Indiana Law Review


White V. State: And Now for Something Different
Susan Stuart*

Richard Pitts**

I. Introduction

On September 10, 1986, one could almost hear a collective sigh of
despair arise from the ranks of criminal defense counsel and public

defenders in the state of Indiana. On that day, the Indiana Supreme
Court handed down White v. Statey^ an opinion that addresses the
question of what standard should be employed in adjudging a defendant's

petition for post-conviction relief alleging that his guilty plea was not

made voluntarily, intelligently and knowingly. Although cases addressing
this question are too numerous to mention. White differed from many
of the others because, once again, the supreme court changed the stan-

dard. The White case became the fifth such change in less than ten

years. The first change occurred in Neeley v. State^ in 1978, followed

by German v. State^ in 1981. The Indiana General Assembly then made
an addition to the guilty plea statute in 1984."* The fourth change occurred

in Austin v. State,^ a supreme court opinion attempting to offset the

statutory addition. This lack of consistency in the area of post-conviction

relief can only lead to an increasingly frustrated criminal bar, particularly

because the ramifications of White are very problematic given the current

uncertain application of the law as well as the loose ends created by

the case itself.

This Article will, after a brief exposition of pre- White post-conviction

rehef under Indiana law, analyze White v. State as it stands alone and

will attempt to unravel some of the issues raised by its holding and

retroactive application. Because of the shifting and varied considerations

of any single fact situation, the conclusions drawn here are necessarily

*Associate, Lowe, Gray, Steele and Hoffman, Indianapolis. Former Law Clerk to
the Honorable Stanley B. Miller, and the Honorable Patrick D. Sullivan, Indiana Court

of Appeals. B.A., Depauw University, 1973; M.Ed., Valparaiso University, 1976; J.D.,
Indiana University School of Law-Indianapolis, 1982.

**Associate, Lowe, Gray, Steele and Hoffman, Indianapolis. Former Law Clerk to
the Honorable Patrick D. Sullivan, Indiana Court of Appeals. A.B., Wabash College,
1983; J.D. Indiana University School of Law-Indianapolis, 1986.

'497 N.E.2d 893 (Ind. 1986).

^269 Ind. 588, 382 N.E.2d 714 (1978).

H28 N.E.2d 234 (Ind. 1981).

'^See infra note 28 and accompanying text.

H68 N.E.2d 1027 (Ind. 1984). See infra notes 79-84 and accompanying text.

85



86 INDIANA LAW REVIEW [Vol. 21:85

broad. Indeed, research reveals that there simply is no definitive rule

of law in the White situation. Consequently, this Article can do nothing

more than attempt to shed light on a limited number of discrete issues

defense counsel may wish to consider in their guilty plea practice.

II. Background of Post-Conviction Relief in Indiana

The genesis of state post-conviction relief is found in three United

States Supreme Court cases. In Mooney v. Holohan,^ the Supreme Court
held only that the habeas corpus procedures of California were, standing

alone, apparently sufficient to meet the minimum requirements of due
process in giving post-conviction litigants some forum in which to vin-

dicate their claims.^ Probably because of this less than forceful pro-

nouncement, the status of state post-conviction relief remained relatively

unchanged until Young v. Ragen.^ In Young , the Court pointed out

that states are obligated, under the Fourteenth Amendment's due process

clause, to give those convicted in state court a clearly defined method

by which claims alleging denial of a federal constitutional right could

be litigated.

9

In 1965, the Court was poised to confront squarely the question of

whether the lack of a post-conviction remedy was itself a denial of due

process. The case was set against the backdrop of an increase in the

number of federal habeas corpus actions. After certiorari was granted

in Case v, Nebraska, ^^ the Nebraska legislature enacted a statewide post-

conviction procedure. As a result, the Court in Case simply vacated the
judgment and remanded for reconsideration under the new Nebraska
statute. •' Of particular note is Justice Brennan's concurring opinion, in
which he delineated some of the characteristics of an appropriate state

post-conviction procedure. Justice Brennan wrote:

The procedure should be swift and simple and easily invoked.

It should be sufficiently comprehensive to embrace all federal

constitutional claims. . . . [I]t should eschew rigid and technical

doctrines of forfeiture, waiver or default. It should provide for

full fact hearings to resolve disputed factual issues, and for

compilation of a record to enable federal courts to determine

the sufficiency of those hearings. It should provide for decisions

supported by opinions, or fact findings and conclusions of law.

^294 U.S. 103 (1935).

'Id. at 113.

«337 U.S. 235 (1949).

•"Id. at 239.

'°177 Neb. 404, 129 N.W.2d 107, cert, granted 379 U.S. 958 (1965).
"Case V. Nebraska, 381 U.S. 336, 337 (1965).



1988] CRIMINAL LAW 87

which disclose the grounds of decision and the resolution of

disputed facts. Provision for counsel to represent prisoners . . .

would enhance the probability of effective presentation and proper

disposition of prisoners' claims. '^

Similar themes have been sounded by the American Bar Association^^

and the National Conference of Commissioners on Uniform State Laws.'"^

The National Conference of Commissioners on Uniform State Laws, in

its prefatory notes to the Uniform Post-Conviction Procedure Act, listed

the following goals of the act:

1. A simple and expeditious procedure;
2. A single procedure obviating the need for state habeas corpus
or coram nobis proceedings;

3. Disposition on the merits of the claims whenever possible;

4. Elimination of subsequent post-conviction petitions by the

same petitioner concerning the same conviction.*^

In large measure, the Indiana Rules of Post-Conviction Relief are designed

to effectuate the same goals. *^

Post-conviction relief in Indiana has developed considerably over the

last 100 years. During the nineteenth century, courts operated under the

premise that a prisoner's word was sufficient to establish guilt. *^ Courts

later began to evolve devices for making certain that pleas were not

induced by threat or coercion but by voluntary and intelligent choice.'*

In order to process guilty pleas more systematically, the Indiana General

^^Id. at 346-47 (Brennan, J., concurring) (citations omitted). Justice Brennan also

noted that the Nebraska statute was, "plainly an adequate corrective process." Id.

^^See American Bar Association, Standards Relating to Post-Conviction Remedies,

§ 4.5 (1967 tentative draft and commentary; American Bar Association, Standards Relating

to Pleas of Guilty (1967 tentative draft).

'"See Unif. Post-Conviction Procedure Act § 1 comment, 11 U.L.A. 233, 234
(1980).

'^Unif. Post Conviction Procedure Act, Commissioners' Prefatory Note, 11 U.L.A.
477, 479-80 (1966), Commissioners' Prefatory Note.

^^See Ind. R. P. Post-Conviction Remedies 1 § 1(b) (as to unitary remedy); and

§ 8 (as to single proceeding arising from conviction).

'^Griffith v. State, 36 Ind. 406, 408 (1871).

'«White V. State, 497 N.E.2d 893, 895 (Ind. 1986). See, e.g.. Crooks v. State, 214

Ind. 505, 15 N.E.2d 359 (1938); Myers v. State, 115 Ind. 554, 18 N.E. 42 (1888). Although

the White opinion does not elaborate on these developments to protect a defendant, they

include the requirement that the guilty plea be transcribed, that the defendant be informed

of the ramifications of his guilty plea, and that a route be provided for withdrawing a

plea on collateral attack. See Ind. R. Crim. P. 10; State v. Lindsey, 231 Ind. 125, 106

N.E.2d 230 (1952).



88 INDIANA LAW REVIEW [Vol. 21:85

Assembly enacted Indiana Code section 35-4.1-1-3,'^ setting forth the

advisements a trial court must make to the pleading defendant, and

Indiana Code section 35-4.1-1-4,^° specifying the findings a trial court

must make in order to establish that a defendant has properly entered
his plea.^'

The first opinion interpreting the requirements set forth in these

statutory provisions was Neeley v. State. ^^ In Neeley, the supreme court

found the record established that the defendant actually knew about the

rights he was waiving. Consequently, the court concluded that even

though the trial judge did not follow the statutory requirements to the

letter, the defendant, as a result of his knowledge, was not entitled to

post-conviction relief.^^

''Section 3 provided:

The court shall not accept a plea of guilty from the defendant without first

addressing the defendant and

(a) determining that he understands the nature of the charge against him;

(b) informing him that by his plea of guilty he is admitting the truth of all

facts alleged in the indictment or information or to an offense included thereunder

and that upon entry of such plea the court shall proceed with judgment and

sentence;

(c) informing him that by his plea of guilty he waives his rights to a public

and speedy trial by jury, to face the witnesses against him, to have compulsory

process for obtaining witnesses in his favor and to require the state to prove

his guilt beyond a reasonable doubt at a trial at which the defendant may not
be compelled to testify against himself;

(d) informing him of the maximum possible sentence and minimum sentence
for the offense charged and of any possible increased sentence by reason of

the fact of a prior conviction or convictions, and of any possibility of the

imposition of consecutive sentences;

(e) informing him that the court is not a party to any agreement which may
have been made between the prosecutor and the defense and is not bound

thereby.

IND. Code § 35-4.1-1-3 (repealed 1981).
^°Section 4 provided:

(a) The court shall not accept a plea of guilty without first personally addressing

the defendant and determining that the plea is voluntary. The court shall address

the defendant and 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 unless it is satisfied

from its examination of the defendant that there is a factual basis for the plea.

(c) A plea of guilty shall not be deemed to be involuntary under subsection (a)
of this section solely because it is the product of an agreement between the

prosecution and the defense.

iND. Code § 35-4.1-1-4 (repealed 1981).
^'Act of Apr. 23, 1973, Pub. L. No. 325, § 4, 1973 Ind. Acts 1750, 1789-90.

