Allen v. State
| Citation | 217 N.W.2d 528 |
| Decision Date | 24 April 1974 |
| Docket Number | No. 2--56639,2--56639 |
| Parties | Robert Wesley ALLEN, Appellant, v. STATE of Iowa, Appellee. |
| Court | United States State Supreme Court of Iowa |
L. Vern Robinson, Iowa City, for appellant.
Richard C. Turner, Atty. Gen., Dennis E. Jontz, Asst. Atty. Gen., Ruth R. Harkin, County Atty., for appellee.
Heard before MOORE, C.J., and MASON, LeGRAND, REYNOLDSON and HARRIS, JJ.
Robert Wesley Allen (petitioner) brought this postconviction proceeding to challenge the trial court's refusal to allow him to withdraw a guilty plea. In a separate division he sought to challenge disciplinary punishment at the penal institution to which he was sentenced. The trial court denied relief on the first claim and refused to consider the second. We think the trial court erred on petitioner's first claim but should be affirmed on the second.
Petitioner entered a plea of guilty to uttering a forged instrument in violation of Code section 718.2. The section provides:
'If any person utter and publish as true any record, process, certificate, deed, will, or any other instrument of writing mentioned in section 718.1 (forgery), knowing the same to be false, altered, forged, or counterfeited, with intent to defraud, He shall be imprisoned in the penitentiary not more than ten years, * * *.' (Emphasis added)
In this proceeding petitioner asserts he was not informed, when entering his plea, as to the maximum term for which he might be sentenced. The trial court refused to make a finding on this claim and the State failed below to supply the record of the proceedings challenged. But from the scant proof petitioner was able to gather and offer there is a strong indication of substance to his claim.
Upon trial in this proceeding petitioner did not have available to transcript or a record of the earlier proceeding he was challenging. He was able to show he was actually sentenced to seven years imprisonment. The county attorney acknowledged this. The court did so too, stating the calendar sheet was thereafter changed so the sentence became ten years rather than seven. The trial court added 'and initialed by myself.'
In this proceeding the trial court acted in the belief it was not required to make a finding as to whether defendant had been properly informed of the maximum sentence. The trial court claimed authority to correct the sentence so as to make it conform with the term called for in the statute. On appeal the State agrees and asks affirmance on the ground petitioner failed to 'establish in the postconviction proceeding that there was not substantial compliance with the Sisco standards.' See State v. Sisco, 169 N.W.2d 542 (Iowa 1969).
I. Any shortcomings in petitioner's showing stem directly from the State's failure to comply with a provision of section 663A.6, The Code. It provides:
'* * * If the application is not accompanied by the record of the proceedings challenged therein, the respondent shall file with its answer the record or portions thereof that are material to the questions raised in the application.'
This failure perhaps can be traced to the county attorney's willingness to concede the fact petitioner had been sentenced for a seven year term, and of the later 'correction.' In any event the failure to provide the record is the State's not petitioner's.
II. It was error to hold petitioner's complaint could be ignored on the basis the trial court could 'correct' the sentence. This was not the question before the trial court; nor is it the question before us. The question was and is whether petitioner was correctly informed of the possible maximum sentence before entering his plea. The underlying question is controlled by a now familiar principle. In State v. Reppert, 215 N.W.2d 302 (Iowa 1974), Tucker v. United States, 409 F.2d 1291, 1295 (5 Cir. 1969) we held:
'It is said to be 'well settled' that a plea of guilty is invalid as not being understandingly entered if the defendant does not know the maximum penalty for the offense.'
The State argues petitioner's testimony offered in this proceeding reveals he had been disinterested in the possible maximum sentence. His testimony does disclose his concern at the time was as to whether the sentence to be imposed would run concurrently with or consecutive to another sentence he was to serve. His testimony does not reveal a recollection of what, if anything, was said at the time on the question of possible maximum sentence.
The rule we have cited from State v. Reppert, supra, does not depend upon the interest held or expressed by an accused. The rule makes it the trial court's duty to require a showing the accused is fully and accurately informed as to the possible maximum sentence.
III. The trial court was wrong in failing to make specific findings of fact. Section 663A.7 provides in part:
'* * * The court shall make specific findings of fact, and state expressly its...
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