Indiana Law Review Indiana Law Review Volume 34 2001 Number 3 ARTICLE The Guilty Plea Process in Indiana: A Proposal to Strengthen the Diminishing Factual Basis Requirement Earl G. Penrod* Introduction Considering the numerous high profile jury trials as well as the fictional yet compellingjury trial scenes from movies and television, it is understandable that Indiana citizens may have an inaccurate perception ofthe frequency ofjury trials in criminal cases. In addition to the media and popular entertainment, however, the public's failure to appreciate that the overwhelming majority of cases in Indiana criminal courts are resolved by way of an uncontested guilty plea is attributable in some measure to the legal system itself. Hailing the jury trial as the scrupulous protector of the rights of the individual and as the cherished means to truth and justice, the legal system often links its legitimacy and credibility to the full fledged adversarial process. The purported sanctity ofthe jury trial process is further underscored by scholars who rail against the prevalence of plea bargaining and the diminishing numbers ofjury trials in the American criminal justice system. 1 Although the public's misconception about the manner in which Indiana criminal courts go about the business of resolving cases is unfortunate, it is submitted that the legal system's acquiescence in the illusion ofthe jury trial as the dominant dispositional method in criminal cases is more significant and troubling. It can be argued that in view of the scarcity of jury trials and the frequency ofguilty pleas, the legal system has focused disproportionate attention on the former and failed to consistently and legitimately address the latter to the detriment of both the interests of the individual defendants and the proper * Judge, Gibson County Superior Court, Gibson County, Indiana. B.A., 1 977, University ofLouisville; J.D., 1980, University ofLouisville; M.J.S., 2000, University ofNevada, Reno. This Article is in partial fulfillment of the requirements for the Master of Judicial Studies degree program at the University ofNevada, Reno. 1 . See, e.g., Albert W. Alschuler, Implementing the Criminal Defendant 's Right to Trial: Alternatives to the Plea Bargaining System, 50 U. Chi. L. Rev. 93 1 (1983); John H. Langbein, On the Myth of Written Constitutions: The Disappearance ofCriminal Jury Trial, 15 HARV. J.L. & PUB.POL'Y 119(1992); Stephen J. Schulhofer, Is Plea Bargaining Inevitable?, 97 Harv. L. Rev. 1037(1984). 1 128 INDIANA LAW REVIEW [Vol. 34: 1 127 administration ofjustice. The purpose here is neither to rue the demise ofthe adversarial process by advocating a prohibition against guilty pleas generally or plea bargaining specifically 2 nor to propose that the American adversarial process should be critically re-evaluated in relation to the inquisitorial approach ofthe countries of continental Europe. 3 Attention will be directed in this Article to the guilty plea process as it actually functions with particular focus on the guilty plea factual basis requirement. It will be argued that the factual basis requirement is inconsistently implemented in the trial and appellate courts to the point of constituting a threat both to the due process rights of individual defendants and the interests ofthe fair and efficient administration ofjustice. This Article sets forth a proposal to fortify the factual basis requirement by mandating a clear and consistent procedure for Indiana judges in establishing a factual basis for a plea ofguilty. As part ofthe proposal to strengthen the factual basis requirement, an Indiana trial courtjudge, in limited circumstances, should be authorized to permit a defendant to enter a best interests plea pursuant to the United States Supreme Court case ofNorth Carolina v. Afford. 4 The Article will conclude with a delineation of the matters that may be legitimately left to the discretion of the trial court and the matters that should be standardized and required ofthe trial courtjudge in establishing a factual basis for a guilty plea or a best interests plea. I. Importance of the Jury Trial—Prevalence of the Guilty Plea It has been noted that "[t]he right to jury trial in criminal cases was among the few guarantees of individual rights enumerated in the Constitution of 1 789, and it was the only guarantee to appear in both the original document and the Bill of Rights." 5 In addition to the jury trial guarantee in the United States Constitution, the Indiana Constitution of 1851 provides: "In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury "* Indiana has underscored the importance ofthe right to ajury trial in another constitutional provision: "In all criminal cases whatever, the jury shall 2. For an excellent review ofthe "plea bargaining" debate, see Colloquy, Special Issue on Plea Bargaining, 1 3 Law& SOC'Y Rev. 1 89 (1979). See also Douglas D. Guidorizzi, Should We Really "Ban " Plea Bargaining?: The Core Concerns ofPlea Bargaining Critics, 47 EMORY L.J. 753(1998). 3. See Richard S. Frase, Comparative Criminal Justice as a Guide to American Law Reform: How Do the French Do It, How Can We Find Out, and Why Should We Care?, 78 CAL. L. Rev. 539 (1990); John H. Langbein, Land Without Plea Bargaining: How the Germans Do It, 78 MICH. L. Rev. 204 (1979). 4. 400 U.S. 25 (1970). 5 . Albert W. AIschuler & Andrew G. Deiss, A BriefHistory ofCriminal Jury in the United States, 61 U. Chi. L. Rev. 867, 870 (1994) (citations omitted). 6. Ind. Const, art. 1, § 13(a). 200 1 ] THE FACTUAL BASIS REQUIREMENT 1 1 29 have the right to determine the law and the facts." 7 The apparent significance ofjury trials is further illustrated by a cursory review ofthe multiple provisions relating to trials contained in the Indiana Code and the various Indiana Supreme Court Rules 8 as well as the reported decisions from the supreme court and court of appeals. Although the disproportionate attention to trial issues in reported decisions by the Indiana appellate courts may be explained in part by the fact that a guilty plea in Indiana constitutes a waiver of the defendant's general right to appeal, the abundant attention to trial procedure in criminal cases is hardly debatable. The systemic commitment to the jury trial process can be observed in the actions ofnumerous trial court judges who meticulously manage theirjury trial calendar by lamenting the burden ofa busy trial docket yet disregarding the fact that so few cases actually proceed to jury trial. Trial courtjudges make certain the defendant's right to a jury trial is honored by concerning themselves with issues as mundane asjury room facilities and as tedious asjury instructions. The purpose here, however, is not to quarrel with the honored place ofthe jury trial in the American legal system. From its roots in England, there is little serious doubt about the American criminal jury trial as a fundamental precept of our legal heritage. The right to ajury trial in America pre-dates the Constitution, the Declaration of Independence, and even the first English settlement on this continent. 