Branan v. State

¶1Michael Branan’s petition for post-conviction relief was denied by the trial court. He had been charged in an affidavit with being an accessory before and after the fact to a robbery in Mishawaka, Indiana.1 William Whitman, a St. Joseph County Public Defender, represented Branan when he entered his plea of not guilty to both charges under the affidavit. Later, Branan obtained a private counsel to represent him. Plea negotiations resulted in the charges being reduced to the lesser included offenses of accessory before and after the fact to a theft.2 Branan entered his plea of guilty to each of the negotiated charges. The trial court perfunctorily accepted his plea. No effort was made by the trial court to advise Branan of his constitutional rights.

¶2The State was represented by Deputy Prosecutor William Whitman at Branan’s sentencing. This is the same William Whitman who had represented Branan at his arraignment and the entry of his not guilty plea. This is the same William Whitman who had met with Branan on at least two occasions outside of court to discuss the charges pending in order to prepare Branan’s defense. During the sentencing proceedings, Whitman’s participation was limited to the following exchange with the trial court:

“THE COURT: Mr. Whitman.

“MR. WHITMAN: I have no recommendation, sir.”

¶3Branan contends that the dual defense-state representation in the same case by Whitman represents a conflict of interest and prejudice. An attorney cannot be permitted to represent or assist the State in the prosecution of a criminal defendant whom he has previously represented in the same or in a closely related matter. See People v. Curry (1971), 1 Ill. App. 3d 87, 272 N.E.2d 669. Due *445process of law and the strictures of professional ethics forbid it.3 We do not decide this question. This appeal is not being reversed upon the dual representation contention in Branan’s petition. It is being reversed for a far more fundamental reason.

¶4The trial court committed fundamental constitutional error in failing to advise Branan of his constitutional rights before accepting the plea of guilty. Goode v. State (1974), 160 Ind. App. 360, 312 N.E.2d 109. See also, Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; Brimhall v. State (1972), 258 Ind. 153, 279 N.E.2d 557; Bonner v. State (1973), 156 Ind. App. 513, 297 N.E.2d 867; Taylor v. State (1973), 156 Ind. App. 659, 297 N.E.2d 896 and Indiana Rules of Procedure, Criminal Rule 10. While the function of appellate review does not encompass a calculated search of the record to discover constitutional error; nevertheless, once constitutional error is discovered while examining the transcript or is brought to the Court’s attention, it can not be ignored. Fundamental constitutional guarantees are absolute and outside the discretion of any court to ignore or deny. We will not ignore such a transgression of a defendant’s fundamental rights. Kleinrichert v. State (1973), 260 Ind. 537, 297 N.E.2d 822.

¶5The judgment of the trial court should be and the same hereby is reversed with instructions to grant Michael Branan’s motion to withdraw his plea of guilty.

¶6Garrard, J., concurs; Hoffman, C.J., dissents with opinion.