ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KURT A. YOUNG KAREN FREEMAN-WILSON
Nashville, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
COURT OF APPEALS OF INDIANA
RAYMOND L. VANZANDT, )
vs. ) No. 49A02-9908-CR-606
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton Pratt, Judge
Cause No. 49G013-98121-CF-199221
June 12, 2000
OPINION - FOR PUBLICATION
Raymond L. Vanzandt was found guilty by a jury and convicted of two
counts of robbery, both Class B felonies, one count of criminal confinement, a
Class B felony, and one count of carrying a handgun without a license,
a Class C felony. He was also adjudicated to be an habitual
offender. He now appeals. We affirm.
Vanzandt raises two issues for our review, which we restate as follows:
Whether the trial court, by asking Vanzandt whether he was going to testify
prior to the State resting its case-in-chief and by telling Vanzandt that he
was crazy if he did, violated Vanzandts right to testify on his own
Whether the trial court erred in accepting Vanzandts stipulation that he had committed
the prior offenses upon which the State was relying to enhance his carrying
a handgun without a license charge and to support the habitual offender enhancement
and not submitting the enhancement phase to the jury.
Facts and Procedural History
On December 3, 1998, Vanzandt entered a grocery store in Marion County, approached
a cashier, pulled out a handgun, pointed it at the cashier and demanded
that the cashier open the cash drawer and get down on the ground.
The cashier complied, and Vanzandt took money from the register. Vanzandt
then went into the stores office, pointed his gun at an employee working
there and told her to open her register and take out the money.
She did as asked and laid the money on the counter.
Vanzandt took the money and left the store.
Vanzandt was charged with two counts of robbery, one count of criminal confinement,
and one count of carrying a handgun without a license. He was
also charged with an enhancement of the handgun charge from a Class A
misdemeanor to a Class C felony due to a previous handgun conviction, and
with being an habitual offender. Vanzandt was found guilty by a jury
of the four substantive charges. Thereafter, the enhancement phase of the trial
began with the trial court reading preliminary instructions to the jury. At
the conclusion of the instructions, Vanzandt indicated that he wished to admit the
prior convictions. The trial court excused the jury, took sworn testimony from
Vanzandt regarding the prior convictions, admitted the States exhibits, and enhanced the handgun
conviction to a Class C felony, as well as finding Vanzandt to be
an habitual offender. Vanzandt was sentenced to a total of thirty years,
with two suspended. Additional facts will be supplied as necessary.
Discussion and Decision
I. Right to Testify
Vanzandt contends that in asking whether he intended to testify before the State
rested its case and telling him that he was crazy if he did,
the trial court improperly infringed upon his right to testify on his own
A. Standard of Review
The right to testify on ones own behalf in a criminal proceeding has
been described by the United States Supreme Court as a right implicit in
United States v. Dunnigan, 507 U.S. 87, 96 (1993).
See also Baxter v. State, 522 N.E.2d 362, 368 (Ind. 1988) (In light
of all of these cases, we accept Baxters claim that his right to
testify is constitutionally based.). However, a trial court judge has no affirmative
duty to insure that a defendant represented by counsel knowingly and intelligently waived
his right to testify at trial. Correll v. State, 639 N.E.2d 677,
681-82 (Ind. Ct. App. 1994). A trial court is entitled to presume
that a lawyer and his client have discussed the possibility of testifying.
Phillips v. State, 673 N.E.2d 1200, 1202 (Ind. 1996).
B. Vanzandts Continuing Right to Testify
At the conclusion of the first day of Vanzandts jury trial, the following
exchange took place:
[Court]: State do you have any additional witnesses that you will be calling tomorrow?
[State]: No not for this phase of this trial.
[Court]: [Counsel] will you be presenting any evidence?
[Defense]: I hope not.
[Court]: Well tell us now. Tell your lawyer. Are you going to
[Court]: If you do you are crazy.
[Defense]: No you are not right? I mean I am not threatening you
but you are not right?
[Court]: And I am not threatening you either.
[Vanzandt]: I am going to take your advice Your Honor.
R. 339-40. Court was then adjourned.
When the court reconvened the next morning, the following exchange took place:
[Court]: Counsel when we adjourned last evening did you rest, State?
[State]: I had not yet.
[Court]: Do you intend to call any additional witnesses?
[State]: No Your Honor.
[Court]: So the State is going to rest?
[Court]: [Counsel] are you going to present any evidence on your clients behalf?
[Defense]: No Your Honor.
[Court]: So you are going to rest. . . .
[Defense]: That is still your belief isnt it that you are not going to
[Vanzandt]: No I am not.
. . .
[Court]: Do you want to put it on the record?
[Court]: Raise your right hand. Do you swear or affirm under penalties of
perjury that the testimony you are about to give is the truth, the
whole truth so help you God?
. . .
[Defense]: And we are at the conclusion of the States case . . .
. You have heard the testimony from yesterday have you not?
[Defense]: And do you know the risk inherent in testifying?
. . .
[Defense]: You at this time are telling the Court that you feel sufficiently comfortable
with those risks that you dont want to take them is that correct?
[Vanzandt]: That is correct.
[Defense]: And that means you will not be testifying?
[Vanzandt]: That is correct.
