Lewis v. State, 2603
| Decision Date | 20 June 1977 |
| Docket Number | No. 2603,2603 |
| Citation | 565 P.2d 846 |
| Parties | David D. LEWIS v. STATE of Alaska. |
| Court | Alaska Supreme Court |
Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, ERWIN and BURKE, JJ.
Pursuant to a plea bargain, on July 10, 1974, David D. Lewis pleaded guilty to receiving and concealing stolen property, carrying a concealed weapon, and operating a motor vehicle while intoxicated. Imposition of sentence was suspended, and he was placed on probation.
Almost ten months later, on April 30, 1975, Lewis moved to vacate his convictions and withdraw his guilty pleas 1 on the ground that the trial court had not followed the procedure specified in Criminal Rule 11 to insure that the guilty pleas were knowing and voluntary.
On the charge of receiving and concealing stolen property, the exchange among the trial court, Mr. Lewis, and his counsel was as follows:
On the charge of carrying a concealed weapon, the proceedings were as follows:
The state concedes that the trial court did not follow the procedure specified in Rule 11(c). 2 It argues, however, that the error was harmless and that Lewis does not demonstrate the manifest injustice required by Criminal Rule 32(d)(1) for a withdrawal of a guilty plea. 3 After a hearing at which the state called as a witness Mr. Weidner, Lewis' counsel at the time he entered the guilty pleas, 4 the court denied the motion. Lewis appeals from denial of the motion.
Preliminarily, the state asserts that the appeal is not timely. On June 13, 1975, the trial court orally denied Lewis' motion. The records of the trial court indicate that the decision covered cases 73-635 (the receiving and concealing charge) and 74-2695 (the concealed weapon charge). On June 26, the court again orally denied the motion in case number 73-635. On July 21, Lewis filed an appeal from the June 26 order, but purported to appeal cases 73-635 and 74-2695, both the receiving and concealing and the concealed weapon convictions. By July 21, the 30-day period in which to appeal an order entered on June 13 had expired.
We consider the appeal with respect to both convictions. The record is far from clear concerning the relationship between the June 13 and June 26 orders. Counsel could have believed in good faith that the order of the 26th was the only final and appealable order. In this state of the record, we will exercise our power under Appellate Rule 46 to relax our rules in the interest of justice. McCracken v. State, 482 P.2d 269 (Alaska 1971).
The state urges us to affirm the trial court's decision against Lewis because he did not act with due diligence in pursuing his post-conviction remedies. Nearly ten months elapsed between his guilty pleas and the filing of the motion to withdraw them. Criminal Rule 32(d)(1)(i) states that: "A motion for withdrawal (of a guilty plea) is timely . . . if it is made with due diligence."
Whether or not Lewis acted with sufficient diligence to satisfy Rule 32, a question which we do not address, we note that his motion is also based on Criminal Rule 35(b), which provides for post-conviction relief. Rule 35(d) permits a post-conviction relief proceeding to be commenced at any time. Lewis relied principally on Rule 32, rather than Rule 35, in the proceedings below, but the effect of a decision denying him Rule 32 relief because of untimeliness would be to permit him to start over again in the trial courts raising identical issues under Rule 35. Since Lewis cited Rule 35 in his motion to the trial court, and the trial court addressed the merits of his contentions, nothing would be gained by our attention to the timeliness issue under Rule 32, and so we proceeded to the merits.
Lewis contends that the trial court did not comply with Criminal Rule 11(c), which requires that the judge address the defendant personally to determine whether the defendant understands the nature of the charge. The state concedes that the record does not reflect compliance with Rule 11(c), but argues that we should nevertheless affirm the trial court because the error was harmless.
The United States Supreme Court has held that a failure of the trial court to follow the procedure specified in Federal Rule of Criminal Procedure 11(c), similar to our rule of that same number, is per se reversible error. McCarthy v. United States, 394 U.S. 459, 468-72, 89 S.Ct. 1166, 1172-1173, 22 L.Ed.2d 418, 426-29 (1969). We believe, however, that adoption of such a per se rule is unnecessary and that the consequences of this type of error would be better considered on a case-by-case basis. 5
We note, first, that Criminal Rule 32(d)(1) permits withdrawal of guilty pleas only if the defendant "proves that withdrawal is necessary to correct manifest injustice." A holding that reversal of the conviction is required whenever a guilty plea was not received in strict compliance with Rule 11(c) would be difficult to reconcile with this "manifest injustice" requirement. 6
While a motion to withdraw a guilty plea pursuant to Rule 32(d)(1) must be made with "due diligence," a defendant can also seek to withdraw his guilty plea in a post-conviction relief proceeding under Rule 35(b), as Lewis is doing here. As we have noted above, Rule 35(d) explicitly provides that such a proceeding may be instituted at any time. If the McCarthy rule were adopted, a defendant who knew that Rule 11(c) had not been complied with in his case could wait for months or years before filing an action for post-conviction relief. He could then withdraw his guilty plea and require the state to take his case to trial at a time when key witnesses cannot be located and memories have faded. This, we believe, is far too drastic a sanction when the violation of Rule 11(c) is not major.
This opinion should not be interpreted by trial judges as an indication that we do not consider compliance with Rule 11(c) important. We reiterate what we have said before that compliance with Rule 11(c) is necessary to insure that a defendant who is pleading guilty is aware of the nature of the charges against him and the possible consequences of his plea, both the rights he is giving up and the sentence he may receive. E. g. Barrett v. State, 544 P.2d 830 (Alaska 1975); McKinnon v. State, 526 P.2d 18, 26 (Alaska 1974). Our holding that the error should not inure to Lewis' benefit does not detract from the conclusion, conceded by both parties to this appeal, that the trial judge did not comply with Rule 11(c).
When Lewis pleaded guilty, he was accompanied by an experienced criminal defense attorney who assured the court that he had discussed the plea with Lewis and that Lewis was pleading knowingly and competently. Yet his attorney never made known to the court his belief that the procedures of Rule 11(c) were not being followed. Had he done so, the trial court would have had the opportunity to correct the error at once, and the time and expense of this collateral proceeding might have been avoided. The time and expense would be far greater were we to apply the McCarthy rule and reverse and remand for further proceedings. The system of justice would be ill served by a rule which permitted defendants with skilled counsel to obtain automatic reversals long after the fact for errors which counsel presumably could have prevented merely by speaking up. 7
We emphasize that every defendant is entitled to be treated fairly by the courts, and is entitled to an opportunity to have his allegations of error considered. Yet courts have long recognized that a defendant is not entitled to an automatic reversal on appeal when the trial court commits any error, however slight and whether or not he was prejudiced by it. E. g. Wright v. State, 501 P.2d 1360, 1366 (Alaska 1972); Love v. State, 457 P.2d 622, 629-34 (Alaska 1969). Criminal Rule 47(a) provides:
(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.
Finally, we note that at the time of the McCarthy decision, federal rule 11(c) was much less detailed than either the federal or the Alaska rule is today. The...
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