Pulver v. State

• Decision Date: 02 June 1970
• Docket Number: No. 10476,10476
• Citation: 93 Idaho 687,471 P.2d 74
• Parties: Harvey PULVER, Plaintiff-Appellant, v. STATE of Idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 74

471 P.2d 74

93 Idaho 687

Harvey PULVER, Plaintiff-Appellant, v. STATE of Idaho, Defendant-Respondent.

No. 10476.

Supreme Court of Idaho.

June 2, 1970.

Rehearing Denied July 9, 1970.

William W. Becker, Pocatello, for appellant.

Robert M. Robson Atty. Gen., and Martin R. Ward, Asst. Atty. Gen., Boise, for appellee.

DONALDSON, Justice.

Harvey Pulver (petitioner-appellant) pled guilty to the charge of Second Degree Murder on January 4, 1965, and received an indeterminate sentence, not to exceed 75 years. While serving his sentence in the Idaho State Penitentiary, Pulver filed a Motion for Post-Conviction Relief alleging that he was being held in unlawful custody since:

(1) His plea of guilty was entered under duress (threat of hanging, threat of being prosecuted as a recidivist, and for other crimes);

(2) He was misrepresented and inadequately represented by counsel;

(3) He was denied his right to appeal (4) The sentence imposed upon him was illegal (75 years);

(5) He was possessed of facts which would have proved his innocence, but not brought forth on advice of counsel.

The district court dismissed Pulver's Motion for Post-Conviction Relief since in the opinion of the district court:

'* * * it appears that none of the rights of the Movant were impugned or taken advantage of. It appears that he was duly represented, and was fully advised at all times as to his rights in the matter.' ¹

The order concluded that 'unless new and additional grounds are presented to the Court that the petition will be dismissed within twenty days, as provided by the Statute.'

No such grounds were presented and an appeal was taken from the dismissal order on December 22, 1967. This Court dismissed the appeal as being premature, holding that the order was only indicative of the district court's intention to dismiss, rather than being a final judgment of dismissal. In the decision ² this Court noted the deficiency of the record and that the record showed the case to bell still pending.

Therefore a motion for final judgment was made in the district court. Such a judgment was entered on February 24, 1969, and this appeal was taken therefrom on March 4, 1969.

Appellant contends that the trial court erred in dismissing his Motion for Post-Conviction Relief since his plea of guilty was obtained by duress, fraud, and undue influence. Appellant furthermore asserts his plea was entered without an understanding of its true import.

On August 6, 1964, Harvey Pulver was indicted for First Degree Murder (murder while perpetrating burglary). On January 4, 1965, Pulver appeared in district court accompanied by his attorney and the prosecuting attorney. Pulver, indicted for First Degree Murder, asked permission of the court to tender a plea of guilty to the crime of Second Degree Murder. In response to the court's questioning it was found that a plea to Second Degree Murder was agreeable with the state and that the defendant, Pulver, desired to be permitted to enter a plea of guilty to the lesser included offense. Pulver indicated to the court, in the presence of his counsel, that he had discussed his plea with counsel and understood the significance of entering a plea of guilty to the crime of Second Degree Murder, and the penalty that could be imposed. Pulver then entered his plea of guilty to the included offense of Second Degree Murder. Thereupon, the district court adjudged Pulver guilty and ordered him to appear for sentencing. On January 19, 1965, Pulver was sentenced to the Idaho State Penitentiary for an indeterminate term not to exceed seventy-five (75) years.

At oral argument of this case before this Court, a motion was made by the respondent (State of Idaho) to have a letter, written by B. A. McDevitt, trial counsel for appellant, made a part of the record on appeal. The correspondence disclosed that prior to the entry of appellant's plea of guilty to the reduced charge, Pulver and his counsel had discussed, deliberated, and decided that the plea should be entered. The information contained in the letter is material and relevant but this Court must deny the respondent's motioin since the letter in question was not considered by the trial court in reaching its decision. The letter cannot, therefore, be considered by this Court on appeal. Nevertheless the record discloses circumstances which show that Pulver's plea was intelligently made with a thorough understanding of its import and consequences.

'In a sense, it can be said that most guilty pleas are the result of a 'bargain' with the prosecutor. But this, standing alone, does not vitiate such pleas. A guilty defendant must always weigh the possibility of his conviction on all counts, and the possibility of his getting the maximum sentence, against the possibility that he can plead to fewer, or lesser, offenses, and perhaps receive a lighter sentence. The latter possibility exists if he pleads guilty * * *.

