Lockard v. State

• Decision Date: 21 March 1969
• Docket Number: No. 10258,10258
• Parties: Jess P. LOCKARD, Plaintiff-Appellant, v. STATE of Idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 1014

451 P.2d 1014

92 Idaho 813

Jess P. LOCKARD, Plaintiff-Appellant, v. STATE of Idaho, Defendant-Respondent.

No. 10258.

Supreme Court of Idaho.

March 21, 1969.

Allen R. Derr, Boise, for plaintiff-appellant.

Allan G. Shepard, Atty. Gen., Mack A. Redford, Deputy Atty. Gen., State of Idaho, Boise, for defendant-respondent.

SPEAR, Justice.

At the outset we note that this cause was originally improperly titled. The application for post-conviction relief was instituted by Jess P. Lockard 'Prison Number 12122' as 'movant,' contrary to I.C. § R7-101; Idaho Supreme Court R. 5. Consequently, the title of this cause has been reformed. Epperson v. Howell, 28 Idaho 338, 341, 154 P. 621 (1916); Shaw v. McDougall, 56 Idaho 697, 699, 58 P.2d 463 (1936).

On October 11, 1966, while serving a 90-day sentence for a misdemeanor, Jess P. Lockard (appellant) escaped from the Clearwater County Jail. While effecting his escape, Lockard pushed one William Blevins, a custodian, in such a fashion that Blevins fell back, hitting his head and causing a wound of minor proportions.

Lockard fled to the State of Wisconsin. He was returned to Idaho in the custody of Ralph E. Haley, prosecutor, and Leroy Altmiller, Sheriff of Clearwater County. During the return trip there was some conversation between the three individuals relevant to the pending escape charge and some further discussion in regard to burglary charges which Haley contemplated bringing against appellant. Both the substance and implications to be drawn from these conversations are in dispute.

On November 14, 1966, appellant was charged with two felonies, escape and receiving stolen property. An attorney was appointed to represent appellant at his preliminary hearing, but the hearing was waived.

On November 15, 1966, appellant appeared in District Court. At that time he waived his right to be represented by counsel and pleaded guilty to both charges. He likewise waived his right to a presentence investigation. The trial court, believing the waiver and pleas to be intelligently made and uncoerced, immediately passed sentence of five years on each charge, the sentences to run consecutively, for a total of ten years.

In asserting the basic assignment of error that the trial court erred in denying post-conviction relief, appellant alleges several errors in both the original proceedings and the subsequent post-conviction hearing. We shall deal with these issues in order.

I.

Appellant first alleges that there was error in allowing the same judge to preside over both the original trial and the subsequent post-conviction proceedings.

This allegation of error is raised for the first time on appeal. As such, this court will not consider it. State v. West, 92 Idaho 728, 449 P.2d 474 (1969); City of Lewiston v. Frary, 91 Idaho 322, 420 P.2d 805 (1966). Furthermore, the post-conviction act requires that the hearing be had before the same court in which conviction took place. I.C. § 19-4907. If appellant felt he could not obtain a fair hearing before the same judge, his remedy was to disqualify the judge pursuant to I.C. § 1-1801(4).

II.

Appellant next contends that the pleas of guilty to both the escape charge and the receiving stolen property charge were coerced by the prosecuting attorney.

This is a conclusory statement. The real issues are: (1) What type of 'coercive' circumstances will render a plea of guilty void, and (2) Did such circumstances exist here?

Idaho has long adhered to the principle that a plea of guilty must be made freely, voluntarily and with an understanding of the consequences attendant upon such a plea, i. e., State v. Peterson, 42 Idaho 785, 248 P. 12 (1926); State v. Arnold, 39 Idaho 589, 229 P. 748 (1924). A plea of guilty is deemed coerced only where it is improperly induced by ignorance, fear or fraud. One test of whether or not there has been improper coercion depends on whether an innocent person would have pleaded guilty under the same circumstances. Pennington v. Smith, 35 Wash.2d 267, 212 P.2d 811 (1949).

The implication of appellant's assignment of error is that his plea of guilty was coerced by the prosecutor's promise to forego charging appellant with the commission of a burglary if he would plead guilty to receiving stolen goods. However, it is well established that a plea of guilty obtained under such circumstances is not per se coercive. Martin v. United States, 256 F.2d 345 (5th Cir. 1955); Cortez v. United States, 337 F.2d 699 (9th Cir. 1964); Gilmore v. People of State of California, 364 F.2d 916 (9th Cir. 1966); Application of Buccheri, 6 Ariz.App. 196, 431 P.2d 91 (1967); Commonwealth ex rel. Bostic v. Cavell, 424 Pa. 573, 227 A.2d 662 (1967); Brown v. Beto, 377 F.2d 950 (5th cir. 1967).

