Russell v. State
| Decision Date | 04 October 1983 |
| Docket Number | No. 14242,14242 |
| Citation | 105 Idaho 497,670 P.2d 904 |
| Parties | Jerry Lee RUSSELL, Petitioner-Appellant, v. STATE of Idaho, Respondent. |
| Court | Idaho Court of Appeals |
Stanley G. Cole, Rupert, for petitioner-appellant.
Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for respondent.
Jerry Lee Russell entered a plea of guilty to arson in the second degree, a felony under I.C. § 18-802. He was sentenced to the custody of the Board of Corrections for a term not to exceed ten years. Later, in a separate action, Russell filed a petition for post-conviction relief, asking that the judgment of conviction be set aside, that he be allowed to withdraw his guilty plea and enter a new plea. Russell's petition was denied, after a hearing, and he brings this appeal.
The issue before us is whether the district judge handling the post-conviction relief proceeding erred by refusing to set aside the judgment of conviction and to allow the entry of a new plea. We affirm the order denying post-conviction relief.
The events in this case were set in motion by a fire at the Minidoka Merc Department Store. During the fire, Russell told a police officer that he (Russell) had set the blaze. Russell was thereupon arrested and warned of his Miranda rights. He participated in a video taped interview at the police station in which he made inculpatory statements. Russell was charged with second degree arson, waived his preliminary hearing, and entered a plea of guilty in district court. At his sentencing hearing, the court imposed an indeterminate term of ten years in the custody of the Board of Correction. All of this occurred while Russell was on parole from another arson conviction in California.
This petition followed. Substitute counsel was appointed and an evidentiary hearing was held. Russell testified that before arraignment on the arson charge, his counsel advised him that a plea bargain had been struck with the state and that the prosecutor would recommend a sentence of five years in custody, in exchange for a plea of guilty. Russell further testified that he requested the bargain to be reduced to writing, his counsel replying that this was not done in Idaho but that "the court always went along with the state's recommendation." Leon Bartholomew, an inmate of the Idaho State Correctional Institution, and a former cellmate of Russell in the Minidoka County Jail, gave similar testimony concerning the content of the conversation.
Russell also testified that counsel had told him to answer the judge's questions in open court the "right" way or his plea would not be accepted. Russell stated that he believed the court proceedings were merely formalities; that he expected to be sentenced to not more than five years; and that, otherwise, he would not have pled guilty.
The attorney who represented Russell at that time also testified at the post-conviction hearing. While unable to remember the exact language of the conversation, he categorically denied telling Russell that "the court always went along with the state's recommendation," or words to that effect. Counsel also indicated that an additional condition of the plea bargain was that no habitual offender charge would be filed against Russell, even though this arson charge could result in Russell's third felony conviction. See I.C. § 19-2514. The record of the post-conviction proceedings contains a "Disclosure Statement" in which Russell's counsel represented in writing to the district judge that he had explained the contents of the "Disclosure Statement" to his client and had advised the client of the maximum penalty which could be imposed in this case. Before arraignment, Russell also signed the "Disclosure Statement"--more fully entitled "ACKNOWLEDGEMENT OF DISCLOSURE OF DEFENDANT'S RIGHTS IN COURT AT OR BEFORE ENTRY OF PLEA." In addition to a detailed explanation of the meaning and import of pleading guilty or not guilty, the "Disclosure Statement" contained the following paragraph:
If you desire to plead guilty to this charge, you must do so freely, understandingly, and voluntarily, without any undue pressures and without any promises of leniency. No person can make any promise to you regarding what will be done in your case. If the court finds that any pressures have been applied to you or that any promises have been made to you as to what the court will do in your case, then the court will very likely refuse to accept your plea of guilty and accept only a plea of not guilty so that you will have a jury trial.
The record further discloses that the district judge, at both the arraignment and pre-sentence hearings, fully advised Russell of his right to plead not guilty, of the protections he would enjoy in that event, and of the consequences of a plea of guilty. These admonitions were given in conformity with I.C.R. 11(c) and with the requirements of State v. Colyer, 98 Idaho 32, 557 P.2d 626 (1976), and its progeny. Indeed Russell does not contend that the court failed in any respect to fully advise him of these rights. Russell's responses during colloquies with the district judge fully support the court's finding that Russell's guilty plea was freely and voluntarily entered.
In light of Russell's contentions regarding statements allegedly made by his counsel, the following colloquy is pertinent:
The court which heard the post-conviction relief petition failed to make a specific finding on the disputed issue of whether counsel did, in fact, advise Russell as contended. Accordingly, in the disposition of this appeal, we will presume the truth of Russell's testimony. Consequently, the decisive question is whether a defendant in a criminal case must be allowed to withdraw his plea of guilty where counsel presumably misinformed him concerning the effect of a prosecutor's sentencing recommendation, but the court fully advised him...
To continue reading
Request your trial
-
State v. Creech
...and fritter away the time and painstaking effort devoted to the sentencing process." (Emphasis in original). Russell v. State, 105 Idaho 497, 500, 670 P.2d 904, 907, (Ct.App.1983) (quoting Kadwell v. United States, 315 F.2d 667, 670 (9th In this instance, defendant's motion was filed after ......
-
State v. Lynch
...437 P.2d 620, 621 (1968); Bjorklund v. State, 130 Idaho 373, 376, 941 P.2d 345, 348 (Ct. App. 1997); see also Russell v. State, 105 Idaho 497, 670 P.2d 904 (Ct. App. 1983).6 In Davidson, the defendant argued that counsel's estimation of a significantly lesser sentence caused his plea to be ......
-
Patterson v. State, Docket No. 44880
...437 P.2d 620, 621 (1968); Bjorklund v. State, 130 Idaho 373, 376, 941 P.2d 345, 348 (Ct. App. 1997); see also Russell v. State, 105 Idaho 497, 670 P.2d 904 (Ct. App. 1983). Of course, counsel's advice, even if later proven inaccurate, must be given in good faith. Davidson, 92 Idaho at 105, ......
-
Almada v. State
...aside his plea, after sentencing, and the motion may be granted, to correct a manifest injustice. I.C.R. 33(c); Russell v. State, 105 Idaho 497, 670 P.2d 904 (Ct.App.1983). However, in this case the record does not disclose that Almada ever made such a motion. Nor are we persuaded that, if ......