ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES:
SUSAN K. CARPENTER STEVE CARTER
Public Defender of Indiana Attorney General of Indiana
JAMES T. ACKLIN EILEEN EUZEN
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
SUPREME COURT OF INDIANA
ALFRAZIER DEWITT, )
Appellant-Petitioner, ) Supreme Court Cause Number
) Court of Appeals Cause Number
STATE OF INDIANA, ) 45A04-0008-PC-325
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable T. Edward Page, Magistrate
Kathleen A. Sullivan, Judge Pro Tempore
Cause No. 3CR-103-678-460
ON PETITION TO TRANSFER
September 13, 2001
Alfrazier Dewitt pleaded guilty to burglary in 1978. He filed a petition
for post-conviction relief several years later attacking the validity of his plea on
several grounds. The post-conviction court denied relief. Finding one of the
grounds dispositive, the Court of Appeals reversed. We disagree and affirm the
post-conviction court on all grounds.
Factual and Procedural History
On May 31, 1978, Dewitt broke into a Gary, Indiana gas station and
was apprehended inside by police. At his arraignment on June 15, 1978,
Dewitt pleaded not guilty and requested a trial by jury. However, on
October 18, 1978, Dewitt entered into a written plea agreement with the State.
In exchange for Dewitt pleading guilty to burglary as a Class C
felony, the State agreed to recommend probation. That same day, the trial
court conducted a guilty plea hearing and accepted Dewitts guilty plea. On
October 31, 1978, the trial court ordered Dewitt to serve a two-year suspended
sentence with two years of probation.
Nearly fourteen years later, on July 6, 1992, Dewitt filed a petition for
post-conviction relief. He amended his petition seven years later, raising several issues
regarding the validity of his guilty plea. After conducting an evidentiary hearing
on April 19, 2000, the post-conviction court entered findings of fact and conclusions
of law denying relief. Dewitt appealed. Finding one issue dispositive, the
Court of Appeals reversed the post-conviction court. More specifically, the Court of
Appeals held that Dewitts decision to plead guilty was not knowing, voluntary, and
intelligent because he made an affirmative request for a bench trial. Dewitt
v. State, 739 N.E.2d 189, 192 (Ind. Ct. App. 2000), rehg denied.
The State seeks transfer, contending the Court of Appeals misapplied the rigorous post-conviction
standard of review. We grant the States petition to transfer on this
point and also address the remaining issues which we restate as follows:
(1) did the trial court advise Dewitt that he was waiving his Boykin
rights by pleading guilty; and (2) was there an adequate factual basis for
his plea. We affirm the post-conviction court.
Standard of Review
A petitioner who has been denied post-conviction relief faces a rigorous standard of
review. Benefiel v. State, 716 N.E.2d 906, 912 (Ind. 1999), rehg denied,
cert. denied, 531 U.S. 830 (2000). As such, the petitioner must convince
the court on review that the evidence as a whole leads unerringly and
unmistakably to a decision opposite that reached by the post-conviction court. Prowell
v. State, 741 N.E.2d 704, 708 (Ind. 2001). Stated differently, [t]his Court
will disturb a post-conviction courts decision as being contrary to law only where
the evidence is without conflict and leads to but one conclusion, and the
post-conviction court has reached the opposite conclusion. Miller v. State, 702 N.E.2d
1053, 1058 (Ind. 1998). Further, the reviewing court accepts the post-conviction courts
findings of fact unless clearly erroneous. Ben-Yisrayl v. State, 738 N.E.2d 253, 258
Dewitt first contended before the post-conviction court that his decision to plead guilty
was not knowing, voluntary, and intelligent because he made an unambiguous request for
a bench trial. Br. of Appellant at 10. In support of
this contention, Dewitt directs our attention to the following discussion that took place
at the beginning of his guilty plea hearing:
[COURT]: You had previously demanded trial by jury. This case is
set for trial on December 4. But you may withdraw your demand
and be tired [sic] by the Court. How do you wish to
be tried, sir?
[DEWITT]: By the Court.
R. at 158. Dewitt argues that he thought he was requesting a
bench trial by responding that he wanted to be tried [b]y the Court.
