State v. Barlow

• Decision Date: 16 November 1971
• Docket Number: Cr. N
• Citation: 193 N.W.2d 455
• Parties: STATE of North Dakota, Plaintiff and respondent v. Fredrick Lewis BARLOW, Defendant and Appellant. o. 417.
• Court: North Dakota Supreme Court

Page 455

193 N.W.2d 455

STATE of North Dakota, Plaintiff and respondent v. Fredrick Lewis BARLOW, Defendant and Appellant.

Cr. No. 417.

Supreme Court of North Dakota.

Nov. 16, 1971.

Syllabus by the Court

1. A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.

2. Where the trial court in determining the voluntary character of the defendant's plea of guilty to a charge of grand larceny advised defendant of his constitutional rights--the right to counsel (whom the court had previously appointed); the right to a speedy, fair, and public trial; the right to confrontation of witnesses and to cross-examine them; the right to process of court to compel attendance of witnesses on behalf of the defendant; and the right to remain silent; and where the defendant was fully advised of the consequences of such a plea--the defendant's plea was knowingly and voluntarily entered.

3. Where a defendant, pursuant to the Uniform Post-Conviction Procedure Act, collaterally attacks his conviction based upon a plea of guilty, the record imports verity and cannot be contradicted by the unsupported assertion of the defendant and the burden of proving by a preponderance of the evidence that the plea of guilty was not voluntarily and understandingly made is on the petitioner where the record shows that the trial court fully advised the accused of the charges against him, of his constitutional rights, and of the consequences of a guilty plea; where the accused was asked by the court whether he had made any confessions or admissions, whether he had been threatened by anyone to cause him to plead guilty, and whether he was satisfied with his counsel; and where the accused gave meaningful answers to the court's inquires.

4. For reasons stated in the opinion, the accused who voluntarily entered a plea of guilty waived the nonjurisdictional defects asserted by him.

Christensen, Christensen & Bear, Bismarck, for defendant and appellant.

Helgi Johanneson, Atty. Gen., Bismarck, Thomas L. Burgum, State's Atty., Jamestown, for plaintiff and respondent.

PAULSON, Judge.

Fredrick Lewis Barlow [hereinafter Barlow] was convicted of the crime of larceny of an automobile by entering his plea of guilty before the district court of Stutsman County. He was sentenced to a term of from two to five years in the state penitentiary. After being incarcerated in the penitentiary, Barlow filed an application for a post-conviction hearing under the Uniform Post-Conviction Procedure Act, Chapter 29-32 of the North Dakota Century Code, alleging that his constitutional and statutory rights had been violated, and, thereafter, on January 4, 1971, a post-conviction hearing was held before the district court of Stutsman County. Barlow has appealed to this court, under the provisions of Sec. 29-32-09, N.D.C.C., from the judgment of the district court denying relief.

The record reveals that Barlow and three other men were arrested without a warrant by the Rolette County sheriff on June 8, 1970, after notification by customs officers when the stolen car in which Barlow and his companions were riding was stopped at the Canadian border by the customs officers and Barlow and his companions were refused clearance as they attempted to enter Canada and were ordered by the customs officers to return to North Dakota. Barlow has urged several grounds in contending that his constitutional and statutory rights were violated. His contentions are that he was arrested without a warrant and without probable cause; that there was unreasonable delay in taking him before a magistrate in the county in which he was arrested; that he was interrogated by officials after his arrest without having his attorney present and without being taken before a magistrate; that a preliminary hearing was waived by his attorney, rather than by the accused; that he was coerced into signing a confession and he entered a plea of guilty without being fully informed as to the consequences of such a plea; that he was denied the effective assistance of counsel; and that the circumstances of his confinement broke down his will, thereby making his plea of guilty involuntary and coerced.

The primary question to be considered in this case is the effect of Barlow's guilty plea on procedural defects which may have occurred prior to his plea. The general rule is that a voluntary plea of guilty waives all nonjurisdictional defects. 22 C.J.S. Criminal Law Sec. 424(6), (7); 21 Am.Jr.2d Criminal Law Sec. 495; and 20 A.L.R.3d 724.

