ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DANIEL M. GROVE STEVE CARTER
Special Assistant to the Public Defender of Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
KEITH PATTON, )
vs. ) No. 49A02-0211-PC-975
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Patricia Gifford, Judge
Cause No. CR83-232D
June 10, 2003
OPINION - FOR PUBLICATION
Appellant-petitioner Keith Patton appeals the denial of his petition for post-conviction relief.
We affirm in part, reverse in part, and remand.
Patton raises six issues for review, which we consolidate and restate as follows:
I. Whether our supreme courts reversal of his murder conviction invalidated his guilty plea;
II. Whether several of his convictions violate double jeopardy;
III. Whether his guilty plea to attempted murder was knowing, voluntary, and intelligent; and
IV. Whether he may challenge trial counsels statements during voir dire regarding his guilty
Facts and Procedural History
Shortly after midnight on October 22, 1983, after consuming eighty ounces of beer
between them, seventeen-year-olds Patton and Leroy Johnson approached a parked car in Washington
Park in Indianapolis. Michael Pack and Dietra Maxey were sitting in the
drivers and passengers seats, and Maxeys four-year-old daughter was sleeping in the back
seat. Patton shot out the drivers-side window with a sawed-off twelve-gauge shotgun,
seriously injuring Maxey. When Pack attempted to start the car, Johnson shot
the passengers-side rear tire with his sawed-off twenty-gauge shotgun. Patton said, Dont
- - give it up. Dont try it[,] then fired his shotgun
a second time, killing Pack. Trial Tr. at 928. Patton ordered Maxey
out of the car and led her away from the scene, leaving her
daughter behind. Both Patton and Johnson had sexual, oral, and anal intercourse
with Maxey, and Patton inserted his shotgun into Maxeys vagina.
On October 28, 1983, the State charged Patton with murder
and with two
counts of Class A felony rape,
one of which was later dismissed.
On November 28, 1983, the State filed an information for death sentence.
On January 24, 1984, under a separate cause number,
the State charged Patton
with attempted murder,
Class B felony criminal confinement,
three counts of Class A
felony criminal deviate conduct,
and dealing in a sawed-off shotgun.
were later consolidated under cause number CR83-232D.
On June 1, 1984, Patton signed a document wherein he agreed to plead
guilty as charged, acknowledged that the State would continue to seek the death
penalty, and agreed to transfer the consolidated causes from Judge Patricia Gifford to
Judge Thomas E. Alsip for guilty plea proceedings. That same day, Judge
Gifford appointed Judge Alsip as a special judge to hear the cause.
In July 1984, Judge Alsip accepted Pattons guilty plea and sentenced him to
death on the murder conviction, thirty years on the rape conviction, and 132
years on the remaining convictions.
Patton appealed only his murder and rape convictions. In December 1987, our
supreme court determined that Patton had protested his innocence to the murder charge
at the sentencing hearing and reversed and remanded for trial on that charge
and sentencing on the rape charge. Patton v. State, 517 N.E.2d 374,
376 (Ind. 1987) (Patton I).
Upon remand, the cause was venued to Judge Gifford. Patton unsuccessfully challenged
Judge Giffords jurisdiction. See State ex rel. Patton v. Marion Superior Court,
547 N.E.2d 255 (Ind. 1989) (denying Pattons writ for mandate and prohibition) (Patton
II). In March 1990, a jury convicted Patton of murder and recommended
against the death penalty. Judge Gifford sentenced Patton to sixty years for
murder, to be served concurrently with his thirty-year rape sentence and consecutive to
the 132-year sentence on his other convictions. Patton then appealed his murder
conviction, which our supreme court affirmed. See Patton v. State, 588 N.E.2d
494 (Ind. 1992) (Patton III).
In 1996, Patton filed pro se a petition for post-conviction relief, which was
subsequently amended by counsel. On December 19, 2001, the post-conviction court held
a hearing on Pattons petition. On August 22, 2002, the post-conviction court
denied Pattons petition. Patton now appeals.
Discussion and Decision
At the outset, we note the appropriate standard of review:
Post-conviction procedures do not afford the petitioner with a super-appeal. Instead, they
create a narrow remedy for subsequent collateral challenges to convictions, challenges which must
be based on grounds enumerated in the post-conviction rules. Petitioners bear the
burden of establishing their grounds for relief by a preponderance of the evidence.
