Hoggatt v. State

• Decision Date: 15 February 1980
• Docket Number: No. 5208,5208
• Citation: Hoggatt v. State, 606 P.2d 718 (Wyo. 1980)
• Parties: James G. HOGGATT, Appellant (Petitioner), v. The STATE of Wyoming, Appellee (Respondent).
• Court: Wyoming Supreme Court

Page 718

606 P.2d 718

James G. HOGGATT, Appellant (Petitioner), v.The STATE of Wyoming, Appellee (Respondent).

No. 5208.

Supreme Court of Wyoming.

Feb. 15, 1980.

Gerald M. Gallivan, Director, Wyoming Defender Aid Program, E. Boyd Hollingsworth, Jr., Student Intern, Wyoming Defender Aid Program, Laramie, Richard H Honaker, State Public Defender, and Michael Schilling, Asst. State Public Defender, Cheyenne, for appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Gay R. Vanderpoel, Asst. Atty. Gen., Cheyenne, for appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROSE, Justice.

This is an appeal from the denial of a petition for post-conviction relief, brought pursuant to §§ 7-14-101 to 7-14-108, inclusive, W.S.1977.

The issues raised by appellant's brief are:

"1.Whether or not Appellant, in fact, entered a plea of guilty.

"2.Whether or not the trial court adequately determined that the plea of guilty which it accepted was voluntarily given.

"3.Whether or not there was a factual basis for the plea of guilty which the trial court accepted."¹

Additionally, the State urges that any complaints the defendant has should have been brought here by direct appeal and not by way of post-conviction relief.

FACTS²

Appellant was arraigned on September 14, 1978, and charged with burglary, grand larceny and being a habitual criminal.The court read the three pertinent statutes to appellant at the arraignment.The only other explanation of the charges given by the court in these proceedings came after the reading of the burglary statute when the court said, "The proscribed area which you are alleged to have entered unlawfully is a closed portion of an automobile."The court then noted that if appellant were convicted on all three charges he could be sentenced "to the penitentiary for life."

The court went on to inform the accused that he had a right to stand trial; and he was also apprised of his rights should that be his choice.The court then explained that if he were to plead guilty he would waive certain rights.The judge also informed the defendant that his guilty plea would not be received unless it was voluntarily made and supported by a factual basis.At this time, appellant entered pleas of not guilty to all three charges.

A plea agreement was subsequently entered into and change-of-plea proceedings were held fourteen days after the arraignment.Upon this occasion, the defense attorney moved to withdraw the not-guilty plea to the burglary charge.The court then asked the accused:

"Mr. Hoggatt, is there anything about your constitutional rights or the procedures before the Court or any of the other matters that the Court took up with you on September 14 that you'd like to ask the Court about?"

The appellant replied in the negative and was thereupon allowed to withdraw the not-guilty plea.

Immediately thereafter, appellant was asked to enter his plea to the burglary charge.Appellant did not respond, but, instead, his attorney interrupted to explain the plea agreement to the court.

The attorney explained that the terms of the agreement included a plea of guilty to the burglary charge in return for dismissal of the remaining two charges, together with favorable consideration concerning an out-of-state parole violation.After stating the terms of the plea agreement, defense attorney asked, "Is that correct, Mr. Hoggatt?"Appellant answered, "Yes."

The prosecuting attorney then placed a further explanation of the plea agreement on the record, after which the court asked the appellant whether or not he understood the plea agreement and appellant said that he did.The court then questioned the accused to ascertain if there existed a factual basis for the charge and appellant admitted that he"just opened the door" of the vehicle, entered the vehicle without consent, and stole something out of the vehicle.

Findings of the Court

Without further inquiry, the court found that appellant was competent to enter a plea of guilty and there was a factual basis for the plea.Further, the court found that there had been no promises of leniency or special treatment and the plea of guilty was voluntary "to that extent."

The "partially negotiated" plea bargain was accepted by the court, whereupon appellant was adjudged guilty of burglary and sentenced to eight to fourteen years in the penitentiary.

Relief Sought

On March 22, 1979, appellant filed in district court a pro se motion to withdraw his guilty plea, alleging, among other things, the lack of a factual basis required by Rule 15(f), W.R.Cr.P.³

On April 6, 1979, appellant filed a pro se petition for post-conviction relief, properly supported by affidavit.The petition alleged, among other things, that appellant did not enter a plea of guilty as required by law; that the trial court failed to comply with the requirements of Rule 15, W.R.Cr.P., before asking appellant to enter his plea; and the trial court failed to ascertain a factual basis for the plea which it accepted, since there was no evidence of the intent to steal at the time of the breaking and entering of the vehicle.