R. 340-41.II. Enhancement Phase
Vanzandt contends that, by asking him whether he was going to testify before
the State rested its case, the trial court at the very least discouraged
[him] from changing his mind prior to his opportunity to present his case
[and] his right to make the decision did not, therefore, continue throughout the
entirety of his trial. Brief of Appellant at 12. Vanzandt also
contends that the trial courts comment that he was crazy if he testified
risked influencing his decision and thus, it cannot be said with any reasonable
degree of certainty that [his] choice was made freely and voluntarily . .
We disagree with both of Vanzandts contentions. First, although it is true
that the State had not formally rested its case when the trial judge
asked Vanzandt if he intended to testify, it is clear from the totality
of the comments that the State had completed its presentation of evidence in
its case-in-chief. Moreover, when court reconvened the next morning, and after the
State formally rested its case, the defense was afforded the opportunity to present
witnesses. There is no indication that the trial court would have prevented
Vanzandt from testifying if he had chosen to do so at that time.
Thus, we must disagree with Vanzandts contention that he was improperly denied
the right to make a decision whether or not to testify throughout the
entirety of his trial.
Second, Vanzandt has not demonstrated that he did not freely and voluntarily choose
not to testify. We agree that the trial courts remarks may have
been imprudent. However, Vanzandt clearly stated that he did not wish to
exercise his right to testify on his own behalf both before and after
the trial courts comment. Under questioning by his attorney, Vanzandt clearly and
unequivocally stated his intention not to testify. In fact, the trial court
and Vanzandts counsel went above and beyond the requirements of the law in
making a record regarding the voluntariness of his choice. Further, Vanzandt has
not alleged the substance of the testimony he would have given had he
testified, and thus has not demonstrated how he was harmed even if he
was unduly influenced by the trial courts comments. We see no error.
Vanzandt also contends that the trial court erred in allowing him to admit
to the prior convictions used to elevate his carrying a handgun without a
license charge to a Class C felony and to enhance his sentence as
an habitual offender and failing to submit those issues to the jury without
properly advising him of the rights he was waiving.
A. Standard of Review
Trial courts are obliged to inform a defendant pleading guilty that he is
waiving his right to a public and speedy trial, to confront and cross-examine
witnesses, to have witnesses testify in the defendants favor and to require the
State to prove guilt beyond a reasonable doubt. Ind. Code § 35-35-1-2;
Boykin v. Alabama, 395 U.S. 238 (1969). Strict compliance with our statute
is demanded of our trial courts in order to determine that any waiver
of fundamental constitutional rights is knowingly and intelligently given. Tumulty v. State,
666 N.E.2d 394, 395 (Ind. 1996) (quoting Davis v. State, 446 N.E.2d 1317,
1321 (Ind. 1983)).
B. Admission to Prior Convictions
Following the jurys verdict with regard to the four substantive counts against Vanzandt,
the trial court preliminarily instructed the jury regarding the enhancement phase of the
proceedings. Thereafter, Vanzandts counsel informed the court that Vanzandt wished to admit
the prior convictions and conclude the jury phase. The trial court then
asked Vanzandt, [Y]our attorney has just advised the Court that you wish to
admit to the enhancement? R. 362. Vanzandt replied in the
affirmative. The court asked, Are you wishing to [admit to] both the
C felony handgun enhancement as well as to being a habitual offender?
R. 363. Vanzandt again replied in the affirmative. He then admitted
to each of the underlying felony convictions.
The State characterizes the admission as a stipulation to the evidence underlying the
Gann v. State, 570 N.E.2d 976 (Ind. Ct. App. 1991), trans.
denied. In Gann, the defendant claimed that his stipulation to prior convictions
during the enhancement phase was the functional equivalent of a guilty plea, requiring
all the attendant advisements. This court held otherwise, stating that the trial
counsel did not stipulate that Gann was an habitual offender or that the
evidence stipulated was sufficient to determine Gann was an habitual offender, but rather
stipulated as to the evidence underlying the status. Id. at 979.
The evidence was still submitted to the jury and the jury deliberated for
approximately an hour before returning a verdict on the habitual offender count.
Here, the jury was dismissed. Vanzandt testified that he was admitting to
enhancement, not just to the underlying convictions. Thus, we believe Gann
is inapposite to this case and that Vanzandt was, in fact, entering a
plea of guilty to the handgun enhancement and habitual offender charges. However,
one consequence of pleading guilty is restriction of the ability to challenge the
conviction on direct appeal. Tumulty, 666 N.E.2d at 395. Vanzandts challenge
to the knowing and voluntary nature of his plea due to alleged inadequacies
in the trial courts advisements to him can not be undertaken on direct
appeal. Instead, the supreme court has created an avenue for claims addressing
the validity of guilty pleas by adopting Indiana Post-Conviction Rule 1. [P]ost-conviction
relief is exactly the vehicle for pursuing claims for validity of guilty pleas.
Id. at 396 (citing Butler v. State, 658 N.E.2d 72 (Ind. 1995)).
Therefore, Vanzandt can seek a review of his guilty plea only by
filing a petition for post-conviction relief.
There was no error in the trial courts questioning of Vanzandt regarding his
intention to testify on his own behalf. Further, this direct appeal is
not the appropriate avenue for Vanzandt to challenge the validity of his plea
of guilty to the enhancement charges against him. Accordingly, his convictions are
SHARPNACK, C.J., and BAILEY, J., concur.