Opinion
Rehearing Denied Sept. 3, 1976.
Opinion Superseded, See 358 N.E.2d 116.
Page 541
Harriette Bailey Conn, Public Defender, Peter W. Bullard, Deputy Public Defender, Indianapolis, for defendant-appellant.
Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
GARRARD, Judge.
Appellant Maleck was charged with assault and battery with intent to rape. He retained counsel and appeared for arraignment on May 8, 1973. The record indicates that he was at that time advised of his constitutional rights, and that he entered a plea of not guilty and waived trial by jury. Trial was set for June 8th but a continuance was granted until July 12th. On the 12th Maleck again appeared with counsel. He then sought leave to withdraw his prior plea and enter a plea of guilty. The court accepted Maleck's plea and on August 15, 1973, sentenced him to a term of one to ten years.
On August 29, 1974, he petitioned for post-conviction relief pursuant to Indiana Rules of Procedure, Post-Conviction Remedy Rule 1 on the grounds that he had not been adequately advised of his constitutional rights before his guilty plea was accepted. The court, after hearing, denied relief and overruled Maleck's subsequent motion to correct errors. We affirm because of the burden imposed upon a convicted person seeking post-conviction relief, and Maleck's failure to discharge that burden.
Post-conviction relief proceedings are in the nature of civil proceedings. The burden is on the petitioner to establish his entitlement to relief. If the trial court denies relief, we may not reverse unless the evidence in uncontradicted and leads to a sole reasonable conclusion contrary to that reached by the trial court. Jackson v. State (1975), Ind., 339 N.E.2d 557; Johnson v. State (1975), Ind., 337 N.E.2d 483.
Since Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and Brimhall v. State (1972), 258 Ind. 153, 279 N.E.2d 557, it has been recognized that a criminal accused must have some understanding of what his constitutional rights are if he is to waive them in a guilty plea proceeding. Because the ease application and the removal uncertainty where an accused later disputes his understanding the rights he purportedly waived in entering a guilty plea, Boykin and its progeny have required that the accused be advised his rights at an incourt proceeding so the record may reflect a basis for disposing such subsequent contentions. Where this has not been done, we have reversed. See, e.g., Bonner v. State (1973), Ind.App., 297 N.E.2d 867.
Yet because the burden is upon the petitioner in a post-conviction proceeding, he must establish that he was not advised, even though he may do so by merely establishing that the record of the proceedings does not reflect that the advice was given. Maleck attempted to meet that burden by introducing the transcript of the proceedings at the time his guilty plea was entered. That record, as he asserts, does not reflect adequate advice regarding the constitutional rights he was afforded, and which would be waived by entering a plea of guilty. He also testified at the hearing. However, aside from the answers to leading questions, his testimony was that he really had no independent recollection of what had gone on at the proceedings.
The problem, both at the post-conviction hearing and in our review on appeal, is that Maleck did not produce any evidence regarding what advice he was given at his original arraignment. He testified that he recalled appearing but could not recall what was said. The record reflects a docket entry to the effect that on May 8, 1973, Maleck was arraigned, advised of his constitutional rights, waived reading of the affidavit, waived jury trial, and pleaded not guilty.
In Fraley v. State (1975), Ind.App., 323 N.E.2d 239, we held that where an accused is arraigned in a particular case more than once, the requirements of Boykin and Brimhall are satisfied if the defendant receives adequate in-court advice of his rights at any one or combination of the arraignment proceedings. Thus, Maleck failed to sustain his burden by merely referring to the July 12th proceeding. To establish that he did not receive the necessary in-court advice, it was incumbent upon him to also show that the advice was not given at the May 8th arraignment. This he failed to do and accordingly he failed to carry his burden.
Affirmed.
STATON, P. J., and HOFFMAN, J., concur.