If an issue was known and available but not raised on appeal,
it is waived. If it was raised on appeal but decided adversely,
it is res judicata.
When one appeals the negative judgment of a post-conviction court, the standard is
even more rigorous. Petitioners must show that the evidence as a whole,
leads unerringly and unmistakably to a conclusion opposite to that reached by the
Williams v. State, 706 N.E.2d 149, 153-54 (Ind. 1999) (citations omitted), cert. denied,
529 U.S. 1113 (2000).
I. Invalidation of Guilty Plea
By signing the guilty plea document, Patton indicated that he understood that the
State [was] a party to this document only as it relates to the
agreement in Defendants Motion to Transfer [the cause to Judge Alsip] and the
qualifications as set out in rhetorical paragraphs [5
](A) and (B) of that document,
attached hereto and marked as Exhibit A. Patton I Tr. at 151.
Paragraph 5(B) of the motion to transfer provides,
In the event the defendant elects not to plead guilty as charged to
all counts as per paragraph (A) above, or the plea of guilty is
not completed for whatever reason, both the parties agree that this Motion to
Transfer is null and void and that the trial by jury will proceed
on June 4, 1984 [before Judge Gifford] as scheduled.
Id. at 146. Finally, paragraph 7 of the plea agreement provides, The
agreement embodies the entire agreement between the parties and no promises have been
made or inducements given to the defendant by the State which are not
part of this written agreement. Id. at 152.
Patton contends that the
Patton I courts reversal of his murder conviction invalidated
part of the guilty plea agreement. He further contends,
Because part was invalid, the entire plea was invalid and Patton was entitled
to a jury trial on all counts. According to [his guilty plea
counsels] understanding of the terms of the plea, if the plea to any
single count could not be accepted then the entire case would go back
to Judge Gifford for a retrial of every count.
Appellants Br. at 8.
Pattons claim is without merit.
It is well settled that
[a] plea agreement is a contract, an explicit agreement between the State and
defendant which is binding upon both parties when accepted by the trial court.
Because a plea agreement is a contract, the principles of contract law can
provide guidance in the consideration of plea agreements. The primary goal of
contract interpretation is to give effect to the parties intent. When the
terms of a contract are clear and unambiguous, they are conclusive of that
intent, and the court will not construe the contract or look to extrinsic
evidence. Rather, we will merely apply the contractual provisions.
Griffin v. State, 756 N.E.2d 572, 574 (Ind. Ct. App. 2001) (citations and
quotation marks omitted), trans. denied (2002).
II. Double Jeopardy
We agree with the post-conviction courts conclusion that [t]he guilty plea was completed
as stated in the agreement. The agreement made no specific provision for
what would happen if Pattons conviction on one or more counts was later
overturned. Appellants App. at 138. Given that the guilty plea document
embodies the entire agreement between the parties, we cannot conclude that the plea
agreement was invalidated by the
Patton I courts reversal of his murder conviction.
Patton contends that his conviction for dealing in a sawed-off shotgun violates state
and federal double jeopardy principles
and that his plea of guilty was therefore
unknowing, involuntary, and unintelligent. The State correctly observes that a guilty plea
generally acts as a waiver of double jeopardy claims. See, e.g., Mapp
v. State, 770 N.E.2d 332, 334-35 (Ind. 2002) (Plea bargaining is a tool
used by both prosecutors and defendants to expedite the trial process. Defendants
waive a whole panoply of rights by voluntarily pleading guilty. These include the
right to a jury trial, the right against self-incrimination, the right of appeal,
and the right to attack collaterally ones plea based on double jeopardy.) (footnote
As for Pattons contention that his plea was not knowing, voluntary,
or intelligent, we note that in the cases on which he relies, the
convictions and sentences were vacated because the sentences violated express statutory authority.
See Thompson v. State, 634 N.E.2d 775 (Ind. Ct. App. 1994); Sinn v.
State, 609 N.E.2d 434 (Ind. Ct. App. 1993), trans. denied. Such is
not the case here. Patton has failed to establish that he is
entitled to relief on this ground.