Perhaps, not coincidentally, these statutory provisions were enacted shortly after the bedrock

guilty plea case of Boykin v. Alabama, 395 U.S. 238 (1969).
"269 Ind. 588, 382 N.E.2d 714 (1978).

^^Id. at 595-96, 382 N.E.2d at 718.



1988] CRIMINAL LAW 89

In 1981, the Indiana Supreme Court overruled Neeley in German
V. State,^'^ stating that *'it is the duty of the trial judge to comply strictly

with the terms of Ind. Code § 35-4.1-1-3 . . . .''^s jj^g court ultimately
held that the failure of the trial judge to "[a]ddress the defendant

according to the requirements and determine that the defendant under-

stands the charges against him" required that the guilty pleas be vacated
and the matter be tried. ^^

In response to the strict requirement set forth in German, the Indiana

General Assembly added the following language to Indiana Code section
35-35-1-2:^^ (c) Any variance from the requirements of this section that
does not violate a constitutional right of the defendant is not a basis

for setting aside a plea of guilty. ^^

Such a change "cut at the heart of the German decision, which
had described the judge's obligation to advise defendants as 'stat-

utory. '"^^ In answer to the legislature's action, the supreme court, in

Austin V. State, ^^ declared the "harmless error" provision set forth in

Indiana Code section 35-35-1 -2(c) a nullity on the premise the advise-
ments set forth in subsection 35-35-l-2(a)^' are of constitutional dimen-

M28 N.E.2d 234 (Ind. 1981).
^'Id. at 236.

^Id. at 236-37.

^^In 1981, the legislature repealed sections 35-4.1-1-3 and 35-4.1-1-4 and replaced

them with sections 35-35-1-3 and 35-35-1-2 respectively. Act of May 5, 1981, Pub. L.
No. 298, §§ 4, 9, 1981 Ind. Acts 2314, 2366-67, 2391.

^«Act of Feb. 29, 1984, Pub. L. No. 179, § 1, 1984 Ind. Acts 1486, 1487 (codified

at iND. Code § 35-35-l-2(c) (Supp. 1987)).
^^White V. State, 497 N.E.2d 893, 896 (Ind. 1986) (citing German v. State, 428

N.E.2d 234, 237 (Ind. 1981)).
^°468 N.E.2d 1027 (Ind. 1984).

^'This section provides:

(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 defendant:

(1) understands the nature of the charge against him;

(2) has been informed that by his plea he waives his rights to:

(A) a public and speedy trial by jury;

(B) confront and cross-examine the witnesses against him;

(C) have compulsory process for obtaining witnesses in his favor; and

(D) require the state to prove his guilt beyond a reasonable doubt at a trial

at which the defendant may not be compelled to testify against himself;

(3) has been informed of the maximum possible sentence and minimum sentence
for the crime charged and any possible increased sentence by reason of the fact

of a prior conviction or convictions, and any possibihty of the imposition of

consecutive sentences; and

(4) has been informed that if:

(A) there is a plea agreement as defined by IC 35-35-3-1; and

(B) the court accepts the plea;

the court is bound by the term of the plea agreement.

Ind. Code § 35-35-l-2(a) (Supp. 1987).



90 INDIANA LAW REVIEW [Vol. 21:85

sion.^^ This ruling set the stage for the White court's divergence from

prior law in its interpretation of the statute and of the standard by

which a trial court's advisements are to be measured.

III. White V. State, The Case

Randy White pleaded guilty, in September 1981, to charges of bur-
glary and theft and received consecutive sentences of ten and two years,

respectively." Two years later, White filed a petition for post-conviction
relief seeking to set his plea aside on the ground that the trial court

failed to advise him of the possible minimum sentences applicable to
each charge if he had elected to go to trial rather than to plead guilty. ^"^

He claimed the absence of this advisement rendered his plea involuntary,
unintelligent, and unknowing. ^^ The trial court denied the petition, and

White appealed. In ah unpublished memorandum opinion, ^^ the Indiana
Court of Appeals agreed with White and reversed the trial court, thereby

giving him the opportunity to withdraw his plea.^^ After the denial of

its rehearing petition,^^ the State sought transfer to the supreme court,

evidently to curb a rising tide of identical post-conviction relief petitions

presenting the same fatal flaw.^^ This time, the State succeeded.

^^The Austin court stated:

An accused's entitlement to such advisements, therefore, flows from his due
process right to be sheltered from the consequences of a guilty plea entered on

less than an informed judgment and not from the legislative inclusion of it in

its codification. The legislature may, as a matter of public policy, require

advisements that are not of such dimension, but it could not eliminate the

requirements of those essential to an informed judgment, which includes the

one omitted by the court that accepted the guilty plea.

468 N.E.2d at 1028.

''White, 497 N.E.2d at 894.

"*Id. Post-conviction relief is afforded defendants under Rule 1 of the Indiana Rules

of Procedure for Post-Conviction Remedies.

"497 N.E.2d at 894. In a footnote, the supreme court intimates it may as well
abandon the "knowingly" element for measuring the vaUdity of a guilty plea. Id. n.l.

There is a question as to the wisdom of this statement in the face of constitutional
considerations. See Johnson v. Zerbst, 304 U.S. 458 (1938). Inasmuch as this statement

is mere dictum, this Article will continue to adhere to the tripartite terminology. See also

IND. Code § 35-35-1 -4(c)(3) (Supp. 1987).
^^White V. State, 465 N.E.2d 228 (Ind. Ct. App. 1984).
"White V. State, 465 N.E.2d 228 (Ind. Ct. App. 1984), reh. denied, 484 N.E.2d 82

(Ind. Ct. App. 1985).
^«484 N.E.2d at 82.

''E.g., Jones v. State, 478 N.E.2d 676 (Ind. 1985); Williams v. State, 468 N.E.2d

1036 (Ind. 1984); Austin v. State, 468 N.E.2d 1027 (Ind. 1984).



1988] CRIMINAL LAW 91

The supreme court, comprised of new members since the earlier

cases involving the same problem, '^^ invoked a new standard for reviewing
guilty pleas:

A petitioner who claims that his plea was involuntary and un-
intelligent but can only estabHsh that the trial judge failed to

give an advisement in accordance with § 35-35-1-2 has not met

his burden of proof. He needs to plead specific facts from which
a finder of fact could conclude by a preponderance of the

evidence that the trial judge's failure to make a full inquiry in
accordance with § 35-35-1 -2(a) rendered his decision involuntary

or uninteUigent. Of course, unless the record reveals that the
defendant knew or was advised at the time of his plea that he
was waiving his right to a jury trial, his right of confrontation

and his right against self-incrimination, Boykin^"^^^ will require

that his conviction be vacated."^^

When compared to the standards assumed and discarded through the
years, White's pronouncement obviously instituted a radical change in

the method of reviewing a guilty plea on collateral attack. The major

questions raised by this change are, how and why did the court arrive
at this new standard?

First, the White court declared that most of the statutory advisements

in Indiana Code section 35-35-1-2 lack constitutional foundation, citing
Boykin v. Alabama.^^ This statement is contrary to the Austin decla-
ration.'*^ The court explains that Boykin identified only three rights of
which a defendant need be advised as mandated by the United States

Constitution—'*the right to a trial by jury, the right to confront one's

accusers, and the right against self-incrimination."^^ From this statement,
the White court concluded that the other advisements in Indiana Code
section 35-35-1-2 are thus not guaranteed by the United States Consti-

tution. By further extrapolation, the opinion also concluded that they
did not derive from the Indiana Constitution, particularly because the

words '*due process" appear nowhere in it.'^^ The court then engaged

'"Justices Shepard and Dickson joined the court in 1985 and 1986, respectively,

replacing Justices Hunter and Prentice who voted in the majority in Jones v. State, 478
N.E.2d 676 (Ind. 1985); Williams v. State, 468 N.E.2d 1036 (Ind. 1984); and Austin v.

State, 468 N.E.2d 1027 (Ind. 1984).

"•Boykin v. Alabama, 395 U.S. 238 (1969).

'^White, 497 N.E.2d at 905.

«395 U.S. 238 (1969).

^497 N.E.2d at 897.

*'Id.

^Id.



92 INDIANA LAW REVIEW [Vol. 21:85

in a circuitous discussion refuting the rationale of Austin v. State, done

apparently in order to undermine the Austin court's declaration that the

German standard of strict adherence to the statutory procedure is un-

disputedly a province of the courts alone because of its constitutional

dimensions and is therefore outside the realm of the legislature's "harm-

less error" codification/^ Having thereby "weakened" the German stan-
dard, the White court continued in this vein to what appears to be the

true purpose of the opinion—a criticism of the application of the strict
German-Austin review.

The court acknowledged the ease with which German can be applied
by "being easy to remember and easy to apply. '"^^ The court then set

forth the disadvantages to its application: common sense dictates that
some of the trial court's omissions are harmless, and post-conviction

relief proceedings are being abused by defendants who are exercising
their rights on the basis of these picayune errors. "^^ In search of an

alternative to the German "prophylactic" rule, the supreme court turned
to the federal courts for guidance for a more appropriate standard.

The White opinion noted the fundamental inquiries federal courts

have made into the voluntary, knowing and intelligent basis for a de-
fendant's plea. For example, the Seventh Circuit Court of Appeals, in

United States v. Wetterlin,^^ looked to the totality of the circumstances

surrounding the plea to determine whether the defendant understood his

rights.^' This issue was framed in Hill v. United States^^ as, "Was the
error in the proceeding a fundamental defect which inherently results

in a complete miscarriage of justice or an omission inconsistent with

the rudimentary demands of fair procedure?"" The White opinion makes

clear that these formulations of the fundamental issue arose in a context

similar to that of German and Austin—the impact of a "statutory" list
of advisements.

