990). The requisite intent to commit a felony typically can be inferred from the
subsequent conduct of the individual inside the premises or by the manner in which the crime
was committed. Smith v. State, 671 N.E.2d 910, 912-913 (Ind. Ct. App. 1996).
Here, Webster stacked two cinder blocks on top of one another so that he could reach a screened window. Webster then cut a hole through the screen, opened Teresa's window, and entered her home. Teresa was asleep in her bedroom when Webster entered. He then removed his clothing and crawled naked into Teresa's bed. When Teresa awoke and discovered Webster naked in her bed, she immediately jumped up and ran into another room calling for help. Webster followed and hit her several times in the face with his fist. He then ripped her shirt off her body. As Teresa ran from him, Webster ripped her shorts and underwear off her body. From this sequence of events, the trial court could have reasonably inferred that Webster entered Teresa's home with the intent to commit rape. See Henley v. State, 519 N.E.2d 525, 527 (Ind. 1988) (sufficient evidence of defendant's intent to commit rape where he entered the dwelling, shoved the victim onto the floor, and started undressing her).
guilty of both the greater offense and the lesser included offense, the trial court's proper
procedure is to vacate the conviction for the lesser included offense and enter a judgment of
conviction and sentence only upon the greater offense. Id.
Mason dealt with convictions and sentences for both lesser included and greater offenses that were merged with the greater offense. Id. at 1171. Here, however, while convicting Webster for both offenses, the trial court did not enter a sentence upon the lesser included count, but sentenced him only upon the greater count. This Court addressed the issue of whether a defendant may be convicted of a lesser included offense that is merged with the conviction and sentence of the greater offense in Redman v. State, 679 N.E.2d 927, 932. In Redman, the defendant was convicted of both aggravated battery and attempted murder; however, the trial court merged the aggravated battery count with the attempted murder count and only imposed a sentence for the attempted murder count. Id. at 927. We held that merging the two offenses was inappropriate and ordered the trial court on remand to vacate the conviction upon the lesser included offense of aggravated battery. Id. at 932.
Also, in Abron v. State, 591 N.E.2d 634 (Ind. Ct. App. 1992), trans. denied, the defendant was convicted of both possession of cocaine and dealing in cocaine; however, the trial court only sentenced the defendant upon the dealing count. Id. at 636. We determined that a conviction of the lesser included possession offense even without a sentence was in violation of double jeopardy and remanded the case with instructions to vacate the possession conviction. Id. at 636-637.
(a) The court shall not accept a plea of guilty or guilty but mentally ill at the
time of the crime without first determining that the plea is voluntary. The
court shall determine whether any promises, force, or threats were used to
obtain the plea.
(b) The court shall not enter judgment upon a plea of guilty or guilty but mentally ill at the time of the crime unless it is satisfied from its examination of the defendant or the evidence presented that there is a factual basis for the plea.
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