III. Attempted Murder
A person may not be convicted of attempted murder without proof that the
person specifically intended to kill his victim. Spradlin v. State, 569 N.E.2d
948, 949-50 (Ind. 1991). Patton was never advised prior to the entry
and acceptance of his guilty plea that the State, in order to obtain
a conviction for attempted murder, was required to prove that Patton specifically intended
to kill Maxey when he shot into the vehicle. Patton argues that
his plea of guilty to the attempted murder charge was therefore invalid.
Before a trial court may accept a defendants guilty plea, the trial court
must find that the defendant understands the nature of the charge against him.
nd. Code § 35-35-1-2(c)(1). This is because a defendants guilty plea
is not valid unless it is knowing, voluntary, and intelligent. Davis v.
State, 675 N.E.2d 1097, 1102 (Ind. 1996). A plea of guilty is
not voluntary in the sense that it constitute[s] an intelligent admission that [a
defendant] committed the offense unless the defendant received real notice of the true
nature of the charge against him, the first and most universally recognized requirement
of due process. Henderson v. Morgan, 426 U.S. 637, 645 (1976) (quoting
Smith v. OGrady, 312 U.S. 329, 334 (1941)). A trial court does
not need to advise a defendant of the specific elements of an offense
to find that the defendant understands the charge. DeVillez v. State, 275
Ind. 263, 416 N.E.2d 846, 849 (1981)). A trial court must, however,
confirm that the defendant is aware of the elements of the offense.
State v. Sanders, 596 N.E.2d 225, 228 (Ind. 1992), cert. denied, 507 U.S.
960 (1993). A defendant may be sufficiently aware of an element in
the absence of a specific advisement when the defendant acknowledges his guilt of
the offense on the basis of facts that establish his guilt of the
particular element in question. See id.
This Court applied these principles in Howse v. State, 672 N.E.2d 441 (Ind.
Ct. App. 1996), trans. denied (1997). In Howse, as here, the defendant
pleaded guilty to attempted murder for shooting a man. He later claimed
that his plea was involuntary because he had not been told that the
charge required proof that he specifically intended to kill his victim. We
concluded that despite the lack of a specific advisement, Howse was sufficiently aware
of this element. In particular, we recognized that [t]he intent to commit
murder may be inferred from the deliberate use of a deadly weapon in
a manner likely to cause death or great bodily harm. Id. at
444. We noted that during the guilty plea hearing, Howse admitted facts
that supported the inference that he acted with the requisite intent to kill.
In particular, Howse admitted that he fired two shots at his victim.
We concluded that this admission was sufficient to show that Howse understood
the nature of his attempted murder charge and was aware of the elements
of the offense, including the requirement that the State prove his specific intent
to kill his victim. Id.
In this case, Patton was never told that the State, in order to
obtain a conviction for attempted murder, would have to prove that Patton specifically
intended to kill Maxey when he shot into the vehicle. Moreover, while
the prosecutor read the charging information to Patton, the information alleged only that
Patton knowingly tried to kill Maxey. His verbal acknowledgment of the truth
of the allegation therefore did not establish his awareness of the specific intent
to kill requirement. Further, unlike in
Howse, Pattons understanding of this element
was not supported by an acknowledgement of guilt on the basis of facts
giving rise to the inference that Patton specifically intended to kill Maxey.
Patton admitted to shooting into the vehicle but never acknowledged that he shot
at Maxey or that he knew Maxey was in the vehicle when he
Thus, Patton was not sufficiently aware that the State had to prove his
specific intent to kill Maxey, and he therefore did not sufficiently understand the
nature of the charge to which he pleaded guilty. We therefore reverse
the denial of post-conviction relief on this ground and remand with instructions to
grant Patton a new trial on the attempted murder charge.
IV. Voir Dire Statements
Patton claims that during voir dire, his trial counsel informed prospective jurors (including
several seated jurors) of his prior guilty plea and our supreme courts reversal
of his murder conviction. Patton contends that trial counsels actions are fundamental
and warrant a retrial.
Our supreme court recently emphasized that [i]n post-conviction proceedings, complaints that something went
awry at trial are generally cognizable only when they show deprivation of the
right to effective counsel or issues demonstrably unavailable at the time of trial
or direct appeal.
Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002).
The State points out that Patton failed to raise this issue in
appealing his murder conviction in Patton III. In his reply brief, Patton
claims for the first time that this claim was not available on direct
appeal [because the] voir dire phase of the trial was not transcribed and
included in the Record of Proceedings filed in [Patton III.] Appellants Reply
Br. at 5.
We first observe that a party cannot raise an argument for the first
time on appeal in its reply brief.
State v. Friedel, 714 N.E.2d
1231, 1243 (Ind. Ct. App. 1999). Moreover, Patton has failed to establish
that this issue was demonstrably unavailable on appeal; appellate counsel could have requested
a transcript of the voir dire proceedings but did not do so.
Consequently, we must decline to address Pattons fundamental error claim and affirm the
denial of post-conviction relief on this ground.
Affirmed in part, reversed in part, and remanded.
NAJAM, J., concurs.
BROOK, C.J., concurs in part and concurs in result in part with separate
COURT OF APPEALS OF INDIANA
KEITH PATTON, )
vs. ) No. 49A02-0211-PC-975
STATE OF INDIANA, )
BROOK, Chief Judge, concurring in part and concurring in result in part
In my view, if the concept of an intelligent guilty plea is to
have any meaning in an attempted murder context, then a defendant must be
aware that the State would have to prove that he specifically intended to
kill the victim. Without more, a defendants admission to a factual basis
that would support an attempted murder conviction is wholly insufficient in this regard.
As did Judge Sullivan in Howse, I find it strange indeed that
a guilty plea may be accepted without the information as to specific intent
required to be given a jury being imparted to the defendant whether by
trial court advisement or otherwise. Howse, 672 N.E.2d at 445 (Sullivan, J.,
dissenting). The trial court gave Patton no such advisement here. Consequently,
I concur in result as to the majoritys reversal of Pattons attempted murder
conviction and remand for a new trial. In all other respects, I
fully concur in the majoritys opinion.
Patton describes the encounter as follows: Two black males approached
the car and fired shotguns into it. The driver was killed.
The woman was taken from the car and sexually assaulted. Appellants Br.
at 4. Given Pattons admitted involvement in these deadly and disturbing events,
this grossly inadequate statement of the facts is not well taken. We
remind Pattons counsel that he must state the facts in accordance with the
standard of review appropriate to the judgment or order being appealed. Ind.
Appellate Rule 46(A)(6)(b).
Footnote: Ind. Code § 35-42-1-1. For ease of reference, all statutory
citations refer to the current codification of the relevant statutes.
Footnote: Ind. Code § 35-42-4-1.
Footnote: The State initially filed these charges in juvenile court and successfully
sought waiver of jurisdiction to adult court.
Footnote: Ind. Code §§ 35-42-1-1 (murder), 35-41-5-1 (attempt).
Footnote: Ind. Code § 35-42-3-3.
Footnote: Ind. Code § 35-42-4-2.
Footnote: Ind. Code § 35-47-5-4.1.
Footnote: Judge Alsip sentenced Patton to consecutive terms of thirty years for
attempted murder, ten years for criminal confinement, thirty years for each count of
criminal deviate conduct, and two years for dealing in a sawed-off shotgun.
See Patton I, 517 N.E.2d at 376 (In Indiana we will
not execute people who plead guilty and then protest innocence at their sentencing
hearing. When the trial court heard Pattons claim of innocence, it should
have set the matter for trial. The way to resolve the factual
questions raised by Patton at sentencing is through submission to a trier of
The guilty plea document refers to rhetorical paragraphs 6(A) and (B),
but this is obviously a scriveners error.
Footnote: We do not address the States contention that Pattons claim is
either precluded under law of the case doctrine or waived because of his
failure to raise it prior to his murder trial. Our review is
somewhat complicated by the
Patton I courts reversal of his murder conviction despite
the long-standing principle that a conviction based upon a guilty plea may not
be challenged by motion to correct errors and direct appeal. Tumulty v.
State, 666 N.E.2d 394, 395 (Ind. 1996) (quoting Weyls v. State, 266 Ind.