In the federal courts, however, this list of advisements takes the

form of Rule 1 1 of the Federal Rules of Criminal Procedure.^"* Starting

''Id. at 897-900. See Austin, 468 N.E.2d at 1028-29. See also supra notes 27-32 and

accompanying text.

''«White, 497 N.E.2d at 900.

'""Id.

'°583 F.2d 346, 354 (7th Cir. 1978), cert, denied, 439 U.S. 1127 (1979).
^497 N.E.2d at 902.

"368 U.S. 424 (1962).

''White, 497 N.E.2d at 902 (citing Hill, 368 U.S. 424 (1962).

'''Fed. R. Crim. P. 11. Rule 11 (c) provides:

(c) Advice to the Defendant. Before accepting a plea of guilty or nolo contendere,

the court must address the defendant personally in open court and inform him

of, and determine that he understands, the following:

(1) the nature of the charge to which the plea is offered, the mandatory



1988] CRIMINAL LAW 93

with McCarthy v. United States, ^^ in which the United States Supreme

Court declared that a failure to comply with an early version of Rule

11 mandated vacation of a plea on direct appeal, the federal circuit

courts eventually reached a German-like conclusion that, under an amended

version of Rule 11, any violation of the rule was per se prejudicial even

on collateral attack. ^^ However, the Supreme Court, in United States v.

Timmreck,^^ wholeheartedly rejected that conclusion where the trial court

had failed to inform a defendant of a mandatory special parole term.

The Court declared that where, as in Timmreck, the trial court has

committed only a violation of Rule ll's "formal" requirements, collateral

relief from a guilty plea was not available.^^ In the context of Timmreck's

holding, the White court cites to various situations where other federal

courts have come to similar conclusions, by requiring a defendant to
show prejudice, ^^ by declaring that reality rather than ritual must govern

review,^ or by finding the lack of a certain advisement is harmless

error. ^' Rounding out its discussion and reaching its ultimate conclusion,

as set forth previously, the White opinion quoted from a recent case

from the Supreme Court, United States v. Mechanik,^^ which denounced

minimum penalty provided by law, if any, and the maximum possible
penalty provided by law, including the effect of any special parole

term and, when applicable, that the court may also order the defendant
to make restitution to any victim of the offense; and

(2) if the defendant is not represented by an attorney, that he has

the right to be represented by an attorney at every stage of the

proceeding against him and if necessary, one will be appointed to

represent him; and

(3) that he had the right to plead not guilty or to persist in that plea

if it has already been made, and he has the right to be tried by a

jury and at that trial has the right to the assistance of counsel, the

right to confront and cross-examine witnesses against him, and the

right not to be compelled to incriminate himself; and

(4) that if his plea of guilty or nolo contendere is accepted by the

court there will not be a further trial of any kind, so that by pleading

guilty or nolo contendere he waives the right to a trial; and

(5) if the court intends to question the defendant under oath, on the

record, and in the presence of counsel about the offense to which he

has pleaded, that his answers may later be used against him in a
prosecution for perjury or false statement.

5^394 U.S. 459 (1969).

'^See, e.g., Timmreck v. United States, 577 F.2d 372 (6th Cir. 1978), rev'd 441 U.S.
780 (1979).

"441 U.S. 780 (1979).

'«M at 785.

^H97 N.E.2d at 904 (citing United States v. Caston, 615 F.2d 1111 (5th Cir. 1980)).

"^Id. (citing United States v. Frazier, 705 F.2d 903 (7th Cir. 1983)).

''Id. (citing United States v. Stead, 748 F.2d 355 (6th Cir. 1984)).

"475 U.S. 66 (1986).



94 INDIANA LAW REVIEW [Vol. 21:85

the cost to society created by retrials as well as their detrimental effect

upon the criminal justice system.^^

Armed with these precedents—the United States Supreme Court
denunciation of new trials and its own newly formulated standard—the
Indiana Supreme Court applied its new declaration to Randy White's
petition and found that petition wanting. The court's review of the
transcript revealed that White had made no other case for withdrawal
of his plea beyond the mere assertion that the trial court failed to make
the single advisement set forth in Indiana Code section 35-35-1 -2(a)
regarding minimum sentencing.^ White presented no facts to show he
indeed did not know what the minimum sentences were nor had he
alleged any other facts indicating his guilty plea was anything but in-

telligent, voluntary and knowing. Specifically, White did not claim that

but for the trial court's error he would have decided to go to trial

rather than to plead guilty.^^ Therefore, the supreme court concluded.

Randy White had not borne his burden of showing by a preponderance
of the evidence that his petition for post-conviction relief should have

been granted and his plea withdrawn. ^^

IV. Evaluation of White

Upon preliminary analysis of White, one's first instinct is to dismiss
it as incorrect on the basis of its flawed foundation and strained logic.

The federal case law cited by the court vacillates from standard to

standard, none of which the White court ever really adopted. In addition,

the opinion made no distinction between cases decided on direct appeal,
such as in McCarthy v. United States, ^^ and cases decided on collateral
attack, such as United States v. Timmreck.^^ Ultimately, this distinction

is of little moment, but it casts an additional cloud on an opinion that
also relied on the rationale of a case that did not involve a guilty plea
at all, United States v. Mechanik.^^ These minor problems aside, one

is further confronted with the decision's strained efforts to substantiate

its credibility by attacking the Austin v. State'^^ and German v. State'^^
opinions.

^' White, 497 N.E.2d at 905.

^Id. at 906. See supra note 31

"497 N.E.2d at 906.

*^394 U.S. 459 (1969).
*«441 U.S. 780 (1979).
*'475 U.S. 66 (1986).

^°468 N.E.2d 1027 (Ind. 1984).
^'428 N.E.2d 234 (Ind. 1981).



1988] CRIMINAL LAW 95

A. White's Interpretation of Austin and German and its Effect

To reiterate briefly, the Indiana Supreme Court in German held that
the then-extant advisement statute, Indiana Code section 35-4.1-1-3,^^

mandated strict compliance by a trial court,^^ in order to determine that

a guilty plea was entered voluntarily, knowingly and intelligently. As to
the specific facts involved in German, this decision meant that advisements

present in a written plea agreement were inadequate.'''^ Considering the

mandatory language of the statute—'*The court shall not accept a plea
of guilty from the defendant without first addressing the defendant"^^

—

this result seems only logical. This wording is not discretionary, and the

German holding is akin to the result the United States Supreme Court
reached in McCarthy v. United States, ^^ a case of direct appeal from

a trial court's failure to follow Federal Rule 11. Shortly after German,

and probably as its logical consequence, the Indiana legislature passed

into law an amended advisement statute that includes mandatory language^^

similar to the earlier version but also adds the following: '*Any variance

from the requirements of this section that does not violate a constitutional

right of the defendant is not a basis for setting aside a plea of guilty."''^

As a response to that enactment, the Indiana Supreme Court declared
the new provision a nullity in Austin. ^^ Although the White court intimates
the Austin court backed away from its German rationale of strict con-
struction of the mandatory language of the statute in order to pronounce

a new rationale,^^ a careful reading shows the White court misconstrued
Austin.

Austin stated that strict construction of the mandatory language is

a reason for requiring strict compliance with the advisement. However,

''^See supra notes 19-26 and accompanying text.

""We hold that it is the duty of the trial judge to comply strictly with the terms
of IND. Code § 35-4.1-1-3. . . ." 428 N.E.2d at 236.

''Id.

"See supra note 19.

^*394 U.S. 459 (1969). The Supreme Court declared:

[W]e hold that a defendant is entitled to plead anew if a United States district
court accepts his guilty plea without fully adhering to the procedure provided

for in Rule 11. This decision is based solely upon our construction of Rule 11

and is made pursuant to our supervisory power over the lower federal courts;
we do not reach any of the constitutional arguments petitioner urges as additional
grounds for reversal.

Id. at 463-64.

""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 defendant ..." Ind. Code § 35-35-1-
2(a) (Supp. 1987).

''Id. § 35-35-l-2(c).

^M68 N.E.2d 1027, 1029 (Ind. 1984).
«'497 N.E.2d 893, 899 (Ind. 1986).



96 INDIANA LAW REVIEW [Vol. 21:85

it is not the only reason.*' Not having had reason to reach the consti-

tutional issue prior to that time—as courts are wont to do*^—the Austin
court plucked up its courage and did just that. In holding that Dotsie

Austin was entitled to an advisement of his minimum possible sentences,
the court stated:

An understanding of the range of possible sentences is, among
other factors, essential to an informed judgment as to whether

or not to enter a guilty plea. This is self-evident. An accused's
entitlement to such advisements, therefore, flows from his due

process right to be sheltered from the consequences of a guilty

plea entered on less than an informed judgment and not from

the legislative inclusion of it in its codification. The legislature

may, as a matter of public policy, require advisements that are

not of such dimension, but it could not eliminate the requirements

of those essential to an informed judgment, which includes the

one omitted by the court that accepted the guilty plea.*^

The Austin court further found the legislature's harmless error provision

in Indiana Code section 35-35-1 -2(c) a nullity for a second reason—the
harmless error doctrine is within the exclusive domain of the courts and

therefore outside the domain of the legislature. *"* The White court at-

tempted to tear this reasoning apart.

First, the White opinion interpreted the Austin court's **due process"

right as being the bundle of advisements given to a defendant, then

went on to show that not all those rights are afforded by the Consti-
tution.*^ To the extent that not all these advisements are explicitly within
the federal Constitution, the White court is correct.*^ After reaching this

conclusion, the court also declared that the Indiana Constitution does

not offer this '*due process" right either. The court then explained how
the Austin court's misapprehension of due process makes the opinion

"not fully reliable."*^ The White court made one fundamental error in
its analysis. It failed to consider the full Austin pronouncement that

"[a]n accused's entitlement to such advisement . . . flows from his due

process right. . . ."**

It is a basic tenet of criminal law that a guilty plea must be voluntary,

knowing and intelligent; otherwise it has been obtained in violation of

«'468 N.E.ld at 1028.

