Petition for Writ of Certiorari — Sanders v. Indiana

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IN THE

Supreme Court of the United States

October Term, 1992

No.

FrebD C. SANDERS,

) .

Petitione

.'*

STATE OF INDIANA,

Re sponde nt.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

DOUGLASS R. SHORTRIDGE

1700 INB Tower

One Indiana Square

Indianapolis, Indiana 46204

(317) 6385-9535

Counsel of Record

and

January 4, 1992 Counsel for Petitioner

8 ee ee pt

QUESTIONS PRESENTED

I. Is a 1989 plea of guilty to Involuntary Manslaughter by

Fred C. Sanders, a Catholic elementary school teacher, know-

ingly and intelligently made when he was never charged with

Involuntary Manslaughter, nor were the elements of the crime

or required underlying crime under the Indiana law ever

explained to him and where in 1992 a federal civil jury found

that Indianapolis police officers, including the decedent, on a

dog complaint, used excessive force at his front door and inside

his house (prior to the shooting of the officer in his home), so by

definition, he is not guilty by reason of self defense and further,

the same federal civil jury found the police supervisors failed to

stop the beating and had conspired to cover up the incident

under a Code of Silence and deny Mr. Sanders free access to

Courts and awarded a total civil judgment of $1.5 million

against six culpable police officers?

II. Should Sanders be presumed to know the elements of the

crime of Involuntary Manslaughter because in the generic

sense it is a lesser included offense of the charged crime of

Murder?

III. Should Sanders be presumed to know the elements of

the uncharged crime and its underlying crime because he is a

school teacher and has an undergraduate and Masters Degree

in elementary education?

IV. Should Sanders be presumed to have made a knowingly

and intelligent plea where the trial court did not explain the

elements of the crime or its underlying basis, but in many cases

a defendant's lawyer would have made such an explanation?

LIST OF PARTIES

The parties to the proceedings below were the petitioner,

Fred S. Sanders, and the Respondent, State of Indiana.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..........0.csssececcene i

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fogtiiit 8 Ne) Serr oe rer 1

PU OPE LEY 4 vend aah en bho eaeee eee RER ER RUE EeS 2

CONSTITUTIONAL PROVISIONS AND

SEAL Ld - 100 Vaated OP. caves ded vance seevasesune 2

SIATEMEN? OF THE CABE ....csescivesisuecens 2

REASONS FOR GRANTING THE WRIT .......... 14

CONCLUSION. so 6600 sndiedeew eee Reeeeedeee eemenss 19

TABLE OF AUTHORITIES

United States Supreme Court Cases:

Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253

49 L.Ed.2d 108 (1976) ............. 14, 15, 16, 17, 18, 19

Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 2546

Sl 1... Be SET IGOE) as ciusscesssuaveeuseseeeeees 15

Circuit Courts of Appeals Cases:

Hase v. United States, 800 F.2d 123 (7th Cir.1986) ..... 17

Moore v. Armontrout, 928 F.2d. 288 (8th Cir.1991) .... 9 17

Miscellaneous Statutes:

LO. SO<O6-E-OD) os cnn tch cee ea oe 12

42 U.S.C. G00S8 ois nad cuneecsa ease 13

ii

IN THE

Supreme Court of the United States

October Term, 1992

No.

FreD C. SANDERS,

Petitioner

v.

STATE OF INDIANA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

The Petitioner, Fred C. Sanders, respectfully prays that a

writ of certiorari issue to review the judgment and opinion of

the Supreme Court of Indiana entered in the above-entitled

proceeding on July 20, 1992 and Petition For Rehearing was

denied October 14, 1992.

OPINIONS BELOW

The opinion of the trial judge granting Post-Conviction

Relief to Sanders is unreported and is reprinted in the appen-

dix hereto, p. A-1, infra.

The decision of the Court of Appeals of Indiana affirming the

trial court is reported at 587 N.E.2d 166 and is reprinted in the

appendix hereto, p. A-4, infra.

bo

The Supreme Court of Indiana vacated the opinion of the

Court of Appeals and reversed the trial judge is reported at 596

N.E.2d 225 and is reprinted in the appendix hereto, p. A-15,

infra.

JURISDICTION

The Petitioner, as an incarcerated prisoner, filed his Petition

for Post-Conviction Relief in the trial court as provided by

Indiana Rules. The Petition was denied by the State and pro-

ceeded to hearing on the 15th day of February, 1991. Thereafter,

on May 10, 1991, the trial court granted Sanders’ Petition for

Post-Conviction Relief stating his plea of guilty to Involuntary

Manslaughter entered January 31, 1989 was not freely, know-

ingly and intelligently entered in violation of his constitutional

rights as well as in violation of I.C. 35-35-1-2.

Respondent appealed, and the Court of Appeals of Indiana

affirmed the trial court’s order granting Post-Conviction

Relief. Respondent petitioned for transfer to the Supreme

Court of Indiana which vacated the opinion of the Court of

Appeals and reversed the trial court, which opinion was

handed down on July 20, 1992. A timely petition for rehearing

was sought by Petitioner and rehearing was denied October 14,

1992.

The jurisdiction of this Court to review this final judgment of

the Supreme Court of Indiana is invoked under 28 U.S.C.

§ 1257.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The text of the Fourteenth Amendment of the United States

Constitution as well as Indiana Code provision I.C. 35-35-1-2

are reproduced in full in the appendix, p. A-21, infra.

STATEMENT OF THE CASE

This case was initiated by Fred C. Sanders on the 24th day of

October, 1990 by filing a Petition for Post-Conviction Relief

under the Indiana Rules of Procedure for Post-Conviction

Remedies in an attempt to clear his name. Under the Indiana

Rules, the petition is filed in the trial court having criminal

jurisdiction using the same cause number but it is essentially a

civil proceeding against the State. Sanders sought a reversal of

his guilty plea on the basis that it was not knowingly and

intelligently entered in violation of his due process rights under

the Fourteenth Amendment of the United State Constitution

as well as in violation of the applicable Indiana statute relating

to guilty pleas. At the time, he was serving a seven (7) year

sentence on the plea to Involuntary Manslaughter. The pros-

ecutor for Marion County, Indiana appeared and contested the

Petition.

The Fred C. Sanders case has been one of the most high

profile and highly publicized events occurring in Indianapolis in

several decades. On August 14, 1988 Sanders, a thirteen (13)

year parochial grade school teacher at St. Luke Catholic

Church School, lived alone at 2968 Arthington Boulevard, Indi-

anapolis. Shortly after 8:30 o’clock p.m. on the extremely hot

Sunday evening, his thirteen year old dog barked at a passing

juvenile on a bicycle. The juvenile climbed on an automobile

which set off a burglar alarm, all of which resulted in a neighbor

calling the Indianapolis Police Department to complain about

Sanders’ dog. An Indianapolis patrol officer responded to this

order maintenance call and interviewed the Complainant as

well as Sanders. The officer and Sanders discussed dog leash

laws as found in an Indianapolis City Ordinance, the violation of

which can only result in a civil summons.

After being assured he was not under arrest, Sanders then

went into his home. Patrol Officer Faber put his foot in the door

so it would not close all the way. The officer began striking

Sanders with his police PR-24 baton and spraying him with

mace. Other officers responded to Faber’s call for assistance.

Three officers at the front door sprayed more CS Gas and

repeatedly struck Sanders (who was inside his house) with

nightsticks and flashlights. Three police officers pushed in the

front door. Two other officers broke into the back door of the

house.

Sanders, who was bloodied and hurt and in fear of his life,

crawled several feet and obtained a shotgun. Thereafter in

extremely close proximity, Sanders fired one shot from a shot-

gun and officers fired nine or more shots from their service

revolvers at Sanders. The instantaneous cascade of shots

resulted in Sanders being wounded in the upper right chest and

three times in the lower left leg. Officer Faber was wounded in

the upper back as he turned away from Sanders and subse-

quently died. All of this occurred at one end of Sanders twelve

foot living room.

