Rainsberger v. State

• Decision Date: 16 February 1965
• Docket Number: No. 4650,4650
• Citation: 399 P.2d 129,81 Nev. 92
• Parties: Jack RAINSBERGER, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 129

399 P.2d 129

81 Nev. 92

Jack RAINSBERGER, Appellant, v. The STATE of Nevada, Respondent.

No. 4650.

Supreme Court of Nevada.

Feb. 16, 1965.

Samuel S. Lionel, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, Edward G. Marshall, Clark County Dist. Atty., Las Vegas, for respondent.

THOMPSON, Justice.

On April 25, 1963, three district judges unanimously found Jack Rainsberger guilty of first degree murder, and sentenced him to death. NRS 200.030(3). ¹ The appeal is from that judgment and sentence. The crime was committed on November 3, 1958, and on January 9, 1959, Rainsberger, with the advice of court-appointed counsel, entered a plea of guilty to an open charge of murder. At that time the statute provided for a hearing before a single district judge to determine degree and pronounce sentence. The hearing was held, and that judge found Rainsberger guilty of first degree murder, and sentenced him to death. However, that judgment was vacated because of prejudicial error. Rainsberger v. State, 76 Nev. 158, 350 P.2d 995. On remand a new hearing was ordered before three district judges because, pending that appeal, the legislature had amended the law to require three district judges rather than one to dispose of such a case. See Stats. Nev.1959, ch. 448, effective April 6, 1959. The ordered hearing before three judges did not immediately occur. Claiming the change in the law to be ex post facto and in violation of the federal constitution, art. 1, § 10, Rainsberger, by a petition for habeas corpus to the state district court, sought his liberty. The petition was denied, and the denial affirmed on appeal. The ex post facto question was not reached. Rainsberger v. Leypoldt, 77 Nev. 399, 365 p.2d 489. Similar relief was then sought in the federal court and denied because state remedies had not been exhausted. Rainsberger v. Lamb, 313 F.2d 195 (9th Cir.); cert. denied, 374 U.S. 847, 83 S.Ct. 1907, 10 L.Ed.2d 1067 (1963). The hearing before three district judges then took place. Again Rainsberger was found guilty of first degree murder and sentenced to death. On this appeal from that judgment and sentence we are required to resolve the ex post facto question and other claimed violations of the federal constitutional requirements concerning the right to counsel and due process. We turn to discuss these and other assigned errors. It is appropriate, however, first to place this case in context. A different complexion is cast upon claimed constitutional violations and other claims of error when, as here, a defendant charged with murder, has voluntarily and with the assistance of competent court-appointed counsel, entered a plea of guilty in open court. The procedure to ascertain the degree of the crime, and fix sentence, is within the constitutional power of a legislature to provide. Hallinger v. Davis, 146 U.S. 314, 13 S.Ct. 105, 36 L.Ed. 986 (1892). The court hearing, following a plea of guilty, is not a trial, for the issue of the defendant's guilt is no longer present. State v. Ceja, 53 Nev. 272, 298 P. 658, 2 P.2d 124; Ramos v. State, 58 Nev. 446, 83 P.2d 147; State v. Blackwell, 65 Nev. 405, 198 P.2d 280, 200 P.2d 698; Rainsberger v. State, 76 Nev. 158, 350 P.2d 995; Archibald v. State, 77 Nev. 301, 362 P.2d 721; Annot., 34 A.L.R.2d 919. The constitutional safeguards pointing to a fair trial are greatly diluted in significance, for a trial to determine the ultimate issue of innocence or guilt has been waived by the plea of guilty. The presumption of innocence has ceased to exist, and the defendant stands before the court an admitted murderer, asking mercy and understanding with respect to degree and penalty. If the plea of guilty is not itself constitutionally infirm, it would appear that one who has so confessed may not rely upon the constitution to free him. It is within this context that we must consider the claims of error presented here.

