Altice, J.
Zachary C. Parksey pled guilty to Level 2 felony voluntary manslaughter in exchange for dismissal of a murder charge. Thereafter, he sought postconviction relief (PCR), arguing that he was unaware, when he pled guilty, that he would be subject to mandatory lifetime parole and that had he known, he would not have accepted the plea agreement. In his pro se PCR petition, Parksey asserted both that his plea was not entered voluntarily and knowingly and that his trial counsel was ineffective.
The PCR court denied relief on the basis that neither the trial court nor trial counsel was required to advise Parksey of the lifetime parole requirement before he entered his plea. We conclude that the trial court erroneously relied on cases from the 1980s that addressed parole in its ordinary sense, not the special lifetime parole term applicable to those convicted of murder or voluntary manslaughter as mandated by Ind. Code § 35-50-6-1(e)(2) and (3). As a matter of first impression, we hold that mandatory lifetime parole is a direct, as opposed to collateral, consequence of a plea to voluntary manslaughter and that a defendant is entitled to be advised regarding this consequence before pleading guilty. Here, conflicting evidence was presented as to whether counsel advised Parksey regarding the lifetime parole requirement, and the PCR court did not resolve the factual dispute. Nor did the PCR court make determinations regarding prejudice or the materiality of any failure to so advise. Accordingly, we reverse and remand for the PCR court to make the necessary evidentiary determinations.
We reverse and remand.
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This case presents an issue that has not been addressed in any precedential opinion in our state appellate courts: Does a defendant pleading guilty to voluntary manslaughter (or murder) have a right to be advised that such a conviction carries with it mandatory lifetime parole?
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I.C. § 35-50-6-1, Indiana’s parole statute, has been amended more than ten times since these cases from the 1980s. It now provides under certain limited circumstances for parole to extend well beyond a defendant’s fixed term of incarceration. As relevant here, pursuant to an amendment in 2007,5 a person convicted of voluntary manslaughter or murder is subject to mandatory lifetime parole. I.C. § 35-50-6-1(e) (When a person described in this subsection completes the person’s fixed term of imprisonment, less credit time earned with respect to that term, the person shall be placed on parole for the remainder of the person’s life.”).
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Further, Ind. Code § 35-35-1-2 provides that before accepting a plea, the trial court must determine that, among other things, the defendant “has been informed of the maximum possible sentence and minimum sentence for the crime charged[.]” I.C. § 35-35-1-2(a)(3). The federal corollary to this statute is Rule 11 of the Federal Rules of Civil Procedure, which recognized, along with federal case law, that special parole was something a defendant must be informed about in relation to the maximum and minimum possible penalty. See, e.g., U.S. v. Bridges, 760 F.2d 151, 154 (7th Cir. 1985) (observing that “it is widely accepted” that a defendant should be advised of special parole terms – as opposed to ordinary parole – that are statutorily mandated, follow the primary sentence and ordinary parole, and subject the offender to reincarceration for the entirety of the special parole term); Moore v. U.S., 592 F.2d 753, 755 (4th Cir. 1979) (“Unlike ordinary parole, which does not involve supervision beyond the original prison term set by the court and the violation of which cannot lead to confinement beyond that sentence, special parole increases the possible period of confinement.”); Fed. R. Crim. P. 11(c)(1) advisory committee note to 1982 amendment.
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In the years since Bleeke, the legislature has made clear that a parolee subject to lifetime parole may be imprisoned for knowingly or intentionally violating a condition of parole even after the expiration of the fixed term of imprisonment. See Ind. Code § 35-44.1-3-9(1) (defining the criminal offense of violation of a lifetime parole condition, a Level 6 felony, or a Level 5 felony with a prior violation under this section).
In Rucker v. Warden, No. 3:19-CV-201 DRL, 2023 WL 2599519 (N.D. Ind. Mar. 21, 2023), the federal district court addressed essentially the same issue presented in this case and determined that mandatory lifetime parole was a direct consequence of the habeas petitioner’s guilty plea for which he was entitled to an advisement before pleading guilty. The court observed that lifetime parole “extends parole beyond the expiration of the sentence through the full duration of the [offender’s] life.” Id. at *6. Citing Bleeke, the district court further observed that lifetime parole could subject an offender to reincarceration beyond an expired original sentence and that “the statutory scheme subjects sexually violent predators (along with those convicted of murder and voluntary manslaughter) to onerous parole conditions and to the supervision of the parole board for life.” Id. at *7.
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With the above in mind, we conclude that mandatory lifetime parole was a direct consequence of Parksey’s plea to voluntary manslaughter, as it subjected him to parole extending beyond the term of his fixed sentence and effectively increased the length of his sentence. Cf. Bleek, 6 N.E.3d at 38 (observing that parole is, in legal effect, still imprisonment). Thus, the PCR court erred as a matter of law in rejecting relief based solely on the conclusion that Parksey had no right to be advised by counsel or the court of the mandatory lifetime parole term before pleading guilty to voluntary manslaughter.
That said, the evidence presented below reflects a factual dispute as to whether Parksey was aware of the mandatory lifetime parole term before pleading guilty. Attorney Blackard testified that he informed Parksey of the lifetime parole requirement and later clarified during his testimony that the advisement came sometime before sentencing. In other words, Attorney Blackard did not clearly testify that the advisement came before Parksey pled guilty. Parksey, on the other hand, consistently claimed throughout his PCR filing and testimony that he did not learn of the lifetime parole term until after he was sentenced. The PCR court noted this factual dispute but did not resolve it.
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In sum, the PCR court’s ruling suffered from a fundamental legal error by application of a categorical rule that there is no duty to advise of mandatory lifetime parole. We hold that mandatory lifetime parole was a direct consequence of Parksey’s guilty plea of which he should have been advised. As the PCR court did not pass on factual questions regarding whether Parksey received such an advisement from Attorney Blackard or whether the alleged lack of advisement resulted in prejudice to Parksey, we remand for the PCR court to make such factual determinations upon full consideration of the record, which may include the taking of additional evidence as determined within the PCR court’s discretion.
Judgment reversed and remanded.
Brown, J. and DeBoer, J., concur.