Brainard v. State

Decision Date16 October 1974
Docket NumberNo. 2--56775,2--56775
Citation222 N.W.2d 711
PartiesGordon A. BRAINARD, Appellant, v. STATE of Iowa and Lou V. Brewer, Appellees.
CourtIowa Supreme Court

James U. Mellick, Waukon, for appellant.

Richard C. Turner, Atty. Gen., Thomas D. McGrane, Asst. Atty. Gen., and Harley Stipp, County Atty., for appellees.

Considered en banc.

McCORMICK, Justice.

This is an appeal from a denial of relief in a postconviction proceeding. Petitioner brought the postconviction action to challenge his conviction and sentence on two unrelated charges of larceny of a motor vehicle under Code § 321.82. He alleged the trial judges in each instance failed to comply with the guidelines of State v. Sisco, 169 N.W.2d 542 (Iowa 1969), and related federal constitutional standards in accepting his guilty plea. Trial court rejected his contention and dismissed his petition. We reverse and remand.

Petitioner entered his plea of guilty to the first charge before Judge C. H. Wild on September 10, 1971. He was represented by attorney Nels W. Branstad. He was later given an indeterminate ten year penitentiary sentence on this conviction but was granted probation. Petitioner entered his plea of guilty to the second charge before Judge John F. Stone on November 5, 1971. He was again represented by attorney Branstad. He was later given an indeterminate ten year penitentiary sentence on this conviction, without probation.

We must decide whether there was compliance with Sisco and federal constitutional standards in the taking of the pleas under postconviction attack here. This attack focuses on the first, second and fourth Sisco requisites. The third requisite, the determination of voluntariness, is involved only insofar as it is affected by noncompliance with the first two. Our cases and federal cases interpreting Rule 11 and the due process clause of the Fourteenth Amendment, United States Constitution, provide guidance as to what a trial judge must do in receiving a guilty plea under the standards applicable here.

In the Sisco case we adopted standards 1.4, 1.5 and 1.6 of the American Bar Association Minimum Standards for Criminal Justice, Pleas of Guilty. We noted they are essentially the same as Rule 11, Federal Rules of Criminal Procedure. 169 N.W.2d at 548. They require that when a guilty plea is tendered the judge must personally address the defendant to determine whether (1) he understands the charge made, (2) is aware of the penal consequences of the plea, and (3) the plea is entered voluntarily. They also require (4) that the judge make such inquiry as will satisfy him there is a factual basis for the plea. See Ryan v. Iowa State Penitentiary, 218 N.W.2d 616 (Iowa 1974).

These guidelines have two purposes. One is to assure that the defendant's plea of guilty is 'a voluntary and intelligent act done with actual knowledge of the existence and meaning of the constitutional rights involved and with full understanding of the nature of the charge made against him and the direct consequences of the plea.' State v. Reppert, 215 N.W.2d 302, 304 (Iowa 1974). The other is to 'help reduce the great waste of judicial resources required to process the frivolous attacks on guilty plea convictions that are encouraged and are more difficult to dispose of, when the original record is inadequate.' McCarthy v. United States, 394 U.S. 459, 472, 89 S.Ct. 1166, 1174, 22 L.Ed.2d 418, 428 (1969); State v. Sisco, supra, 169 N.W.2d at 545--546. In the light of these purposes we agree with the court in McCarthy that, 'It is * * * not too much to require that, before sentencing defendants to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and to determine whether they understand the action they are taking.' 394 U.S. at 472, 89 S.Ct. at 1174, 22 L.Ed.2d at 428--429.

We have consistently held no rigid formula need be followed, but meaningful compliance with the Sisco guidelines is required. State v. Reppert, supra, 215 N.W.2d at 304--305. Meaningful compliance means substantial compliance. State v. Sisco, supra, 169 N.W.2d at 551; cf. Sappington v. United States, 468 F.2d 1378, 1380 (8 Cir. 1972), cert. denied, 411 U.S. 970, 93 S.Ct. 2164, 36 L.Ed.2d 693. (It is essential that there be substantial compliance with Rule 11 * * *.')

In Sisco we also acknowledged the applicability to state guilty plea proceedings of federal due process standards delineated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The requirements of Boykin are thus superimposed upon the American Bar Association standards adopted in Sisco.

In this case we will examine in turn the first and second Sisco requisites and then the merits of petitioner's attack on his two convictions.