9 Further, the over-arching public benefit of the jury trial process in affording direct citizen participation as a check against government excess should not be minimized. The significance and importance ofthe constitutional guarantee ofcriminal jury trials must be viewed in the context of the ultimate goal of protecting the rights of the individual and the interests of society as a whole. Whether it be a full-fledged adversarial trial or a quasi-adversarial proceeding in which some or all of the potential issues are uncontested, the legal process must be the means to achieve the ultimate ends ofjustice. Thus, substance must trump form in order to protect the constitutional rights ofthe individual, no matter what stage ofthe process. Although observers and commentators may posit thatjustice is best assured through the widespread use of contested proceedings such as jury trials, the reality of the present system demands a more practical approach. Trial court judges faced with limited resources and an ever-increasing caseload would, no doubt, welcome additional funding and staffing, yet these judges know that society cannot provide the resources necessary to ensure trial-type proceedings in all criminal cases. Furthermore, the United States Supreme Court has noted that: 7. Ind. Const, art. 1, § 19. 8. See, e.g., Indiana Rules of Evidence; Indiana Rules of Criminal Procedure; Indiana Rules of Trial Procedure (applicable to all civil actions and to criminal cases unless the supreme court has enacted a conflicting criminal rule) (see Ind. R. Crim. P. 21). 9. See Alschuler & Deiss, supra note 5, at 870. 1 130 INDIANA LAW REVIEW [Vol. 34:1 127 The disposition ofcriminal charges by agreement between the prosecutor and the accused, sometimes loosely called 'plea bargaining,' is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number ofjudges and court facilities. 10 Considering both the United States Supreme Court imprimatur on the plea bargaining process and the prevalence of guilty pleas with or without plea bargaining, it is disingenuous to argue that the efficacy and legitimacy of the criminaljustice system is or should be inextricably intertwined with the complete jury trial. Instead, the criminal justice system should attempt to improve the guilty plea process. The infrequency ofcriminaljury trials in Indiana trial courts is proven by the 1998 Indiana Judicial Report compiled and published by the Indiana Supreme Court Division of State Court Administration. The report notes that Indiana criminal courts disposed of 246,142 felonies and misdemeanors in 1998 with 1810 ofthose dispositions (less than one percent) occurring by way ofjury trial, 14,060 (5.7%) by bench trial, 139,516 (fifty-seven percent) by guilty plea, and 80,984 (thirty-three percent) by dismissals. 11 Considering felonies and misdemeanors separately, there were 51,266 felonies disposed of with 1510 (2.9%) dispositions by way ofjury trial, 1930 (3.8%) by way of bench trial, 35,867 (seventy percent) by way of guilty plea, and 10,058 (twenty percent) dismissed. 12 There were 194,876 misdemeanors disposed of in 1998 with 300 dispositions (less than one percent) by way ofjury trial, 1 2, 1 30 (6.2%) by bench trials, 103,649 (fifty-three percent) guilty pleas and 70,926 (thirty-six percent) through dismissals. 13 Statistics from other jurisdictions demonstrate the lack of jury trials throughout the American criminal justice system. For example, in the U.S. district courts there were 59,885 defendants convicted and sentenced in 1 998 and 56,256 (approximately ninety-four percent) of the dispositions were by way of a plea of guilty or nolo contendere. 14 Further, for felony convictions in state courts, guilty pleas accounted for approximately ninety-one percent of the dispositions while jury trials accounted for four percent and bench trials 10. Santobello v. New York, 404 U.S. 257, 260 (1971). 11. See Indiana Supreme Court Division of State Court Administration, 1998 Indiana Judicial Report Vol. 1, at 55, 57-61 (1999) [hereinafter 1998 Indiana Judicial Report]. 12. See id. at 58-61. 13. See id. 14. See Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics—1998, at 407 (Kathleen Maguire & Ann L. Pastore eds., 1999) [hereinafter Sourcebook]. 200 1 ] THE FACTUAL BASIS REQUIREMENT 1131 accounted for five percent. 15 It should be noted that the Indiana Judicial Report cautions that the report is not designed to be "a complete detailing of every judicial decision." 16 The statistics are derived from the Quarterly Case Status Reports (QCR) completed and submitted by every Indiana trial court, and the dispositional categories listed on the QCR are subject to some question and interpretation. 17 However, as demonstrated by the new dispositional category entitled "Bench Disposition" to be reported in calendar year 2000, most interpretation issues center on dispositions other than jury trials where a jury is seated and evidence is received. 18 Due to the various Indiana statutes that authorize the court or the prosecuting attorney to dismiss, divert or conditionally defer various types of cases prior to the entry ofconviction, a number of"dismissed cases" actually are more akin to guilty plea dispositions. The case is not dismissed until the defendant successfully completes a period of rehabilitation with some degree of supervision. In fact, when a guilty plea at a court appearance precedes the diversion or deferral and ultimate dismissal, the specific dispositional method may be reported differently by individual judges or court administrators. It is also possible that the numerous statutory diversions and deferrals may account for a relatively high dismissal rate ofapproximately twenty percent for felonies in Indiana courts (the dismissal rate for misdemeanors is even higher at thirty-six percent) as compared to a felony dismissal rate ofapproximately ten percent for the U.S. district courts. 