Wabasha v. Solem, s. 82-1491

• Decision Date: 01 December 1982
• Docket Number: Nos. 82-1491,82-1492,s. 82-1491
• Citation: 694 F.2d 155
• Parties: Elroy Lynn WABASHA, Appellant, v. Herman SOLEM, Warden, South Dakota State Penitentiary and Mark Meierhenry, Attorney General, State of South Dakota, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 155

694 F.2d 155

Elroy Lynn WABASHA, Appellant, v. Herman SOLEM, Warden, South Dakota State Penitentiary and Mark Meierhenry, Attorney General, State of South

Dakota, Appellees.

Nos. 82-1491, 82-1492.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 17, 1982.

Decided Dec. 1, 1982.

Mark V. Meierhenry, Atty. Gen., Richard Dale, Asst. Atty. Gen., Pierre, S.D., for appellees.

John P. Abbott, Brandon, S.D., for appellant.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BRIGHT, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Elroy Wabasha appeals the district court's denial of two separate petitions for writs of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1976). The two cases were consolidated for purposes of appeal. We affirm the judgments of the district court. ¹ In the first petition he alleges that his guilty plea was not valid. In the second petition he alleges that his sentence on a subsequent charge was invalid because the sentencing judge suffered from a mental illness which manifested itself in kleptomania.

I.

In the first petition Wabasha complains of a conviction for first degree robbery which rested on a guilty plea entered in State court. The information was read to Wabasha at his arraignment and charged him with robbing a liquor store of Three Hundred Fifty-Five Dollars ($355.00) from its cash register by using a handgun to put fear in a person in the store. ² Wabasha chose not to acquire the services of an attorney, although the trial court strongly encouraged him to do so.

After the information was read, Wabasha entered his plea of guilty. There was no evidence at the arraignment that there was a plea bargain. After Wabasha's plea, the court explained the rights Wabasha was waiving by pleading guilty, including the rights to counsel, jury trial, confrontation, cross-examination, compulsory process, and the right against self-incrimination. The court also explained the state's burden of proof and the maximum penalty for the offense. The court then asked Wabasha about the robbery, and Wabasha admitted that he robbed the store, had a handgun, and was pleading guilty because he was guilty. Finally, the court asked Wabasha whether it was still his intention to enter his plea of guilty, and Wabasha said it was. The judge then accepted the guilty plea. The next day the same judge sentenced Wabasha to fifteen years in prison.

The second petition complains of the sentence Wabasha received for striking a prison guard while serving his sentence for robbery. Pursuant to a plea bargain, Wabasha pled guilty to aggravated assault and the court imposed a three-year sentence. Seven weeks after the sentencing, the sentencing judge pled guilty to petty theft, and three weeks later he resigned from the bench, admitting he suffered from a mental illness which manifested itself in kleptomania. Wabasha argues the sentence is void because of the sentencing judge's mental illness.

II.

In the first petition, Wabasha makes four arguments supporting his contention that his guilty plea to armed robbery was invalid.

A.

Wabasha first argues that the arraignment record does not establish the requisite factual basis for the plea because there was not a basis for one of the elements of first degree robbery--effectuation of the robbery by means of force or fear. Wabasha argues he merely admitted possessing the handgun at the time of the robbery.

Wabasha's argument fails for two reasons. First, the factual basis requirement rests in Fed.R.Crim.P. 11(f), not the Constitution. See Santobello v. New York, 404 U.S. 257, 261-62, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971); McCarthy v. United States, 394 U.S. 459, 464, 89 S.Ct. 1166, 1169-70, 22 L.Ed.2d 418 (1969). C. Whitebread, Criminal Procedure, 409 n. 14 (1980). An express admission of guilt is not constitutionally required. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162 (1970). Establishment of a factual basis may be constitutionally required when the guilty plea is accompanied by claims of innocence. Id. at 38, n. 10, 91 S.Ct. 167, n. 10. Therefore, Wabasha has not made a cognizable claim under the habeas corpus statute.

Second, even if a factual basis were constitutionally required, such a basis was established in this case. The information clearly charged Wabasha with all the elements of first degree robbery. Wabasha admitted he had robbed the liquor store had a handgun, and was guilty. When his statements and his admissions are read in the context of the recitation of the charges there clearly was a factual basis for the charge; his contentions to the contrary are frivolous.

