¶1Dissenting Opinion
¶2I would hold that this record clearly shows the trial court failed to satisfy his constitutionally required duty to determine that appellant was entering his guilty plea knowingly and voluntarily.
¶3Nothing in the criminal process is more momentous than the decision by an accused to plead guilty to a criminal charge and, therefore, it is universally agreed that before accepting a guilty plea the trial court has the critically important duty of determining that the accused is entering the plea volun*39tarily and knowingly. Brimhall v. State (1972), 258 Ind. 153, 279 N. E. 2d 557; Dube v. State (1971), 257 Ind. 398, 275 N. E. 2d 7; Thacker v. State (1970), 254 Ind. 665, 262 N. E. 2d 189; Gates v. State (1962), 243 Ind. 325, 183 N. E. 2d 601; Campbell v. State (1951), 229 Ind. 198, 96 N. E. 2d 876; Harshman v. State (1953), 232 Ind. 618, 115 N. E. 2d 501; Mislik v. State (1915), 184 Ind. 72, 110 N. E. 551; Brady v. U.S. (1970), 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747; McCarthy v. U.S. (1969), 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418; Fed. R. Cr. P. 11. This duty is completely independent of the duty resting on the defendant’s attorney to advise his client of the latter’s constitutional rights. Even if it were appropriate to presume the attorney fulfilled his duty, that is irrelevant to the question of whether the trial court fulfilled his. If the record shows the trial court failed in his duty, then the plea should be vacated without regard to what the attorney did or did not do.
¶4The method of fulfilling that duty is simple and is dictated by the dual nature of a guilty plea. In the first place it is an admission that the defendant committed the acts alleged and is guilty of the offense charged. In the second place the plea constitutes a waiver of several federal and state constitutional rights including the privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. To perform his duty then, the trial court must make inquiries of the defendant and his attorney to assure himself that: (1) the admission and waiver are not the result of coercion, threats, promises or any improper influences by the State or the defendant’s attorney. (2) the defendant understands the nature of the charge against him, i.e., understands the relation between the alleged facts he is admitting, the affidavit and the statute under which he is being prosecuted. (3) the defendant understands the consequences of the plea, including the range of possible sentences. (4) the defendant understands specifically each of his constitutional rights and the significance of waiving them. “Waivers *40of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.”
¶5The above rules are required by the following cases: Riley v. State (1972), 258 Ind. 303, 280 N. E. 2d 815; Brimhall v. State, supra; Dube v. State, supra; Thacker v. State, supra; Wright v. State (1970), 255 Ind. 292, 264 N. E. 2d 67; Harshman v. State, supra; Rhoades v. State (1926), 199 Ind. 183, 156 N. E. 389; Campbell v. State, supra; Brady v. U.S., supra; McCarthy v. U.S., supra.
¶6To insure that the trial court satisfies his duty, Rule CR. 10 (formerly Supreme Court Rule 1-11) requires that the colloquy between the trial court and the defendant at the arrangement be transcribed verbatim and preserved as a record of that proceeding. The complete record of the colloquy in this case is before us and there is no issue of who had the burden of proof. All we have to do is read the record and see if the trial court fulfilled his constitutional duty.
¶7The advantage of this procedure of merely looking to the Rule CR. 10 transcript to determine whether the trial court performed his duty are obvious. First is the saving in judicial time at both the appellate and trial level. Challenges in PC. 1 petitions based on the defendant’s not being advised of his constitutional rights and nature of the charge can be disposed of summarily. It is either in the transcript or it is not. As we said in Campbell v. State, supra:
“One of the reasons for the adoption of Rule 1-11, supra, by this court is to provide an unimpeachable record showing the extent of the inquiry into the facts, circumstances and conditions made by the trial court to ascertain at the time whether the offered plea of guilty is made freely and understandingly. Without such record the trial court is, by its own volition, shorn of the procedural facts that might protect its judgment from attack.” 229 Ind. at 202.