19 Yet even ifthe statistics on criminal case dispositions in Indiana are discounted for potential reporting and interpretation errors, it remains beyond dispute that a relatively small number of criminal cases are disposed ofthrough contestedjury or bench trials. Conversely, the clear majority of criminal cases are concluded by means of a guilty plea offered by the defendant. II. An Overview of Indiana Cases Authorizing a Guilty Plea Considering the frequency of guilty pleas, one might intuitively expect the process to be ofsuch long-standing tradition that little ofthe procedure would be subject to debate or discretion. Guilty pleas have been recognized for many years as a legitimate part ofthe American (and Indiana) criminal justice system, yet the process has been neither stagnant nor standardized to the exclusion of discretion or debate. As to the origin of the guilty plea in Anglo-American common law, Professor Alschuler indicates that: From the earliest days of the common law, it has been possible for 15. See id. at 432. 1 6. 1 998 Indiana Judicial Report, supra note 1 1 , at 1 . 17. See id 18. See id. at 40. 1 9. See SOURCEBOOK, supra note 1 4, at 407; see also 1 998 INDIANA JUDICIAL REPORT, supra note 11, at 55, 60. 1 132 INDIANA LAW REVIEW [Vol. 34: 1 127 an accused criminal to convict himself by acknowledging his crime. "Confession" was in fact a possible means of conviction even prior to the Norman conquest. Nevertheless, confessions of guilt apparently were extremely uncommon during the medieval period.20 Professor Alschuler also notes that the earliest reported American decision in a guilty plea case was Commonwealth v. Battis™ an 1 804 Massachusetts case, although the 1 892 case of Hallinger v. Davis22 was the first United States Supreme Court opinion to uphold a guilty plea conviction entered in a United States district court. 23 In Indiana, the guilty plea process was sanctioned by the Indiana Supreme Court in various reported cases at least twenty years prior to 1 892. For example, in an 1 871 case in which the defendant challenged the trial court's denial ofthe request to withdraw a guilty plea, the supreme court upheld the trial court's denial of the request by noting: Upon a plea of guilty, ... the court has nothing to do but to fix the amount of punishment and render judgment or sentence accordingly. There is nothing for the court to find. The prisoner, by his confession, has made a finding unnecessary. The court may take the prisoner at his word, and proceed accordingly. 24 In a cautionary note, the supreme court added: Mr. Blackstone, in his Commentaries, says: "The other incident to arraignments, exclusive of the plea, is the prisoner's actual confession of the indictment. Upon a simple and plain confession, the court hath nothing to do but to award judgment; but it is usually very backward in receiving and recording such confession, out oftenderness to the life of the subject; and will generally advise the prisoner to retract it, and plead to the indictment." 25 In a case from the November 1882 term, the Indiana Supreme Court overturned a guilty plea to murder entered by a defendant upon advice ofcounsel because of the danger from a "lynch mob." 26 In overturning the "plea of confession" and ordering the reinstatement ofa not guilty plea, the supreme court 20. Albert W. Alschuler, Plea Bargaining and Its History, 1 3 Law & SOC*Y REV. 211,214 (1979) (internal citations omitted). 21. 1 Mass. 95 (1804). 22. 46 U.S. 314 (1892). 23. See Alschuler, supra note 20, at 214-15. 24. Griffith v. State, 36 Ind. 406, 408 (1871). 25. Id. at 408-09 (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES *329). 26. See Sanders v. State, 85 Ind. 318 (1882). Defendant, who reportedly was addicted to alcohol and opium to the extent that he may have become insane, was charged with murder when he could not explain the death of his wife who was killed by a pistol shot while in a room alone with the defendant. See id. 200 1 ] THE FACTUAL BASIS REQUIREMENT 1 1 33 found that a guilty plea extorted by duress, as in this case, must be held for naught. 27 In another late nineteenth century case, the Indiana Supreme Court recognized the validity of a guilty plea by noting that a valid guilty plea constitutedjeopardy barring the refiling ofthe criminal charge upon dismissal by the prosecutor after the guilty plea was entered and accepted by the court but prior to sentencing. 28 In what appears to be one ofthe first Indiana Supreme Court cases to directly address a guilty plea offered in the context of a "plea bargain," the Indiana Supreme Court found that the trial court judge had abused his discretion in refusing to set aside the guilty plea and reinstate a not guilty plea for a defendant who had pleaded guilty on the day ofhis arraignment.29 The defendant, who had been in custody for approximately thirty days prior to the return ofthe indictment for grand larceny (horse theft), pleaded guilty without consulting an attorney after having discussed the matter with the sheriffwho had advised the defendant that the prosecutor agreed that upon a guilty plea, the punishment should not exceed two years. 30 Immediately following the guilty plea the judge sentenced the defendant to a ten-year prison term and the next morning denied the request to set aside the judgment and grant leave to withdraw the guilty plea. 31 The supreme court, in finding that the defendant should have been allowed to withdraw his guilty plea because the defendant was misled by the conversations with the sheriff, found support from other jurisdictions: "Courts have always been accustomed to exercise a great degree of care in receiving pleas of guilty, in felonies, to see that the prisoner has not made his plea by being misled, or under misapprehension, or the like." 32 In a 1915 case reversing the judgment of the trial court, which had refused to allow the defendant to withdraw his guilty plea (the defendant was a Russian- speaking Austrian who pleaded guilty through an interpreter without an attorney), the Indiana Supreme Court noted: "That a plea of guilty should be entirely voluntary, and made by one competent to know the consequences thereof, and that the trial court should satisfy itselfofthese facts before receiving it, appears to be well settled." 33 The defendant was neither represented by counsel nor given a full explanation ofthe consequences ofthe plea ofguilty; thus, the plea would not stand. 34 An increasing number of guilty plea cases were considered by the Indiana Supreme Court after the turn of the century and most of those cases revolved around the issues of voluntariness and whether the defendant understood the 27. See id. at 320. 28. See Boswell v. State, 1 1 N.E. 788, 789 (Ind. 1887). 29. See Myers v. State, 18 N.E. 42 (Ind. 1888). 30. See id. at 42-43. 31. See id. at 42. 32. Id. at 44. 33. Mislik v. State, 1 10 N.E. 551, 552 (Ind. 1915) (citations omitted). 34. See id. at 553 (the interpreter was a police officer who had assisted in the arrest of the defendant). 