Sanders was arrested in the hospital. Charges were refiled

by the Marion County Prosecutor on August 26, 1988 in four

counts, namely Murder, two counts of Attempted Murder,

Class A felonies and one count of Resisting Law Enforcement,

causing injury as follows:

“COUNT I

did knowingly kill another human being, to-wit: MAT-

THEW J. FABER, by shooting a deadly weapon, to-wit:

A SHOTGUN, at and against MATTHEW J. FABER,

thereby inflicting mortal injury upon MATTHEW J.

FABER, causing MATTHEW J. FABER to die on

August 23, 1988, all of which is contrary to the form of the

statute in such case made and provided and against the

peace and dignity of the State of Indiana.

COUNT II

The affiant aforesaid, upon his oath aforesaid, further

says that FRED C. SANDERS onor about the 14th day of

August, A.D. 1988, at and in the County of Marion in the

State of Indiana did attempt to commit the crime of

Murder, which is to knowingly kill another human being,

to-wit: KENT KNAPP, by engaging in conduct, to-wit:

knowingly shooting a deadly weapon, to-wit: A SHOT-

GUN, at and toward KENT KNAPP, which constituted a

substantial step toward the commission of said crime of

Murder, ail of which is contrary to the form of the statute

wa |

in such case made and provided and against the peace and

dignity of the State of Indiana.

COUNT III

The affiant aforesaid, upon his oath aforesaid, further

says that FRED C. SANDERS on or about the 14th day of

August, A.D. 1988, at an in the County of Marion in the

State of Indiana did attempt to commit the crime of

Murder, which is to knowingly kill another human being,

to-wit: LARRY FENDER, by engaging in conduct, to-

wit: knowingly shooting a deadly weapon, to-wit: A

SHOTGUN, at and toward LARRY FENDER, which

constituted a substantial step toward the commission of

said crime of Murder, all of which is contrary to the form of

the statute in such cases made and provided aid against

the peace and dignity of the State of Indiana.

COUT IV

The affiant aforesaid, upon his oath aforesaid, further

says that FRED C. SANDERS on or about the Mth day of

August, A.D. 1988, at and in the County of Marion in the

State of Indiana did knowingly and forcibly resist,

obstruct, or interfere with MATTHEW J. FABER, a law

enforcement officer with the Indianapolis Police Depart-

ment while said officer was lawfully engaged in his duties

as a law enforcement officer, and while committing said

crime of Resisting Law Enforcement, FRED C. SAND-

ERS did use a deadly weapon, to-wit: ASHOTGUN, all of

which is contrary to the form of ithe statute in such case

made and provided and against the peace and dignity of

the State of Indiana.”

On the same day, Marion County Prosecutor, Stephen Gold-

smith, filed an Information for Death Sentence pursuant to

I.C. 35-50-2-9 stating that Sanders committed the crime of

murder with one of the statutory aggravating circumstances

that the person who died was a law enforcement officer acting

in the course of duty as follows:

6

“BE IT REMEMBERED, That, on this day before me,

STEPHEN GOLDSMITH, Prosecuting Attorney of the

Nineteenth Judicial Circuit, personally came NORMAN

MATTHEWS who being duly worn, upon his oath, says

that FRED C. SANDERS on or about the 14th day of

August A.D. 1988, at and in the County of Marion in the

State of Indiana, did commit the crime of Murder as

heretofore alleged in this cause; and in the commission of

said Murder, the following aggravating circumstance did

exist:

The victim of the murder, MATTHEW J. FABER, was

a law enforcement officer, to-wit: a police officer for the

City of Indianapolis Police Department, and MATTHEW

J. FABER was acting in the course of duty.

WHEREFORE, the State of Indiana respectfully

prays that the defendant in this cause, FRED C. SAND-

ERS, be sentenced to death.”

On January 27, 1989 Sanders’ then cry .inal counsel and the

Marion County Prosecutor filed « mimeographed form Plea

Agreement stating that Sanders agreed to plead guilty to a

charge or count of Involuntary Manslaughter, a Class C Felony.

Sanders, at the request of his then counsel, had signed the

mimeographed form and initialed the laundry list of constitu-

tional rights he was purportedly waiving.

On January 31, 1989 a hearing was held in the Marion Supe-

rior Court, Criminal Division, Room 2, before the Honorable

Webster L. Brewer, duly elected Judge of such Court. The

State of Indiana appeared by Mr. Stephen Goldsmith, Pros-

ecuting Attorney of the Nineteenth Judicial Circuit, State of

Indiana, and Ms. Joy Tolbert and Mr. David Cook, Deputy

Prosecuting Attorneys. The defense appeared by Messrs.

Owen M. Mullin and Robert Hammerle. Sanders appeared in

person.

The four felony charges of Murder, Attempted Murder and

Resisting with bodily injury, as drafted by the Marion County

~)

Prosecutor, were still pending. The Capital Murder count had

been dropped by the Prosecutor. No new counts or an amend-

ing count to one of the existing counts had been filed in Court.

The only charges pending against Sanders were those

crafted by the Prosecutor which alleged that Sanders had

knowingly killed another human being and had attempted to

commit the crime of murder which is to knowingly kill another

human being, as well as the fourth count of knowingly resist-

ing, obstructing or interfering with a law enforcement officer

by the use of a deadly weapon.

The drama unfolded in a packed Courtroom as follows:

“TUESDAY, JANUARY 31, 1989:

AT 9 O'CLOCK, A.M., COURT CONVENED, PUR-

SUANT TO ADJOURNMENT, AND THE FOLLOW-

ING PROCEEDINGS WERE HAD IN CAUSE

NUMBER 49G028808C F92694, STATE OF INDIANA

VERSUS FRED C. SANDERS, IN THE MARION

COUNTY SUPERIOR COURT, CRIMINAL DIVI-

SION, ROOM TWO, BEFCRE THE HONORABLE

WEBSTER L. BREWER, JUDGE OF SAID COURT,

TO-WIT:

THE COURT: State of Indiana versus Fred Sand

ers. “Z”, please don’t let anybody

else in, okay, until we have vacant

seats. Sir, are you Mr. Fred Sand-

ers?

MR. SANDERS: Yes, | am.

THE COURT: Let the record show comes Mr.

Fred Sanders in person and by

counsel, Mr. Mullin, Mr. Ham-

merle, State by Mr. Goldsmith Mr.

Cook, and Ms. Tolbert. Is there a

motion, Mr. Hammerle?

MR. HAMMERLE:

THE COURT:

MR. GOLDSMITH:

THE COURT:

MR. SANDERS:

THE COURT:

MR. SANDERS:

THE COURT:

MR. COOK:

Yes, sir, there is. Your Honor, pur-

suant to a Plea Agreement, which

is filed with this Court and signed

by Mr. Sanders, and the State, Mr.

Sanders would ask leave to with-

draw his plea of not guilty and

enter a plea of guilty to the offense

of Involuntary Manslaughter, a

Class C Felony, pursuant to the

terms set out in the Plea Agree-

ment before you.

Okay. What’s the State recom-

mending?

The State's recommending that the

acceptance of a Involuntary Man-

slaughter, Class C Felony, each

side to argue for what it believes to

be the appropriate penalty, to be

determined by the Court.

Okay. Mr. Sanders, why do you

want to plead guilty?

Judge, I had recklessly pointed a

shotgun at an officer.

No, no. First ofall, are you guilty of

this crime?

I am guilty of Involuntary Man-

slaughter.

Okay. Mr. Cook, would you read

the information, to make sure Mr.

Sanders knows exactly what he’s

pleading guilty to?

The information for which he is

charged or the. . .

Da

9

THE COURT: No, for which he is pleading.

MR. COOK: ... pleading guilty, Judge?

THE COURT: Sure.

MR. COOK: Pursuant to Indiana Code

35-42-1-4, entitled Involuntary

Manslaughter, “A person who kills

another human being while com-

mitting or attempting to commit

(1) a Class C or Class D Felony that

; inherently poses a risk of serious

bodily injury; (2) a Class A Misde-

meanor that inherently poses a risk

of serious bodily injury; or (3) bat-

tery, commits involuntary man-

slaughter, a Class C Felony.

However, if the killing results from

the operation of a vehicle, the

offense is a Class D Felony”.

THE COURT: Mr. Sanders, do you understand

the information?

MR. SANDERS: Yes, I do.

THE COURT: Do you understand by pleading

guilty you are admitting as true

everything that Mr. Cook has

alleged?