^^See, e.g., McCarthy v. United States, 394 U.S. 459 (1979).
"468 N.E.2d at 1028 (Emphasis added).

^Id. at 1029.

»'497 N.E.2d at 897.

^^See infra notes, 118-22 and accompanying text.
«'497 N.E.2d at 898.
««468 N.E.2d at 1028 (Emphasis added).



1988] CRIMINAL LAW 97

the individual's due process rights. ^^ The White court missed the point

when it focused on the discrete advisements. It is the "waiver of . . .

'a known right or privilege'"^ that is the constitutionally protected right
with which Austin was concerned. The Austin court's decision to require,

on due process grounds, an advisement of the minimum sentencing a
defendant may be waiving in order to engender a proper plea was within
its prerogative to interpret constitutional law and was within the bounds

of dicta pronounced by Boykin v. Alabama.^^ Similarly, the White court's

decision that due process was not better served by requiring this ad-

visement waiving a right not explicitly set forth in the Constitution was

its prerogative. It would have been much simpler to just say so, rather
than to find a flaw in Austin, because there is adequate precedent for

White's reasoning.

The primary fact in White that must be remembered is that it

concerned a collateral attack on a guilty plea, vis-a-vis a petition for

post-conviction reHef, not a direct appeal. The extent to which the White

court recognized this fact exists in its citation to federal cases concerned

with collateral attacks on pleas. ^^ As the White case indicates and in-

dependent research reveals, there is no single method of approaching

review of a guilty plea on collateral attack, be it by habeas corpus,

motion to vacate sentence^^ or a petition for post-conviction relief.

Traditionally, collateral attack on a guilty plea in the federal system

requires a showing of a constitutional or jurisdictional defect rendering

the judgment void, "a fundamental defect which inherently results in

a complete miscarriage of justice, [or] an omission inconsistent with the

rudimentary demands of fair procedure. "^"^ The translation to an Indiana

post-conviction procedure framework is found generally in the rules for

post-conviction remedies:

^^See, e.g., Henderson v. Morgan, 426 U.S. 637, 647 (1976); Boykin v. Alabama,

395 U.S. 238, 243 n.5 (1969); McCarthy v. United States, 394 U.S. 459, 466 (1969).

^McCarthy, 394 U.S. at 466 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

"A majority of criminal convictions are obtained after a plea of guilty. If
these convictions are to be insulated from attack, the trial court is best advised

to conduct an on the record examination of the defendant which should include,

inter alia, an attempt to satisfy itself that the defendant understands the nature

of the charges, his right to a jury trial, the acts sufficient to constitute the

offenses for which he is charged and the permissible range of sentences. Com-
monwealth ex rel. West v. Rundle, 428 Pa. 102, 105-06, 237 A.2d 196, 197-98

(1968).

395 U.S. at 244 n.7 (Emphasis added).

""^E.g., United States v. Timmreck, 441 U.S. 780 (1978); Hill v. United States, 368

U.S. 424 (1962).

'^28 U.S.C. § 2255 (1982).

*'Hill V. United States, 368 U.S. at 428; United States v. Timmreck, 441 U.S. at

783.



98 INDIANA LAW REVIEW [Vol. 21:85

(a) Any person who has been convicted of, or sentenced for,
a crime by a court of this state, and who claims:

(1) that the conviction or the sentence was in violation of

the Constitution of the United States or the constitution or laws

of this state;

(2) that the court was without jurisdiction to impose sentence;

(6) that the conviction or sentence is otherwise subject to

collateral attack upon any ground of alleged error heretofore

available under any common law, statutory or other writ, motion,
petition, proceeding or remedy;

may institute at any time a proceeding under this Rule to secure
rehef.^^

In the specific context of a collateral attack on a guilty plea, the goal

is to determine whether the defendant entered his plea voluntarily,

knowingly and intelligently,^^ as a matter of due process.^^ The entry

of conviction upon a plea not so entered is fundamental error, ^* thereby

creating justification for reversal by collateral attack. The major con-

tention is what process is due to a guilty plea petitioner: what must a

guilty plea defendant know in order to make a voluntary choice of
pleading guilty rather than the alternative of standing trial?^^

In Indiana, the legislature has determined a statutory framework,

as discussed above, within which a trial court must work in order to

satisfy itself that the guilty plea defendant has been accorded his due

process rights. ^^ Basically, these statutes require a trial court to assure

itself that an unrepresented defendant has knowingly waived his right

to counsel, *°* that there is a factual basis for the plea,'^^ that the plea

was not induced by promises, threats or force, '^^ that the defendant

understands the nature of the charge against him,^^ and that he waives

certain rights and sentencing alternatives that might otherwise be available

to him.'^^ Unfortunately, despite the ease with which a trial court and

'^Ind. R. p. Post-Conviction Remedies 1 § 1.

^Henderson v. Morgan, 426 U.S. 637, 644-45 (1976); Boykin v. Alabama, 395 U.S.

238, 243 (1964); Davis v. State, 446 N.E.2d 1317, 1321 (Ind. 1983); Brown v. State, 435

N.E.2d 582, 584 (Ind. Ct. App. 1982).

^'Henderson, 426 U.S. at 647.

^'Brown, 435 N.E.2d at 584.

'^North Carolina v. Alford, 400 U.S. 25, 31 (1970).

'°°5ee supra note 31 and accompanying text.
'O'iND. Code § 35-35-1-1 (Supp. 1987).
'°^lND. Code § 35-35-1-3 (Supp. 1987).
'O'iND. Code § 35-35-l-3(a) (Supp. 1987).
'o^lND. Code § 35-35-l-2(a)(l) (Supp. 1987).
"»Ind. Code § 35-35-1 -2(a)(2) (Supp. 1987).



1988] CRIMINAL LAW 99

a prosecutor could follow these steps, many pleas have been accepted
without compliance with them, the White case being just one example

of many. German and Austin provided one answer to these errors by
mandating strict compliance with the statutes.'^ White provides another

by implying the statutes incorrectly call for more from trial courts than

due process requires. ^^

One must remember that, after all is said and done, the interpretation
of the Constitution is the sole province of the courts. '^^ Regardless of

how the legislature may interpret it, the courts remain the final arbiters
of its construction and, thus, of adjudging a guilty plea defendant's

rights to due process. To that end, the White court has declared that
certain portions of the statutes are immutably required by due process:

**[U]nless the record reveals that the defendant knew or was advised at
the time of his plea that he was waiving his right to a jury trial, his

right of confrontation and his right against self incrimination. Boykin
will require that his conviction be vacated," or if the plea is entered

'*after coercion, judicial or otherwise."''^ The absence of the other

legislative requirements from a guilty plea record, such as the advisement

of Randy White's minimum possible sentence, is relegated to the fuzzy
zone of

*

'colorable claims for relief""^ upon which a petitioner may
prevail only by showing, by a preponderance of evidence, that he has

actually been misled in choosing to plead guilty over his alternatives.^''

To the extent that this conclusion conforms to accepted procedures on
post-conviction rehef, the Indiana Supreme court appears to be correct.

However, insofar as White purports to reflect a proper standard of

attacking a guilty plea, it is incorrect.

The issue ultimately is whether the defendant voluntarily, knowingly,

and intelligently elected to plead guilty. Therefore, the inquiry should

be whether, given the evidence in the record at the post-conviction

proceeding, the petitioner has shown by a preponderance of the evidence
that he was not accorded due process. To put the onus on the petitioner
at the post-conviction proceeding to show he was actually misled, as
White requires, is to further relieve the trial court and the prosecution

from establishing an adequate record of the plea proceedings as mandated

by Boykin and its collateral attack progeny. "^ Certainly, a defendant's
having been misled could be part of the evidence establishing the lack

^See supra notes 72-84 and accompanying text.
"^497 N.E.2d at 897.

"'Fountain Park Co. v. Hensler, 199 Ind. 95, 107, 155 N.E. 465, 469 (1927).
'«497 N.E.2d at 905.

'°M at 906.

^^See supra notes 93-99 and accompanying text.



100 INDIANA LAW REVIEW [Vol. 21:85

of voluntariness and intelligence of his plea. But to make this single

inquiry, in addition to the four immutable requirements set forth above, ^^^

runs contrary to the clear message of Boykin.
This procedural distinction is, of course, merely an intellectual di-

version, when in fact the issue in White is whether the trial court's
failure to follow the statute is essentially harmless error. ^^"^ In other

words, is the absence of an advisement of a minimum possible sentence
a denial of due process? Although a Uberal and well-devised opinion

from the Indiana Court of Appeals has described all the statutory

provisions as of constitutional dimension, '^^ the fact remains that the

Indiana Supreme Court, as the highest court in the state, is the final

authority in this state on the parameters of due process set forth in

both the state and federal constitutions. In White, the supreme court

simply disagreed with the court of appeals and impHcitly declared that,

given the facts of Randy White's case, the error in faiHng to advise
him of his minimum possible sentence was not of constitutional dimension
vis-a-vis due process. The trial court's error was not sufficient to afford

White collateral relief. ^'^

This result on the basis of harmless error and lack of prejudice has

sufficient precedent,''"^ even if White's underlying rationale does not.

What remains to be seen is White's application in instances of other
omissions from the statutory advisements.