The post-conviction court found that Dewitt did not request a bench trial by
stating that he wanted to be tried [b]y the Court. The post-conviction
court explained that at the time of Dewitts guilty plea hearing in 1978,
tried by the Court was the current vogue language for a guilty plea.
R. at 148. The post-conviction court then concluded that Dewitts decision
to plead guilty was knowing, voluntary, and intelligent.
Our review of the guilty plea hearing in its entirety reveals the following.
During the guilty plea hearing, the trial court verified that Dewitt understood
the charge against him and the possible sentencing range. After Dewitt indicated
that he wanted to give up his previously invoked right to a trial
by jury and instead be tried by the court, the trial court advised
him that if we proceeded to trial, then Dewitt would have been entitled
to various rights. R. at 23 (emphasis added). Dewitt then stated
that he had discussed the case fully with his attorney and that he
had already signed a plea agreement with the State. The trial court
discussed the details of the plea agreement with Dewitt. Specifically, the trial
court warned Dewitt that the plea agreement was not binding on the court
and that [i]f the Court, after reviewing the pre-sentence investigation report[,] decides that
for the good of all concerned that that is the best of all
possible dispositions, you may be ordered in prison from two (2) to eight
(8) years. R. at 25. The trial court then inquired, [U]nderstanding
the possible penalties, how do you plead; guilty or not guilty? Id.
Dewitt responded, Guilty. Id. The trial court then scheduled a
Even if Dewitt was confused by the language tried by the Court that
the trial court used at the beginning of the hearing, the above recounted
colloquy shows that Dewitt knew, at least by the end of the hearing,
that by pleading guilty he was not getting a bench trial. Applying
the rigorous post-conviction standard of review, we cannot conclude that the evidence as
a whole leads unerringly and unmistakably to a decision opposite that reached by
the post-conviction court.
Dewitt next contended before the post-conviction court that the trial court did not
advise him that he was waiving his Boykin rights by pleading guilty.
Dewitt concedes that the trial court advised him of his Boykin rights; however,
he argues that had the trial court told him that he was waiving
these rights by pleading guilty, he would not have pleaded guilty.
The post-conviction court found that Dewitt was not credible when he testified during
the post-conviction hearing that he would not have pleaded guilty if the trial
court had told him that he was waiving his Boykin rights by pleading
guilty. R. at 151. The post-conviction court then concluded that a
reading of the guilty plea hearing in its entirety clearly shows that Dewitt
knew he was waiving these rights by pleading guilty. R. at 151-52.
According to Boykin v. Alabama, 395 U.S. 238 (1969), a trial court must
be satisfied that an accused is aware of his right against self-incrimination, his
right to trial by jury, and his right to confront his accusers before
accepting a guilty plea. Id. at 243. However, Boykin does not
require that the record of the guilty plea proceeding show that the accused
was formally advised that entry of his guilty plea waives certain constitutional rights[,]
nor does Boykin require that the record contain a formal waiver of these
rights by the accused. State v. Eiland, 707 N.E.2d 314, 318 (Ind.
Ct. App. 1999) (quotation omitted), rehg denied, opinion expressly adopted by 723 N.E.2d
863 (Ind. 2000); Barron v. State, 164 Ind. App. 638, 330 N.E.2d 141,
144 (1975). Rather, Boykin only requires a conviction to be vacated if
the defendant did not know or was not advised at the time of
his plea that he was waiving his Boykin rights. Davis v. State,
675 N.E.2d 1097, 1103 (Ind. 1996); see also United States ex rel. Miller
v. McGinnis, 774 F.2d 819, 824 (7th Cir. 1985) (holding that a defendant
must be fully cognizant that he is waiving his Boykin rights by pleading
Our review of the record confirms that the trial court did not formally
advise Dewitt that he was waiving his Boykin rights by pleading guilty, and
Dewitt did not formally waive these rights. However, as noted above, a
formal advisement and waiver are not required; rather, Dewitt must have only known
that he was waiving his Boykin rights by pleading guilty. It is
clear Dewitt knew that he was waiving his right to trial by jury
by pleading guilty. At the arraignment, the trial court advised Dewitt as
follows: You have a right, a constitutional right to a trial by
jury or you may waive that right and be tried by the court.