¶8In discussing a similar federal rule, the United States Supreme Court said:
*41“To the extent that the district judge thus exposes the defendant’s state of mind on the record through personal interrogation, he not only facilitates his own determination of a guilty plea’s voluntariness, but he also facilitates that determination in any subsequent post-conviction proceeding based upon a claim that the plea was involuntary. Both of these goals are undermined in proportion to the degree the district judge resorts to ‘assumptions’ not based upon recorded responses to his inquiries.” 394 U.S. at 467.
¶9Second, it keeps the court’s attention focused on the real issue of whether the defendant entered his plea knowingly and voluntarily and prevents the court from getting bogged down with collateral and very difficult issues of effectiveness of defendant’s counsel. Attacks on an attorney’s effectiveness in representing a client present problems that dwarf the guilty plea issue. Great pressure is on the attorney to defend himself and if his testimony conflicts with his former clients inevitably the trial court will feel great pressure to resolve the conflict in favor of the attorney. In addition the level of effectiveness of the counsel need not be very high to defeat a challenge based on effective representation. See Johnson v. State (1968), 251 Ind. 17, 238 N. E. 2d 651. Therefore the prospects of a defendant ever winning such a contest are slight indeed. Why the majority would want to convert a relatively simple litigation like vacating a guilty plea into an attack by the attorney representing the petitioner on the former attorney’s effectiveness as counsel, is beyond me.
¶10The record in this case shows the trial court failed to clearly and unambiguously advise appellant of the nature of the charge against him and the consequences of the guilty plea. On March 17, 1969, appellant without counsel appeared before the court to answer several charges. The trial court explained the charge involved in this appeal as follows:
“And this one . . . Assault & Battery with intent to commit a felony, (here the Court reads the affidavit to the defendant) The statute of this State for that offense is as follows: (here the Court reads the statute to the deft)”
¶11*42Assault and battery with intent to commit a felony defined in I.C. 1971, 35-1-54-3, being Burns § 10-401, carries a penalty of one to ten years in prison. However, the affidavit read to appellant and upon which he was later sentenced clearly charged assault with intent to kill, I.C. 1971, 35-13-2-1, being Burns § 10-401 (a), carrying a penalty of two to fourteen years in prison. Assault with intent to kill is a completely distinct offense from assault and battery with intent to commit a felony. The majority opinion insists appellant was not misinformed as to the charge and possible penalty because the trial court read the affidavit to him and the statute. The question is, which statute? The record does not reveal which statute the trial court read and therefore the majority cannot possibly know whether appellant was misinformed or not. The record shows the trial court never read the charge on the statute again to appellant at the later proceedings. It is simply impossible to say from this record that the trial court fulfilled his duty of determining that the appellant understood the nature of the charges and the consequences of pleading guilty to them.
¶12Neither does the record show the trial court adequately performed his duty of determining that appellant understood his constitutional rights. At the March 17th proceeding the trial court advised appellant he had a right to consult with an attorney and asked if appellant had done so. Appellant answered no. The trial court did not mention any other constitutional rights. Appellant did not plead guilty at that time and on May 5, 1969, appellant, with appointed counsel, entered a plea of guilty to the above affidavit. The record made at that time pursuant to CR. 10 shows the following:
“JUDGE KING: Mr. Conley, stand up. Do you want to change your plea in this case?
MR. CONLEY: Yes, I want to plead guilty at this time.
JUDGE KING: Do you fully understand the charges alleged in the affidavit?
MR. CONLEY: Yes.”
¶13*43The trial court then, read the affidavit to appellant and said:
“JUDGE KING: Now what is your plea Mr. Conley to those charges as alleged in the affidavit?
MR. CONLEY: Guilty.”
¶14The CR. 10 record also includes the prosecuting witness’ testimony about the commission of the offense, but the above is the complete record of the trial court colloquy with appellant concerning his plea.
¶15This record conclusively shows that the trial court failed to inquire into appellant’s understanding of his constitutional rights prior to accepting appellant’s plea.
¶16Note.—Reported in 284 N. E. 2d 803.