I. The first Sisco determination. The first Sisco requirement, the determination of defendant's understanding of the charge, has two aspects. The judge must explain the charge to the defendant, and he must inquire into defendant's understanding of it.

Several of our recent cases have discussed this responsibility. They include Michels v. Brewer, 211 N.W.2d 293 (Iowa 1973), State v. Sargent, 210 N.W.2d 656 (Iowa 1973), State v. York, 210 N.W.2d 608 (Iowa 1973), and State v. Hackett, 201 N.W.2d 487 (Iowa 1972). In Michels v. Brewer we said the extent of the trial judge's explanation and inquiry into the defendant's understanding necessarily varies with the circumstances in each case. These circumstances include the complexity of the charge, the accused's education and experience, and other factors involved in the particular case.

The first aspect, the duty to explain the charge, was involved in the Sargent, York, and Hackett cases. In each case we found the name given the offense was sufficiently descriptive of its nature to obviate further explanation. However, we observed in Michels v. Brewer, supra, the better practice is to explain the elements of the charge. Whether failure to do so is sufficient to upset the conviction depends upon the entire record, including the complexity of the charge and other circumstances surrounding the proceeding. Our position is similar to that expressed by the court in Paradiso v. United States, 482 F.2d 409, 414 (3 Cir. 1973), where the court held the mandate of Rule 11 does not preclude an explanation of the charge by reading the indictment, but added, 'The district court should exercise its discretion in determining when additional explanation of the charge is necessary.' See Kress v. United States, 411 F.2d 16, 21 (8 Cir. 1969).

The second aspect of the first Sisco requirement was involved in Michels v. Brewer and State v. Sargent, supra. The trial judge must inquire into the defendant's understanding of the charge. The defendant's understanding can best be determined by an inquiry in which the judge relates the elements of the charge to basic acts required to constitute the offense. The purpose of this inquiry is to determine whether the defendant understands the law in relation to the facts.

At some point the judge will ordinarily ask the defendant if he understands the charge. See, e.g., the colloquy in State v. Hackett, supra, 201 N.W.2d at 489. However, if under the whole record the defendant's understanding of the charge is apparent, a failure to ask him if he understands the charge is not sufficient to vitiate the conviction. State v. Sargent, supra. Similar principles apply under Rule 11. Compare United States v. Cody, 438 F.2d 287, 288 (8 Cir. 1971), cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 303 ('The trial court must inquire directly of defendant as to his 'understanding"), with Eagle Thunder v. United States, 477 F.2d 1326 (8 Cir. 1973), cert. denied, 414 U.S. 873, 94 S.Ct. 142, 38 L.Ed.2d 92 (where the charge was fully explained to a 33 year old defendant with three prior felony convictions, represented by counsel, the plea was properly taken despite failure to ask defendant if he understood the charge).

Under this requirement, 'the record must show that the trial judge personally asked the proper questions and received answers from the accused indicating his awareness of the charge against him * * *. The judge may not assume from circumstances within his knowledge that the accused is fully aware of (the nature of the charge).' United States v. Thomas, 468 F.2d 422 (10 Cir. 1972), cert. denied, 410 U.S. 935, 93 S.Ct. 1389, 35 L.Ed.2d 599.

To satisfy the second aspect of the first Sisco requirement the record must show the trial judge personally made sufficient inquiry of the defendant to elicit responses demonstrating the defendant's understanding of the nature of the charge against him.

II. The second Sisco determination. The second Sisco requisite, the determination that the defendant understands the penal consequences of his guilty plea, also has two aspects. The trial judge through interrogation must establish that the defendant is aware of the possible maximum punishment, any mandatory minimum punishment, and any enhanced punishment for the offense charged, and he must insure the defendant understands he waives his constitutional trial rights by a guilty plea.

This requirement has been involved in two of our recent cases. They are State v. Reppert, supra, and State v. Bell, 210 N.W.2d 423 (Iowa 1973). In Reppert a conviction was set aside because the record did not show the defendant was aware of the possible maximum punishment for the offense charged. In Bell we upheld the defendant's conviction where the record showed he was aware he would give up his rights to jury trial and to confront his accusers despite the trial judge's failure to discuss these rights with him at the time his plea of guilty was received.

From Reppert it is clear the record must show defendant's plea of guilty was entered with an awareness of the possible maximum penalty for the offense. This can be accomplished by telling the defendant the possible maximum sentence prior to his...

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