B. The Advisements Required by Due Process

The White court set forth four advisements and/or inquiries ab-

solutely mandated by due process. They are advisement of a defendant's

waiver of his right to a jury trial, his right of confrontation, and his

right against self-incrimination and, impliedly, an inquiry as to whether

the plea has been coerced. '^^ The three advisements of waiver were borne

of the federal Constitution and are explicitly set forth in Boykin v.

Alabama. ^^^ The absence of any of these advisements in a plea proceeding
is a clear violation of due process, thereby voiding the conviction based

"^See supra text accompanying note 109.

'''See White, 497 N.E.2d at 905. See also United States v. Timmreck, 441 U.S. 780,

783 (1978) ("Such a violation is neither constitutional nor jurisdictional."); Hill v. U.S.,

368 U.S. 424, 428 (1962).

'"Jones V. State, 467 N.E.2d 757 (Ind. Ct. App. 1984).

'''White, 497 N.E.2d at 905-06.

'"E.g., Hill V. Lockhart, 474 U.S. 42 (1985); United States v. Timmreck, 441 U.S.

at 783.

"^See supra note 109 and accompanying text.
''395 U.S. at 243. See also McCarthy v. United States, 394 U.S. 459, 466 (1969).



1988] CRIMINAL LAW 101

thereon. ^20 jjjg inquiry into whether a defendant has been coerced is

the impUed converse of an inquiry into voluntariness. This, too, has

been deemed essential to due process in Brady v. United States.^^^ The

Indiana statutes require certain other advisements not set forth in White^^^

Some of them should have been listed in White as evocative of due
process; others were rightfully omitted, insofar as White appHes only

to collateral proceedings.

Evidently, Randy White appeared at his plea proceeding with counsel;
therefore, the advisement of waiver providing that ''[a] plea of guilty

. . . shall not be accepted from a defendant unrepresented by counsel

who has not freely and knowingly waived his right to counsel" was not
at issue. '^^ Rice v. Olson^^"^ elevated the knowing waiver of this consti-

tutional right to the status of an element of due process in the guilty

plea setting. Although the White scenario did not need to address this

matter, the case's reliance on the Boykin factors as being absolute rights

leads to the conclusion that if the matter should arise in the proper

situation, the Indiana Supreme Court would find prima facie reversible

error in the absence of waiver of counsel.

Another element not addressed by White but still undeniably an

element of due process in the guilty plea proceeding is whether the

defendant "understands the nature of the charge against him."'^^ It was

early established in Smith v. O'Grady^^^ that a defendant must understand

the nature of the charge against him before he can voluntarily and

intelligently plead guilty. The Supreme Court later applied this require-

ment to collateral attacks in Henderson v. Morgan. ^^^ Under the cir-

cumstances, the Indiana Supreme Court can do no less than recognize

this factor also, despite its omission from the list in White. The con-
stitutional mandate interpreted by the United States Supreme Court

demands it.

One advisement in Indiana Code section 35-35-1-2 that has not yet
been treated as of constitutional dimension in the guilty plea setting is

the waiver of a "public and speedy trial by jury."*^^ Barker v. Wingo^^^

'^"Boykin, 395 U.S. at 243.

'^'397 U.S. 742 (1970).

'"See supra note 31 and accompanying text.

•"IND. Code § 35-35-1-1 (Supp. 1987).
'^324 U.S. 786, 791 (1945).

'2'Ind. Code § 35-35-l-2(a)(l) (Supp. 1987). Closely associated with this determination
is the element requiring that "[t]he court shall not enter judgment upon a plea of guilty

. . . unless it is satisfied from its examination of the defendant or the evidence presented

that there is a factual basis for the plea." Ind. Code § 35-35-l-3(b) (Supp. 1987).
'^*312 U.S. 329, 334 (1941).

•2^26 U.S. 637, 645 (1976); see also North Carolina v. Alford, 400 U.S. 25 (1970).

'^«IND. Code § 3 5-3 5-1 -2(a)(2)(A) (Supp. 1987).
'"407 U.S. 514, 515-16 (1972).



102 INDIANA LAW REVIEW [Vol. 21:85

clearly established a state court defendant's right to a speedy trial under

the Sixth Amendment; sound policy supports the argument in favor of

raising this right to the status of the Boykin rights. ^^^ For example,

many defendants do not make bail and must remain incarcerated in
local jails until trial and sentencing. Notoriously, these local jails—even
in rural areas—present such awful conditions that a defendant would
willingly plead guilty to gain transport to a perhaps less troublesome

facility. A defendant would surely want to know that a speedy trial is
available to him in order for him to make an informed choice whether
to plead guilty or to wait shortly for a trial. However, until the United

States Supreme Court adopts the position that the right to a speedy

trial is constitutionally mandated in the due process waiver of a pleading

defendant, it is highly unlikely, as evidenced by White, that the Indiana

Supreme Court will take such a position. *^^ Additionally, one could argue

that a defendant could infer his right to a speedy trial by the speed

with which the state will allow him to plead guilty.

The next advisement of Indiana Code section 35-35-1-2, and the
primary subject of White, is the advisement of the minimum and max-
imum sentences and the possibility of increased or consecutive sentences. ^^^

The Boykin majority alluded to the constitutional dimension of this

generic advisement in dictum when it cited to a state court opinion:
"the trial court is best advised to conduct an on the record examination

of the defendant which should include . . . the permissible range of

sentences."^" However, in the absence of actually misleading a defendant

into pleading guilty because of his misunderstanding of the possible

sentences, ^^'^ the failure to make this advisement is usually relegated to
a designation as a technical violation only.^^-^ The usefulness of further

'^°See the dissent from the Supreme Court's denial of certiorari in Johnson v, Ohio,

419 U.S. 924 (1974). Justice Douglas, joined by Justices Brennan and Marshall, states

that enumeration in Boykin is "illustrative, not exhaustive" and should therefore include

the right to a speedy trial. 419 U.S. at 926 (Douglas, J., dissenting).

'^'However, the Indiana Supreme Court, relying on the holding of German v. State,
428 N.E.2d 234 (Ind. 1981), held that on a petition for post-conviction relief, a defendant's

plea of guilty would be vacated where the trial judge accepting such plea failed to inform

the defendant that by so pleading, he was thereby waiving his right to a speedy trial.

Hayenga v. State, 463 N.E.2d 1383, 1384 (Ind. 1984).

'"Ind. Code § 35-35-l-2(a)(3) (Supp. 1987).
'"Boykin v. Alabama, 395 U.S. at 244 n.7 (1969) (quoting Commonwealth ex rel.

West V. Rundle, 428 Pa. 102, 105-06, 237 A.2d 196, 197-98 (1968)).

'''See, e.g.. United States v. Sharon, 812 F.2d 1233 (9th Cir. 1987) (special parole

not described); United States v. Hawthorne, 806 F.2d 493 (3d Cir. 1986) (failure to inform

of imposition of restitution).

'''See, e.g.. United States v. Timmreck, 441 U.S. 780 (1979). See also Hill v. Lockhart,

474 U.S. 52 (1985).



1988] CRIMINAL LAW 103

argument that this advisement is paramount to a defendant's due process

rights is minimal.

The final element set forth in the Indiana statutes declares that if

a trial court accepts a plea premised upon an agreement, the court is

bound by the terms of that agreement. ^^^ As a practical matter, this
information is essentially superfluous. Why would a defendant choose
to enter into a plea agreement if he did not fully intend to get what

he bargained for? This information probably has little to do with any

due process rights but is merely a vestige of the prior advisement that

a trial court was not bound by any plea agreements. ^^^ The failure to
make this earlier advisement was a violation of due process.'^* Under
the current version of the statute this advisement has little actual value

for purposes of establishing grounds for collateral attack.

Although the foregoing elements were established by the Indiana

legislature and do not all have per se constitutional derivation, most of

the factors do have precedential force from the federal courts in their

interpretation of the United States Constitution by reason of the Four-

teenth Amendment*^^ as well as by direct mandate from the Due Process
Clause of the Fifth Amendment. '"^^ Of course, not only are states bound
by the Constitution in their interpretation of constitutional rights, par-

ticularly those of due process, but they may also require a higher standard.
Inasmuch as the Indiana Supreme Court has impliedly declared in White

that the General Assembly will not govern the definition of due process

in creating a higher standard than that required of federal courts, the

question remains whether there exists anything else which is inherent in

due process which the supreme court may also have ignored.
The Indiana Constitution has been oft-neglected in the consideration

of a pleading defendant's due process rights. Two sections are of par-
ticular application in such a case:

All courts shall be open; and every person, for injury done

to him in his person, property, or reputation shall have remedy

by due course of law. Justice shall be administered freely, and

without purchase; completely, and without denial; speedily, and

'3«lND. Code § 35-35-1 -2(a)(4) (Supp. 1987).
'"IND. Code § 35-4.1-l-3(e) (repealed 1981).
"«5ee, e.g., Pharms v. State, 477 N.E.2d 334 (Ind. Ct. App. 1985).

"'See, e.g., Robbins v. State, 251 Ind. 313, 321, 241 N.E.2d 148, 153 (1968). For

federal cases involving state court defendant, see, e.g., Boykin v. Alabama, 395 U.S. 244

(1969); Henderson v. Morgan, 426 U.S. 637 (1976).
i4o«»]sjo person shall ... be deprived of life, liberty or property, without due process

of law. . ." U.S. Const, amend. V. For two examples of federal defendants, see McCarthy

v. United States, 394 U.S. 459 (1969) and United States v. Timmreck, 441 U.S. 780

(1979). However, both of these cases focused upon Fed. R. Crim. P. 11.