MR. SANDERS: Yes, sir.”

The hearing continued and the Judge went down the laundry

list of constitutional waivers. The Prosecutor read the Probable

Cause Affidavit upon which the Murder charges were based.

Thereafter, the Court accepted the Plea Agreement and sen-

tenced Sanders to a seven year term under the Involuntary

Manslaughter statute having found aggravating but no mitigat-

ing circumstances.

10 |

On the 24th day of October, 1990, Sanders filed his sworn

PC-1 Petition. The Petition set out the fact basis as follows:

“8. State concisely all the grounds known to you for vacat-

ing, setting aside or correcting your conviction and sen-

tence:

(a) The Petitioner did not knowingly, voluntarily, and

intelligently enter a plea of guilty in this cause to the crime

of involuntary manslaughter.

9. State concisely and in the same order the facts which

support each of the grounds set forth in (38).

(a) At the time of my guilty plea in this Court on January

31, 1989, neither the State of Indiana, the Court, nor my

counsel, fumished to me in writing or read to me an

information setting out the crime to which I was pleading

guilty. In particular, the underlying crime which must be

the basis of the crime of involuntary manslaughter was not

set out. Neither the State of Indiana, the Court, nor my

counsel informed me the necessary elements for any such

underlying crime. |

The only thing the State did, when asked by the Judge to

read me the information was read the Indiana Code,

§ 35-42-1-4 entitled, “Involuntary Manslaughter”. See

pages 4 and 5 of the Transcript Of Guilty Plea attached

hereto as “Exhibit A”. The Court then asked me if |

understood the information and I said, “yes” but there was

no information and I did not understand. The Court then

asked me if I understood that I was pleading guilty to and

admitting as true everything that Mr. Cook, the Chief

Deputy Prosecutor, had alleged which I said, “yes” but

there was nothing alleged, nor an information read nor

facts given and I did not understand. See page 5 of Exhibit

A.

From the time of the incident on August 14, 1988 until the

present, I have told everyone that I was being beaten and

re ee one OR WEE eer EEN Re

1]

acted in self-defense. I said this to Officer Bastian who

was the first police officer who interviewed me at the

hospital that night. I have never deviated nor will I ever

deviate from this truth: I acted in self-defense. My counsel

advised me that this was an absolute defense and I would

not be convicted of murder.

My counsel, Owen Mullin, came to me one Thursday eve-

ning in January of 1989 and said he was not ready to try the

case in February, 1989. He stated he had arranged a plea

bargain and I could plead guilty to involuntary man-

slaughter. I told him I was not guilty of any crime and

wanted to proceed to trial in February. He said he was not

ready to try the murder charge.

He then told me I was guilty of involuntary manslaughter,

as I had acted recklessly. I understood, as a layman,

“reckless” to mean lack of proper caution, or careless. |

defended myself from the assault of the police. My counse!

advised me that what I did was carelessness and I was,

thus, guilty of involuntary manslaughter.

I was never advised that “reckless” or “recklessly”, in the

context of culpability under Indiana Criminal Law means

“plain, conscious, and unjustifiable disregard of harm that

might result and the disregard involves a substantia!

deviation from acceptable standards of conduct.” Had |

been advised by my counsel, the Court, or the Prosecutor,

this was the underlying element of the crime, I would

never have pleaded guilty.

I did not act in a “plain, conscious, and unjustifiable dis-

regard of harm”. I was acting in self-defense to stop the

police officers who were assaulting me. My conduct did

not involve a substantial deviation from acceptable stan-

dards of conduct. Any person in my circumstance who had

not as yet been beaten senseless and into submission

would have defended themselves as I did.

At that instant, I feared for my life. I feared that if I did

12

not stop the assault by the three police officers who had

entered my home, I would have been subjected to further

serious bodily injury which could have resulted in my

death.

Since no information was prepared by the State, there was

no charge against me to which I was pleading guilty.

There was no factual basis for the plea on my part to a non-

existent charge. Judge Brewer had also heard evidence of

the police misconduct in preliminary hearings. He thus

knew there was no factual basis for this plea and should

not have accepted it.”

Sanders, by his new counsel, also filed his Motion For

Change Of Venue From The Judge. Sanders and the State

struck Judges and thereafter Hon. Fredrick R. Spencer

became Special Judge. The Petition was heard on February 15,

1990. The trial court entered an Order on the 10th day of May,

1991 granting Sanders’ Petition for Post-Conviction Relief in

that his Plea of Guilty to Involuntary Manslaughter entered

January 31, 1989 was not freely, knowingly and intelligently

entered in violation of his constitutional rights as well as in

violation of I.C. 35-35-1-2(a)(1). Sanders, however, remained in

jail after the May 10 Order on the original charges of murder,

attempted murder and felony battery, which had never been

dismissed by the State after the Plea to Involuntary Man-

slaughter.

Within five (5) days of the Order granting Post-Conviction

Relief, Sanders filed a motion for early trial and a Trial Read-

iness Certificate. The State chose not to try Sanders on the

original or any other charge within sixty (60) days but elected

to appeal the Post-Conviction Relief. This Court released

Sanders upon his own recognizance on the 27th day of June,

1991 because of the State’s refusal to go to trial.

The Court of Appeals of Indiana sustained the trial court on

February 27, 1992 as reported at 587 N.E.2d 166 on the con-

stitutional issue that Sanders did not knowingly and intel-

ef

13

ligently enter a plea of guilty under the circumstances of the

admitted facts from the Record. Again, the State chose not to

try Sanders on the pending charges or any others but peti-

tioned for transfer to the Supreme Court of Indiana. A year

thus passed, during which time Sanders was not incarcerated

but under pending charges with a request for speedy trial but

he was not brought to trial.

The Supreme Court reversed the trial court as well as the

Court of Appeals of Indiana on July 20, 1992 as reported at 596

N.E.2d 225 on an evidentiary point but failed to recognize the

important and significant constitutional issue involved. Sand-

ers moved the Supreme Court for rehearing. On the 14th day of

October, 1992 the Supreme Court of Indiana denied the Peti-

tion For Rehearing without opinion. This is thus a final judg-

ment of the highest court of Indiana having jurisdiction of the

case.

Mr. Sanders remains free on his own recognizance. He has

been unable to return to teaching but is a full-time field

engineer doing both field and lab work for an environmental

engineering company in Indianapolis. He awaits the final deci-

sion as to whether he can go to trial to clear his name or return

and spend the remaining seven (7) plus months incarcerated in

the Indiana prison system under the plea agreement.

A postscript to this story has occurred since the Petition To

Reconsider was overruled by the Supreme Court of Indiana. In

May of 1989, Mr. Sanders brought an action in the United

States District Court for the Southem District of Indiana,

Indianapolis Division, under 42 U.S.C. §1983. The complaint

named the City of Indianapolis and twenty-two (22) police

officers. Various claims were voluntarily dismissed and several

individuals were dismissed by the trial court.

The case went to trial by jury in District Court beginning

November 16, 1992. During the trial, the claim against the City

of Indianapolis was dismissed by the trial court. On November

23, 1992, the jury returned a verdict against six (6) individual

ia iii

14

police officers in the total sum of $1.5 million. The verdict

included a judgment against Sergeant Kenneth Knapp in the

amount of $350,000.00 and Officer Larry Fender in the amount

of $150,000.00 for the use of excessive force at and immediately

inside Mr. Sanders’ front deor (prior to the shooting). The

verdict also included a judgment against two police officers for

the use of excessive force on Mr. Sanders’ porch and front yard

(after he exited his house and surrendered to police officers).

The jury also found against four (4) Sergeants as supervisors

who failed to intervene when Mr. Sanders was being subjected

to excessive force after he suffendered. The verdict also

included a judgment against six (6) police officers who con-

spired to conceal facts and destroy evidence and thereby deny

Mr. Sanders free access to the courts. Judgment was entered

against police officers upon the jury verdict on November 24,

1992.

