Ely v. Haugh

• Decision Date: 12 November 1969
• Docket Number: No. 53644,53644
• Citation: 172 N.W.2d 144
• Parties: Ronald D. ELY, Appellee, v. Charles HAUGH, Warden, Appellant.
• Court: Iowa Supreme Court

Page 144

172 N.W.2d 144

Ronald D. ELY, Appellee, v. Charles HAUGH, Warden, Appellant.

No. 53644.

Supreme Court of Iowa.

Nov. 12, 1969.

Richard C. Turner, Atty. Gen., and William A. Claerhout, Asst. Atty. Gen., and Robert H. Story, County Atty., for appellant.

Robert R. Beckmann, Anamosa, for appellee.

BECKER, Justice.

This case is an appeal from order granting writ of habeas corpus. After jury trial applicant was found guilty of the crime of burglary. On December 19, 1967 he was sentenced to 20 years imprisonment at the Men's Reformatory at Anamosa, Iowa. Defendant did not appeal. On June 25, 1968 he filed application for writ of habeas corpus; an attorney was appointed to represent him, hearing was held on August 30, 1968 and on November 18, 1968, the trial court ordered the writ sustained and respondent-warden was directed to release the prisoner. Respondent appeals. We affirm in part, modify and remand for further order.

Applicant-prisoner was defendant in the original case and will hereafter be referred to as defendant. Respondent Haugh represents the State of Iowa and will hereafter be referred to as the State.

Defendant made several complaints in his application but the trial court decided the matter on one issue which is decisive of the case. We therefore confine our attention to that issue and thus limit our factual statement.

Defendant was indicted on September 27, 1967 for the crime of larceny in the nightime and October 11, 1967 for the crime of burglary. Robert Scism was appointed to defend him. Defendant testified Mr. Scism told him that if he pled guilty to the latter charge he would receive a 10 year sentence and would be paroled. Mr. Scism denied having made such a statement or promise but testified to conversations with defendant wherein he indicated a parole was a reasonable hope because defendant had no prior adult record. (Apparently defendant had a juvenile record). Other factors were present in this exchange which need not be detailed here.

Defendant entered a plea of guilty to burglary and was sentenced to 10 years. The next day he was informed the court had no authority to sentence him to 10 years, the statute requires a mandatory 20 year sentence (under the Iowa Indeterminate Sentence Act), and the court offered to allow him to change his plea. Defendant pled not guilty, his attorney resigned and Martin Dunn was appointed in his stead.

During the subsequent jury trial the State called the court reporter who reported the original plea of guilty and withdrawal thereof. Defendant took the stand and gave essentially the same testimony he gave at this habeas corpus hearing about promise of a 10 year sentence and parole. The State then called Mr. Scism to refute such testimony. Mr. Scism gave his version of the plea and withdrawal thereof. Mr. Dunn, defendant's trial counsel at the time, moved for a new trial raising the admission of such evidence as error and prepared to appeal. The appeal was not perfected. Defendant testified he was told that if he appealed other charges (one already pending) would be pressed against him. He therefore did not appeal. Both lawyers deny having made such a statement.

The trial court's decision included the following: '* * * Upon the whole record, it is the judgment of this Court that the admission into evidence of the defendant's withdrawn plea of guilty on the trial to a jury of the same criminal charge so greatly prejudiced the rights of the defendant as to deprive him of his right to a fair trial and was consequently violative of his constitutional guarantees to due process of law.'

The State raises three questions:

'1. Whether habeas corpus provides a remedy by which a petitioner may obtain relief based on a ground which could have been, but was not raised on direct appeal; and

'2. Whether a withdrawn plea of guilty may later be used against a defendant as evidence in a jury trial on the same charge.

'3. Whether immediate release was the appropriate remedy under the circumstances of this case.'

I. In reviewing habeas corpus matters of this kind we adhere to the following rules. The purpose of a habeas corpus hearing is not to determine the guilt or innocence of the prisoner of the crime charged, nor to pass upon nonconstitutional errors in his trial, nor to retry the facts and pass upon the sufficiency of the evidence. Scalf v. Bennett, 260 Iowa 393, 147 N.W.2d 860. But lack of due process by invasion of a constitutional right is a ground for granting habeas corpus either as an additional ground for sustaining the writ or because such lack is a jurisdictional defect. Sewell v. Lainson, 244 Iowa 555 565--566, 57 N.W.2d 556. Ordinarily, where there is a claim of denial of constitutional rights we will accept and give effect to the trial court's determination of disputed facts if there is substantial evidence to support the court's findings. State v. Sefcheck, Iowa, 157 N.W.2d 128, 134.