1134 INDIANA LAW REVIEW [Vol. 34:1127 consequences of his actions, with particular attention to the availability of counsel. 35 In a case decided in 1920, the supreme court made it clear that a defendant could waive the rights guaranteed by the Bill ofRights ofthe Indiana Constitution 36 even when facing a capital offense of murder in the first degree, so long as the defendant makes the plea with full knowledge ofhis rights and the consequences ofthe plea. 37 The guilty plea in this case was set aside, however, because the defendant had not been advised of all the consequences ofhis guilty plea and he was not given an opportunity to consult with an attorney prior to the plea. 38 The supreme court issued an extremely significant case in 1 953, commenting on the guilty plea process, stating: Under our practice an accused may enter a plea ofguilty in any case, and thereby waive his constitutional right to trial byjury. But to be valid and binding upon the accused, such a plea must be made by the accused intelligently, advisedly and understanding^, with full knowledge ofhis rights, and with the considered approval of the judge before whom he stands charged. 39 However, the court noted that a guilty plea should not be accepted from one who does not know, or who, at the time of arraignment, asserts that he does not know, whether or not he has committed the crime charged, for such would be entirely incompatible with the idea of an admission of guilt, and wholly inconsistent with the due administration ofjustice. 40 In language foreshadowing the factual basis requirement, which would become part of the required guilty plea process approximately twenty years later, the supreme court opined: [A] plea of guilty tendered by one who in the same breath protests his innocence, or declares he actually does not know whether or not he is guilty, is no plea at all. Certainly it is not a sufficient plea upon which to 35. See, e.g., Ketringv. State, 200N.E. 212 (Ind. 1 936); Rhodes v. State, 156N.E.389(lnd. 1927). 36. See IND. CONST, art. I, § 13(a): In all criminal prosecutions, the accused shall have the right to a public trial, by an impartialjury, 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. Id. 37. See Batchelor v. State, 125 N.E. 773, 776 (Ind. 1920). 38. See id. 39. Harshman v. State, 115 N.E.2d 501, 502 (Ind. 1953). 40. Id. 2001] THE FACTUAL BASIS REQUIREMENT 1 1 35 base a judgment of conviction. No plea of guilty should be accepted when it appears to be doubtful whether it is being intelligently and understanding^ made, or when it appears that, for any reason, the plea is wholly inconsistent with the realities ofthe situation. 41 In 1 972, the Indiana Supreme Court handed down Brimhallv. State,42 another extremely significant guilty plea case in which the court quoted with approval from the U.S. Supreme Court case ofBrady v. United States:43 That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized. Central to the plea and the foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the acts charged in the indictment. He thus stands as a witness against himselfand he is shielded by the fifth amendment from being compelled to do so—hence the minimum requirement that his plea be the voluntary expression ofhis own choice. But the plea is more than an admission of past conduct; it is the defendant's consent that judgment of conviction may be entered without a trial-—a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness ofthe relevant circumstances and likely consequences. 44 The Supreme Court also noted with approval the draft ofthe American Bar Association Project on Minimum Standards for Criminal Justice, Pleas ofGuilty, that specifically set forth the matters about which a defendant should be advised by the court upon a plea of guilty and addressed the factual basis as follows: "Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as may satisfy it that there is a factual basis for the plea." 45 The Indiana Supreme Court also discussed the U.S. Supreme Court case of McCarthy v. United States 46 which reversed a conviction because the trial court failed to comply with Rule 1 1 of the Federal Rules of Criminal Procedure to make certain the plea was voluntary and the defendant understood the nature ofthe charge and the consequences ofpleading guilty. 47 41. Id. 42. 279 N.E.2d 557 (Ind. 1972). 43. 397 U.S. 742(1970). 44. Brimhall, 279 N.E.2d at 563 (quoting Brady, 397 U.S. at 742). 45. Id. at 563 n.l (quoting Minimum Standard 1.6). 46. 394 U.S. 459 (1969). 47. See Brimhall, 279 N.E.2d at 564. A factual basis became mandatory for a plea ofguilty or nolo contendere in federal courts in 1 966 through an amendment to Rule 1 1 ofthe Federal Rules of Criminal Procedure. See also John L. Baikal, Accuracy Inquiries for All Felony and Misdemeanor Pleas: Voluntary Pleas but Innocent Defendants?, 126 U. PA. L. REV. 88, 1 11 (1977). 1 1 36 INDIANA LAW REVIEW [Vol. 34: 1 127 In 1973, the year following the Brimhall decision, the Indiana General Assembly enacted a provision requiring not only a determination by the judge that a guilty plea was entered voluntarily and with an understanding of the consequences of the action but also a determination that there was a sufficient factual basis for the plea of guilty. 48 Although there have been some changes since the 1973 enactment, the present statutory guilty plea process 49 remains essentially the same in that a plea ofguilty must be voluntary, the defendant must understand and appreciate the consequences of his guilty plea 50 and there must be a factual basis for the plea ofguilty. 51 It is the factual basis requirement which will be the focus ofthe remainder ofthis Article. Since the enactment ofthe detailed statutory procedure regarding guilty pleas in 1973, the Indiana Supreme Court and the Indiana Court of Appeals have rendered several decisions regarding the guilty plea factual basis requirement. Although some ofthe decisions are confusing, if not inconsistent, a few general propositions have developed and can be stated with some degree of certainty. Although the Indiana Code provides that the court may be satisfied that there is a sufficient factual basis for the guilty plea from either the court's examination of the defendant or the evidence presented, 52 it has been left to the appellate courts to determine the legitimacy of the variations on the two general approaches. For example, the judge may question the defendant regarding the offense or ask the defendant for a narrative regarding the charge, read the information and ask the defendant to admit to the charge or ask the defendant if he understands that a guilty plea is an admission to the truthfulness of the charges. 