REASONS FOR GRANTING THE WRIT

It has been sixteen (16) years since this Court’s landmark

decision in Henderson v. Morgan, 426 U.S. 687, 96S.Ct. 2253,

49 L.Ed.2d 108 (1976). In the past sixteen years since that

decision, prosecutors, states attorneys, state courts and even

courts of appeals have taken a restrictive approach to the

holding. It is time to revisit Henderson v. Morgan and answer

the question whether it is restricted to its facts as to the mental

capacity of the Petitioner, whether highly intelligent people

waive their rights, whether counsel is presumed to have

explained the elements of an uncharged offense and whether a

lesser included offense is relevant to a constitutional analysis.

A plea bargain standing alone is without constitutional sig-

nificance. It is a mere executory agreement which until

approved and entered as a judgment does not deprive an

accused of liberty or any other constitutionally protected inter-

est. It is the subsequent guilty plea and whether or not it is

properly entered that implicates -the constitution. Thus, only

after a person has pleaded guilty is there a conviction and it is

the conviction which gives rise to the deprivation of a person’s

15

liberty. The constitutional question is thus whether the plea

was properly entered and whether the deprivation of liberty is

constitutional. Mabry v. Johnson, 467 U.S. 504, 104S.Ct. 2543,

2546, 81 L.Ed.2d 4387 (1984).

The law was clearly established at the time of the Sanders’

Plea Agreement in January of 1989 that a plea agreement

cannot support a conviction unless it was voluntary in a con-

stitutional sense. The Constitution requires an intelligent

admission which cannot be voluntary unless the defendant

receives real notice of the true nature of the charges against

him. Without notice of the nature of the charge against a

defendant, or proof that he in fact understood the charge, the

plea cannot be voluntary in the constitutional sense. This

Court announced that broad principle in the case of Henderson

v. Morgan. The Court said at page 2257:

“We also accept petitioner's characterization of the compe-

tence of respondent’s counsel and of the wisdom of their

advice to plead guilty to a charge of second-degree

murder. Nevertheless, such a plea cannot support a judg-

ment of guilt unless it was voluntary in a constitutional

sense. And clearly the plea could not be voluntary in the

sense that it constituted an intelligent admission that he

committed the offense unless the defendant received “real

notice of the true nature of the charge against him, the

first and most universally recognized requirement of due

process.” Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct.

572, 574, 85 L.Ed. 859.

[3] The charge of second-degree murder was never for-

mally made. Had it been made, it necessarily would have

included a charge that respondent's assault was “commit-

ted with a design to effect the death of the person killed.”

Two other things are of note in the Henderson case. In that

case the petitioner superintendent of the correctional facility

argued that affirming the Court of Appeals would invite count-

less collateral attacks on pleas of guilty. In this case, the State

16

made the same argument and invited Indiana courts to put the

stamp of approval on sloppy prosecutors’ practice. In Hender-

son, this Court went on to state that the petitioner's fears of

countless collateral attacks were exaggerated. The State's con-

tention in this case that requiring separate Informations would

bog down the system of justice is exaggerated as well.

Henderson, also answers the State’s argument with regard

to who pleads guilty, the defendant or his lawyer. The concur-

ring opinion in Henderson says that it is too late in the day to

allow a guilty plea based upon the consent of the defendant's

agent — his lawyer. It is the defendant only who pleads guilty

and the choice must be the defendant’s. The Court said at page

2260:

“Similarly, it is too late in the day to permit a guilty plea to

be entered against a defendant solely on the consent of the

defendant’s agent — his lawyer. Our cases make abso-

lutely clear that the choice to plead guilty must be the

defendant’s: it is he who must be informed of the conse-

quences of his plea and what it is that he waives when he

pleads, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709,

23 L.Ed.2d 274 (1969); and it is on his admission that he is

in fact guilty that his conviction will rest.

In this case the defendant's factual guilt of second-degree

murder has never been established in any fashion permit-

ted by the Due Process Clause of the Fourteenth Amend-

ment.”

The Supreme Court, in reversing and vacating the opinion of

the Court of Appeals of Indiana and reversing the trial court

totally ignored the Henderson case. The constitutional issue as

raised in Henderson was relegated to one conclusory sentence.

The Court justified its actions on procedural grounds ignoring

the obvious constitutional violations. There is no question that

Sanders was never charged with Involuntary Manslaughter.

There is no question that an element of Involuntary Man-

slaughter is recklessness which is defined as a substantial

17

deviation from accepted standards. It also requires an underly-

ing crime. Sanders did not recklessly point a shotgun at the

invading police officers within his home. He pointed the shot-

gun at them to stop them at a time he had suffered severe bodily

injury at their hands and was in fear of his life.

Does the Indiana Supreme Court mean that intelligent peo-

ple do not have constitutional rights? Does the Indiana

Supreme Court mean that Defendants with private counsel

who may have explained elements of a crime have no constitu-

tional rights? Does the Indiana Supreme Court mean that a

lesser included offense never need be explained at a plea hear-

ing? How many other valid claims have been dismissed in state

courts by reason of a restrictive view of the Henderson case.

Even a number of courts of appeals have distinguished and

restricted the clear holding in Henderson. The Seventh Circuit

has distinguished Henderson in Hase v. United States, 800

F.2d 123 (7th Cir. 1986) when it found that Hase was a successful

businessman with a high school education. Thus, given this

background, the court found it is “highly likely that he had

some understanding of what the Judge was saying to him

during the plea agreement”.

The Eighth Circuit has found that Henderson had an

“unusually low mental capacity” and has refused to give the

Henderson case a broad interpretation. In Moore v.

Armontrout, 928 F.2d. 288 (8th Cir.1991), the Court said at 292:

“We have previously refused to interpret Henderson

broadly and we refuse to do so here. See Wabash v. Solem,

694 F.2d 155, 158 (8th Cir. 19922); United States v.

Nieuwsma, 779 F.2d 1359, 1862 (8th Cir. 1985); Gregory v.

Solem, 774 F.2d 309, 314-15 (8th Cir. 1985), cert. denied,

475 U.S. 1088, 106 S.Ct. 1475, 89 L.Ed.2d 730 (1986). We

can apply the same language from Gregory, supra to the

facts of the present case:

Henderson is easily distinguished from the facts now

before us. As Justice Stevens pointed out, the facts in

18

Henderson were ‘unique’ because the state trial judge

‘found as a fact that the element of intent was not

explained to the respondent.’ . .. Here, petitioner was

charged from the beginning with [rape] and the state

court made a specific finding of fact that the nature of the

offense was fully understood by [petitioner]. The Hender-

son presumption that counsel explained the nature of the

charge to the defendant lends strong support to that

finding.

Gregory, supra, 774 F2d at 315.

Because petitioner has failed to satisfy the Strickland test

discussed above, and because we are confident that peti-

tioner’s plea was completely voluntary, we affirm the deci-

sion of the district court and deny petitioner habeas

corpus relief on this ground.”

Thus the Courts of this country are misinterpreting the clear

and broad constitutional mandate contained in Henderson. The

Court should take this opportunity to grant certiorari in the

Sanders case and give guidance to the lawyers and judges of

the country as to constitutional due process requirements of a

guilty plea. The unanswered questions in Henderson can easily

be answered in Sanders and the Court should take this oppor-

tunity to do so.

19

CONCLUSION

For these various reasons, the Sanders Petition For Writ Of

Certiorari should be granted. This is an important issue and

this case gives the Court the opportunity to revisit Henderson.

Respectfully submitted,

Douglass R. Shortridge

1700 INB Tower

One Indiana Square

Indianapolis, Indiana 46204-2051

(317) 635-9535

Counsel of Record and

Counsel for Petitioner

i

|

;

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i

STATE OF INDIANA

) MARION SUPERIOR

SS:) COURT ROOM 2

COUNTY OF MARION )

FRED C. SANDERS ) CAUSE NO.

vs ) 49G02-8808-C F-92694

STATE OF INDIANA )

ORDER GRANTING POST CONVICTION RELIEF

This case comes before the Court on Fred C. Sander’s Ver-

ified Motion for Post Conviction Relief filled October 24, 1990.

Sanders alleges that he “did not knowingly, voluntarily and

intelligently enter a plea of guilty in this cause to the Crime of

Involuntary Manslaughter.” He further alleges:

“At the time of my guilty plea in this Court on January 31,

1989, neither the State of Indiana, the Court, nor my counsel,

furnished to me in writing or read to me an information setting

out the crime to which I was pleading guiity. In particular, the

underlying crime which must be the basis of the crime of

involuntary manslaughter was not set out. Neither the State of

Indiana, the Ceurt, nor my counsel informed me the necessary

elements for any such underlying crime.