Furthermore, in post-conviction proceedings, the petitioner has the burden of proving the allegations which he contends entitle him to relief under the Act by a preponderance of the evidence. Tramel v. State, 92 Idaho 643, 448 P.2d 649, 652 (1968). Petitioner's burden here was to prove coercion and he has failed. The evidence does not support a contention that 'plea-bargaining' was engaged in. The prosecutor was called to the stand in the post-conviction proceedings and described his conversations with the appellant as follows:

'Q Was there any discussion between yourself and Mr. Lockard during this trip (back from Wisconsin) pertaining to any of these charges (?)

'A Yes, Mr. Lockard had been telling the sheriff and I, in a visiting manner of where he had been and what all he had been doing since he left here, then he made the statement that the only reason he escaped he got to thinking that if we tried and convicted him of the 2 burglaries and the statutory rape, and there was one or two burglaries in Lewiston that they were anticipating trying him on, and if he got tried for those-and then he told us he was, I believe, on probation out of California somewhere-he would he in trouble with the California law, that he would be in the penitentiary for more than the rest of his life, he felt he had nothing left to-no hope left, and so that he pulled the escape. He told me he wasn't guilty of those burglaries, and he wasn't going to get convicted of them. I advised him again, as I had before, that I was sure we had sufficient evidence to convict him. He again asserted he wasn't guilty, did not commit them, that he knew who did, that the person who did it, as I recall, stayed with him a day or 2 beforehand and went out and pulled those burglaries and left the things with him and gone on, that he knew that this-the items were stolen when the man brought them to him. He read about it the next morning in the paper, and that if I had charged him with receiving stolen property he would have plead guilty, no problem, because he did receive stolen property, and he knew it, and he would have plead to this. At that time I said well, I might back off and charge him with receiving stolen property, but I felt I would also have to charge him with escape, because a man was injured. He said, 'Well, if you want to do that, I'm guilty of that and I'll plead to it.' This was about all that was said on that.'

The only refutation of this version of the conversation by the appellant appears in the earlier testimony he gave on cross-examination:

'Q I believe your testimony was that you entered a plea of guilty to this receiving charge because of the threats of the prosecutor?

'A Yes, sir.

'A * * * we were coming back, I forget the name of the town, we stopped and the sheriff got out of the car and went into a service station, and at that time the prosecutor said, 'I'm thinking seriously, but I'm not saying I'm thinking out loud, that I would drop these charges down to possession of stolen property, or receiving stolen property,' I don't recall which it was, if I would plead guilty, and I said I would think about it.' (emphasis added)

If the appellant's testimony were believed to the total exclusion of the prosecutor's testimony, the most the former's version would tend to show is that an offer was made. The testimony does not show that a bargain was struck. There is no record of any subsequent conversations of any nature between the appellant and the prosecutor. The fact is that the appellant was charged only with receiving stolen property and was never charged with burglary. In view of all the testimony and in light of appellant's equivocal answer, the reasonable implication is that the prosecutor was convinced the appellant had not in fact committed the crime of burglary.

Perhaps it can be conceded that the appellant was subjected to a type of 'coercion.' The question, however, is whether the degree or type of 'coercion' here was impermissible. As the Arizona State Court of Appeals said:

'The very fact that a person has been arrested and brought forcibly before the court for an arraignment at which he must publicly declare his guilt or innocence obviously runs counter to the fondest wishes of the accused. Most defendants can think of something better to do. When a defendant is promised a reduction in charge or the dropping of several counts of a multi-count information or indictment, to say that he is not induced by 'threat or promise' is to take some liberty with the English language and yet this is exactly the conclusion reached by courts.' Application of Buccheri, 6 Ariz.App. 196, 431 P.2d 91, 98 (1967).

The term 'plea-bargaining' is well chosen. It suggests that the defendant well understands that he may be convicted of some crime. On the other hand the term presumes that the prosecutor believes he can obtain a criminal conviction. The difference of opinion usually arises as to what crime may be proven, i. e., first degree murder, or second degree murder, or perhaps only involuntary manslaughter? There are also questions of time, expense, effort and delay for both parties involved. Not unlike civil litigants who face similar prospects, the parties...