1. Ex Post Facto. The United States Constitution, Art. 1, § 10, provides that: 'No State shall * * * pass any * * * ex post facto Law, * * *.' The appellant contends that the legislative amendment (Stats.Nev.1959, ch. 448) requiring three judges, rather than one, to determine the degree of the crime, and pronounce sentence, is an ex post facto law as to him and may not constitutionally be applied. Indeed, he argues that there is no longer present in Nevada a procedure for handling his case. A one judge court may not now determine degree, and impose sentence, because that law has been repealed. A three judge court may not do so because that present is ex post facto and unconstitutional as applied to him. Nor may we order that his guilty plea be withdrawn and a not guilty plea substituted, because he does not want a jury trial. In short, he asks that we order his liberty, notwithstanding his guilt. Of course, we cannot accommodate him. None of the cases relied upon by the appellant (Kring v. State of Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1882); Thompson v. State of Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898); Putty v. United States, 220 F.2d 473 (9th Cir. 1955); Mallett v. State of North Carolina, 181 U.S. 589, 21 S.Ct. 730, 45 L.Ed. 1015 (1901); Malloy v. State of South Carolina, 237 U.S. 180, 35 S.Ct. 507, 59 L.Ed. 905 (1915); Beazell v. State of Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925); Hallock v. United States, 185 F. 417 (8th Cir. 1911); United States v. Hall, 26 Fed.Cas. page 84, No. 15285 (C.C.D.Pa.1809) bears any resemblance to this case. None of them involves a confession of guilt in open court. Notwithstanding this difference, we are directed to a quotation from the Kring case, supra, and to certain testimony in the record that demands (according to the appellant) the conclusion that the present law may not be constitutionally applied to him. The quotation from Kring is: 'We are of opinion that any law passed after the commission of an offense which, in the language of [Mr. Justice] Washington, in U. S. v. Hall, 'in relation to that offense, or its consequences, alters the situation of a party to his disadvantage,' is an ex post facto law * * *.'; and the testimony is that of a psychologist whose opinion is that one judge would, in all probability, be more lenient than three in specifying degree and fixing sentence. ²

Because of this testimony Rainsberger argues that, had a three judge court been provided for when he entered his plea at arraignment, he would not have chosen to plead guilty, for it is psychologically too easy for three judges to be severe. As the law then in effect provided for a single judge to determine the degree of the crime and impose sentence, he chose to place that awesome responsibility on that judge rather than to face the probable consequences of a jury trial. The nature of the choice open to him at the time of his arraignment was changed by the legislative amendment to his detriment and, upon remand for another hearing before a three judge court, he was deprived of the kind of a choice that one accused of murder is constitutionally entitled to enjoy. The change in the law 'altered the situation to his disadvantage.' The contention is wholly unsound. So far as the law is concerned one's plea to a charge of murder is to be governed by the truth or falsity of the charge. The legislative purpose in establishing a procedure to conclude a murder case, in which the accused pleads guilty, was not to provide psychological alternatives. Rather, its purpose was to avoid a senseless trial (for without the statutory scheme a plea of not guilty would be required) and to provide a fair procedure for disposition of the case. One who has announced his guilt in a court of law does not thereafter possess a constitutional right with respect to the procedural followthrough activated by his plea, nor does a change in that procedure of the kind here present have constitutional implications. Cf. People v. Ward, 50 Cal.2d 702, 328 P.2d 777, 76 A.L.R.2d 911.

The ex post facto issue in this case was presented to the Court of Appeals for the Ninth Circuit, but not decided. Rainsberger v. Lamb, 313 F.2d 195 (9th Cir. 1963). However, Judge Magruder, writing for the court, made the following statement: 'Personally I would be willing to assume without deciding that appellant has exhausted his remedies under the state law, * * * after which I would decide the case on the merits, since it seems clear to me that no constitutional rights have been violated.' We agree with his expression that 'no constitutional rights have been violated.' We hold that the 1959 amendment to NRS 200.030(3) is not an ex post facto law.

2. The Right to Counsel and Due Process. Rainsberger was without counsel when he confessed on November 14, 1958. He was not represented by counsel at the preliminary hearing. Following his plea of guilty to the charge of murder, his confession was received in evidence during the hearing before the three judge court as relevant to degree and penalty. It was admitted over the objection that it was not voluntarily given. The contention is now made that the judgment below is void because federal constitutional protections were not observed. The appellant's position rests primarily upon Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), (decided since the judgment below); Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); and Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963). A circumstance of major significance present here was not present in any of the cited cases. In the instant matter the accused voluntarily, and with the advice of competent counsel, entered his plea of guilty to the charge of murder when arraigned in the district court. The issue of guilt was thereby removed from the case. The contention is not offered...