Cardenas v. Meacham, 4351

• Decision Date: 04 February 1976
• Docket Number: No. 4351,4351
• Citation: 545 P.2d 632
• Parties: Thomas J. CARDENAS, Petitioner, v. Lenard MEACHAM, Respondent.
• Court: Wyoming Supreme Court

Page 632

545 P.2d 632

Thomas J. CARDENAS, Petitioner, v. Lenard MEACHAM, Respondent.

No. 4351.

Supreme Court of Wyoming.

Feb. 4, 1976.

Order Feb. 9, 1976.

Gerald M. Gallivan and L. Galen West, graduate law student, Defender Aid Program, Laramie and Dennis L. Sanderson, Afton, for petitioner.

V. Frank Mendicino, Atty. Gen., Jerome F. Statkus and Timothy J. Judson, Asst. Attys. Gen., Cheyenne, David Lewis, Deputy County Atty., Casper, and Don W. Riske, senior law student, Laramie, for respondent.

Before GUTHRIE, C. J., and McCLINTOCK and ROSE, JJ.

ROSE, Justice.

Thomas J. Cardenas has filed a petition for a writ of habeas corpus seeking to set aside his pleas of guilty for rape and felonious assault on the grounds that the pleas were accepted in contravention of Rule 15, Wyoming Rules of Criminal Procedure, and result in a denial of due process of law as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution.

The petitioner pled guilty to the charges of first degree rape and felonious assault, with robbery charges being dismissed. The pleas and dismissals both occurred pursuant to negotiations with the prosecutor's office with knowledge of the presiding judge. At the time the pleas of guilty were made, the court apprised the petitioner of the penalty for first degree rape, but did not make known to him the penalty for felonious assault.

FAILURE TO INFORM THE DEFENDANT OF THE MAXIMUM SENTENCE FOR FELONIOUS ASSAULT

The first question for decision is whether or not it was error for the trial court to have failed to personally address the defendant-petitioner and inform him of the maximum penalty for felonious assault-a crime to which he had pled guilty and for which he has been sentenced to the Wyoming State Penitentiary for a term of not less than eight nor more than fourteen years. Both the rape and felonious assault sentences are ordered served consecutively.

Rule 15 of the Wyoming Rules of Criminal Procedure provides:

'A defendant may plead not guilty, not guilty by reason of insanity at the time of the commission of the alleged offense, not triable by reason of present insanity, guilty, or, with the consent of the court, nolo contendere. The court may refuse to accept the plea of guilty and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determing that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept the plea of guilty, or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.' (Underlining supplied)

The petitioner says that he did not and could not have voluntarily pled guilty within the meaning of the rule unless the judge, on the record, personally addressed him to inform him of the maximum penalty for felonious assault.

We sustain the petitioner's contention and hold that in order to establish the voluntariness of the plea as required by the rule, there must be a record showing that the judge, in personally addressing the defendant, informed him of the maximum 'understanding of the nature of the charge and the consequences of the (his) plea.'

penalty for any all crimes for which sentence is to be imposed in order that the court may determine the defendant had an

We held in Britain v. State, Wyo., 497 P.2d 543 (1972), that for the judge to fail to address the defendant and thereby determine if his plea is made voluntarily is error. In Britain we sent the case back to permit the defendant to plead anew. In so holding we relied upon the opinion of McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 1169-1170, 22 L.Ed.2d 418, in which the Court stated that the purpose of the corollary provision in the Federal Rules (Rule 11 of the Federal Rules of Criminal Procedure) was to make sure whether

'. . . a defendant who pleads guilty understands the nature of the charge against him and whether he is aware of the consequences of his plea.' (Britain, supra)

Can it be said that a petitioner such as Cardenas, who enters a plea without being informed of the maximum sentence, is, nonetheless,

'aware of the consequences of his plea'? (Britain, supra)

Tucker v. United States, 409 F.2d 1291 (5 Cir. 1967) held that a plea of guilty is invalid as not being understandingly entered if a defendant does not know the maximum penalty possible for the offense. To the same effect, see United States v. Perwo, 433 F.2d 1301 (5 Cir. 1970), where the court held that the defendant must know the precise limits of the penalties which could be imposed-also see United States ex rel. Hill v. United States, 452 F.2d 664 (5 Cir. 1971); and Fortia v. United States, 456 F.2d 194 (5 Cir. 1972). In these Fifth Circuit cases the courts hold that the defendant must know the limits of the penalty at the time of the entry of his plea.

