In the

United States Court of Appeals

For the Seventh Circuit

No. 98-3736

Marshall Jackson,

Petitioner-Appellant,

v.

Charles B. Miller, Superintendent,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 98 C 56--Allen Sharp, Judge.

Argued November 9, 2000--Decided August 8, 2001

 Before Flaum, Chief Judge, and Bauer and

Kanne, Circuit Judges./*

 Kanne, Circuit Judge. On June 4, 1980,

a jury found Marshall Jackson guilty of

robbery, attempted murder, and of being a

habitual offender under Indiana’s

recidivist statute. See Ind. Code sec. 35-

50-2-8 (1998). At sentencing, the judge

enhanced Jackson’s forty-year sentence by

thirty years because of Jackson’s status

as a habitual offender. Jackson contends

that the resulting seventy-year sentence

was improper because one of the two

convictions that the jury relied upon to

make the habitual offender determination

was obtained in violation of his Sixth

Amendment right to counsel. He advanced

this claim, among others, in a petition

for a writ of habeas corpus in the

district court, see 28 U.S.C. sec. 2254,

and the district court denied the

petition. We granted Jackson’s request

for a certificate of appealability and

certified the following issue for appeal:

"Was the Petitioner denied counsel in

violation of the Sixth Amendment?"/1 We

now affirm. 

I. History

 On March 3, 1975, Jackson and his

brother, Louis Jackson, pleaded guilty to

theft in a Lake County Superior Court.

Several weeks later, Jackson and his
brother, represented by counsel, appeared

in court for sentencing on March 27,

1975. After listening to statements by

Jackson, Louis, and their attorney, the

judge stated: "The Court . . . now

sentences both defendants to not less

than one (1) nor more than ten (10) years

and orders them committed to the

Department of Corrections for assignment

to a proper institution. . . . Execution

of sentence is withheld until April 25,

1975." Tr. of Marshall Jackson Sentencing

H’rg at 3. Jackson appeared in court on

May 30, 1975 for execution of his

sentence./2 Although the record does

not include a transcript of that

proceeding, the court’s minute entry

indicates that Jackson appeared without

counsel "for the reason that the attorney

previously representing him is no longer

in the practice of law." Minute Order at

12. Because the record does not contain a

transcript of the May 30 appearance, it

is unclear whether or to what extent the

court addressed the fact that Jackson did

not have an attorney present. The court’s

written order on that date simply states:

"The Court after reviewing the presentence investigation now sentences the

defendant, Marshall Jackson, to not less

than one nor more than ten years.

Sentence suspended. The Defendant is

placed on probation for a period of two

years." Id. 

 Approximately five years later, on June

4, 1980, a jury found Jackson guilty of

attempted murder, armed robbery, and of

being a habitual offender under Indiana’s

recidivist statute. The jury’s

determination that Jackson was a habitual

offender--based partially on the abovedescribed 1975 theft conviction--

increased Jackson’s forty-year sentence

by an additional thirty years for a total

sentence of seventy years. On direct

appeal, the Indiana Supreme Court

affirmed Jackson’s conviction as well as

his sentence. See Jackson v. State, 426

N.E.2d 685 (Ind. 1981). 

 Several years later, on May 10, 1988,

Jackson, pro se, filed a petition in

state court for post-conviction relief

from the 1975 theft conviction. He

alleged, inter alia, that he was denied

the right to counsel at sentencing

because counsel was not present at the

May 30, 1975 appearance. The trial court

found that Jackson had waived his Sixth
Amendment claim by failing to incorporate

his original and first amended petitions

into his subsequent amended petitions

and, as such, did not address the merits

of the issue. 

 On appeal, the Indiana Court of Appeals

found that the trial court erred in

refusing to consider the claims raised in

Jackson’s original and subsequent amended

petitions. See Jackson v. State, 676

N.E.2d 745, 748-50 (Ind. Ct. App. 1997).