The only thing the State did, when asked by the Judge to

read me the information was read the Indiana Code, §35-42-1-4

entitled, “Involuntary Manslaughter”. See pages 4 and 5 of the

Transcript of Guilty Plea attached hereto as “Exhibit A”. The

Court then asked me if I understood the information and I said,

“yes” but there was no information and I did not understand.

The Court then asked me if I understood that I was pleading

guilty to and admitting as true everything that Mr. Cook, the

Chief Deputy Prosecutor, had alleged which I said, “yes” but

there was nothing alleged, nor an information read nor facts

given and I did not understand. See page 5 of Exhibit A.

A-1

A-2

From the time of the incident on August 14, 1988 until the

present, I have told everyone that I was being beaten and acted

in self-defense.”

The Court finds that Sander’s allegations are true and cor-

rect; that he was not advised of the charge against him and

further, he was not advised of the specific elements of the

offense that he plead guilty to.

The Court is guided by decisions of the United States

Supreme Court and our Supreme Court.

In Henderson v Morgan 426 US 637, 49 LEd2 108 (1976) The

High Court held that “ . . clearly the plea could not be volun-

tary in the sense that it constituted an intelligent admission

that he committed the offense unless the defendant received

“real notice of the true nature of the charge against him... .”

49 LEd2 at 114.

In De Villez v State 416 NE2 846 (1981) Justice DeBruler

opined that it is not always necessary for the trial Judge to

advise an accused of the elements of the offense, but it is always

required that the record disclose that the defendant is aware of

the true nature of the charge against him.

Sanders states under oath he did not know of the elements of

the offense he plead guilty to. He was never formally charged

with involuntary manslaughter.

The Judge requested (at the Guilty Plea hearing) that the

deputy Prosecutor read the charge against Sanders. He

instead read the statute defining the crime of involuntary man-

slaughter, which has multiple parts and sub parts.

The Court finds that Sanders was not adequately advised of

the nature of the offense to which he entered a plea of guilty.

Further, no advisement of the elements of the offense were

given to Sanders by the Prosecutor or the Trial Judge.

The Court grants Sanders Petition for Post Conviction

Relief, his plea of guilty to Involuntary Manslaughter entered

A-3

on January 31, 1989 was not freely, knowingly and intelligently

entered; and his right to know the nature of the charge against

him was not fulfilled. IC 35-35-1-2 (a) (1). Sanders plea of guilty

to Involuntary Manslaughter is ordered abrogated, rescinded

and set aside.

Dated this the 10th day of May, 1991.

FREDRICK R. SPENCER,

SPECIAL JUDGE

MARION SUPERIOR COURT,

ROOM 2

A-4

ATTORNEYS FOR ATTORNEYS FOR

APPELLANT: APPELLEE:

JEFFREY MODISETT DOUGLASS R.

Marion County Prosecutor SHORTRIDGE, ESQ.

A. FRANK GLEAVES III 1720 INB National Bank

Tower

D y Pr Ss A .

SY FROME NY nL indinns Square

Office of the Marion County _ Indianapolis, Indiana 46204

Prosecutor

560 City-County Building

200 East Washington Street

Indianapolis, Indiana 42604

LINLEY E. PEARSON

Attorney General of Indiana

MICHAEL GENE WORDEN

Deputy Attorney General

Office of Attorney General

219 State House

Indianapolis, Indiana 46204

IN THE

COURT OF APPEALS OF INDIANA

FIRST DISTRICT

STATE OF INDIANA

Appellant-Respondent

vs. No. 49A02-9108-PC-324!

FRED C. SANDERS

Appellee-Petitioner

i ee od

!This case was reassigned to this office on January 31, 1992.

A-5

APPEAL FROM THE

MARION SUPERIOR COURT

CRIMINAL DIVISION, ROOM TWO

The Honorable Frederick R. Spencer, Special Judge

Cause No. 49G028808-CF 092694

ROBERTSON, J.

The State of Indiana appeals from an order granting Fred C.

Sanders’ petition for post-conviction relief. Sanders pled guilty

to involuntary manslaughter for killing a police officer by shoot-

ing him in the back with a shotgun. He was sentenced to seven

(7) years imprisonment.®anders convinced the post-conviction

court that his guilty plea was not entered knowingly, volun-

tarily, and intelligently because he had not received real notice

of the true nature of the crime of involuntary manslaughter and

was under the mistaken impression that self-defense was not

available as a defense to involuntary manslaughter. We affirm.

FACTS

The factual basis for Sanders’ plea was established at the

guilty plea hearing by the reading of an abbreviated version of

the affidavit of probable cause into the record as follows:

Detective Norman Matthews swears or affirms that: On

August 14th, 1988, at 21:19 a complainant called the Indi-

anapolis Police Department in reference to a dog chasing

neighborhood children. Officer Matthew Faber responded

to the run and proceeded to [the complainant’s address].

|The complainant] directed the officer to [the residence of

Fred Carl Sanders, a white male, age 44] who the neigh-

bors stated had three dogs that ran loose in the neigh-

borhood chasing the children. Officer Faber approached

the residence and confronted Mr. Sanders attempting to

explain to him about the laws governing his dogs. At this

time Mr. Sanders asked the Officer if he was under arrest

to which the Officer stated ‘No’. Mr. Sanders turned and

headed towards the house. Officer Faber yelled for the

A-6

subject to stop but he continued into the residence at

which time the Officer radioed for assistance. Officer

Faber was able to wedge his foot in the door in an attempt

to further stop the subject from fleeing. Sgt. Kent Knapp

arrived on the scene to assist and, observing the officer

pushing on the door, went to help him. Shortly after,

Officer Larry Fender arrived on the scene and joined the

other two officers at the front door of that residence in an

attempt to effect the arrest. Officers Robert Ward and

Marcus Kennedy also arrived at the scene and decided to

go to the back to see if they could gain entry. At one point,

Sgt. Knapp was able to reach into the front door far

enough to get a grip on the subject but was unable to hold

him. The officers in front of the residence sprayed CS

repellent and swung a night stick in an effort to make the

subject back off the door. Again, the subject was grabbed

by Officer Faber, when the door opened enough, but again

lost his grip and balance, falling to the floor. At this time,

the subject fled backwards, towards the bedroom, reap-

pearing with a 12 gauge shotgun and fired one blast at the

officer as he was getting off the floor, striking him in the

upper back. Sgt. Knapp and Officer Fender drew their

weapons and returned fire, striking the subject in the

upper chest and legs. Officer Faber never unholstered his

weapon. Officer Robert Ward suffered lacerations to his

hand after he attempted to enter the rear of the residence

although it is uncertain at [the time this affidavit was

executed] whether it was from shotgun pellets or the

window he had broken. Officer Matthew Faber [was in

critical condition at the hospital for nine (9) days and then

died on August 23, 1988]. An autopsy was performed by

Dr. Clark which resulted in the cause of death to be

respiratory failure due to the gunshot wound to the chest

which Officer Matthew J. Faber suffered in this incident,

all of which occurred In Indianapolis, Marion County,

Indiana.

Sanders was charged with murder. The State filed the neces-

A-7

sary pleadings to seek the death penalty alleging that Sanders’

crime was a capital offense as Officer Faber was a law enforce-

ment officer murdered in the line of duty. The State later

dropped this capital murder count. In addition to the murder

charge, Sanders was charged with two counts of attempted

murder and one count of resisting law enforcement with bodily

injury.

Much legal skirmishing followed resulting in the present

seven (7) volume record filed in this appeal. On January 31,

1989, Sanders pled guilty to involuntary manslaughter as a

lesser-included offense of murder in satisfaction of all the pend-

ing charges. He was never formally charged with involuntary

manslaughter. On March 3, 1989, Sanders was sentenced to an

enhanced term of seven (7) years imprisonment.

Additional facts are supplied as necessary.