II. We consider the second assignment of error first. Does admission of evidence showing a prior withdrawn plea of guilty in the same case constitute reversible error? This question is extensively treated in an annotation found at 86 A.L.R.2d 326 (superceding annotation at 124 A.L.R. 1527). The numerical weight of authority supports the view set forth in State v. Joyner, 228 La. 927, 84 So.2d 462, 463: 'The majority of the jurisdictions support the view that evidence of a plea of guilty and its withdrawal is inadmissible. This view is predicated 'upon the broad principle that to permit such withdrawal to be accompanied with the privilege on the part of the prosecution of later establishing the same as an admission or confession of guilt would result in the destruction or serious impairment of whatever benefits accrued to the defendant from withdrawal of his plea of guilty, and upon the further ground that withdrawal of a plea of guilty is equivalent to an adjudication that such plea is annulled and of no force and effect, and hence, ceases to be evidence.' 124 A.L.R. 1527. See, also, the authorities therein cited, and 2 Wharton on Criminal Evidence, Eleventh Edition, 976, Section 587.

'We think the majority view is sound and more consonant with our concept of the constitutional rights of an accused. Where the plea of guilty is withdrawn, the defendant stands for trial upon a plea of not guilty, and is entitled to all the safeguards and presumptions of innocence which the humanity of the law extends to an individual whose life or liberty is at stake. One such right is that he is presumed to be innocent until proved guilty beyond a reasonable doubt, and the state has the burden of proving that guilt.

'As pointed out by the United States Supreme Court in Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 583, 71 L.Ed. 1009, a leading case on this subject, 'The effect of the court's order permitting the withdrawal was to adjudge that the plea of guilty be held for naught. Its subsequent use as evidence against petitioner was in direct conflict with that determination. When the plea was annulled it ceased to be evidence. By permitting it to be given weight the court reinstated it pro tanto."

There is one Iowa case in the criminal field dealing with the subject, State v. Briggs, (1886), 68 Iowa 416, 424, 27 N.W. 358, 361: 'When the defendant was arrested and taken before the magistrate for preliminary examination the information was read to him, and he was asked by the magistrate what plea he desired to enter, and he answered that he pleaded guilty to the charge. He had not then been informed by the magistrate of his right to the aid of counsel. On the trial the state was permitted, against his objection, to prove this admission. The ground of the objection urged against the admission of the evidence is that under the statute defendant could not be required, on preliminary examination, to plead to the information, and that his plea of guilty was therefore a mere nullity, and was not admissible in evidence for any purpose; also that as he was not then informed as to his legal rights in the matter, but was required by the magistrate to enter a plea, his plea of guilty was not a voluntary admission of his guilt, and was therefore not admissible in evidence against him. It is true that the statute does not contemplate or require the entry by the defendant of a formal plea to the preliminary information. The plea entered by the defendant, however, was an admission by him of his guilt; and it cannot be said that such admission was extorted from him by the magistrate. He was required to enter a plea, it is true, but he had the privilege of pleading either guilty or not guilty; and, as he elected to enter the former plea, his admission must be regarded as having been voluntarily made. It was therefore admissible in evidence against him.'

We need not consider the impact of such recent cases as Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 on the situation set out in State v. Briggs. ¹ The courts recognize a factual difference between a plea at a preliminary proceeding and a withdrawn plea of guilty which had been made to the committing court. McCormick, Law of Evidence, section 242, page 511, says: '* * * It is stated generally that the greater number of decisions admit in evidence the plea of guilty given at the preliminary hearing and exclude such a former plea when given at arraignment and later permitted to be withdrawn, * * *.'

We hold a withdrawn district court plea of guilty is inadmissible in the same criminal case as evidence against the accused and admission of such evidence is reversible error. In addition to the cases cited in 86 A.L.R.2d 326 and Later Case Service, See State v. Wright, 103 Ariz. 52, 436 P.2d 601; IV Wigmore on Evidence, Third Ed., section 1066, page 66 and Pocket Part; 2...