Parrott v. Haugh

• Decision Date: 07 May 1968
• Docket Number: No. 52903,52903
• Citation: 158 N.W.2d 766
• Parties: Larry PARROTT, Appellant, v. Charles HAUGH, Warden Men's Reformatory, Anamosa, Iowa, Appellee.
• Court: Iowa Supreme Court

Page 766

158 N.W.2d 766

Larry PARROTT, Appellant, v. Charles HAUGH, Warden Men's Reformatory, Anamosa, Iowa, Appellee.

No. 52903.

Supreme Court of Iowa.

May 7, 1968.

Larry J. Conmey, Anamosa, for appellant.

Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., and Robert H. Storey, County Atty., for appellee.

MOORE, Justice.

Petitioner, Larry Parrott, is currently incarcerated in the State Men's Reformatory at Anamosa. The cause of his detention is a Cass County District Court mittimus issued February 15, 1967 following sentence on his plea of guilty to a charge of assault with intent to commit rape in contravention of Code section 698.4. On March 31, 1967 Parrott filed a petition for a writ of habeas corpus in the Jones County District Court. Following court appointment of his present attorney an extended evidentiary hearing was held on April 28, 1967. May 12, 1967 the trial court filed well prepared findings of fact and conclusions of law and denied the writ. Petitioner has appealed. We affirm.

Petitioner asserts the Cass County District Court lacked jurisdiction to restrain him of his liberty for the reasons he was denied his guaranteed right of a speedy trial, his plea of guilty was involuntary and he did not have the benefit of effective assistance of counsel.

The offense for which petitioner is incarcerated was committed August 13, 1966 in Page County. He was apprehended in Twin Falls, Idaho and returned to Iowa by the Page County Sheriff on September 8, 1966. The next day he appeared in Clarinda Police Court with his appointed attorney James Millhone and requested a preliminary hearing which was held September 14. Petitioner was represented by Mr. Millhone and at the hearing's conclusion was bound over to the grand jury.

The accused, having been fully and repeatedly advised of his constitutional rights, appeared and testified before the grand jury. However, due to a combination of circumstances such as the illness of a juror, absence from the state of another juror, the unavailability of a judge, the expiration of the thirty day period provided by Code section 795.1, the grand jury was recessed prior to acting on the charge against Mr. Parrott.

On October 11 a county attorney's information was filed, Mr. Millhone was again appointed, petitioner was arraigned and a plea of not guilty entered. On the same date petitioner filed a petition for change of venue and the court ordered a change to Cass County District Court. Trial was set for November 9.

An application for a continuance due to the illness and hospitalization of Mr. Millhone was filed by the accused on November 7, 1966. The application was granted and the case continued to the February 1967 term of court. Mr. Millhone was elected county attorney for the term commencing January 1, 1967. For this reason Mr. Millhone was permitted to withdraw and at the request of accused William Falk was appointed his attorney. The prosecution was handled by an attorney appointed to represent the state. On February 15, 1967 petitioner appeared in open court with his counsel Mr. Falk and acknowledged he had freely and knowingly signed a written guilty plea on an earlier date. Thereafter he was sentenced and committed to the reformatory.

I. Petitioner first contends he was denied the right to a speedy trial. The Sixth Amendment to the United States Constitution provides in part: 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.' This constitutional provision has recently been made applicable to state criminal procedure through the due process clause of the Fourteenth Amendment in Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1.

The Iowa Constitution, Article I, section 10, provides in part: 'In all criminal prosecutions, and in cases involving the life, or liberty of an individual the accused shall have a right to a speedy and public trial by an impartial jury.'

In an effort to supplement and render this Constitutional guaranty more meaningful our Sixtieth General Assembly amended section 795.2 to read: 'Delay in trial. If a defendant indicted for a public offense, whose trial has not been postponed upon his application, be not brought to trial at the next regular term of the court in which the indictment is triable or within sixty (60) days, whichever first occurs, after the same is found, the court must order it to be dismissed, unless good cause to the contrary is shown. An accused not admitted to bail and unrepresented by legal counsel shall not be deemed to have waived his privilege of dismissal or be held to make demand or request to enforce a guarantee of speedy trial, and the court on its own motion shall carry out the provisions of this section as to dismissal.'

In the light of this statutory and constitutional background we have reviewed the entire record to determine whether petitioner was unjustly deprived of the right due him. We are convinced he was not so deprived. He had the assistance of counsel from the time of preliminary hearing to his plea of guilty and sentencing. During this period his counsel regularly conferred with him. Trial as initially set was continued upon his request due to his attorney's illness. From the record we must assume petitioner was relatively satisfied with the course of events. He expressed no complaints and made no demand for immediate trial.

Prior to the amendment of section 795.2 we consistently held that to enjoy the privilege of a speedy trial the accused must make demand to the court for an early trial and failure to do so amounted to a waiver of the privilege. See McCandless v. District Court, 245 Iowa 599, 604, 605, 61 N.W.2d 674, 677; Pines v. District Court, 233 Iowa 1284, 1296--1302, 10 N.W.2d 574, 581--583, and citations.

The amendment requires trial within 60 days after return of the indictment (or filing the information) if the next term of the court is later than 60 days. Concededly more than 60 days elapsed here. Under the amendment the necessity of demand for trial is obviated only if the accused has not been admitted to bail And is unrepresented by counsel. Parrott was not admitted to bail but he was represented by counsel throughout the proceeding. Under our decisions we hold petitioner waived his right to a speedy trial. State v. Houston, Iowa, 158 N.W.2d 158, filed April 9, 1968; State v. Dillon, 258 Iowa 784, 785, 786, 139 N.W.2d 925, 926, 927; State v. Satterfield, 257 Iowa 1193, 1195, 1196, 136 N.W.2d 257, 258, 259; State v. Gebhart, 257 Iowa 843, 847, 134 N.W.2d 906, 908; State v. Long, 256 Iowa 1304, 1308, 130 N.W.2d 663, 665.

II. Petitioner argues his plea of guilty was involuntary. We find no merit in this contention. Code section 777.12 provides in part: 'Plea of guilty--form--entry. The plea of guilty can only be made in open court and by the defendant himself, and in the presence of legal counsel acting on behalf of the defendant if the defendant is charged with a felony in substantially the following form: 'The defendant pleads that he is guilty of the offense charged in the indictment', and shall be entered of record. * * *.'

A plea of guilty must be entirely voluntary and not the result of any form of coercion. A plea resulting from coercive methods will not support a judgment and sentence based thereon. Herold v. Haugh, 259 Iowa 667, 145 N.W.2d 657, 658; State v. Bastedo, 253 Iowa 103, 106--109, 111 N.W.2d 255, 256--258; 21 Am.Jur.2d Criminal Law section 485; 22 C.J.S. Criminal Law § 423(2).

Petitioner had written his mother that he intended to plead guilty and made a like statement to the sheriff. On direct examination...