Bates v. State

• Decision Date: 15 March 1984
• Docket Number: No. 14317,14317
• Parties: Samuel BATES, Petitioner-Appellant, v. The STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

Page 672

679 P.2d 672

106 Idaho 395

Samuel BATES, Petitioner-Appellant, v. The STATE of Idaho, Respondent.

No. 14317.

Court of Appeals of Idaho.

March 15, 1984.

John C. Lynn of Lynn, Scott & Hackney, Boise, for petitioner-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Neil Tillquist, Deputy Atty. Gen., Boise, for respondent.

SWANSTROM, Judge.

On April 17, 1978, Samuel Bates pled guilty to one count of attempted rape, I.C. §§ 18-6101 and 18-306, and one count of assault with a deadly weapon, former I.C. § 18-906. ¹ He was sentenced to indeterminate terms of twelve years for the attempted rape and five years for the assault, the sentences to run consecutively. He did not appeal. On January 14, 1980, he filed a petition for post-conviction relief alleging that his guilty pleas were not made voluntarily. He also alleged that conviction and punishment for both offenses violated I.C. § 18-301 and the double jeopardy clause of the fifth amendment of the United States Constitution, as applied to the states through the fourteenth amendment. These same contentions frame the issues on appeal.

The district judge who had earlier sentenced Bates handled the post-conviction proceedings. He held that Bates had entered his guilty pleas voluntarily, but that the provisions of I.C. § 18-301 allowed Bates to be punished for only one of the offenses. He therefore vacated the sentence for assault with a deadly weapon. The district judge further held that "no useful purpose would be served by any further proceedings and the [petition] should be dismissed." Bates was given twenty days to reply to the proposed dismissal. I.C. § 19-4906(b). A motion to reconsider was filed, but it was denied. Bates has appealed. We affirm the order of the district judge and, in addition, we remand with directions to vacate the conviction for assault with a deadly weapon.

Post-conviction relief proceedings in Idaho are civil rather than criminal in nature and the petitioner has the burden of proving his allegations by a preponderance of the evidence. Heck v. State, 103 Idaho 648, 651 P.2d 582 (Ct.App.1982). Idaho Code § 19-4906(b) permits the district court to summarily dismiss a petition for post-conviction relief when the pleadings and the record do not disclose a material issue of fact. Drapeau v. State, 103 Idaho 612, 651 P.2d 546 (Ct.App.1982). Furthermore, "[w]hen the alleged facts, even if true, would not entitle the applicant to relief, the trial court may dismiss the application without holding an evidentiary hearing." Cooper v. State, 96 Idaho 542, 545, 531 P.2d 1187, 1190 (1975). We hold that Bates has not alleged facts which, even if true, would entitle him to relief.

Bates first alleges that his guilty pleas were not made voluntarily because he was not informed of the elements of the crimes with which he was charged. "Before a plea of guilty is accepted, the record of the entire proceedings, including reasonable inferences drawn therefrom, must show: (1) The voluntariness of the plea .... [and] (4) The defendant was informed of the nature of the charge against him." I.C.R. 11(c). The United States Supreme Court has held that a plea of guilty cannot be voluntary, in the sense that it was intelligently made, unless the defendant receives "real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process." Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257-58, 49 L.Ed.2d 108 (1976) (quoting Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859 (1941)). A plea of guilty that is not voluntary cannot support a judgment of conviction. Henderson v. Morgan, supra.

In State v. Colyer, 98 Idaho 32, 557 P.2d 626 (1976), our Supreme Court indicated the proper inquiry concerning the voluntariness of a guilty plea. Three areas are to be examined:

(1) whether the defendant's plea was voluntary in the sense that he understood the nature of the charges and was not coerced; (2) whether the defendant knowingly and intelligently waived his rights to a jury trial, to confront his accusers, and to refrain from incriminating himself; and (3) whether the defendant understood the consequences of pleading guilty.

Id. at 34, 557 P.2d at 628. The court noted that all of the relevant surrounding circumstances must be considered in determining whether a guilty plea was made voluntarily.

Bates argues that he was not informed of the nature of the charges against him. Specifically he alleges that the district court did not inform him that one of the elements of attempted rape which the state is required to prove is the intent to commit rape. ² See State v. Gailey, 69 Idaho 146, 204 P.2d 254 (1949).