53 Thejudge may also allow the prosecutor as well as the defense lawyer to participate in the factual basis inquiry. 54 The supreme court has held: Evidence used to illustrate factual basis may come from a variety of sources and is not limited to sworn testimony. The court may base its decision on its inquiry alone, so long as the questions presented are sufficiently detailed to show guilt. Questions requiring only a yes or no answer may be found insufficient. The court may also find factual basis from the State's detailed recitation of evidence on the elements of the crime and the defendant's admission thereto. Moreover, it may be shown through the testimony ofwitnesses whohave personal knowledge of the defendant's conduct or admissions, ... or the defendant's own 48. See WilliamAndrew Kerr, Indiana Criminal Procedure—Trial, Part 1, 16AWest Indiana Practice 209-10 (1998). 49. See Ind. Code §§ 35-35-1-2 to -4 (1998). 50. The record must demonstrate that the judge properly advised the defendant of various rights and options. See id. § 35-35-1-2. 51. See id. § 35-35-1-3. 52. See KERR, supra note 48, at 222. 53. See id. 54. See id. 200 1 ] THE FACTUAL BASIS REQUIREMENT 1137 sworn testimony. 55 Other than affirming that Indiana law generally requires a factual basis for a valid guilty plea and sanctioning numerous methods by which the factual basis may be established, the Indiana Supreme Court and the Indiana Court ofAppeals have not regularly and consistently addressed other substantive and procedural issues relating to the guilty plea factual basis requirement. The appellate courts have left the factual basis process to the wide ranging discretion ofthe trial court judge with appellate review on an ad hoc basis most often in the context of a Petition for Post Conviction Relief. III. A Sampling of Current Guilty Plea Factual Basis Procedures Recognizing the wide variety ofauthorized factual basis procedures coupled with the reality that many trial court procedures are never specifically addressed by an appellate court, several trial courtjudges were contacted by questionnaire regarding the method employed in establishing a factual basis. 56 The questionnaire was not designed as a scientific survey to yield data for statistical analysis but was an effort to obtain an informal sampling of present procedures and perceived problems. After the questionnaire was initially developed and submitted to the thesis committee members for comment and suggestions, two sittingjudges were asked to review the questionnaire for comments and questions prior to distribution. After some minor modifications based upon suggestions received, the questionnaire was distributed to approximately fifty judges (roughly fifteen percent oftrial judges with criminal jurisdiction). In addition to every judge in Administrative District 1 3 (consisting ofeleven counties in the southwest corner ofthe state), questionnaires were forwarded tojudges in various parts ofIndiana. Although distribution was not based on specific demographic factors because the purpose of the survey was merely to obtain an informal sampling, a point was made to distribute questionnaires to judges from most geographic regions ofthe state including judges serving in urban areas (more likely to be high volume courts) as well as rural jurisdictions. Part I of the questionnaire was designed to obtain information about the methods by which the factual basis is established. Part II was designed to elicit comments regarding factual basis issues or problems which may arise during the guilty plea process. It was candidly recognized that in addition to the restricted distribution of a relatively short survey, the amount of information might be further limited by a lack of enthusiasm (based on anecdotal evidence) that trial judges have for surveys. More significantly, it was recognized that limited responses and information might also result from a lack of interest in the subject underscored by the general failure of trial court judges to appreciate the significance of the issue. 55. Butler v. State, 658 N.E.2d 72, 77 n. 14 (Ind. 1995) (internal citations omitted). 56. A copy of the questionnaire and the accompanying cover letter in addition to the responses are on file with the author. 1138 INDIANA LAW REVIEW [Vol. 34: 1 127 IV. Results from Part I of the Questionnaire A total ofthirty-six questionnaires were returned and the responses indicate that there are, indeed, a variety of factual basis procedures employed by Indiana trial court judges. Seven judges indicated that the factual basis process is conducted primarily by thejudge, fourteen respondents indicated that the factual basis procedure is conducted primarily by the prosecutor, sevenjudges reported that the factual basis is primarily established by the defense attorney, and eight respondents advised that the factual basis resulted primarily from the combined efforts ofthe judge and the prosecutor. Of the seven judges who responded that the factual basis process is conducted primarily by the judge, four indicated that the charging information is read to the defendant, who is asked to specifically admit the allegations with no other statement elicited from the defendant. One ofthe seven indicated that by pleading guilty the defendant is advised that he is admitting to the allegations of the offense, but the defendant is not required to specifically admit the allegations. Anotherjudge indicated that the defendant is advised that the guilty plea is an admission to the allegations and the defendant is also required to specifically admit the allegations. Finally, one ofthe seven indicated that after thejudge advises the defendant that by pleading guilty the defendant is admitting to the allegations, the defense attorney then asks questions of the defendant regarding the allegations. Although a majority ofthejudges responding to the questionnaire indicated the factual basis process is conducted primarily by the prosecutor, there was considerable variation in the specific approaches. Five of the respondents indicated that in establishing the factual basis, the prosecutor reads the information to the defendant who is asked to admit to the allegations. However, only two of these respondents indicated that the process consists solely of reading the information to the defendant. One of the five indicated that in addition to reading the information, the prosecutor also outlines the evidence which would be presented at trial. The fourth respondent in this group reported that the prosecutor reads the information and also asks specific questions ofthe defendant