The Indiana Court of Appeals rejected

Jackson’s claim on the merits, however,

finding that the absence of counsel at

the May 30, 1975 proceeding was not a

violation of Jackson’s right to counsel,

and even if it was, that Jackson was not

prejudiced. See id. at 751-52. To support

this conclusion, the Indiana Court of

Appeals relied on two Indiana cases,

Guajardo v. State, 544 N.E.2d 174, 177

(Ind. Ct. App. 1989) (holding that

reversal was not required where defendant

had already served out his sentence

because the error had been mooted and the

denial of counsel at sentencing did not

affect the validity of the underlying

conviction), and Ford v. State, 386

N.E.2d 709, 714 (Ind. Ct. App. 1979)

(holding that even if counsel’s inability

to address the court on defendant’s

behalf at sentencing was a violation of

defendant’s right to counsel, it did not

prejudice the defendant because his

sentence was mandated by statute). See

id. The court observed:

Although Jackson was not represented by

counsel on May 30, 1975, he appeared for

sentencing on March 27, 1975. Jackson’s

attorney was present and spoke on his

behalf at the sentencing hearing of March

27, 1975. The transcript of the March

sentencing indicated that the trial court

sentenced Jackson to not less than one

year nor more than ten years and ordered

him committed to the Department of

Correction for proper assignment.

Although the execution of the sentence

was withheld, the trial court ultimately

suspended the entire sentence and placed

him on probation for two years. Jackson

acknowledged at his guilty plea and

initial sentence hearing that he would

receive a one to ten year sentence. Even

if Jackson’s right to counsel was

violated, Jackson has failed to show how

he was prejudiced. At the time of

Jackson’s sentencing, [the statute he was
convicted of violating] required the

sentence that Jackson received. The fact

that the trial court ordered all of

Jackson’s sentence to be suspended is

diametrically opposed to his contention

that he was prejudiced. Additionally,

given that any error in sentencing would

not affect the validity of the

conviction, resentencing would serve no

apparent purpose and Jackson offers none.

Id. On March 26, 1997, the Supreme Court

of Indiana denied transfer. Jackson next

filed a petition for state postconviction relief from his 1980 robbery

and attempted murder convictions, raising

several grounds for relief including

ineffective assistance of counsel at

trial and ineffective assistance of

counsel on appeal. The court denied

relief on all but one of Jackson’s

claims,/3 and Jackson initiated an

appeal. Jackson failed to perfect the

appeal, however, and voluntarily

terminated it on June 9, 1998. 

 On March 30, 1998, Jackson, again pro

se, filed a petition for a writ of habeas

corpus in the United States District

Court for the Northern District of

Indiana challenging the use of his

allegedly constitutionally infirm 1975

theft conviction to enhance his current

sentence. The district court denied

Jackson’s petition. Jackson then filed an

application for a certificate of

appealability, and the district court de

nied his application. On December 6,

1999, we granted Jackson’s request for a

certificate of appealability on the

following issue: "Was Petitioner denied

counsel in violation of the Sixth

Amendment to the Constitution at his May

30, 1975 sentencing hearing?"

II. Analysis

A. Availability of Federal PostConviction Relief 

 Jackson claims that his 1975 theft

conviction was obtained in violation of

his Sixth Amendment right to counsel;

therefore, he claims that the use of that

conviction to enhance his current

sentence is unconstitutional. Because

Jackson seeks to challenge his current

sentence by attacking a fully expired

conviction used to enhance that sentence,

our first task is to determine whether
federal post-conviction relief is

available to a prisoner in Jackson’s

situation. To that end, we asked the

parties to consider the applicability of

our decision in Smith v. Farley, 25 F.3d

1363 (7th Cir. 1994), in which we held

that federal review of a fully expired

conviction that has been incorporated

into a new enhanced sentence is limited

to situations in which the petitioner had

no access to collateral review because

state procedures were "wholly absent, or

. . . constitutionally deficient." Id. at

1370. Smith is no longer controlling on

this issue, however, in light of two

intervening Supreme Court decisions that

address the availability of federal-postconviction relief to petitioners who

assert that an unconstitutional prior

conviction was used to enhance their

current sentence. See Daniels v. United

States, 121 S. Ct. 1578 (2001) and

Lackawanna County Dist. Att’y v. Coss,

121 S. Ct. 1567 (2001). We therefore

direct our attention to those decisions. 

 In Daniels and Lackawanna, the Supreme

Court confirmed that, in general, habeas

relief is not available to petitioners

who challenge a fully expired conviction

used to enhance a subsequent sentence in

a petition brought under 28 U.S.C. sec.

2254 or sec. 2255. See Daniels, 121 S.