The motion and petition were treated as a single petition for post-conviction relief and a hearing on the issue was held on August 24, 1979.Appellant appeared pro se, with the assistance of his previously appointed counsel.

Following this hearing, the court denied the prayer of appellant's petition and made several findings of fact and conclusions of law in an order dated September 18, 1979.

Appellant filed a timely notice of appeal.

Post-Conviction Relief

The tenets of post-conviction relief are well established in the law of this state.Munoz v. Maschner, 590 P.2d 1352(1979);Albert v. State, Wyo., 466 P.2d 826, reh. den., 468 P.2d 968(1970);andJohnson v. State, Wyo., 592 P.2d 285(1979).

Post-conviction relief is available only in certain instances where the error is of constitutional magnitude and the petition alleges denial of defendant's constitutional rights.§ 7-14-101, W.S.1977;Munoz, supra;Albert, supra;And Johnson, supra.Post-conviction relief may be granted only in extraordinary circumstances which strongly suggest a miscarriage of justice and may not be entertained as a substitute for raising appealable issues.Munoz, supra, at p. 1355;andJohnson, supra, at p. 286.The remedy does not permit review of error which could or should have been brought by direct appeal.Munoz, supra;andJohnson, supra.Where the error complained of is characterized as a violation of procedural due process, showing must be made that a protected liberty has been affected.Munoz, supra.

Failure on the part of the court to establish the voluntariness of the guilty plea, in compliance with Rule 15, W.R.Cr.P., deprives the defendant of his constitutional right of due process.Cardenas v. Meacham, Wyo., 545 P.2d 632, 633-634(1976).This concept speaks to the proposition that post-conviction relief is a proper remedy under and by authority of § 7-14-101, supra;Munoz, supra, andJohnson, supra.

Neglect or Refusal to Plead

The purpose of the plea in criminal proceedings is to bring about the joining of the issues for trial, and there can be no trial on a charge of felony without a plea of not guilty.Fletcher v. State, 20 Wyo. 284, 123 P. 80(1912).It follows, of course, that, without a trial, judgment cannot be passed and sentence entered against an accused who has pleaded not guilty or who stands before the bar as though he had pleaded not guilty.Concerning the necessity to enter a plea, Rule 15(a), W.R.Cr.P., provides that "(i)f a defendant refuses to plead . . . the court shall enter a plea of not guilty."The predecessor to Rule 15(a), § 7-9-119, W.S.1977, provides in part, "if upon the arraignment the accused offer no plea in bar, he shall answer the question propounded by the court by pleading 'guilty' or 'not guilty,' but if he answer evasively or stand mute he shall be taken to have pleaded 'not guilty.' "If the accused plead "not guilty" a day will be designated for trial.§ 7-9-121, W.S.1977.

We understand Rule 15(a) to continue to contemplate that if the accused neglects to plead if the court neglects to take his plea if the accused's answer is evasive or if he stands mute, his refusal or failure or the court's neglect will render the status of the plea proceedings to be as though the plea was "not guilty."

It is said in 21 Am.Jur.2d, Criminal Law(1965), § 462, "Effect of failure or refusal to plead,":

" . . . Generally, under modern practice, if the accused stands mute and neglects or refuses to plead, the court may enter a plea of not guilty and proceed to trial, for the rule is that one who stands mute on arraignment in legal effect pleads not guilty."

In the instant case, the defendant stood mute, neglected to plead or was actually not called upon to do so again after his attorney's explanation of the bargain.It was, therefore, the trial court's duty to enter a plea of "not guilty" and supervise the setting of the case for trial, unless it can be said that, even though he did not respond directly, he did in law plead guilty through the response of his attorney to the inquiry of the court.

It is argued that the attorneys' explanation of the plea-bargain arrangement, which included an agreement upon the part of the accused to plead guilty to the charge of burglary, together with the accused's admission that he understood this to be a part of the bargain, provides an adequate substitute for the change of plea of not guilty to guilty.In support of this position, the State cites Cox v. State, Wyo., 494 P.2d 541(1972).We do not agree, in light of our holding in Cardenas, supra, because that opinion requires strict compliance with Rule 15, W.R.Cr.P., in order that the accused's due-process rights be satisfied.

Included in the directives of Cardenas are requirements concerning the plea...