regarding the allegations. The fifth judge in this group indicated that the prosecutor reads the information, outlines the evidence which would be presented at trial and asks specific questions regarding the allegations. Five ofthejudges who responded that the factual basis process is conducted primarily by the prosecutor indicated that the prosecutor does not read the information to the defendant. Instead, the prosecutor outlines the evidence which would be presented at trial and then asks the defendant, under oath, to admit to the truth of the allegations. Two other judges, responding that the prosecutor outlines the evidence which would be presented at trial instead of reading the charging information, indicated that the prosecutor also asks specific questions ofthe defendant. Finally, twojudges indicated that the prosecutor establishes the factual basis only by asking specific questions of the defendant. Of the seven judges who reported that the factual basis is primarily established by the defense attorney asking questions ofthe defendant, two made 2001] THE FACTUAL BASIS REQUIREMENT 1 139 no mention of additional questioning by the prosecutor or the judge. The other five noted supplemental participation by the prosecutor and the judge. Eight judges indicated that the factual basis is primarily established by the combined efforts ofthejudge and prosecutor although none ofthe eight proceed in identical fashion. Seven of the respondents indicated that the judge reads the charging information, and one indicated that the information was read by the prosecutor. Of the seven judges who read the information to the defendant, two direct the prosecutor to ask questions ofthe defendant regarding the allegations. The other five judges direct the prosecutor to outline the evidence which would be presented at trial with the defendant then asked to confirm the accuracy of the allegations. Two ofthe judges also allow specific questioning ofthe defendant by the prosecutor and the defense attorney. Indiana trial court judges use a variety of methods in addressing the statutorily required guilty plea factual basis. However, variation alone does not necessarily pose due process issues or systemic injustices in view of the wide discretion appellate courts grant to trial courtjudges. Part II ofthe questionnaire, however, is designed to address some ofthe potential problems in relation to the factual basis requirement. V. Part II of the Questionnaire Question One of Part II57 prompted a variety of responses from "no" (three respondents) to "often" to "ten to twenty percent, higher in misdemeanors." However, the clear majority of respondents indicated that confronting a defendant who refuses to establish a factual basis occurs on a relatively infrequent basis. TTie responses to Question Two of Part II58 indicated that trial court judges generally are willing to change the method of establishing the factual basis in order to accept a guilty plea, although it does not happen often. In fact, the frequency listed in answering Question Two mirrored the frequency listed in responding to Question One in almost fifty percent of the questionnaires. For example, the respondent who indicated that it was rare to be confronted with a defendant who wishes to plead guilty but is unwilling to establish a factual basis also responded that it was rare for thejudge to change the method ofestablishing a factual basis. Although it cannot be known for certain, the similar frequency in responses to questions one and two may suggest that the judge changed the factual basis process whenever the judge was confronted with a defendant unwilling or unable to establish a factual basis. Judges who noted they had never been confronted with a defendant unwilling to establish a factual basis indicated that they had, at least on occasion, changed the method of establishing a factual basis in order to accept a guilty plea. 57. "Have you ever been confronted with a defendant who wishes to plead guilty but refuses to establish a factual basis?" 58. "Have you ever changed the method of establishing a factual basis in order to accept a guilty plea?" 1 140 INDIANA LAW REVIEW [Vol. 34: 1 127 Moreover, there were judges who indicated they had changed the method of establishing a factual basis more frequently than they had been confronted with a defendant unwilling to establish a factual basis. Apparently, thesejudges have learned ofa potential problem with establishing a factual basis prior to or during a guilty plea hearing because there seems to be no other reason for a judge to modify procedure to accept a plea if the defendant was willing to establish the factual basis in the normal manner. There were also some judges who indicated that they had been confronted with defendants unwilling to establish a factual basis, but thesejudges had never changed the method ofestablishing a factual basis. A fewjudges indicated that they had been more frequently confronted with defendants unwilling to establish a factual basis than occasions in which they had changed the method. There does not seem to be a significant relationship (at least with the small sample obtained) between the manner in which the factual basis procedure is conducted and the likelihood or frequency ofa defendant refusing to establish a factual basis or the likelihood or frequency of a judge changing the method of establishing the factual basis to accept a guilty plea. Although the factual basis process is primarily conducted by the judge, prosecutor, defense attorney, or a combination of the judge and prosecutor, this does not appear to impact the likelihood or frequency of a judge having confronted a defendant unwilling to establish a factual basis. The responses to Question Three of Part II59 provide the most surprising answers of the entire survey. Out of the thirty-six responses, only seven respondents indicated that they had accepted a guilty plea from a defendant suspected by the judge to be innocent ofthe charge. Ofthe positive responses, frequency estimates ranged from two out of hundreds, one a year, one to two a year, two to three a year, several a year and monthly. The fact that a majority of responding judges do not suspect that innocent defendants will plead guilty is understandable to the extent that a conscientious judge concerned for the best interests ofa defendant may not allow an innocent defendant to plead guilty. The U.S. Supreme Court has indicated that a criminal defendant does not have a constitutional right to plead guilty, 60 and perhaps the responding judges always exercise discretion in rejecting a guilty plea from a defendant suspected to be innocent. However, the responses may also imply that judges do not regularly suspect innocence in cases where a defendant is willing to admit to a crime. Finally, the numerous negative responses to Question Three are surprising in view of the answers to Question Five which, in some ways, address the same issue of guilty pleas by innocent defendants. Apparently, judges believe that although they do not do so, other judges accept guilty pleas from innocent defendants. 