Ct. at 1583; Lackawanna, 121 S. Ct. at

1570. The Supreme Court held that "’if .

. . a prior conviction used to enhance a

federal sentence is no longer open to

direct or collateral attack in its own

right because the defendant failed to

pursue those remedies while they were

available (or because the defendant did

so unsuccessfully), then that defendant .

. . may not collaterally attack his prior

conviction’" through a motion under sec.

2254. Lackawanna, 121 S. Ct at 1573

(quoting Daniels, 121 S. Ct. at 1583). 

 Recognizing the "special status of

Gideon claims," however, the Supreme

Court carved out an exception to the

general rule for cases in which the

challenged conviction was allegedly

obtained in violation of the Sixth

Amendment right to counsel. Lackawanna,

id. at 1574. The Supreme Court held that,

if a petitioner satisfies the other

procedural prerequisites for relief, he

may challenge "an enhanced sentence on

the basis that the prior conviction used

to enhance the sentence was obtained
where there was a failure to appoint

counsel in violation of the Sixth

Amendment, as set forth in Gideon v.

Wainwright, 372 U.S. 335, 83 S. Ct. 792,

9 L. Ed. 2d 799 (1963)." Id. at 1574; cf.

Daniels, 121 S. Ct. at 1583. In

recognizing this exception to the general

rule, the Court acknowledged that "the

’failure to appoint counsel for an

indigent [is] a unique constitutional

defect . . . ris[ing] to the level of a

jurisdictional defect,’ which therefore

warrants special treatment among alleged

constitutional violations." Lackawanna,

121 S. Ct. 1574 (quoting Custis v. United

States, 511 U.S. 485, 496, 114 S. Ct.

1732, 128 L. Ed. 2d 517 (1994)).

Therefore, because Jackson alleges that

his 1975 theft conviction was obtained in

violation of his right to counsel, we

will review his petition to determine if

habeas relief is appropriate. 

B. Standard of Review

 Our review of Jackson’s petition for

habeas corpus is governed by the

Antiterrorism and Effective Death Penalty

Act of 1996 ("AEDPA"), 28 U.S.C. sec.

2254, because Jackson filed his petition

for habeas relief after the effective

date of that Act. AEDPA provides that

habeas relief may be granted if a state

court’s adjudication of a matter

"resulted in a decision that was contrary

to, or involved an unreasonable

application of, clearly established

Federal law, as determined by the Supreme

Court of the United States." 28 U.S.C.

sec. 2254 (d)(1). A state court decision

is "contrary to" Supreme Court precedent

"if the state court arrives at a

conclusion opposite to that reached by

[the Supreme] Court on a question of law"

or "if the state court confronts facts

that are materially indistinguishable

from a relevant Supreme Court precedent

and arrives at a result opposite to [that

reached by the Supreme Court]." Williams

v. Taylor, 529 U.S. 362, 405, 120 S. Ct.

1495, 146 L. Ed. 2d 389 (2000). An

"unreasonable application" of Supreme

Court precedent occurs when "the state

court identifies the correct governing

legal rule . . . but unreasonably applies

it to the facts of the particular state

prisoner’s case" or "if the state court

either unreasonably extends a legal

principle from [the Court’s] precedent to

a new context where it should not apply

or unreasonably refuses to extend that
principle to a new context where it

should apply." Id. at 407. 

 In reviewing a district court’s denial

of a petition for habeas relief, we

review the district court’s legal

determinations de novo and its factual

determinations for clear error. See Denny

v. Gudmanson, 252 F.3d 896, 900 (7th Cir.

2001). We review a state court decision

de novo to determine whether it was

"contrary to" Supreme Court precedent;

however, we defer to reasonable state

court decisions in determining whether

the state court decision was an

"unreasonable application" of federal

law. See Ouska v. Cahill-Masching, 246

F.3d 1036, 1044 (7th Cir. 2001). "[S]tate

court factual findings that are

reasonably based on the record are

accorded a presumption of correctness."

Kurzawa v. Jordan, 146 F.3d 435, 439 (7th

Cir. 1998) (quotation omitted); see also

28 U.S.C. sec. 2254(e)(1). 

C. Jackson’s Sixth Amendment Claim

 As we indicated above, it is clear from

the record that Jackson was not

represented by counsel at the May 30,

1975 appearance at which his sentence was

to be executed. What remains to be

determined, then, is whether the

conclusion of the Indiana Court of

Appeals that the absence of counsel at

that appearance did not violate the

petitioner’s Sixth Amendment right to

counsel was "contrary to" or an

"unreasonable application" of Supreme

Court precedent as required by 28 U.S.C.

sec. 2254(d). 

