BEFORE WALKER, DAN LEE AND ANDERSON
DAN LEE, JUSTICE, FOR THE COURT:
This appeal concerns the denial by the Circuit Court of Adams County of a motion filed by Harold Anderson and Mary Thomas to withdraw their previous pleas of guilty and substitute pleas of not guilty. The appellants were jointly indicted during the November, 1982 term of the Adams County Grand Jury for sale of a controlled substance. On December 9, 1982, Mary Thomas pled not guilty to the indictment. On December 17, 1982, Harold Anderson pled not guilty to the indictment. On March 23, 1983, both appellants withdrew their not guilty pleas. On that date Harold Anderson pled guilty to one count sale of a Schedule II controlled substance
and Mary Thomas entered a plea of guilty to one count of possession of a Schedule II controlled substance. In both cases sentencing was deferred until the July, 1983 term.
Before accepting the appellants' guilty pleas, the circuit court judge extensively questioned each of them. He explained to both defendants that they had a right to a trial by jury and that if they lost at the trial an appeal could be obtained with counsel to assist them. It was further explained that a guilty plea waives both of these rights. The record indicates that both Harold Anderson and Mary Thomas denied that anyone had threatened or coerced them to plead guilty. Both testified that they pled guilty freely and voluntarily. Mary Thomas testified that she had four years of college education and Harold Anderson stated that he had two years of college education.
Both Thomas and Anderson went on to state that their attorney had explained the sentence they might receive under the law and nature of the consequences of a guilty plea. Both stated that they were satisfied with their attorney's representation. Mary Thomas testified that she was taking Elavil and Ativan for her nerves but that she fully understood that she was entering a plea to a felony.
Both Thomas and Anderson had been represented by the same counsel at the time they entered their guilty plea; however, prior to sentencing they retained separate counsel and filed a motion to withdraw their guilty pleas. The appellants were granted a hearing on their motion for withdrawl of their guilty pleas and at that hearing both complained that they were not made aware at the time they entered guilty pleas that they were entitled to separate attorneys. The attorney representing the appellants at the time of the entry of their guilty pleas was called as a witness and testified as follows:
Q. Did they ask why it was that they both had to enter pleas if one was going to?
A. What I recall is that there was never an inquiry as to why one couldn't enter a plea and the other one not. Mary and Harry had both informed me from the first time we ever sat down together that everything they did they did together and that they wanted to see this out together; and anything they wanted to do, they wanted to agree on together. See, what you've got to understand here is that when Mary first came to see me, Harry
was in jail; and the situation that Mary described to me was one that she and Harry were sharing her residence together, were basically living there as husband and wife without the benefit of marriage, of course. But that she was very much in love with Harry and Harry with her. As such, I treated it as basically almost a husband and wife team. She hired me and paid her money, as far as I knew, to represent Harry first on a charge; and later when she was charged, she hired me also to represent her. Harry, while he was working, every penny he made, he would bring into the house and give it to Mary to use for their joint benefit. So, the joint charges just went right along with the whole case as I had it; they were basically a team.
Q. Now, I take it there was no discussion between you and either of them as to their right to seek separate counsel?
A. That was never discussed; it was never asked on their behalf.
A. And it was not mentioned by you?
During the hearing to withdraw the guilty pleas, Mrs. Thomas suffered a "seizure" and had to be removed to the hospital by an ambulance. The trial court granted the state's ore tenus ...