104 INDIANA LAW REVIEW [Vol. 21:85

without delayJ^'

In all criminal prosecutions, the accused shall have a right

to a public trial, by an impartial jury, in the county in which

the offense shall have been committed; to be heard by himself

and counsel; to demand the nature and cause of the accusation
against him, and to have a copy thereof; to meet the witnesses

face to face, and to have compulsory process for obtaining

witnesses in his favor.
''^^

The combined meaning of these two provisions tracks fairly closely with

the same rights set forth above and interpreted within the United States

Constitution J^^^ The state rights identical to the federal rights would

receive similar application by the supreme court. For example, the state

right to jury trial must be announced to a pleading defendant. '"^ On
the other hand, there seems little doubt that as to the interpretation of

the federal right to a speedy and public trial, the Indiana Supreme Court

would treat the same state constitutional provision with Hke regard. That

is, such a right is not within the meaning of due process. '"^^ It does not

appear, from the tenor of White, that the supreme court will expand

the Indiana Constitution's "due course of law" beyond that prescribed

for the United States Constitution's "due process of law."^'*^ However,

there is one very serious deficiency in Indiana's criminal procedure which

either will have to actually be rectified or must also be included in a

pleading defendant's advisement: the right to a direct appeal.

The Indiana Constitution has been interpreted and appHed by Indiana

courts as giving criminal defendants the right to appeal.''^'' Although

there is contradictory authority on the issue, '^^ the most recent statement

on the matter appears in Judy v. State.^"^^ In that case the supreme court

reviewed Steven Judy's waiver of his right to appeal his death penalty

case. Acknowledging that review of the death penalty phase itself was

not waiveable, the court declared that Judy's waiver of his right to

'^'IND. Const, art. 1, § 12.

'''Id. at § 13.

'"^Se^ supra notes 118-21 and accompanying text.

""See supra notes 31 and accompanying text.

""See supra notes 128-31 and accompanying text.

"•^See White, 497 N.E.2d at 897 n.4, and cases cited therein ("due process" is

interchangeable with "due course").

'''See Judy v. State, 275 Ind. 145, 157, 416 N.E.2d 95, 101 (1981); Peterson v. State,

246 Ind. 452, 456, 206 N.E.2d 371, 372 (1965); Woods v. State, 426 N.E.2d 107 (Ind.
Ct. App. 1981); 5ee also Ind. Code § 35-38-4-1 (Supp. 1987).

'''See, e.g., Robbins v. State, 251 Ind. 323, 325, 242 N.E.2d 925, 927 (1969); In re

Pisello, 155 Ind. App. 484, 488, 293 N.E.2d 228, 230 (1973).
"•'275 Ind. 145, 416 N.E.2d 95 (1981).



1988] CRIMINAL LAW 105

appeal his conviction must be knowing, intelligent and voluntary. ^^^

Although the court declared in an earlier case, Riner v. Raines, ^^^ that

the right to appeal a criminal conviction is not a necessary element of

due process,^" the Judy decision belies that interpretation. This issue

would ordinarily be of no moment but for the fact that pleading de-
fendants are typically confined to challenging their pleas by collateral

attack rather than by direct appeal.

For reasons that are unclear, in the early 1980's the Indiana appellate

courts began ruling that a criminal defendant could not attack his plea

by a motion to correct error and direct appeal.'" Evidently, these holdings

express the courts' beliefs that the language in the Indiana Rules of

Civil Procedure and of Criminal Procedure pertaining to the appeal

from judgments referring directly to 'Hrial," "verdict," or "decision, "'^"^

should be interpreted to preclude those instances where one pleads guilty

rather than proceeds to trial. It is difficult to understand these holdings,

however, in light of the clearly constitutional dimensions of the right,

and the language of Indiana Code section 35-38-4- 1(a): An appeal to
the supreme court or the court of appeals may be taken by the defendant:

(1) as a matter of right from any judgment in a criminal action; and

(2) in accordance with this chapter.
'^^

A plea by a criminal defendant is just as much a conviction as if
he had gone to trial. '^^ Furthermore, the rule for post-conviction relief

affords guilty plea defendants the opportunity to file a belated appeal. '^^

It is therefore perplexing why attacks on guilty pleas are reduced to the
realm of petitions for post-conviction relief.

This examination of the law leads to the inevitable conclusions that

the appellate courts are wrong and that the law does afford pleading

defendants the opportunity to appeal, or that the law actually does not

afford this right. In either circumstance, the law is equally clear that

if defendants convicted after trial do have the right, but defendants

convicted after pleading do not, then the pleading defendants are being

denied their rights under equal protection of the law.'^^ Although the

'5°/Gf. at 150, 416 N.E.2d at 97 (emphasis added).
'^'274 Ind. 113, 409 N.E.2d 575 (1980).

'"/c?. at 118, 409 N.E.2d at 578.

'''See, e.g.. Stone v. State, 444 N.E.2d 1214 (Ind. Ct. App. 1983); Woods v. State,
426 N.E.2d 107 (Ind. 1981).

''*See Ind. R. Civ. P. 59.

'"Ind. Code § 35-38-4-1 (Supp. 1987).
''^See, e.g., Boykin v. Alabama, 395 U.S. 238, 242 (1969).

'"Ind. R. p. Post-Conviction Remedies 2 § 1 provides: "Any defendant convicted
after a trial or plea of guilty may petition the court of conviction for permission to file
a belated motion for new trial ..."

'^*'*No State shall make or enforce any law which shall . . . deny to any person
within its jurisdiction the equal protection of the laws." U.S. Const, amend XIV, § 1.



106 INDIANA LAW REVIEW [Vol. 21:85

initial premise of the following statement regarding due process is flawed

in the wake of Judy, it is hard to deny the ultimate import of this

declaration by the Indiana Supreme Court: "[T]he right to appeal in

criminal cases is not a necessary element of due process although to the

extent that a state provides such a right, the equal protection clause

would require all affected to be treated alike.''^^^ Thus, this right is

elevated to a federal due process issue, and the failure of the Indiana

courts to advise of this right is reversible error.

Two options are open to cure this serious flaw in the system. The
ideal solution would be for the courts to interpret the Indiana Constitution

to include the right to appeal and thereafter to apply such a right equally

among defendants. The second option would be for the General Assembly
to amend the appropriate statutes and trial rules to invoke clearly this

due process right to pleading defendants. Merely to advise a pleading

defendant that by pleading guilty he waives the right to appeal because

this right concerns the procedure surrounding the plea is not an option.

Rather, a pleading defendant must be informed of his right to a direct

appeal which may be waived if such waiver is voluntary, knowing and
intelHgent.'^^

The ramifications of properly inserting this right in the matter of

due process may have little or no practical effect on current procedure.
It is fairly common knowledge that most attacks on guilty pleas fall
outside the limitations for a direct appeal, either with respect to the

passage of time*^' or as a substantive matter of the belated appeals

requirements.'^^ Collateral attacks are typically lodged when a defendant
discovers he may be charged as an habitual offender'^^ if he cannot
avoid an earlier guilty plea conviction. The absence of an advisement

regarding the defendant's right to appeal constitutes fundamental error

as a denial of equal protection under the law. Failure of a trial court

to make a record of this right ranks with a similar failure to make the
Boykin advisements in mandating reversal. Futhermore, the effect on

the possibilities open to defendants who can timely perfect an appeal
could be enormous because McCarthy v. United States^^ clearly mandates
reversal for any omission from the federal guilty plea statutes if brought

on direct appeal.

'"Riner v. Raines, 274 Ind. 113, 118, 409 N.E.2d 575, 578 (1980) (emphasis added).

'^But see United States v. Frazier, 705 F.2d 903, 908 n.8 (7th Cir. 1983) (in which

the opinion appears to deal with the right to appeal a related motion to suppress, but

uses unfortunately broad language such that it could be construed as the right to appeal

the plea).

•«'Inx). R. Civ. P. 59.

'"Ind. R. p. Post-Conviction Remedies 2.

'"Ind. Code § 35-50-2-8 (Supp. 1987).
"^394 U.S. 459, 463-64 (1969).



1988] CRIMINAL LAW 107

Although it addresses the construction of the federal rule and its

specific terms, the import of the McCarthy opinion is that an appealing

defendant should not have to bear the burden of disproving the vol-

untariness of his plea. Rather, all resort to fact-finding is eliminated

and the court must determine error on the plea record alone. '^^ Omissions

are prima facie reversible error. The same result would be particularly

appropriate in Indiana where the motion to correct error does not

contemplate additional fact-finding after judgment, except for newly

discovered evidence. ^^^

The problem that continues to fester in all this, of course, is the

effect of the recent statutory amendment providing: "Any variance from
the requirements of this section that does not violate a constitutional

right of the defendant is not a basis for setting aside a plea of guilty. ''^^^

Can the courts apply this "harmless error" standard to get around the
mandate of McCarthy v. United States'! ^^^

A differently composed Indiana Supreme Court concluded, in Austin
V. Statey^^^ that the General Assembly "may not fetter the judiciary with
its concept of harmless error" ^^° and declared Indiana Code section 35-
33-1 -2(c) a nullity. Although criticized heartily by the White court, ^^^

Austin was without doubt correct in this regard. The due process accorded

to pleading defendants is, by and large, governed by the advisement of

waiver of federal constitutional rights. This advisement procedure itself

emanates from the Constitution. In most respects then, the "harmless

error" provision is an empty vessel—it applies to virtually nothing raised

in the statutes. The "harmless error" provision is also of no moment
in light of the clear import of the language of the Supreme Court in

Chapman v. California^^^ when it addressed a state constitutional pro-
vision undercutting a federal constitutional right: "With faithfulness to
the constitutional union of the states, we cannot leave to the States the

'«M at 469.
'«IND. R. Civ. P. 59(A)(6).