 The Sixth Amendment requires that

criminal defendants must be provided with

counsel unless the right is competently

and intelligently waived. See Gideon v.

Wainwright, 372 U.S. 335, 339-45, 83 S.

Ct. 792, 9 L. Ed. 2d (1963). As the

Supreme Court has repeatedly emphasized,

"[t]he right to be heard would be, in

many cases, of little avail if it did not

comprehend the right to be heard by

counsel." Powell v. Alabama, 287 U.S. 45,

68-69, 53 S. Ct. 55, 77 L. Ed. 158

(1932). Criminal defendants have a right

to counsel not only at trial but also at

all critical stages of the prosecution.

See Coleman v. Alabama, 399 U.S. 1, 9-10,

90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970);

see also United States v. Wade, 388 U.S.
218, 226, 87 S. Ct. 1926, 18 L. Ed. 2d

1149 (1967) ("[I]n addition to counsel’s

presence at trial, the accused is

guaranteed that he need not stand alone

against the State at any stage of the

prosecution, formal or informal, in court

or out, where counsel’s absence might

derogate from the accused’s right to a

fair trial.") (footnote omitted). The

inquiry into whether a particular

proceeding is a critical stage of the

prosecution focuses on "whether potential

substantial prejudice to the defendant’s

rights inheres in the . . . confrontation

and the ability of counsel to help avoid

that prejudice." Coleman, 399 U.S. at 9

(quotation omitted). The Supreme Court

has made it clear that sentencing is a

critical stage at which the Sixth

Amendment requires the assistance of

counsel. See Gardner v. Florida, 430 U.S.

349, 358, 97 S. Ct. 1197, 51 L. Ed. 2d

393 (1977); see also Townsend v. Burke,

334 U.S. 736, 741, 68 S. Ct. 1252, 92 L.

Ed. 1690 (1948) (finding a denial of due

process where uncounseled defendant "was

sentenced on the basis of assumptions

concerning his criminal record which were

materially untrue"). Although a defendant

may waive his right to counsel, see

Gideon, 372 U.S. at 340, waiver may not

be presumed from a silent record. See

Burgett v. Texas, 389 U.S. 109, 114-15,

88 S. Ct. 258, 19 L. Ed. 2d 319 (1967).

 Jackson first asks us to find that the

Indiana Court of Appeals applied a rule

that was contrary to Supreme Court

precedent. He alleges that the facts of

his case are materially indistinguishable

from the facts in Mempa v. Rhay, 389 U.S.

128, 88 S. Ct. 254, 19 L. Ed. 2d. 336

(1967), in which the Supreme Court found

that the petitioners had been denied the

right to counsel. Id. at 137. In the

consolidated cases in Mempa, the Supreme

Court considered the question of whether

petitioners, who appeared at a deferred

sentencing hearing without

representation, had been denied the right

to counsel in violation of the Sixth

Amendment. Petitioners’ deferred

sentencing hearings were held pursuant to

a Washington statute which allowed a

judge to order probation and defer

imposition of sentence. See id. at 130.

Both of the petitioners had pleaded

guilty to an offense with the advice of

counsel, been placed on probation, and

later committed a crime which led the
prosecuting attorney to move for the

revocation of probation. See id. at 130-

33. At the subsequent hearings to revoke

probation and impose sentence, neither

petitioner was represented by counsel.

See id. at 131, 132. The Supreme Court

found that the Sixth Amendment required

that petitioners have the assistance of

counsel at such a hearing "whether it be

labeled a revocation of probation or a

deferred sentencing hearing." Id. at 137.

The Court’s holding was based on its

determination that, at such a hearing,

"certain legal rights may be lost if not

exercised at this stage," id. at 135,

namely the right to appeal and the right

to withdraw a guilty plea, see id. at

136-37.

 Although Mempa and the case at hand both

involve deferred appearances, we disagree

with Jackson’s contention that the facts

of his case are materially

indistinguishable from the facts of

Mempa. Jackson’s claim that the May 30,

1975 appearance was equivalent to the

deferred sentencing hearing in Mempa is

not supported by the record. In Mempa,

the petitioners’ sentences were not

imposed at the initial hearing. Instead,

petitioners were placed on probation,

with sentence to be imposed later--only

if the terms of probation were violated.

