State v. Bastedo, No. 50283

• Court: United States State Supreme Court of Iowa
• Writing for the Court: LARSON; All Justices concur except BLISS
• Citation: 253 Iowa 103,111 N.W.2d 255
• Parties: STATE of Iowa, Appellee, v. Edward E. BASTEDO, Appellant.
• Docket Number: No. 50283
• Decision Date: 17 October 1961

Page 255

111 N.W.2d 255 253 Iowa 103 STATE of Iowa, Appellee,
v.
Edward E. BASTEDO, Appellant. No. 50283. Supreme Court of Iowa. Oct. 17, 1961.

[253 Iowa 104]

Page 256

Paul A. Mahr, Sioux City, for appellant.

[253 Iowa 105] Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen. and Edward F. Samore, County Atty. for Woodbury County, Sioux City, for appellee.

LARSON, Justice.

Pursuant to a hearing on his 'application' for arrest of judgment (Chapter 788, Code 1958, I.C.A.), the trial court found appellant's contentions were without merit, denied the application, and remanded him to the custody of the prison warden. In this appeal the defendant Edward E. Bastedo contends the trial court erred in failing to find under the testimony that his plea of guilty was induced by coercion, fraud, undue influence, and fear, and that the circumstances leading up to the plea compel the conclusion that his plea was entered as a result of undue influence and coercion, was not voluntary, and constituted a denial of due process guaranteed by both the federal and state constitutions. Upon a careful review of the proceedings as set forth in the record, we find no error and must affirm the judgment of the district court.

It appears from the record that the defendant was arrested August 28, 1959, on a charge of rape. He was indicted on that charge November 10, 1959, arraigned on November 13, 1959, and, through his court-appointed attorney, entered a plea of 'Not Guilty'. Subsequent to a change of attorneys (three times), trial was commenced on May 16, 1960. At the close of the state's evidence on May 19, 1960, defendant pleaded guilty to the included offense of assault with intent to commit rape. The plea was accepted by the trial judge, who sentenced the defendant to the men's penitentiary at Fort Madison, Iowa, for a term of fifteen years. No appeal bond was filed, and defendant was then committed. On August 26, 1960, during the same term of court the defendant, acting pro se, filed a request for review entitled 'Application for Arrest of Judgment' in which he asked that the judgment be set aside, for the reason that it was based upon a plea of guilty obtained in violation of his rights under the due process clause of the federal constitution and the state constitution providing any plea of guilty obtained only by force, fear and duress, is a fraud on the court and absolutely void.

[253 Iowa 106] The trial court granted defendant a Writ of Habeas Corpus Ad Testificandum, appointed requested counsel for him, and commenced the hearing upon this application October 17, 1960. Upon the completion of the hearing the testimony offered orally and by affidavit was duly considered by the court, and on October 19, 1960, relief was denied. Notice of appeal was duly filed November 15, 1960.

I. Where a right of review is given a person accused of a crime by statute, such a right is substantial and the accused therein may challenge his conviction as having been obtained by duress, coercion, fraud, or undue influence. Sewell v. Lainson, 244 Iowa 555, 566, 57 N.W.2d 556, and cases cited therein.

Page 257

Chapter 788.1, Code 1958, I.C.A., outlines the statutory procedure for a 'motion' in arrest of judgment. Section 788.1 provides: 'A motion in arrest of judgment is an application to the court in which the trial was had, on the part of the defendant, that no judgment be rendered upon a verdict against him, or on a plea of guilty, and shall be granted when upon the whole record no legal judgment can be pronounced.'

Section 788.2 relates to the time of filing the motion and provides: 'The motion may be made at any time before or after judgment, during the same term.' (Emphasis supplied.)

While the defendant entitled his motion an 'application', the entitlement we think was sufficient and the filing clearly was timely, being within the same term. His application to the court entitled him to a hearing and it was promptly afforded him by the learned trial court. As bearing on this right, see State v. Stennett, 220 Iowa 388, 395, 260 N.W. 732; State v. Kirkpatrick, 220 Iowa 974, 976, 263 N.W. 52. While it is stated in State v. Harper, 220 Iowa 515, at page 525, 258 N.W. 886, that a motion for a new trial must be filed before judgment, and while the trial court felt this was actually only a motion for a new trial, we think the review requested was much more and challenged the very jurisdiction of the court to accept his plea of guilty allegedly involuntarily entered. He was entitled to a hearing on that issue. The rule as stated in State v. Bading, 236 Iowa 468, 471, 17 N.W.2d 804, 807, is that 'a motion in arrest of judgment must be granted upon the whole [253 Iowa 107] record * * * in the event the court finds no legal judgment can be (or could be) pronounced.' Thus if upon the whole record here it is determined, as defendant contends, that the plea of guilty was not voluntarily entered, but was procured by undue influence, coercion and fraud, no valid judgment or sentence could be pronounced herein. State v. Mullin, 249 Iowa 10, 85 N.W.2d 598, and cases cited therein; Euziere v. United States, 10 Cir., 249 F.2d 293 and cases cited therein; 14 Am.Jur., §§ 286-287, pages 960-962.

II. Appellant first contends the trial court erred in failing to find from the conflicting testimony that there was coercion and that the plea of guilty was induced thereby. Upon a review of this nature we determine only whether there is substantial evidence supporting the findings of the trial court. If the court accepts and considers the competent and material testimony introduced and, after weighing the same, finds it is either sufficient or insufficient to sustain the burden of proof necessarily devolved upon applicant, that determination is usually binding upon...