59. "Regardless of the method employed in establishing a factual basis, have you accepted a guilty plea when you suspected a defendant was not guilty of the crime to which the defendant was pleading guilty?" 60. See Lynch v. Overholser, 369 U.S. 705 (1962). 200 1 ] THE FACTUAL BASIS REQUIREMENT 1141 Responses to Question Four 61 were quite consistent in that a majority of judges indicated they had never or only very infrequently rejected a guilty plea in spite ofa sufficient factual basis when it was suspected that the defendant was innocent. 62 Other than one respondent who indicated that a guilty plea with a sufficient factual basis was rejected two to three times a month, other affirmative responses were coupled with frequency estimates ranging from very infrequently, very rare, rare, seldom, not often, one to two in career, one in three-and-a-half years, one in six years and two in six years. The infrequent rejection of a guilty plea because of suspected innocence would not be surprising if the occasion rarely arises. As noted above, both Question Three and Question Five63 were designed to address the issue of guilty pleas by innocent defendants. Apparently, some judges interpreted Question Five to relate only to cases before them, and others interpreted Question Five as a more general inquiry because some judges answered "no" to Question Three but "yes" to Question Five. Of course, interpretation may also explain why onejudge responded "no" to Question Five indicating that the judge did not believe there were cases in which an innocent defendant pleads guilty, but then responded to Question Six by ranking in order of importance the various reasons innocent defendants plead guilty. 64 Approximately one-third of the respondents indicated that they did not believe that there are cases in which an innocent defendant pleads guilty. However, the number of negative responses to Question Five was considerably smaller than the number ofnegative responses to Question Three. As previously noted, some judges apparently interpreted Question Five more generally than Question Three. It could be argued, however, that the opposite interpretation would be expected because Question Three left open the possibility that the defendant was only suspected not guilty, or was innocent of the charged crime but guilty ofanother crime, but Question Five referenced the innocent defendant. In any event, twenty-four judges indicated that innocent defendants do 61. "Have you ever rejected a guilty plea in spite of a sufficient factual basis when you suspected a defendant to be not guilty ofthe crime to which the defendant sought to plead guilty?'* 62. Incidentally, the infrequency ofrejecting guilty pleas tends to diminish the efficacy ofthe potential explanation in question three as to why mostjudges indicated they had never accepted a guilty plea from a defendant suspected of innocence. 63. "Do you believe there are cases in which an innocent defendant pleads guilty?" 64. The five reasons offered as to why an innocent defendant may plead guilty were: A. defendant desires to obtain the benefit ofan attractive agreement with the prosecutor (dismissal ofother charges or reduction ofrecommended sentence); B. defendant does not have an agreement with the prosecutor but expects or desires to obtain a reduced sentence from thejudge; C. defendant desires to avoid the time, expense and uncertainty of fighting the charge (punishment on conviction is considered less burdensome than contesting the charge); D. defendant does not properly understand or appreciate the significance of pleading guilty; E. defendant is not guilty of the crime to which the defendant is pleading guilty but the defendant is guilty of some criminal conduct and seeks to avoid further attention or investigation from law enforcement. 1 142 INDIANA LAW REVIEW [Vol. 34: 1 127 occasionally plead guilty although almost none of the judges thought it was a frequent occurrence. Responses included: very rare, infrequent, rare, less than five, less than five percent, two a year, several a year and weekly but guilty of something. As to ranking the reasons an innocent defendant pleads guilty, more than half ofthe respondents indicated that the most important reason for the occurrence is that the defendant desires to obtain the benefit ofan attractive agreement with the prosecutor. On the other hand, one judge placed the desire to obtain the benefit of a bargain with the prosecutor as the least important factor, and two others ranked it as the second least important factor. The other respondents ranked the "prosecutor-plea agreement" factor as the most important or in the top three. Interestingly, four ofthe five factors were listed as the most important by at least onejudge and every factor was listed as the least important factor by no less than onejudge. The responses are varied to the point that other than the "prosecutor- plea agreement" factor being the most important, the desire to receive a reduced sentence from the judge, and the defendant not properly understanding or appreciating the significance ofpleading guilty being approximately equal as the least important factors, few other generalizations are appropriate with the relatively small sample. VI. The Significance of the Questionnaire Responses The responses are not offered as a scientific opinion poll or as necessarily reflective ofthe entire Indiana trial court bench. The questionnaire was designed to obtain a sampling ofthe variety, if any, ofcurrent procedures and opinions of Indiana trial court judges. Even a cursory review of the responses makes it apparent that there are a number ofcurrent approaches to the guilty plea factual basis requirement in Indiana. Although the divergent methods are not necessarily troubling in view of the great deal of discretion vested in the trial judge, the responses in Part II of the questionnaire cast a discomforting shadow and raise potentially troubling issues regarding the lack of uniformity. The lack of a mandatory and consistent guilty plea factual basis process allows trial judges to abdicate, consciously or otherwise, their responsibility to ensure that a plea of guilty is voluntarily made with full appreciation