We hold that the record must affirmatively show that the judge, at the time the plea is received, has informed the defendant of the maximum limits of the penalty as a prerequisite to the discharge of the court's obligation imposed by Rule 15, W.R.Cr.P., which provides that the judge

'shall not accept such plea (of guilty) . . . without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.' (Emphasis supplied)

When the prisoner stands at the Bar before the judge at the moment of truth and offers to enter his plea of guilty, the decision must then be made by the court (not some other time) that the accused understands

'the consequences of his plea.' (Rule 15, W.R.Cr.P.)

It is a part of the informing process which goes to the guarantee of the defendant's constitutional rights of due process under the Fifth and Fourteenth Amendments of the United States Constitution that he-at that time-be told by the judge in a way which permits of understanding that he, the defendant, may be sent to the prison for a befinite maximum number of years.

In United States v. Blair, 470 F.2d 331 (5 Cir. 1972), the court, relying upon McCarthy v. United States, supra, held that the informed nature of the plea must appear affirmatively from the record. The court ruled:

'Under Rule 11 the Trial Court is required to address the Defendant personally regarding the consequences of the plea . . . And the informed nature of the plea must appear affirmatively from the record . . .' (Emphasis supplied)

In McCarthy, supra, there was confusion as to whether the defendant understood that the crime to which he had pled guilty The Court said:

contained the elements of knowledge and willfulness-he contending that his acts had merely been negligent and inadvertent.

'. . . (H)ad the District Court scrupulously complied with Rule 11, there would be no need for such speculation . . . (P)etitioner's own replies to the court's inquiries might well have attested to his understanding of the essential elements of the crime charged, . . .' (McCarthy supra, 394 U.S. page 471, 89 S.Ct. page 1173)

The McCarthy Court quoted from Heiden v. United States, 353 F.2d 53, 55 (9 Cir. 1965), where it was stated that Rule 11

"contemplates that disputes as to the understanding of the defendant and the voluntariness of his action are to be eliminated at the outset . . ."

And then the Court said in McCarthy:

'. . . There is no adequate substitute for demonstrating in the record at the time the plea is entered the defendant's understanding of the nature of the charge against him.' (Italics in original text)

We hold that the petition must be granted for failure of the district judge to personally apprise the defendant on the record at the time the plea was entered of the maximum penalty the defendant might have to pay. In remanding the matter to the trial court for purposes of allowing the petitioner to plead anew, we adopt the following conceptual language of the United States Supreme Court from McCarthy, supra:

'. . . Our holding that a defendant whose plea has been accepted in violation of Rule 11 should be afforded the opportunity to plead anew not only will insure that every accused is afforded those procedural safeguards, but also will 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 orginal record is inadequate. It is, therefore, 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.' (McCarthy, supra, 394 U.S. page 472, 89 S.Ct. page 1174)

PLEA BARGAINING-AND RULE 15

The petitioner urges the further following ground in support of his petition:

'The petitioner's pleas of guilty were based on the belief that as a result of the plea negotiations, his sentences would be imposed concurrently. Inasmuch as there was in fact no agreement as to concurrency, and inasmuch as petitioner was unaware that no such agreement existed, petitioner's pleas were involuntary and should be set aside and petitioner permitted to plead anew.' (From petitioner's beief in this court)

It is made clear by the petitioner in his brief that:

'. . . The error which is alleged to have been committed by the Court is not a failure to adhere to a plea bargain, but rather a failure to properly examine the petitioner on the record regarding the petitioner's understanding of the plea bargain.'

From all of the evidence in the record it is reasonable to assume that there was extensive discussion about concurrent and consecutive sentencing with the court indicating to the attorneys that he had...