Barfell v. State

¶1dissenting.

¶2I am unable to agree with the result reached by the majority opinion in this case.

¶3Pursuant to a plea agreement, Barfell pled guilty to the offense of robbery and was Sentenced accordingly. Eight months later he filed a pro-se petition for post-conviction relief which was denied on the ground that the pleadings conclusively showed' that he was entitled to no relief.

¶4Subsequently, Barfell prepared a second petition for post-conviction relief with the aid of fellow prisoners. That petition, which was amended after filing by a public defender, was denied as well.

¶5Barfell now appeals, arguing that the court below erred when it concluded that he was not entitled to file a second petition for post-conviction relief and when it found that his plea of guilty was voluntarily, intelligently and knowingly made.

¶6Barfell contends that he was not barred from filing a second petition, despite the prohibition contained in Ind.Rules of Procedure, Post-Conviction Rule 1, § 8, because his first petition was not properly verified.

¶7Under the rule announced in Owen v. State (1975), Ind.App., 338 N.E.2d 715, Bar-fell’s contention is clearly correct. However, the fact that the court below erroneously reached a contrary conclusion is of no moment. The record of the proceeding below shows that the court did not dismiss Barfell’s petition; rather, the court held a hearing and determined the merits of the petition.

¶8Thus, I agree that the error committed was harmless.

¶9Barfell’s second contention is that the court below erred when it failed to vacate his guilty plea. He maintains that his plea was not made voluntarily, knowingly, and intelligently because he was not informed, as required by statute, of his right to require the State to prove his guilt beyond a reasonable doubt. See : IC 1971, 35 — 4.1—1— 3(c) (Burns Code Ed.).

¶10He further relies on Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, for the proposition that, as a matter of federal constitutional law, the failure to inform an accused of certain constitutional rights renders his or her guilty plea involuntary. Thus, Barfell argues, failure to so inform the accused constitutes “fundamental error” requiring reversal of any conviction based on such a plea.

¶11Although IC 1971, 35 — 4.1-1-3, supra, obligated the court to inform Barfell of his right to require the State to prove his guilt beyond a reasonable doubt, the rule in Boy-kin, supra, did not require it to do so. The three specific constitutional rights of which an accused must be informed under the Boykindecision are: (1) the privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the right to confront one’s accusers. Boykin v. Alabama, supra,395 U.S. at 243, 89 S.Ct. 1709. Thus, the failure to advise complained of here does not rise to the level of constitutional error under Boykin. Consequently, Barfell must show that the error committed at the guilty plea proceeding was prejudicial in order to secure a reversal. Ewing v. State (1976), Ind.App., 358 N.E.2d 204, at 206-207.

¶12The plain purpose of IC 1971, 35 — 4.1-1-3, supra, is to insure that an accused is made aware of particular matters before he or she enters a plea of guilty. Ewing, supra,358 N.E.2d at 207. In the instant case the record shows that Barfell was aware of his right to require the State to prove his guilt beyond a reasonable doubt. His testimony at the post-conviction proceeding clearly shows that he knew his plea of guilty would relieve the State of its burden of proof.1*391Under these circumstances the purpose of the statute was served. Since Barfell was, by his own admission, aware of the right of which he now claims he should have been advised, the court’s omission of the formality of reciting an advisement of that right was in no way prejudicial to his substantial rights and was not reversible error.

¶13I would affirm the judgment below.