In the federal courts it is established that "a voluntary plea of guilty constitutes a waiver of all non-jurisdictional defects in the proceeding up to that point, including an illegal arrest, failure to advise * * * [the defendant] of his constitutional rights, and an involuntary confession [emphasis added]". Williamson v. State of Alabama, 441 F.2d 549 (5th Cir.1971). To the same effect are: United States v. Karger, 439 F.2d 1108 (1st Cir.1971), cert. den. 403 U.S. 919, 91 S.Ct. 2230, 29 L.Ed.2d 696 (1971); United States v. McElya, 142 U.S. App.D.C. 38, 439 F.2d 548 (1971); Austin v. Perini, 434 F.2d 752 (6th Cir.1970); United STates v. Briscoe, 428 F.2d 954 (8th Cir.1970), cert. den. 400 U.S. 966, 91 S.Ct. 378, 27 L.Ed.2d 386, reh. den. 401 U.S. 926, 91 S.Ct. 891, 27 L.Ed.2d 831; Runge v. United States, 427 F.2d 122 (10th Cir.1970); and Woodward v. United states, 426 F.2d 959 (3d Cir.1970).

The United States Supreme Court has recently considered the question of collateral attacks on convictions based on guilty pleas in the cases of McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); and Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

In McMann v. Richardson, supra, 397 U.S. at 772, 90 S.Ct. at 1449, the United States Supreme Court sated:

"* * * a plea of guilty in a state court is not subject to collateral attack in a federal court on the ground that it was motivated by a coerced confession unless the defendant was incompetently advised by his attorney. For the respondents * * * [to prevail] each must demonstrate gross error on the part of counsel when he recommended that the defendant plead guilty * * * "

In Parker v. North Carolina, supra, the United States Supreme Court denied collateral relief to the defendant, who allegedly was coerced into making a confession, because the evidence showed that more than a month after the allegedly coerced confession was made, the defendant pleaded guilty in open court and told the court that he had not been promised anything and that the plea was made freely without fear or compulsion.

In Brady v. United States, supra, the United States Supreme Court held that fear of a possible death sentence if the case were tried to a jury did not invalidate a plea of guilty where the plea met the standard of voluntariness and was made by one fully aware of the direct consequences of the plea.

In Application of Dutro, 83 S.D. 168, 156 N.W.2d 771 (1968), the South Dakota Supreme Court held that an inexcusable five-day delay between arrest and appearance before a magistrate was not a basis for collateral relief because the accused waived all nonjurisdictional defects by voluntarily pleading guilty.

While our court has not previously considered this question, the authorities cited carry substantial weight and we accordingly adopt the rule that a voluntary plea of guilty constitutes a waiver of the nonjurisdictional defects alleged to have occurred i this case prior to the guilty plea.

It is necessary, then, at this point, to examine the voluntariness of Barlow's guilty plea. There are federal guidelines to follow when considering guilty pleas. In Boykin v. Alabama, 395 U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court stated:

"A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment. * * *

* * *

* * *

"Several factors constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. (Citation omitted.] Second, is the right to trial by jury. (Citation omitted.] Third, is the right to confront one's accusers. (Citation omitted.] We cannot presume a waiver of these three important federal rights from a silent record."

And, in Brady v. United States, supra 397 U.S. at 748, 90 S.Ct. at 1469, the United States Supreme Court stated:

"Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences."

It is well established under North Dakota law that a plea of guilty must be free and voluntary and, consequently, this court has previously had to evaluate the circumstances surrounding guilty pleas in order to determine whether they were entered as a result of threats or coercion. Application of Stone, 171 N.W.2d 119 (N.D.1969) cert. denied 397 U.S. 912, 90 S.Ct. 912, 25 L.Ed.2d 93; State v. Whiteman, 67 N.W.2d 599 (N.E.1954); State v. Malnourie, 67 N.W.2d 330 (N.D.1954); and State v. Layer, 48 N.D. 366, 184 N.W. 666 (1921).

In State v. Whiteman, supra, and State v. Malnourie, supra, this court set aside guilty pleas on the grounds that such pleas were coerced and involuntary. The two defendants in these cases, Whiteman and Malnourie, were principals in the same crime and there was evidence adduced by the two defendants of beatings, mob violence, and threats of mutilation of the defendants by the use of chains and a wrecker...