301, 302, 362 N.E.2d 481, 482 (1977)); cf. Ind. Code § 35-50-2-9 (providing
for automatic review of death sentence by supreme court). Given the unusual
disposition of Patton I, we decline to determine whether Patton should have sought
rehearing to request a new trial on all counts or made such a
request of Judge Gifford prior to his murder trial.
See U.S. Const. amend. V (nor shall any person be subject
for the same offence to be twice put in jeopardy of life or
limb); Ind. Const. art. I, § 14 (No person shall be put in
jeopardy twice for the same offense.).
Channell v. State, 658 N.E.2d 925 (Ind. Ct. App.
1995), trans. denied (1996), for the proposition that double jeopardy violations are fundamental
error. Our supreme court has stated that [t]he issue of fundamental error
is better determined on a case by case basis. Taylor v. State,
717 N.E.2d 90, 95 n.7 (Ind. 1999). At most, Patton would be
entitled to the vacation of his conviction and two-year sentence for dealing in
a sawed-off shotgun, which is obviously de minimis in view of his aggregate
sentence. On a related note, Patton contends that his convictions for rape,
criminal deviate conduct, and criminal confinement should be reduced because they were enhanced
by the element of committed while armed with a deadly weapon. While
enhancement of one offense for the very same behavior or harm as another
is impermissible, nothing prohibits conviction and sentencing for multiple crimes with a common
element. See Carrico v. State, 775 N.E.2d 312, 314 (Ind. 2002).
Sanders, the defendant pleaded guilty to manslaughter as a lesser-included offense
of his murder charge. He was never advised of the elements of
involuntary manslaughter, and in particular was not told of the offense he was
alleged to have attempted to commit when he killed his victim. See
Ind. Code § 35-42-1-4(c) (A person who kills another human being while committing
or attempting to commit . . . a Class C or Class D
felony that inherently poses a risk of serious bodily injury; . . .
a Class A misdemeanor that inherently poses a risk of serious bodily injury;
or . . . battery . . . commits involuntary manslaughter, a Class
C felony.) The Indiana Supreme Court found, however, that the defendant sufficiently
understood the elements of the charge because the defendant acknowledged that he recklessly
pointed a shotgun at [the officer]. Sanders, 596 N.E.2d at 228.
Judge Sullivan dissented in
Howse, finding it strange indeed that a guilty
plea may be accepted without the information as to specific intent required to
be given a jury being imparted to the defendant whether by trial court
advisement or otherwise, in light of the rule that before a jury may
convict [a defendant] of attempted murder it must be instructed that the act
was committed with the specific intent to kill. 672 N.E.2d at 445
(Sullivan, J., dissenting) (citing Spradlin, 569 N.E.2d 948). We find the reasoning
behind Judge Sullivans concerns to be compelling, but recognize that, as noted above,
the precedent from our supreme court plainly holds that a trial court does
not need to advise a defendant of the specific elements of an offense
to find that the defendant understands the charge. See Sanders 596 N.E.2d
at 228; DeVillez, 416 N.E.2d at 849. Of course, the best practice
in a guilty plea setting is for the trial court to specifically advise
and receive acknowledgement from the defendant that he heard and understands the nature
of each and every element of the crime to which he is pleading
guilty. Because of the critical need to ascertain whether the plea has
been given knowingly, voluntarily and intelligently, we implore trial courts to follow this
In the case Patton cites for this proposition, the State introduced
statements from the appellants guilty plea hearing at trial.
See Tyree v.
State, 518 N.E.2d 814 (Ind. Ct. App. 1988).
Howse majority observed that [t]he intent to commit murder may
be inferred from the deliberate use of a deadly weapon in a manner
likely to cause death or great bodily harm. Howse, 672 N.E.2d at
444. It is important to note, however, that this point of law
was culled from a case in which the defendant challenged the sufficiency of
the evidence supporting his attempted murder conviction, not the validity of a guilty
plea. See Allen v. State, 575 N.E.2d 615, 616 (Ind. 1991).
A defendant may deliberately use a deadly weapon with the intent to intimidate
or injure another person or even in a reckless manner; for this reason,
I believe that a defendant cannot intelligently plead guilty to the more serious
crime of attempted murder without being aware of the corresponding specific intent to