'«lND. Code § 35-35-l-2(c) (Supp. 1987).
'^A similar provision is currently in place in Fed, R. Crim. P., Rule 11(h): "Any

variance from the procedures required by this rule which does not affect substantial rights

shall be disregarded." To date, the Supreme Court has not addressed a challenge to the
validity of this provision although it has been used in matters of direct appeal by lower

courts. See, e.g.. United States v. Fentress, 792 F.2d 461, 465 (4th Cir. 1986); United

States V. De le Puente, 755 F.2d 313, 314-15 (3d Cir. 1985); but see United States v.
Ramos, 810 F.2d 308, 312 (1st Cir. 1987) (this circuit may not follow Rule 11(h) when
defendant moves to withdraw his plea).

'*'468 N.E.2d 1027 (1984).

•^°/cf. at 1029.

"White V. State, 497 N.E.2d 893, 897-99 (Ind. 1986).
'^^386 U.S. 18 (1967).



108 INDIANA LAW REVIEW [Vol. 21:85

formulation of the authoritative laws, rules, and remedies assigned to

protect people from infractions by the States of federally guaranteed

rights.'*
•''3 This is not to say the Indiana courts may not find a violation

of a constitutional right is harmless error pursuant to the judicially

formulated Rule 61 of the Indiana Rules of Civil Procedure. '^^ That

ability is specifically reserved in Chapman. ^''^ However, that case does

negate subsection 2(c) and denies to the General Assembly the power

to formulate a rule of its own. Thus, subsection 2(c) can have no legal

effect on the review of a guilty plea in Indiana, either on collateral

attack or direct appeal. But can the Indiana courts still find "harmless

error" on direct appeal?

Because McCarthy v. United States^''^ was not decided on consti-
tutional grounds but on rules of statutory construction, the answer to

that question has not yet been decided by the Supreme Court. However,

the very nature of a direct appeal is going to make it extremely difficult
to find harmless error because review is confined to the guilty plea

record. Thus, almost any omission from the statutes is error for lack

of evidence otherwise. The defendant has no burden to produce anything

but the record. Realistically, a challenge to the ever thorny failure to

advise of the minimum or maximum sentences will be naught if the
defendant was sentenced within the parameters of the possible sentences,

as in White. Such failure will probably still be deemed harmless error

pursuant to Rule 61. Except for being within the general due process

considerations regarding an advisement of the consequences of a plea,

this advisement is not otherwise supported by an independent consti-

tutional right. So, unless the Indiana Supreme Court changes its mode
of review drastically in the near future, it is hardly likely it will follow

McCarthy's method of statutory construction to require strict adherence

to the statute on this particular element, even on direct appeal. All the

other elements, however, have been specifically denominated to be of

federal dimension and not omissible in such instance. ^^^ Thus, the Indiana

Supreme Court will have to re-examine some of its current practices
applicable to collateral attack when faced with a direct appeal.

C. Retroactive Application

One of the major questions arising from White is whether its standard
should be applied retroactively, that is, to all reviews of guilty pleas

'''Id. at 21.

'^"Ind. R. Civ. P. 61.

'"386 U.S. at 21-22.

'^^394 U.S. 459 (1969).

"''See supra notes 118-121 and accompanying text.



1988] CRIMINAL LAW 109

without regard to when they were entered. The White court hinted at
the answer to this question in its disposition of Randy White's petition:
'*If appellant has any other basis upon which to establish that his plea

was not voluntary and intelligent, he may file a new petition. "^^^ Similar
notations were made in subsequent cases decided by the Indiana Supreme
Court.179

Patton V. State,^^ an Indiana Court of Appeals case, was the first

to confront the problem of retroactivity. Patton' s appellate brief reached

the court after the White decision, and in it he argued that White should

be limited to a prospective application only. The court of appeals dis-
agreed, providing, however, only the rationale noted above: the White

standard was apphed to Randy White's petition. '^^ This stands, the court
concluded, as precedent for the proposition that White has been given

retroactive effect. The court determined that White was to be applied
retroactively, despite the fact that the White court did not elucidate the

reasons for retroactivity. The Patton court went no further in its ex-

plication of the problem. ^^2

Even though the precedent for retroactivity has been established,

inquiry into the question remains fruitful, particularly given that the

Patton decision does not address the precise contours of the argument

which may be made.
The prior case of German v. State^^^ was given prospective application

only. The supreme court, in Martin v. State,^^'^ held that "there is no
sound reason for retroactive application of German.'' ^^^ The decision to
apply German prospectively should shed some light on the rationale
behind the decision to apply White retroactively.

It should be noted that, as a general matter, constitutional prohi-

bitions against ex post facto laws do not apply to judicial precedent.

The focus of ex post facto prohibitions is upon the legislature and the

•^«White V. State, 497 N.E.2d 893, 906 (Ind. 1986).

"^E.g., Simpson v. State, 499 N.E.2d 205, 206 (Ind. 1986); Reid v. State, 499 N.E.2d

207, 208 (Ind. 1986); Merriweather v. State, 209, 211 (Ind. 1986).

'»°507 N.E.2d 624 (Ind. Ct. App. 1987).

•«'/cf. at 626.

•"M; see also Buskirk v. State, 511 N.E.2d 305 (Ind. 1987). Although the Buskirk
case occurred outside the survey period, it is noteworthy because Justice Pivarnik's opinion

held White to be retroactive. Unfortunately, Buskirk cited Patton as precedent. Id. at

305. The Patton court stated, "Explication of the policy and its constitutional ramifications
is best left to the highest court of our state." 507 N.E.2d at 626.

'"428 N.E.2d 234 (Ind. 1981).
'«^480 N.E.2d 543 (Ind. 1985) (clarifying conflict between Johnson v. State, 471

N.E.2d 1107 (Ind. 1984) and William v. State, 468 N.E.2d 1036 (Ind. 1984)).

'^'Martin, 480 N.E.2d at 547.



no INDIANA LAW REVIEW [Vol. 21:85

desire to limit its authorityJ^^ The Utigant seeking to compel, as with

the German standard, or avoid, as with the White standard, retroactivity

is thus left to a common law, or perhaps due process, approach to the
issue. The latter analysis usually employs three factors, none of which

apparently predominate. They are: (a) the purpose to be served by the

new standards, (b) the extent of reliance by law enforcement authorities

on the old standards, and (c) the effect on the administration of justice

of a retroactive application of the new standards. ^^^

The purpose of German's requirement of strict compliance with the

statute relating to guilty pleas was two-fold. It was designed to insure

proper advice to the pleader and create ease of appellate review. ^^^ German
did not affect the fact-finding process. White, on the other hand, does

affect the fact-finding process intimately. The ultimate fact to be found

in a post-conviction proceeding for review of a guilty plea is whether

the plea was entered knowingly, voluntarily and inteUigently.'^^ White

directly bears upon this issue. White asked, would the petitioner have

pleaded guilty if the omitted advisement had been given? *^ A finding
of a potential change in plea is highly probative on the issue of whether

the plea was entered voluntarily and intelligently. Thus, the purpose to

be served by the new standards is to reflect accurately the voluntariness
of the plea. The purpose of the White standard, therefore, is to serve

as a more accurate barometer of the correct result. That is, was the

guilty plea accepted correctly? This purpose militates strongly in favor

of a retroactive application. Standards which bear upon the fact-finding

process should generally be applied uniformly and retroactively.*^'

However, under the foregoing, unfairness can and probably did

result to petitioners in a position such as White. This is a component

of the second portion of the analysis, the factor of the degree of reliance

by petitioners. Usually, the test applied is whether there was reliance

by law enforcement officials, especially in the area of search and seizure

law. However, Judge Shields in Bryant v. State^^^ aptly noted that when
the rule (or standard) under consideration is more restrictive in nature,
the analysis more germane is the degree of the reliance by defendants

(or petitioners).

'«*5ee Sumpter v. State, 264 Ind. 117, 340 N.E.2d 764, cert, denied, 425 U.S. 952

(1976).

«'Bryant v. State, 446 N.E.2d 364, 367 (Ind. Ct. App. 1983) (quoting Stovall v.

Denno, 388 U.S. 293 (1967)). See generally Rowley v. State, 483 N.E.2d 1078 (Ind. 1985).

'''Martin, 480 N.E.2d at 547.

^'^See supra notes 89 and accompanying text.
'^497 N.E.2d at 906.

'''See Desist v. United States, 394 U.S. 244 (1969).

"H46 N.E.2d 364, 367 (Ind. Ct. App. 1983).



1988] CRIMINAL LAW 111

Randy White's brief, and those in other cases which follow closely

the White decision, demonstrate the degree of petitioners' reliance. White

did resist transfer on the ground that the issue of reexamination of the

standard of German and Austin was not appropriately before the Indiana
Supreme Court. Yet White seemed to argue only that German and Austin

mandated vacation of his plea.'^^ Thus, the degree of reliance was

substantial. Moreover, the new rule, while having its basis in prior case

law, is a radical and abrupt departure from immediate prior precedent.

German and Austin were overruled by name and in full.
White does seek to ameliorate the harshness that the abrupt change

caused. Randy White was given, somewhat cryptically, a second chance

to vindicate his position. The disposition does give White the opportunity

to refile his petition, provided he has '*any other basis upon which to

establish that his plea was not voluntary and intelligent. "'^"^ The extent

to which this gives White the chance to relitigate the voluntariness of

his plea, particularly concerning the issues which he raised in his first

appeal, is problematic. As Patton noted, there are pitfalls in relitigation,
not the least of which are waiver and estoppel. *^^ Nevertheless, Randy
White was given the chance to at least reopen his case despite the

problems which reopening may create.
The third component of the retroactivity analysis is that of the

burden on the administration of justice. The White court viewed the

overturning of guilty pleas as an inordinate burden to the system. The

court wrote:

Routine reversal of convictions on technical grounds imposes

substantial costs on society. Chief Justice Designate Rehnquist

recently enumerated these costs, and we paraphrase his descrip-
tion of them. Jurors, witnesses, judges, lawyers, and prosecutors

may be required to commit further time and other resources to
repeat a trial which has already taken place. The victims are

caused to relive frequently painful experience in open court. The

erosion of memory and the dispersal of witnesses may well make
a new trial difficult or even impossible. If the latter is the case,
an admitted perpetrator will be rewarded with freedom from

prosecution. Such results prejudice society's interest in the prompt

administration of justice, reduce the deterrent value of any pun-

''' White, 497 N.E.2d at 895.