DECISION

A post-conviction proceeding is a special quasi-civil remedy

whereby a defendant can present an error which, for various

reasons, was not available or known at the time of the original

criminal proceedings. McHugh v. State (1984), Ind., 471 N.E.2d

293. Post-conviction proceedings are totally separate and dis-

tinct from the underlying criminal proceedings. Phillips v.

State (1982), Ind., 441 N.E.2d 201. Post-conviction proceedings

are governed by the rules and statutes applicable to civil pro-

ceedings and the petitioner has the burden of proving his

claims by a preponderance of the evidence. Ind. Post-Convic-

tion Rule 1 § 5; State v. Clanton (1982), Ind. App., 443 N.E.2d

1204. The post-conviction court is the sole judge of the weight

of the evidence and the credibility of the witnesses. Stewart v.

State (1988), Ind., 517 N.E.2d 1230.

When the State appeals from an order granting post-convic-

tion relief, the standard of review for a negative civil judgment

does not apply. 7d. Our review of civil cases tried by the court

without a jury is governed by Ind. Trial Rule 52(A) which

reads, in pertinent part, as follows:

A-8

On appeai of claims tried by the court without a jury or

with an advisory jury, at law or in equity, the court on

appeal shall not set aside the findings or judgment unless

clearly erroneous, and due regard shall be given to the

opportunity of the trial court to judge the credibility of the

witnesses.

The judgment of a trial court sitting without a jury will only be

set aside if it is clearly erroneous; that is, that the record

contains no facts or inferences supporting the judgment.

National Advertising Co. v. Wilson Auto Parts, Inc. (1991),

Ind.App., 569 N.E.2d 997.

The guilty plea court shall not accept a plea of guilty without

first determining that the defendant understands the nature of

the charge against him. Ind.Code 35-35-1-2(a)(1). A guilty plea

must be knowingly, voluntarily, and intelligently entered.

Snowe v. State (1989), Ind. App. , 533 N.E.2d 613. The trial court

must determine on the record that the defendant knows and

understands the nature of the charge against him. /d.

A guilty plea is not voluntary if the defendant fails to receive

adequate notice of the offense to which he pleads guilty. Hen-

derson v. Morgan (1976), 426 U.S. 637. The defendant’s plea of

guilty cannot be voluntary in the sense that it constitutes an

intelligent admission that he committed the offense unless the

defendant received “real notice of the true nature of the charge

against him, the first and most universally recognized require-

ment of due process.” Jd. at 645, 646.

The requirement that the guilty plea court determine that

the defendant is aware of the true nature of the offense to which

he pleads guilty need not be satisfied by an advisement by the

court of the separate elements of the offense; however, that is

the encouraged method of satisfying the requirement. DeVillez

v. State (1981), 275 Ind. 263, 416 N.E.2d 846. An admission of

facts which constitutes an admission of each element of the

offense will satisfy the requirement that the defendant under-

stands the true nature of the charge. Jd. In DeVillez, the

defendant was charged with accessory before the fact to first

A-9

degree murder in the killing of her husband. She entered a plea

of guilty to the lesser-included offense of second degree murder

although she was never formally charged with second degree

murder. Our supreme court held that the record of the guilty

plea hearing clearly indicated that the defendant was on notice

of the true nature of second degree murder as she had admitted

ina written factual statement and admission that she had hired

a man to murder her husband and had assisted him in doing so.

In Brooks v. State (1974), 161 Ind. App. 552, 316 N.E.2d 688,

this court issued the ominous warning:

When, however, a defendant is not pleading guilty to the

specific crime charged, but rather to a lesser included

offense, it is unwise indeed for the court not to advise on the

elements of the included offense. To do otherwise is to invite

reversal in the event that the defendant thereafter alleges

that he did not understand the nature of the offense to which

he has pleaded, as opposed to the crime charged.

161 Ind. App. at 560, 316 N.E.2d at 693.

In the present case, Sanders pled guilty to involuntary man-

slaughter as a lesser-included offense of murder. It is well-estab-

lished that involuntary manslaughter is considered to be a lesser-

included offense of murder. Jewell v. State (1989), Ind., 539

N.E.2d 959. However, Sanders was never formally charged by

information or otherwise with involuntary manslaughter.

At the guilty plea hearing, the statute defining involuntary

manslaughter statute was read into the record as follows:

Pursuant to Indiana Code 35-42-1-4, entitled Involuntary

Manslaughter, ‘A person who kills another human being

while committing or attempting to commit (1) a Class C or

Class D Felony that inherently poses a risk of serious

bodily injury; (2) a Class A Misdemeanor that inherently

poses a risk of serious bodily injury; or (8) battery, com-

mits involuntary manslaughter, a Class C Felony. How-

ever, if the killing results from the operation of a vehicle,

the offense is a Class D Felony’.

A-10

At the guilty plea hearing, Sanders indicated that he was guilty

of Involuntary Manslaughter stating: “Judge, I recklessly

pointed a shotgun at an officer.”

On October 24, 1990, Sanders filed his verified petition for

post-conviction relief which, in pertinent part, reads as fol-

lows:

8. State concisely all the grounds known to you for vacat-

ing, setting aside or correcting your conviction and sen-

tence:

(a) The Petitioner did not knowingly, voluntarily, and

intelligently enter a plea of guilty in this cause to the crime

of involuntary manslaughter.

9. State concisely and in the same order the facts which

support each of the grounds set forth in (8).

(a) At the time of my guilty plea in this Court on January

31, 1989, neither the State of Indiana, the Court, nor my

counsel, furnished me in writing or read to me an informa-

tion setting out the crime to which I was pleading guilty.

In particular, the underlying crime which must be the

basis of the crime of involuntary manslaughter was not set

out. Neither the State of Indiana, the Court, nor my

counsel informed me the (sic) necessary elements for any

such underlying crime.

The only thing the State did, when asked by the Judge to

read me the information was read the Indiana Code,

§35-42-1-4 entitled, “Involuntary Manslaughter”. See

pages 4 and 5 of the Transcript Of Guilty Plea attached

hereto as “Exhibit A”. The Court then asked me if |

understood the information and I said, “yes” but there was

no information and I did not understand. The Court then

asked me if I understood that I was pleading guilty to and

admitting as true everything that Mr. Cook, the Chief

Deputy Prosecutor, had alleged which I said, “yes” but

there was nothing alleged, nor an information read nor

facts given and I did not understand.See page 5 of Exhibit

A.

A-11

From the time of the incident on August 14, 1988 until the

present, I have told everyone that I was being beaten and

acted in self-defense. I said this to Officer Bastian who

was the first police officer who interviewed me at the

hospital that night. I have never deviated nor will I ever

deviate from this truth: I acted in self-defense. My counsel

advised me that this was an absolute defense and I would

not be convicted of murder.

My counsel, Owen Mullin, came to me one Thursday eve-

ning in January of 1989 and said he was not ready to try the

case in February, 1989. He stated he had arranged a plea

bargain and I could plead guilty to involuntary man-

slaughter. I told him I was not guilty of any crime and

wanted to proceed to trial in February. He said he was not

ready to try the murder charge.

He then told me I was guilty of involuntary manslaughter,

as I had acted recklessly. I understood, as a layman,

‘reckless’ to mean lack of proper caution, or careless. I

defended myself from the assault of the police. My counsel

advised me that what I did was carelessness and I was,

thus, guilty of involuntary manslaughter.

I was never advised that ‘reckless’ or ‘recklessly’, in the

context of culpability under Indiana Criminal Law means

‘plain, conscious, and unjustifiable disregard of harm that

might result and the disregard involves a substantial

deviation from acceptable standards of conduct.’ Had I

been advised by my counsel, the Court, or the Prosecutor,

this was the underlying element of the crime, I would

never have pleaded guilty.

I did not act in a ‘plain, conscious, and unjustifiable dis-

regard of harm’. I was acting in self-defense to stop the

police officers who were assaulting me. My conduct did

not involve a substantial deviation from acceptable stan-

dards of conduct. Any person in my circumstance who had

not as yet been beaten senseless and into submission

would have defended themselves as I did.

A-12

At that instant, I feared for my life. I feared that if I did

not stop the assault by the three police officers who had

entered my home, I would have been subjected to further

serious bodily injury which could have resulted in my

death.