No competent lawyer, discussing a possible guilty plea with a client, could fail to canvass these possible alternatives with him. Nor would he fail to ascertain the willingness of the prosecutor to 'go along.' * * *

The important thing is not that there shall be no 'deal' or 'bargain', but that the plea shall be a genuine one, by a defendant who is guilty; one who understands his situation, his rights, and the consequences of the plea, and is neither deceived nor coerced.' Cortez v. United States, 337 F.2d 699 at 701 (9th Cir. 1964).

The Federal Rules of Criminal Procedure ³ have articulated a standard for accepting guilty pleas. A defendant may plead guilty with the consent of the court. The court however cannot accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. In view of the several criteria discussed above and their application to the circumstances presented by the case at bar it cannot be said that Pulver's plea of guilty was entered under duress nor was it entered without an understanding of its true import, although appellant has so alleged.

Appellant's next assignment of error concerns the trial court's refusal to grant the relief requested since Pulver claims that he was misrepresented and inadequately represented by counsel. This specification of error really involves two distinct claims and we will deal with each individually. The record affirmatively shows that appellant's counsel represented his interests in good faith. Numerous motions were made for the purpose of protecting Pulver's rights. ⁴

'The handling of the defense by counsel will not be declared inadequate except in cases where counsel displays such a lack of diligence and competence as to reduce the trial to a 'farce or sham'. People v. Ricks, 161 Cal.App.2d 674, 327 P.2d 209 (1958); 23 C.J.S. Criminal Law § 982(8), pp. 968-970.' State v. Freeman, 85 Idaho 339 at 348, 379 P.2d 632 at 637 (1963).

The second point raised by appellant regarding his allegation of inadequate counsel involves the claim that multiple representation of four co-defendants in a capital case is violative of his sixth amendment rights. This Court has considered the propriety of representation by one attorney of several co-defendants in the case of State v. Oldham, 92 Idaho 124, 438 P.2d 275 (1968). The appointment by the trial court of the same attorney to represent two defendants indicted for the same crime is not inherently improper. The issue turns on whether or not the multiple defendants have a conflict of interest thereby rendering the defense of one defendant less effective than that of another.

'The appointment by the trial court of the same attorney to represent two defendants indicted for the same crime is not in itself improper unless the facts show that the interests of the two defendants are in conflict.' State v. Oldham, supra, at 129, 438 P.2d at 280.

The record in this case reveals that although six individuals were accused of First Degree Murder in the indictment, only four pleaded guilty to the reduced charge of Second Degree Murder. The other two pleaded guilty to a reduced charge of Involuntary Manslaughter. Different counsel had been appointed by the trial court to represent these defendants who entered different pleas. It is apparent that the district court considered the possibility of a conflict of interest and appointed different counsel where there was such a possibility. Therefore under these circumstances and where no trial was required, this Court finds no error.

Appellant next asserts that the trial court erred by refusing to grant the relief requested since he was denied his right to appeal. However ignorance of the law in failing to appeal from the judgment is insufficient to justify the issuance of post-conviction relief. Gardner v. State, 91 Idaho 909, 435 P.2d 249 (1967). Allegations in an Application for Post-Conviction Relief that a defendant in a state court was not advised of his right to appeal afford no basis for post-conviction relief. United States ex rel. Bjornsen v. LaVallee, 364 F.2d 489 (2d Cir. 1966); McIntosh v. Commonwealth, Ky.,368 S.W.2d 331 (Ky.Ct.App.1963).

'We agree with the District Court. Appellant concedes that he never asked anyone representing the State for advice on his right to appeal or for assignment of counsel on appeal, and never informed any representative of the State of his desire to appeal. The case accordingly differs from United States ex rel. Mitchell v. Follette, 358 F.2d 922 (2d Cir. 1966) and Pate v. Holman, 341 F.2d 764 (5th Cir.), modified, 343 F.2d 546 (5th Cir. 1965). His claim of constitutional deprivation necessarily rests on the assertion that the State had an affirmative obligation to advise him of his right to appeal and of the procedure to enforce that right. It would unquestionably have been commendable if the State had afforded such advice, see Mitchell, supra, 358 F.2d at 925 n. 2; F.R.Crim.P. 32(a)(2), eff. July 1, 1966, 39 F.R.D. 263 (1966); bu...