'^Id. at 906 (emphasis added).

'"In Patton, the petitioner argued that, beyond waiver and estoppel, he might be

subject to an increased sentence under the revised rules. Patton's argument made in the
context of requesting a remand for the purpose of meeting the White standard, was

rejected. 507 N.E.2d 624, 627 (Ind. Ct. App. 1987).



112 INDIANA LAW REVIEW [Vol. 21:85

ishment, and hamper the rehabiHtation of wrongdoers. 196

Fortunately, the court which created German and Austin concurred

in this assessment. In limiting German to prospective application only,

the court wrote in Martin v. State:

Retroactive application could only result in the vacating of many
judgments resting upon guilty pleas actually given knowingly and

voluntarily or if not so given, nevertheless, given under circum-

stances rendering deficiency in the advisements harmless error.

The burden upon the administration of justice in such cases is

overwhelming.'^"^

Thus, even though the Martin and White courts disagreed as to the

result to be reached regarding prospective and retrospective application

of the respective standards, both agreed in their assessment of the burden

to the administration of justice with regard to the standard.

The traditional analysis of retroactive application of precedent there-

fore suggests that White be given full retroactive effect. White bears

upon the ultimate issue of the correctness of a guilty plea, seeks to Umit

by its own terms the harshness of overturning German and Austin, and
will work a reduction, in the long run, of vacation of guilty pleas and

the resultant full criminal litigation. Retroactive application is probably

the correct result, particularly because the White court overruled Austin

and thus foreclosed any contentions of whether the court's decision

impairs vested, substantive rights to persons having pleaded guilty under

the previous standards.

V. Effect of White on Indiana Post-Conviction Procedure

As stated earlier, the Indiana Rules of Procedure for Post-Conviction
Remedies are designed to effectuate the following goals: a simple and

expeditious procedure; a single procedure obviating the need for state

habeas corpus or corum nobis proceedings; disposition on the merits of

the claims whenever possible; and elimination of subsequent post-con-

viction petitions by the same petitioner concerning the same conviction. '^^

One must wonder to what extent the changed standard of review
announced by White v. State will serve these goals. Two caveats are in
order. First, White is merely a change in the way in which guilty pleas
are taken in terms of the requisite advisements. Second, and relatedly,

White is not procedural. It does nothing to change the manner of

'^ White, 497 N.E.2d at 905.

'^'Martin v. State, 480 N.E.2d 543, 547 (Ind. 1985).

"^See supra text accompanying notes 15-16.



1988] CRIMINAL LAW 113

processing post-conviction cases. Nevertheless, White may, as a practical

matter, have an impact on the degree to which the post-conviction relief

rules serve the stated and implicit goals.

First, White's immediate impact is to impose a new threshold tech-

nical requirement with regard to pleading. To be successful, a petitioner
must allege facts which could, if proven, lead to the conclusion that,

but for the omitted advisement, the petitioner would not have pleaded

guilty. ^^ Though the pleading requirement may be relatively simple, it
is still a threshold requirement. Inartful or unaware pleaders, particularly

those appearing pro se, could lose the opportunity to litigate fully their

claim should they fail to allege both the necessary result and cause.

That is, the defendant must allege that a plea of guilty would not have

been entered if the trial court had given its constitutionally required

advisement. Setting to one side the issue of the propriety of requiring

such proof, there is little doubt that disposal of claims on pleading

grounds has become a much greater possibility. This approach appears
to be in conflict with the stated desire to dispose of claims on their

merits.

Second, White actually increases, rather than decreases, the prob-

ability of subsequent petitions concerning the same guilty plea. As noted,

the standard for guilty pleas has changed five times in less than ten

years.^^ While the reality may differ from the perception, the perception
must be that a second petition for post-conviction relief gives at least

some opportunity for further review under a new and different standard.
The White case itself demonstrates this. Randy White was given, in the
court's disposition, a new opportunity to allege and prove facts which

would meet the standard. ^^^ Thus, White's case results in two trial court

decisions and inevitable appellate court reviews. This result was extended

to all cases in which trial court disposition had not yet occurred when
White was handed down.202 it may fairly extend to all potential litigants
seeking a "second bite at the apple" under a new standard, regardless
of whether that standard actually increases the chances of success (which

'^ White, 497 N.E.2d at 905 ("[The petitioner] needs to plead specific facts from

which a finder of fact could conclude. ..." (emphasis added)).

^°°See supra notes 1-5 and accompanying text.

^' White, 497 N.E.2d at 906.

""^E.g., Simpson v. State, 499 N.E.2d 205, 206 (Ind. 1986); Reid v. State, 499 N.E.2d

207, 208 (Ind. 1986); Merriweather v. State, 499 N.E.2d 209, 211 (Ind. 1986). In all three

cases, the court wrote:

We note that appellant's petition for post-conviction relief and proceedings
thereon were predicated on case law existing before our recent decision in White

which reviewed and revised the applicable burden of pleading and proof. There-

fore, if appellant has any other basis upon which to establish that his plea was

not voluntary and intelligent, he may file a new petition.



114 INDIANA LAW REVIEW [Vol. 21:85

it does not). As more of the issues raised by White become settled,

litigation may decrease. Yet, at present, there can be little doubt that
more, not less, litigation is the immediate result of White. Certainly

there is no empirical evidence to suggest that post- White pleaders will

be deterred from pursuing any available post-conviction relief.

Finally, the White standard begs for full factual litigation. Assuming

that a petitioner has shown an omitted advisement, the trial court's work

is not done as it was under German/Austin. ^^^ The court must still
inquire as to whether the petitioner's plea would have reasonably changed.

Further, assuming that the petitioner would testify in the affirmative in

this regard, it is then incumbent upon the State to demonstrate the
reasonableness of the position that the petitioner would not have changed

the plea. This evidence, in the nature of rebuttal evidence, must be

objective in nature and will probably center on the facts and circumstances

of the plea agreement, the petitioner's prior involvement, if any, with

the criminal justice system,^'^ and the strength of the proof of the crime

itself. None seems necessarily amenable to summary factual determi-
nation, and could lead to virtually a full trial on the crime charged.

Though one must keep in mind the desire to provide for disposition on
the merits, that goal of post-conviction relief statutes is not necessarily

served by increasing the factual determinations needed for ultimate res-

olution. Increasing the litigable fact questions may also be a disservice
to the goal of an expeditious procedure.

In summary. White does have an impact upon the post-conviction
procedure as a whole, despite the fact that it is only changing the

standard of appellate review. It imposes an additional pleading and proof

requirement upon petitioners, causes an increase (at least for the present)

in the number of post-conviction relief decisions which must be made
and also opens up the possibility of much more involved factual de-
terminations.^^^

^^See supra notes 72-84 and accompanying text.

^"^See Burns v. State, 500 N.E.2d 201 (Ind. 1986) (correct advisement in previous

guilty plea hearing cured error of omitted advisement in case under review).

^°'One other effect of White upon the post-conviction process should be noted. In

three cases in the survey period, appellate courts held that denial of post-conviction relief

in a summary fashion was inappropriate when a public defender has been appointed to
represent a petitioner but has not yet amended the pro se petition. Holliness v. State,

496 N.E.2d 1281 (Ind. 1986); Stoner v. State, 506 N.E.2d 837 (Ind. Ct. App. 1987);
Colvin V. State, 501 N.E.2d 1149 (Ind. Ct. App. 1986). As noted in Stoner, "The rationale
is a pro se petitioner seeking post-conviction relief is given leave to amend his petition
as a matter of right by Indiana Rule of Post-Conviction Relief 1, § 4(c)." 506 N.E.2d

at 838.

Under White, the court may look to the entire record to ascertain whether the plea
was correctly accepted. 497 N.E.2d 893, 905. In determining if a petitioner would not



1988] CRIMINAL LAW 115

VI. Conclusion

White is susceptible to attack on numerous grounds, not the least

of which is that it represents yet another change in guilty plea review.

Beyond the difficulties of this fifth change in ten years which White

creates, the case rests on faulty precedent and an ineffective refutation

of Austin and German.

Nevertheless, White is the latest pronouncement in the area, and

petitioners seeking to obtain relief under the White standard are left

too little in the way of novel argument, and less in the way of meeting
the standard itself. Post-conviction petitioners will hkely be able to make
gains only in the Boykin rights area, such as with Henderson, or in the
area of pursuing a direct appeal. If this is truly the case, then one must

hope that with these limited avenues for relief, the Indiana Supreme

Court will, at minimum, leave White in place longer than its predecessors

so that petitioners may pursue federally based rights without concern
for vacillating state standards.

have pleaded guilty, the court may look objectively at the record. See Granger v. State,
499 N,E.2d 743, 745 (Ind. 1986). These two items, when coupled with the post-conviction
court's authority for summary disposition of the petitioner under Rule 1, § 4(f) of Indiana
Rules of Procedure for Post-Conviction (Remedies), may cause an increase in the number
of summary dispositions without action by the public defender's office because under
White, the record alone may be a sufficient basis upon which to deny relief. The holdings
of the three cases above may be, therefore, subject to new scrutiny and clarification in
light of White.