of the consequences of the action. Moreover, the wide discretion in establishing a factual basis also easily allows the trial judge to compromise, again, consciously or otherwise, thejudge's role as a neutral voice within the criminaljustice system interested in protecting both the rights ofthe individual defendant as well as the interests of society. Considering that there is legitimate accuracy inquiry required for a guilty plea and the prevalence ofplea bargaining in the guilty plea process, the judge may serve as little more than an administrator supporting the systemic goal ofthe efficient processing of guilty defendants. A contested jury trial may be an infrequent interruption caused by the occasional defendant unwilling to plead guilty. When a judge is advised that the prosecutor and defense attorney have reached an agreement on sentencing, the judge is presented with a clear opportunity to efficiently dispose of the matter through a resolution that avoids 200 1 ] THE FACTUAL BASIS REQUIREMENT 1 1 43 the costly and time-consuming jury trial procedure. Promoting efficiency by deleting the determination of guilt from the process is particularly palatable if there is an assumption of guilt. If the trial judge even subconsciously assumes guilt, it is evident that the accuracy inquiry for a guilty plea becomes much easier to minimize, ignore or haphazardly address as a mere legal technicality. When determining whether to accept a guilty plea, there are other significant considerations facing the trialjudge, such as the overcrowded trial docket and the "speedy trial" problems resulting from the defendant's inability to post bond. To reject a plea agreement means that witnesses and victims will not be spared the burdens of trial, reluctant jurors will be required to report, and the overworked public defender will be responsible for trying the matter. These pressures, coupled with the defendant's apparent guilt, create little doubt that the trialjudge may allow an expedited guilty plea process which has insufficient regard for the purported factual basis requirement. The purpose here is not to cast undue criticism on the efforts of trial judges based on the relatively small sampling obtained from the narrowly focused questionnaire. Instead, it is submitted that the survey results simply point to a divergence in opinion and approach at the trial court level regarding the factual basis requirement, which underscores the contention that there has been a lack ofmeaningful and consistent guidance from the Indiana Supreme Court and the Indiana Court of Appeals on the matter since the factual basis requirement became part of Indiana law by legislative enactment in 1973.65 For example, a few years prior to the legislative enactment in which the factual basis requirement was inserted into the Indiana guilty plea process, the U.S. Supreme Court had held there is no constitutional requirement for a defendant to expressly admit guilt to be subjected to criminal punishment, specifically noting: "An individual accused of crime may voluntarily, knowingly, and understanding^ consent to the imposition of a prison sentence even ifhe is unwilling or unable to admit his participation in the acts constituting the crime." 66 In 1973, 67 the Indiana Supreme Court in Boles v. State 69 appeared to sanction an "Alford-type best interests plea" when it held: [W]here a guilty plea is accompanied with a protestation of innocence and unaccompanied by evidence showing a factual basis for guilt, the trial court should never accept it. But where, as in the case at bar, the plea is accompanied with overwhelming evidence of the defendant's guilt, the defendant is judicially advised of all the rights he is waiving, and the plea is voluntarily, freely, and knowingly given, then the 65. See KERR, supra note 48, at 209. 66. North Carolina v. Alford, 400 U.S. 25, 37 (1 970). 67. Although the factual basis requirement was not a statutory requirement until 1973, in 1972 the Indiana Supreme Court handed down the case of Brimhall v. State, which generally set forth the factual basis requirement provisions codified by the Indiana General Assembly. See supra notes 42-47 and accompanying text. 68. 303 N.E.2d 645 (Ind. 1973). 1 1 44 INDIANA LAW REVIEW [Vol. 34: 1 127 subjective motivation behind such plea shall not render it defective. Subsequent contentions of innocence arising during post-conviction relief proceedings are not sufficient, nothing more appearing, to attack a previously entered plea of guilty. 69 Relying on Boles, the Indiana Supreme Court and the Indiana Court ofAppeals upheld an "Alford-type plea" in several cases. 70 Although the U.S. Supreme Court authorized so called "best interests pleas" in Afford, the Court stated that: u [T]he States may bar their courts from accepting guilty pleas from any defendants who assert their innocence."71 After approximately ten years ofallowing "Alford-type best interests pleas" as set forth in Boles, the Indiana Supreme Court in Ross v. State 72 revisited the issue and repudiated Boles to the extent that it had been interpreted to allow a guilty plea from a defendant who simultaneously asserts innocence.73 Boles was also repudiated to the extent that it had been interpreted to overrule the 1953 Harshman case.74 In a laudable effort to clearly state the law in Indiana regarding the factual basis requirement, the Indiana Supreme Court held in Ross that "as a matter of law, . . . a judge may not accept a plea of guilty when the defendant both pleads guilty and maintains his innocence at the same time. To accept such a plea constitutes reversible error." 75 One might expect that such a direct and specific pronouncement ofthe law would effectively eliminate any confusion on the issue ofthe guilty plea factual basis, at least to the extent of best interests pleas. Furthermore, the supreme court seemed intent upon reviving the rationale of the Harshman case, which unmistakably provided that guilty pleas should be cautiously received and "a plea of guilty tendered by one who in the same breath protests his innocence, or declares he actually does not know whether or not he is guilty, is no plea at all." 76 Therefore, in specifically rejecting the "Alford best interests plea" of Boles, it would appear that the court expected the factual basis procedure, at a minimum, to ensure that defendants did not plead guilty without admitting to the charge. As later stated by the Indiana Supreme Court in Butler v. State? the factual basis is designed to "ensure[] that a person who pleads guilty truly is guilty."78 The clarity and specificity ofthe law resulting from Ross did not last. In fact, 69. /