Therefore, when the petitioners in Mempa

appeared at the probation

revocation/sentence imposition

proceeding, it was, in effect, as if they

were being sentenced for the first time. 

 Jackson’s situation is materially

different. Although the Supreme Court in

Mempa rejected the State’s contention

that the petitioners were actually

sentenced at the first hearing and that

the second hearing was a "mere

formality," id. at 135, we find that

characterization appropriate in Jackson’s

case. The transcript of Jackson’s March

27, 1975 sentencing hearing reflects that

sentence was actually imposed at that

time. At that initial hearing, the Judge

stated, "[t]he Court . . . now sentences

both defendants to not less than one (1)

nor more than ten (10) years." Tr. of

Marshall Jackson Sentencing H’rg at 3

(emphasis added). The judge also told

Jackson and his brother, "I have imposed

sentence for both of you as one (1) to

ten (10) years. You won’t begin serving

that time today but you will be back here
on April 25,/4 do you understand that?"

Id. That sentence was imposed at the

initial hearing is also evidenced by the

fact that, at that time, the judge

performed all of the functions required

for sentencing: he acknowledged that he

had reviewed the pre-sentence

investigation report, ordered the

defendants committed to the Department of

Corrections, and gave the defendants

credit for time served. Moreover, the

judge referred to the purpose of the May

30 appearance as "execution of sentence"

and not as "sentencing," "deferred

sentencing," or "imposition of sentence."

Therefore, because sentence had already

been imposed on Jackson when he appeared

for the execution of his sentence, the

facts of Jackson’s case are materially

distinguishable from the facts in Mempa.

 Jackson next argues that the Indiana

Court of Appeals erred by holding that,

even if Jackson was denied the right to

counsel, this error was harmless. He

claims that harmless error analysis does

not apply to violations of the right to

counsel and that the Indiana Court of

Appeals therefore applied a rule of law

contrary to Supreme Court precedent.

Although the Supreme Court has made it

clear that "[a]ctual or constructive

denial of the assistance of counsel alto

gether is legally presumed to result in

prejudice," see Strickland v. Washington,

466 U.S. 668, 692, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984), the court has also

implied that a momentary lapse in

representation during a critical stage

may be subject to a harmless error

analysis. See Satterwhite v. Texas, 486

U.S. 249, 256, 108 S. Ct. 1792, 100 L.

Ed. 2d 284 (1988) (suggesting that Sixth

Amendment violations that do not "pervade

the entire proceeding" may be subject to

harmless error analysis). We need not

resolve this question, however, because

we find that the Indiana Court of

Appeals’ determination that Jackson’s

right to counsel was not violated at the

May 30 appearance is not contrary to

established Supreme Court precedent. 

 Although the Supreme Court has never

directly confronted the issue of whether

the execution of an already imposed

sentence constitutes a critical stage

such that counsel is required, see

Coleman v. Alabama, 399 U.S. 1, 9, 90 S.

Ct. 1999, 26 L. Ed. 2d 387 (1970),
Jackson may still obtain habeas relief if

he is able to show that the state court’s

application of Supreme Court precedent

was unreasonable. See Williams v. Taylor,

529 U.S. 362, 407-08, 120 S. Ct. 1495,

146 L. Ed. 2d 389 (2000). In an attempt

to do so, Jackson argues that the Indiana

Court of Appeals’ refusal to find that

the May 30, 1975 appearance was a

critical stage where counsel was required

was an unreasonable application of

Supreme Court precedent. Jackson claims

that, even if the only purpose of his

appearance was to execute his sentence,

the Supreme Court’s reasoning in Mempa

mandates the extension of the right to

counsel to such proceedings.

 The Supreme Court has directed that

whether counsel is required at a

particular proceeding is dependent on the

ability of counsel to provide assistance

to the defendant at that point. Thus, the

central question in determining whether a

proceeding is a critical stage is

"whether potential substantial prejudice

to defendant’s rights inheres in the . .

. confrontation and the ability of

counsel to help avoid that prejudice."