B.

Wabasha next argues that his plea was not made voluntarily and intelligently, as is constitutionally required. Wabasha makes three arguments in support of this contention. First, he asserts that he did not understand the nature of the charge against him or the elements of the crime because the court did not tell him that first degree robbery required that force or fear be used to accomplish the robbery. He relies on Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) for the proposition that an explanation by the court of every element of a crime is a constitutional prerequisite to a valid guilty plea.

Wabasha reads Henderson too broadly. In Henderson, the Supreme Court held that a guilty plea to second degree murder was involuntary because the petitioner was not informed that intent to cause death was an element of the offense. The court specifically stated that it was not deciding whether every element of the offense must be described, but it assumed that an understanding of the nature of the charge would not always require such a description. The court in Henderson emphasized that intent was a critical element of the charge involved in that case and required adequate notice of that fact be made known to a criminal defendant. Id. at 647, n. 18, 96 S.Ct. 2258, n. 18.

Furthermore, the reading of the information provided Wabasha with a description of the nature of the charges against him. The court in Henderson pointed out that the petitioner in that case was never formally charged with the offense to which he pled guilty (second degree murder). Id. at 645, 96 S.Ct. at 2258. When the information is clear and not complex, like the one involved here, ³ a reading of the information puts the accused on notice of the nature of the charge against him. United States v. Dayton, 604 F.2d 931, 938 (5th Cir.1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980); See United States v. Saft, 558 F.2d 1073, 1079-80 (2nd Cir.1977).

Wabasha also argues that his plea was not made voluntarily and intelligently because the court did not explain the rights he was waiving by pleading guilty until after the plea was accepted. It is true that a plea can be involuntary because the accused does not understand the nature of the constitutional protections he is waiving. Henderson, 426 U.S. at 645, n. 13, 96 S.Ct. at 2257, n. 13. In the instant case, the court asked Wabasha how he was pleading and Wabasha answered guilty. The court then explained Wabasha's constitutional rights, and then asked Wabasha whether he still desired to plead guilty. It is clear that in this context the court was ready to allow Wabasha to change his plea to not guilty if Wabasha so desired; and in fact did not accept the plea until Wabasha satisfied the judge that Wabasha understood the charge and related the factual events of the armed robbery. If we found this procedure inadequate, a court would have to waste its time explaining the consequences of a guilty plea to persons who had no intention of pleading guilty.

Wabasha's last assertion to support his argument that the plea was not made voluntarily and intelligently is that law enforcement officials threatened to seek the maximum sentence and a possible habitual offender charge if Wabasha pled not guilty. However, when this argument was raised in a post-conviction petition in state court, the court found that no such threat had been made. The South Dakota Supreme Court affirmed that finding. Wabasha v. State, 292 N.W.2d 340, 342 (S.D.1980). We must accept the state court's factual findings as correct unless the petitioner establishes to the contrary, 28 U.S.C. Sec. 2254(d) (1976); Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 769-70, 66 L.Ed.2d 722 (1981). Here, Wabasha has wholly failed to establish his contention on this issue.

C.

Wabasha's third argument that his guilty plea was invalid is that the plea was without counsel and his waiver of the right to counsel was involuntary. He argues the waiver was involuntary because of the threats made by law enforcement officials described in the preceding paragraph. Again we must accept the state court's conclusions that such threats were not made, and, therefore, this claim must likewise fall. Also, the state trial judge strongly and repeatedly urged Wabasha to accept the court's offer to appoint counsel, but Wabasha, who was no stranger to criminal judicial proceedings, refused to do so. ⁴

D.

Wabasha's final argument that his guilty plea was invalid is that the sentencing court, as well as the court at the arraignment, had to establish a factual basis and had to explain the elements of the offense to Wabasha. The sentencing court did not repeat the elements of the offense or reestablish a factual basis.

Wabasha relies on Santobello which states that the sentencing judge must develop a factual basis for a guilty plea. 404 U.S. at 261, 92 S.Ct. at 498. However, this requirement is based on Fed.R.Crim.P. 11, not the Constitution. Id. There is no indication that Wabasha suffered any prejudice in the instant case because the sentencing followed the arraignment by less than twenty-four hours and the same judge presided at both proceedings. The factual basis for the plea was developed at the arraignment. The sentencing ...