Since no information was prepared by the State, there was

no charge against me to which I was pleading guilty.

There was no factual basis for the plea on my part to a non-

existent charge. Judge Brewer had also heard evidence of

the police misconduct in preliminary hearings. He thus

knew there was no factual basis for this plea and should

not have accepted it.

In the landmark case of White v. State (1986), Ind., 497

N.E.2d 893, our supreme court stated:

We emphasize that a plea hearing conducted in accordance

with Ind.Code § 35-35-1-2 is the best way to assure that a

defendant's plea is made voluntarily and intelligently. A

defendant fully armed with all the information outlined in

the statute is most able to make the voluntary and intel-

ligent decision which the Indiana and U.S. Constitutions

entitle him to make. A plea entered after the trial judge

has reviewed the various rights which a defendant is

waiving and made the inquiries called for in the statute is

unlikely to be found wanting in a collateral attack. On the

other hand, pleas entered after coercion, judicial or other-

wise, will be set aside. Defendants who can prove that

they were actually misled by the judge, the prosecutor, or

defense counsel about the choices before them will present

colorable claims for relief.

497 N.E.2d at 905 (Emphasis added.) In Reeves v. State (1991),

Ind. App., 564 N.E.2d 550, trans. denied, we held that a defen-

dant who established that he was misled by his trial counsel to

believe that the State could seek the habitual offender enhance-

ment, when he was not habitual eligible, was entitled to post-

conviction relief as his plea was involuntary.

A-13

In the present case, Sanders established (by convincing the

post-conviction court) that he was misled by his trial counsel to

believe that he was guilty of the crime of involuntary man-

slaughter despite his claim of self-defense. Sanders has also

established that the State never put him on notice of the true

nature of the crime of involuntary manslaughter. No informa-

tion charging him with involuntary manslaughter was ever

filed. At the guilty plea hearing, the statutory definition of

involuntary manslaughter was read into the record. However,

this statutory definition of involuntary manslaughter requires

that the killing occur during the commission or attempt of one

of several underlying crimes. Sanders was never put on notice

of the nature or the elements of any of these possible underly-

ing crimes.

The State asserts (without analysis or citation to authority)

that the post-conviction court’s judgment cannot rest on the

record of the post-conviction hearing. The State implies that

Sanders did not provide testimony necessary to establish his

claim. Indiana Post-Conviction Rule 1(2) requires that the peti-

tion for post-conviction relief be verified. Sanders’ petition was

verified. Moreover, Sanders’ verified petition was entered into

evidence at the post-conviction hearing. On review, we can

consider verified pleadings prepared by a defendant as evi-

dence, even if the pleadings were never formally entered into

evidence. State v. Keith (1985), Ind. App., 482 N.E.2d 751. In

the present case, the post-conviction court’s judgment may

rest on Sanders’ verified petition alone. Therefore, we find no

error.

The fears we expressed in 1974 in Brooks, 316 N.E.2d 688,

have been realized. The guilty plea court accepted Sanders’

plea to a lesser-included offense without informing him of the

elements of that offense. This has enabled Sanders to establish

that he did not understand the nature of the offense to which he

pleaded guilty.

Sanders carried his burden in the post-conviction court of

demonstrating that his plea was not entered knowingly, volun-

A-14

tarily, and intelligently because he was under the misunder-

standing that he was guilty of the crime of involuntary

manslaughter despite his claim of self-defense. As the post-

conviction court’ judgment is supported by the evidence, we

cannot conclude that the judgment is clearly erroneous. There

fore, we must affirm.

Judgment affirmed.

BAKER, J. AND HOFFMAN, J. CONCUR.

A-15

ATTORNEYS FOR ATTORNEY FOR

APPELLANT: APPELLEE:

JEFFREY MODISETT DOUGLASS R.

Marion County Prosecutor SHORTRIDGE

A. FRANK GLEAVES III hd " ea )

Deputy Prosecuting Attorney ee en

Indianapolis, Indiana

LINLEY E. PEARSON

Attorney General of Indiana

MICHAEL GENE WORDEN

Deputy Attorney General

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

STATE OF INDIANA,

Appellant, Supreme Court No.

49S02-9207-PC-563

Court of Appeals NO.

FRED C. SANDERS, 49A02-9108-PC-324

)

)

)

V. )

)

)

Appellee. )

APPEAL FROM THE MARION SUPERIOR COURT,

CRIMINAL DIV. 2

The Honorable Frederick R. Spencer, Special Judge

Cause No. 49G02-0080-C F-092694

ON PETITION TO TRANSFER

A-16

KRAHULIK, J.

The State of Indiana (Appellant-Respondent below) peti-

tions this Court to accept transfer of this case after the Court of

Appeals affirmed the trial court’s grant of Fred Sanders’

(Appellee-Petitioner below) petition for post-conviction relief.

The issue presented is whether the trial court’s grant of relief

setting aside Sanders’ guilty plea is clearly erroneous because

it is not supported by the evidence. We decide this issue in the

State's favor and, therefore, reverse the order of the trial court

and remand to the trial court with directions to deny Sanders’

petition. —

In August 1988, Sanders admittedly shot and killed an Indi-

anapolis police officer, Matthew Faber, after Faber had forced

entry, into Sanders’ house and after he had identified himself as

a police officer. As a result of this killing, the State charged

Sanders with murder and sought the death penalty. Addi-

tionally, he was charged with two counts of attempted murder

and one count of resisting law enforcement resulting in bodily

injury. The State later dismissed the death penalty count and

proceeded toward trial on the other four charges. Prior to trial,

on January 31, 1989, Sanders pled guilty to involuntary man-

slaughter in exchange for the State’s dismissal of all other

charges. He was never formally charged with involuntary man-

slaughter, but pled guilty to involuntary manslaughter as a

lesser-included offense of murder. Following a pre-sentence

investigation, Sanders was sentenced to a term of seven years

imprisonment.

Subsequently, on October 24, 1990, Sanders filed a verified

petition for post-conviction relief in which he alleged that his

plea of guilty to involuntary manslaughter was not knowingly,

voluntarily, or intelligently made because “neither the State of

Indiana, the Court, nor my counsel, furnished me in writing or

read to me an information setting out the crime to which I was

pleading guilty.” Additionally, Sanders alleged in his petition

that “neither the State of Indiana, the Court, nor my counsel,

informed me the [sic] necessary elements for any such underly-

a ee

A-17

ing crime.” The remainder of Sanders’ petition alleged that he

had never deviated from the defense that he was acting in self-

defense. The petition also detailed conversations with Sanders’

trial attorney in which he allegedly advised Sanders that he

should accept the plea bargain and plead guilty to involuntary

manslaughter. His petition further alleged that his counsel

advised him to enter such a plea because counsel was not ready

to try the murder charge and because Sanders was, in fact,

guilty of involuntary manslaughter in that he had acted reck-

lessly in causing the death of Faber. Sanders finally alleged in

the petition that he was never advised of the legal definition of

“reckless” or “recklessly”, and that had he been so advised, he

would not have pleaded guilty.

At the hearing on the petition, Sanders’ counsel stated to the

court his theory of the case which, in effect, was that the guilty

plea should be set aside because at the time of the guilty plea

hearing there was no charging document (either information or

indictment) that charged Sanders with involuntary man-

slaughter. Sanders’ legal premise was that, as a matter of law, a

defendant cannot knowingly enter into a guilty plea to the

charge of involuntary manslaughter unless there is an informa-

tion or indictment charging him with the crime of involuntary

manslaughter.

In support of that position, Sanders testified and was asked a

total of eight questions. During his examination, he identified

himself and his petition for post-conviction relief. Counsel then

offered the petition into evidence. The State objected on the

grounds that the petition simply constituted a pleading in the

case and, therefore, should not be considered as evidence in the

case. In response to that objection, Sanders’ attorney replied

as follows:

Simply, your honor, it is not for the truth of the matters

stated because there has been an answer and certain

denials simply for the record of this proceeding introduc-

ing it in evidence as in effect the Petitioner Complaint by

petitioner and again not for the truth of the matters

Stated ....

