Pharms v. State , 477 N.E.2d 334 ( 1985 )

STATON, Presiding Judge.

James Edward Pharms (Pharms) pled guilty in 1977 to one count of robbery. On belated appeal from denial of his petition for post-conviction relief he raises two issues:

(1) Whether the trial court was without jurisdiction to accept his plea of guilty because he was a juvenile; and

(2) Whether his plea of guilty was knowingly, intelligently, and voluntarily made.

Reversed and remanded.

The facts are not in dispute. In 1977, Pharms was indicted for felony-murder. At the time he was 15 years of age. Subsequently, the State amended the charging information to include the underlying charge of robbery. Pharms orally pled guilty to the robbery charge and was sentenced 10 to 25 years in prison. The State then dismissed the charge of murder.

Pharms filed a petition for post-convietion relief which was denied. Pharms was then granted permission to file a belated motion to correct errors, which was also denied and from this denial he appeals.

1.

Jurisdiction Over Guilty Plea

Pharms contends that the trial court lacked jurisdiction over his plea of guilty to the robbery charge because the State had not procured a waiver from juvenile court. Pharms concedes that no waiver of juvenile court jurisdiction was required for the felony-murder charge.

In Snodgrass v. State (1980), 273 Ind. 142, 402 N.E.2d 1235, on rehearing (1980), 273 Ind. 148, 406 N.E.2d 641, our Supreme Court held that the State need not procure a waiver on the underlying felony of a felony-murder charge. The Court noted that the underlying felony is a lesser-included offense of a felony-murder and the separate count of the felony adds nothing to the charge. 273 Ind. at 150, 406 N.E.2d at 648. The Court then held:

"Onee jurisdiction properly vests in adult criminal court as to the charged crime, whether by way of a statutory exception as in this case, or by way of a juvenile court's waiver, jurisdiction remains in adult court as to that charge and all lesser-included offenses."

278 Ind. at 158, 406 N.E.2d at 645.

. Pharms attempts to distinguish Snod-grass on the basis that his case involves a guilty plea whereas Snodgrass dealt with a trial and jury verdict. However, the challenge here; as in Snodgrass, is to the. charging procedure and not to the conviction. Pharms's contention is that the State was required to first obtain a waiver from juvenile court in order to charge him in adult court with the underlying felony of the felony-murder. Snodgrass clearly holds otherwise. The trial court properly had jurisdiction over Pharms's guilty plea in this case. See Snodgrass, supra at 154, 406 N.E.2d at 645.

IL

Advisement of Rights

Pharms contends that his guilty plea should be overturned because he was not properly advised of his rights under IC 1979, 385-4.1-1-8 (Burns Code Ed.) recodi-fied at IC 1985, 35-85-1-2 (Burns Code Ed.).¹

As Pharms entered his plea prior to our Supreme Court's decision in German v. State (1981), Ind., 428 N.E.2d 234, we must look to the entire record to determine whether Pharms was properly advised of and understood his constitutional rights. Crocker v. State (1985), Ind., 475 N.E.2d 686 (1985); Williams v. State (1984), Ind., 468 N.E.2d 1036, 1037.

Pharms contends that the trial court failed to advise him that the court was not party to the agreement and was not bound thereby. Appellant's brief at 4, 14-16; see also IC 85-4.1-1-8(e) Pharms tendered his plea orally at a hearing before the trial judge. There is nothing in the record of that hearing to show that the trial court informed Pharms that it was not a party to the plea agreement. We cannot presume Pharms made his plea knowingly, intelligently, and voluntarily from a silent record. Crocker, supra; Carr v. State (1983), Ind., 455 N.E.2d 343, 355. Therefore, we must reverse with instructions to vacate Pharms's guilty plea and reinstate his plea of not guilty. See Crocker, supra.

Reversed and remanded.

ROBERTSON, J., (by designation) concurs. * GARRARD, J., dissents with opinion.

1 . The State contends that Pharms has failed to properly preserve this issue on appeal. However, it is well settled that failure to properly advise a person pleading guilty of the rights he is waiving under IC 35-4.1-1-3 constitutes fundamental error and may therefore be raised for the first time on appeal. Kidder v. State (1983), Ind.App., 456 N.E.2d 427, 428. See also Austin v. State (1984), Ind., 468 N.E.2d 1027, 1028, 1029. While Pharms did not raise the error in his petition for post-conviction relief or in his belated motion to correct errors, he has presented proper argument in this appellant's brief.