R. at 167-68. Although Dewitt initially chose to have a trial
by jury, he expressly forfeited this right at the guilty plea hearing.
R. at 158.
Further, at the guilty plea hearing, the trial court advised Dewitt after he
pleaded guilty that if we proceeded to trial sir, you could not be
compelled to testify and if you chose not to testify that would not
be considered as any evidence of guilt against you; do you understand that?
R. at 23 (emphasis added). Because the trial court spoke in
terms of if we proceeded to trial, Dewitt presumably understood that having just
pleaded guilty, he was not entitled to a trial and therefore there would
be no necessity for him to confront his accusers or exercise his right
against self-incrimination. See Barron, 330 N.E.2d at 144. Accordingly, we cannot
conclude that the evidence as a whole leads unerringly and unmistakably to a
decision opposite that reached by the post-conviction court.
Dewitt lastly contended before the post-conviction court that there was an inadequate factual
basis for his plea because during the guilty plea hearing the prosecutor gave
the wrong address of the gas station that Dewitt robbed. The facts
are these. The State charged Dewitt with robbing a Martin Gas Station
located at 900 Virginia Street in Gary, Indiana. R. at 10.
However, during the guilty plea hearing, the prosecutor stated that the Martin Gas
Station was located at 8732 Northcote in Hammond, Indiana. R. at 26.
Dewitt argues that because the prosecutor gave the wrong address, [t]he evidence
points only in the direction that [he] did not commit the crime to
which he pled guilty. Br. of Appellant at 20.
The post-conviction court made the following findings:
At the guilty plea hearing, the factual basis was laid down by the
deputy prosecuting attorney representing the [S]tate at the guilty plea hearing. That
factual basis as stated by the deputy prosecuting attorney identified the gas station
as being located at 8732 Northcote in Hammond, Lake County, Indiana, rather than
at 900 Virginia Street in Gary, Indiana. The petitioner however admitted that
he did break into the Martin station. The defendant had also admitted
to the trial court judge early in the guilty plea hearing that he
fully understood the charges against him. . . . At the end of
the guilty plea hearing, the trial court judge asked the defendant several other
questions about the details of the break-in, such as the fact that the
petitioner was arrested at the scene.
R. at 147-48.
A trial court may not accept a plea of guilty unless it determines
that a sufficient factual basis exists to support the plea. Ind. Code
See footnote A factual basis exists when there is evidence about the
elements of the crime from which a trial court could reasonably conclude that
the defendant is guilty.
Rhoades v. State, 675 N.E.2d 698, 700 (Ind.
1996). The factual basis of a guilty plea need not be established
beyond a reasonable doubt. Wilson v. State, 707 N.E.2d 318, 320 (Ind.
Ct. App. 1999). Rather, relatively minimal evidence can be adequate. Rhoades,
675 N.E.2d at 700. To be entitled to post-conviction relief, the defendant
must prove that he was prejudiced by the lack of a factual basis.
Eiland, 723 N.E.2d at 864.
Our review of the guilty plea hearing shows that Dewitt told the judge
that he broke into a Martin Gas Station on May 31, 1978, and
police arrested him on the scene before he could take anything from the
store. R. at 26-27. Even though the prosecutor misstated the address,
this evidence is sufficient for a trial court reasonably to conclude that Dewitt
is guilty. Cf. Sangsland v. State, 715 N.E.2d 875, 878 (Ind. Ct.
App. 1999) (holding that where the date is not an element of the
offense, the State does not even need to prove it), trans. denied; Mishler
v. State, 660 N.E.2d 343, 348 (Ind. Ct. App. 1996) (holding that a
variance between the offense charged and the proof adduced at trial only requires
reversal if the variance misleads the defendant in preparation of a defense or
places him in danger of double jeopardy). Therefore, we cannot conclude that
the evidence as a whole leads unerringly and unmistakably to a decision opposite
that reached by the post-conviction court.
We affirm the post-conviction court.
SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.
BOEHM, J., concurs as to parts I and III and concurs in result
as to part II.
At the time of Dewitts guilty plea in 1978, this principle
was codified at Indiana Code section 35-4.1-1-4 (1975).