Coleman, 399 U.S. at 9 (quotation

omitted). The Supreme Court’s finding in

Mempa that the petitioners had certain

rights at the second sentencing hearing--

and therefore required counsel to ensure

the proper exercise of those rights--was

partially based on the fact that the

Washington law in effect at the time

allowed a guilty plea to be withdrawn at

any point prior to sentencing./5 See

Mempa, 389 U.S. at 136. Although Jackson,

at one point, had a similar right to

withdraw his plea for "any fair and just

reason," Ind. Code sec. 35-4.1-1-6

(repealed 1981),/6 that right did not

exist at his May 30 appearance because

sentence had already been imposed. At

that point, Jackson would have only been

entitled to withdraw his plea if he could

prove that "withdrawal [wa]s necessary to

correct manifest injustice." Id. In

Mempa, the Supreme Court was also

concerned about the possibility that the

absence of counsel at the deferred

sentencing hearing would cause

petitioners to lose their right to appeal

because Washington law provided that "an

appeal in a case involving a plea of

guilty followed by probation can only be

taken after sentence is imposed following

revocation of probation." 389 U.S. at
135-36 (citing State v. Farmer, 237 P.2d

734 (Wash. 1951)). Jackson, on the other

hand, could not have lost his right to

appeal at the May 30, 1975 appearance

"because a conviction based upon a guilty

plea may not be challenged . . . by

direct appeal" under Indiana law. See

Weyls v. State, 362 N.E.2d 481, 482 (Ind.

1977).

 Therefore, because we are not convinced

that Jackson was in danger of losing any

rights by appearing without counsel on

May 30, we cannot say that it was

unreasonable for the Indiana Court of

Appeals to conclude that Jackson had not

been denied the right to counsel. The

Supreme Court has directed that "a

federal habeas court may not issue the

writ simply because that court concludes

in its independent judgment that the

relevant state-court decision applied

clearly established federal law

erroneously or incorrectly. Rather that

application must also be unreasonable."

Williams, 529 U.S. at 411. Even if the

Indiana Court of Appeals was incorrect in

finding that the May 30 appearance was

not a critical stage of the prosecution

requiring counsel, we can say that, under

the relevant Supreme Court precedent, it

was not unreasonable for the court to

make that finding.

III. Conclusion

 For the reasons stated above, we find

that the Indiana state court’s

determination that Jackson was not denied

the right to counsel in violation of the

Sixth Amendment at the May 30, 1975

appearance was not contrary to or an

unreasonable application of clearly

established Supreme Court precedent.

Thus, we AFFIRM the decision of the

district court.

FOOTNOTES

/* Judge Ripple was originally on the panel that

heard this case. An event occurring after oral

argument required Judge Ripple to recuse himself

from all further deliberation and decision in

this matter.

/1 Jackson’s motion to expand the certificate of

appealability is denied because the issues he

seeks to raise were resolved on independent and

adequate state grounds. Thus, federal law would

have no effect on the outcome. See Jenkins v.
Gramley, 8 F.3d 505, 507 (7th Cir. 1993). 

/2 Jackson’s brother did not appear on this date.

/3 Although the court denied relief on all of the

issues pertinent to the case at hand, the court

did vacate a portion of the sentencing order

which required that Jackson’s seventy-year sentence run consecutively to his sixty-year sentence on an unrelated murder charge.

/4 The judge was referring to the May 30 hearing at

issue in this case; it was originally scheduled

for April 25. 

/5 At the time the petitioners in Mempa were sentenced, Washington law allowed the trial court to

grant a motion to withdraw a guilty plea at its

discretion, and "such discretion was to be exercised liberally in favor of life and liberty."

State v. Armstead, 533 P.2d 147, 149 (Wash. Ct.

App. 1975).

/6 At the time, Indiana Code section 35-4.1-1-6

provided:

(b) After entry of a plea of guilty but before

imposition of sentence, upon motion of the defendant, the court may allow the defendant to withdraw his plea of guilty for any fair and just

reason unless the state has been substantially

prejudiced by reliance on the defendant’s plea. 

(c) After judgment and sentence upon a plea of

guilty, the convicted person may not as a matter

of right withdraw the plea. However, . . . the

court shall vacate the judgment and allow the

withdrawal whenever the convicted person proves

that withdrawal is necessary to correct manifest

injustice. 

Ind. Code sec. 35-4.1-1-6 (repealed 1981).