A-i8

(Emphasis added.) With that understanding, the State no

longer objected and the court admitted the petition into evi-

dence. Additionally, the court admitted the plea agreement, as

well as the State’s answers to interrogatories and requests for

admission, and the transcript of the guilty plea hearing. Sand-

ers rested without any additional testimony on his part other

than identifying the documents set forth above. The State

called no witnesses.

In granting the petition for post-conviction relief, the trial

court quoted at length from Sanders’ petition and found that

the allegations contained in Sanders’ petition were true and

correct, and that he was not advised of the charge against him

or of the specific elements of the offense to which he pled guilty.

The Court of Appeals affirmed in spite of the State’s argument

that Sanders did not provide testimony necessary to establish

the claims contained within his petition. The Court of Appeals

noted that Sanders’ verified petition was entered into evidence

at the post-conviction hearing, and, citing State v. Keith (1985),

Ind. App., 482 N.E.2d 751, that the post-conviction court's

judgment could rest on Sanders’ verified petition alone. We

disagree.

The crux of the problem presented in this case is that the

verified petition was admitted into evidence for a limited pur-

pose, and was specifically not being admitted into evidence for

the truth of the matters contained within the petition. After

admitting the petition into evidence with the understanding

that it was not being admitted for the truth of the matters

contained within the petition, the trial court erroneously con-

sidered the petition as if the petition had been admitted into

evidence to prove the truth of the allegations contained

therein. The Court of Appeals affirmed the trial court’s judg-

ment by committing the same error, viz. relying on evidence

admitted for a limited purpose and not for the truthfulness of

the facts alleged in order to support findings of fact. Both the

trial and appellate courts were incorrect in utilizing the peti-

tion in this manner.

A-19

The Court of Appeals’ reliance on State v. Keith, 482 N.E.2d

751, is misplaced. In State v. Keith, the Court of Appeals

affirmed the trial court's dismissal of a felony charge based on

principles of double jeopardy. The Court of Appeals relied, in

part, on facts alleged in Keith’s verified motion to dismiss. In

support of this reliance the court said:

In reviewing a related matter, our supreme court recently

held that pleadings prepared by a defendant under oath

and relied upon by the trial court and the parties as

evidence could be considered as evidence by this court

upon review even though the pleadings were never for-

mally entered into evidence. State v. Cleland (1985), Ind.,

477 N.E.2d 537.

482 N.E.2d at 754 (emphasis added). An examination of State v.

Cleland (1985), Ind., 477 N.E.2d 537, leads us to conclude that

the holding of that three-to-two opinion must be confined to the

circumstances of that case and cannot be extended to stand for

the proposition that a verified pleading admitted into evidence

for a limited purpose, and not for the truth of the matters

stated therein, may constitute evidence of the facts alleged in

such pleading. This Court in Cleland explicitly so limited its

holding, over the dissent of Justices Pivarnik and Givan, when

it stated:

We hold that inasmuch as the petitions were verified,

absent a timely objection by the State and under the

circumstances of this case, the court could properly con-

sider them as evidence.

Id. at 538 (emphasis added). In order, however, that future

courts not be misled by the holding in Cleland, we state that

the better reasoned rule of law is that which Justices Pivarnik

and Givan set forth in their dissent when they stated that a

plaintiff cannot “maintain his position by pleading under oath

and then resting on that pleading.” 477 N.E.2d at 539. Thus,

we hold that neither Cleland or Keith permitted either the trial

court or the appellate court to rely on Sanders’ petition as

evidence of the facts alleged therein.

A-20

The prejudice to the State is apparent. Because the Sanders

petition was not being admitted for the truth of the allegations

recited in the petition, the State did not cross-examine Sanders

or call Sanders’ trial counsel in an attempt to refute or impeach

the facts alleged in the petition. A new hearing on Sanders’

petition for post-conviction relief would be required to allow

the State the opportunity to rebut the claims made by Sanders

in his petition. The State, however, argues that, absent the

allegations of fact contained in the petition, the evidence is

insufficient to establish that Sanders’ guilty plea was not know-

ing, voluntary, or intelligent. Therefore, the State urges that

he failed te prove his case and his petition must be denied. We

agree.

When Sanders pled guilty to involuntary manslaughter, he

was pleading guilty to a lesser-included offense of the crime of

murder. Jewell v. State (1989), Ind., 589 N.E.2d 959. No sepa-

rate information or indictment was necessary in order to put

Sanders on notice of the charges. See, for example, DeVillez v.

State (1981), Ind., 416 N.E.2d 846, in which this Court held that

a plea to second degree murder did not require a separate and

distinct charge of second degree murder. The court said:

At the plea stage second degree murder is a necessarily

included offense within a charge of first degree

murder . . . Therefore, her knowledge of the true nature

of the greater offense necessarily supplies sufficient

knowledge of the true nature of the lesser and included

offense of second degree murder.

Id at 849.

The evidence is undisputed that during the guilty plea hear-

ing, the State read the statutory definition of involuntary man-

slaughter to Sanders. Also, the probable cause affidavit pre-

viously filed in the case was read to Sanders. This affidavit set

out in detail the facts surrounding the killing. Following the

reading of the statute and probable cause affidavit, Sanders

was then asked specifically if he was pleading guilty to the

crime charged. He replied in the affirmative. Additionally,

A-21

when asked why he felt he was guilty of involuntary man-

slaughter, Sanders demonstrated an understanding of the

nature of the charge when he answered that he recklessly

pointed a shotgun at Faber. This undisputed evidence from the

transcript of the guilty plea hearing satisfies the constitutional

requirement set forth in Henderson v. Morgan (1976), 426 U.S.

637, 96 S.Ct. 2253, 49 L.Ed.2d 108, that Sanders was aware of

the elements of the offense of involuntary manslaughter when

he pled guilty. See DeVillez, 416 N.E.2d 846. Absent his ver-

ified petition, which was admitted not for the truth of the

matters stated, but merely to set forth the allegations of his

claim, there is not sufficient evidence to support the trial

judge's determination that his plea was not knowingly, volun-

tarily and intelligently entered. Thus, the trial court’s findings

of fact were clearly erroneous and must be set aside. And,

without those findings of fact, the judgment granting Sanders’

petition must be reversed and remanded to the trial court with

instructions to deny the petition.

Conclusion

Accordingly, we grant the State’s Petition to Transfer, vacate

the opinion of the Court of Appeals, reverse the trial court and

remand this matter to the trial court to deny the petition for

post conviction relief.

SHEPARD, C.J., DEBRULER, GIVAN and DICKSON,

JJ., concur.

FOURTEENTH AMENDMENT

SECTION 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof are citizens of the

United States and the State wherein they reside. No State

shall make or enforce any law which shall abridge the priv-

ileges or immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

A-22

I.C. 35-35-1-2, is set out for ease of reference as follows:

“Sec. 2. (a) The court shall not accept a plea of guilty or

guilty but mentally ill at the time of the crime without first

determining that the defendant:

(1) understands the nature of the charge against him;

(2) has been informed that by his plea he waives his

rights to:

(A) a public and speedy trial by jury;

(B) confront and cross-examine the witnesses

against him;

(C) have compulsory process for obtaining wit-

nesses in his favor; and

(D) require the state to prove his guilt beyond a

reasonable doubt at a trial at which the defendant

may not be compelled to testify against himself;

(3) has been informed of the maximum possible sen-

tence and minimum sentence of the crime charged and any

possible increased sentence by reason of the fact of a prior

conviction or convictions, and any possibility of the

imposition of consecutive sentences; and

(4) has been informed that if:

(A) there is a plea agreement as defined by IC

35-35-3-1; and

(B) the court accepts the plea agreement

(b) A defendant in a misdemeanor case may waive the

rights under subsection (1) by signing a written waiver.

(c) Any variance from the requirements of this section

that does not violate a constitutional right of the defen-

dant is not a basis for setting aside a plea of guilty. As

added by Acts 1981, P.L. 298, SEC.4. Amended by P.L.

179-1984, SEC.1; P.L.313-1985, SEC.1.”

_ For the purpose of this appeal, the pertinent provisions are

Section 2(a)(1) requiring the defendant to understand the

nature of the charges against him and Section 2(c) requiring a

variance must violate a constitutional right if it is to be the

basis of setting aside a plea of guilty.