Noble v. State
| Decision Date | 31 October 1986 |
| Docket Number | No. 58900,58900 |
| Citation | 240 Kan. 162,727 P.2d 473 |
| Parties | Don Billy NOBLE, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. K.S.A.1985 Supp. 22-3210 sets the statutory guidelines for the acceptance of a plea of guilty or nolo contendere. A failure to comply strictly with the explicit requirements of that statute may be reversible error, unless upon review of the entire record it can be determined the pleas were knowingly and voluntarily made and otherwise accepted by the trial judge in compliance with the statute. On the facts in this case it is held: (1) The petitioner was informed of the consequences of his guilty pleas and of the maximum penalty provided by law which may be imposed upon acceptance of the pleas; (2) the petitioner pled voluntarily and with an understanding of the nature of the charges and consequences of the pleas; and (3) there was a factual basis for the pleas.
2. To assure compliance with K.S.A.1985 Supp. 22-3210 a trial judge would be well advised to follow a written checklist prior to the acceptance of a plea of guilty or nolo contendere in a criminal case. It is mandatory that the trial judge require the recording of the entire proceeding so that a transcript will be available to the appellate court on review.
Rosanne Piatt, Asst. Appellate Defender, Topeka, argued the cause and Benjamin C. Wood, Chief Appellate Defender, Topeka, was with her on the brief, for the appellant.
Ann L. Smith, Asst. County Atty., argued the cause and Robert T. Stephan, Atty. Gen., and Sally Davis Pokorny, County Atty., was with her on the brief, for the appellee.
The petitioner, Don Billy Noble, is appealing the denial of his K.S.A. 60-1507 motion.
On February 2, 1983, before Judge Floyd Van Palmer, the petitioner pled guilty to nine felony counts: one count of burglary (K.S.A. 21-3715); two counts of sexual exploitation of a child (K.S.A. 21-3516); one count of attempted sexual exploitation of a child (K.S.A. 21-3516 and 21-3301); four counts of indecent liberties with a child (K.S.A. 21-3503[b]); and one count of aggravated burglary (K.S.A. 21-3716). On March 30, 1983, the petitioner was sentenced by Judge Richard A. Medley. Over two years later, on May 2, 1985, the petitioner filed a motion pursuant to K.S.A. 60-1507 attacking the constitutionality of his sentence. A full hearing on the petitioner's motion was held by the sentencing court and his motion was denied. The petitioner has duly perfected an appeal from the denial of his motion.
The petitioner asserts that, because the statutory requirements of K.S.A.1982 Supp. 22-3210 were not satisfied when the court accepted the defendant's guilty pleas, the petitioner must be allowed to withdraw his pleas of guilty.
The petitioner first argues the court failed to inform him of the consequences of his pleas and of the maximum penalty provided by law which may be imposed upon acceptance of the pleas; the court failed to determine that he pled voluntarily and with an understanding of the nature of the charges and consequences of the pleas; and the court failed to find a factual basis for the pleas.
K.S.A.1985 Supp. 22-3210 sets the statutory guidelines for the acceptance of guilty pleas which are applicable to this case:
Although the statute has been amended since the petitioner pled guilty in 1983, the amendments do not involve the issues on appeal.
This statute embodies the due process requirements as interpreted by the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Alsup, 239 Kan. 673, 675, 722 P.2d 1100 (1986); Trotter v. State, 218 Kan. 266, 268-69, 543 P.2d 1023 (1975). Boykin added the due process requirement that the record must affirmatively disclose a knowing and voluntary plea. Brady v. United States, 397 U.S. 742, 747-48 n. 4, 90 S.Ct. 1463, 1468-69 n. 4, 25 L.Ed.2d 747 (1970). In Trotter v. State, 218 Kan. 266, 543 P.2d 1023, this court held that failure to comply strictly with the explicit requirements of 22-3210 is harmless error if, upon review of the entire record, it can be determined the pleas were knowingly and voluntarily made. 218 Kan. at 269, 543 P.2d 1023. Strict compliance is not mandatory if the purpose of the rule is otherwise served. James v. State, 220 Kan. 284, 287, 553 P.2d 345 (1976).
Here, the defendant entered his guilty pleas at the time of arraignment. The arraigning court did not inform the defendant of the maximum penalties which could be imposed under law.
In Underwood v. State, 214 Kan. 633, 522 P.2d 457 (1974), the petitioner argued on his 60-1507 motion that his sentence should be vacated because the trial court failed to inform him of the maximum penalty which could be imposed by law. In reviewing the record, this court noted that the petitioner's attorney testified at the evidentiary hearing that he had informed the petitioner of the possible sentence that could be imposed according to Kansas law. The guilty plea was found to be voluntary and understandingly made.
Here, the petitioner waived a preliminary hearing and the reading of each of the separate counts. The petitioner did have a copy of the information and in the information after each charge was the classification of the crime and the minimum and maximum penalty, e.g., "Class C felony 3-5 to 10-20." When asked by the arraigning court whether the petitioner had gone over the information in detail with his attorney, the petitioner responded, "Yes." However, there is nothing in the record to indicate affirmatively that the petitioner's counsel had informed him of the maximum possible sentence.
The State argues the statute was satisfied because the information was read, the penalty explained, and the petitioner given a copy of the information at his first appearance on October 19, 1982. The petitioner's guilty plea was accepted at his arraignment February 9, 1983, nearly four months later. The Illinois court rejected a similar argument of substantial compliance in People v. Louderback, 137 Ill.App.3d 432, 91 Ill.Rec. 944, 484 N.E.2d 503 (1985), where there was a five-month lapse between a defendant's arraignment and acceptance of his guilty plea. We agree with the Illinois court and reject the State's argument. K.S.A.1985 Supp. 22-3210(a)(2) is not satisfied by an explanation of the penalties nearly four months before a guilty plea is accepted.
Our prior case law holds it is not necessary to comply strictly with the mandates of 22-3210 if the purpose of the statute is otherwise served. Under the facts of this case, we find the purpose of the statute requiring the petitioner to be informed of the maximum possible sentence which could be imposed by law was served. The copy of the information which the petitioner had received and had gone over in detail with his attorney contained the minimum and maximum possible sentence for each count with which the petitioner was charged. The petitioner had waived the formal reading of the information at his arraignment. Plea negotiations had been entered into with the prosecutor resulting in the prosecutor recommending a certain sentence. The prosecutor had recommended the maximum penalty on the one Class D felony and the three Class E felonies.
It is strongly recommended that satisfaction of the requirements of K.S.A.1985 Supp. 22-3210(a)(2) show affirmatively on the record in order to reliably establish that a plea has been voluntarily and intelligently entered. However, on the facts in this case, where there has been substantial compliance, we find no prejudicial error.
Next the petitioner argues the court failed to determine that his plea was made voluntarily and with an understanding of the nature of the charges and the consequences of the plea.
The following colloquy took place at the arraignment:
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