The crime of attempted rape is an included offense in the crime of assault with intent to commit rape. State v. Hall, 88 Idaho 117, 397 P.2d 261 (1964). Specific intent to commit the rape is an element of both attempted rape and assault with intent to rape where the rape itself is not consumated. "The felonious intent to commit rape is the essense of the offense." Boyd v. State, 572 P.2d 276, 279 (Okl.Cr.App.1977) (quoting Thomas v. State, 68 Okl.Cr. 1, 95 P.2d 658, 669 (1939)). Accord State v. Laurie, 56 Hawaii 664, 548 P.2d 271 (1976); State v. Zauner, 250 Or. 105, 441 P.2d 85 (1968). See also State v. Gailey, supra; State v. Andreason, 44 Idaho 396, 257 P. 370 (1927).

The other required element of the crime of attempted rape is an overt act. While we have not found an Idaho case specifically defining what is required to constitute an overt act for the purposes of the crime of attempted rape, we can take some guidance from Oregon. In State v. Benson, 63 Or.App. 467, 664 P.2d 1127, 1129 (1983) the court said: "Defendant must be found to have intentionally engaged in conduct that constitutes a substantial step toward commission of the crime [of rape] with the intent to complete the crime." Accord, State v. Laurie, supra.

It is true that "[i]n order for a guilty plea to be voluntary, a defendant must be informed of the intent elements requisite to the charged offense." Sparrow v. State, 102 Idaho 60, 61, 625 P.2d 414, 415 (1981). This does not mean, however, that the district court must explain every element of the charged offense which must be proved. In State v. Bradley, 98 Idaho 918, 575 P.2d 1306 (1978), an information charging the defendant with murder and containing "reference to the necessary element of intent" was read to Bradley. There was also a discussion in open court during the process of amending the complaint, in the presence of Bradley and his counsel, of the element of intent. Finally, there was "no showing or even assertion that Bradley was not conversant with the English language or that he had any but a normal intelligence and education." Id. at 919, 575 P.2d at 1307. Our Supreme Court therefore held that the guilty plea had been made voluntarily. See also Schmidt v. State, 103 Idaho 340, 647 P.2d 796 (Ct.App.1982).

In Henderson v. Morgan, supra, the United States Supreme Court held that a plea of guilty to second degree murder had been made involuntarily. The Supreme Court stated:

There is nothing in this record that can serve as a substitute for either a finding after trial, or a voluntary admission, that respondent had the requisite intent. Defense counsel did not purport to stipulate to that fact; they did not explain to him that his plea would be an admission of that fact; and he made no factual statement or admission necessarily implying that he had such intent. In these circumstances it is impossible to conclude that his plea to the unexplained charge of second-degree murder was voluntary.

426 U.S. at 646, 96 S.Ct. at 2258. The Supreme Court, however, went on to state:

Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.

Id. at 647, 96 S.Ct. at 2258.

The record in Henderson revealed neither an explanation by the court nor a representation by counsel regarding the element of intent. On the contrary, the case was said to be "unique" because the trial judge found as a fact that the element of intent had not been explained to the defendant. The Supreme Court recognized that this may have been an understandable "oversight" by his attorney because of the defendant's "unusually low mental capacity." Thus it was also an inappropriate case in which to presume that adequate notice had been given to the defendant. The court further stated that the defendant's unusually low mental capacity "forecloses the conclusion that the error was harmless beyond a reasonable doubt...." Henderson v. Morgan, 426 U.S. at 647, 96 S.Ct. at 2259.

In the present case, Bates waived the reading of the information by the court, admitting that he had read the information and had gone over it with his attorney. See I.C.R. 10(c); cf. Sparrow v. State, supra (defendant testified that he had read the information and understood the charges). We note that the information specifically alleged that Bates "intentionally" attempted to rape the victim. We believe the word "intentionally," used in direct context with attempted rape, would apprise the average reader that Bates was alleged to have an intent to rape the victim. There is no assertion that Bates was not conversant with the English language. See State v. Bradley, supra. Nor was he a stranger to the charge of attempted rape, having been convicted of attempted rape in 1970 and forcible rape in 1972. Cf. Larson v. State, 614 P.2d 776 (Alaska 1980) (the fact that the defendant has a prior history of involvement in legal...