State v. Burnett

• Decision Date: 25 October 1961
• Citation: 365 P.2d 1060,228 Or. 556
• Parties: STATE of Oregon, Respondent, v. Robert Lister BURNETT, Appellant.
• Court: Oregon Supreme Court

Page 1060

365 P.2d 1060

228 Or. 556

STATE of Oregon, Respondent, v. Robert Lister BURNETT, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Oct. 11, 1961.

Decided Oct. 25, 1961.

James W. Walton, Corvallis, argued the cause for appellant. On the briefs were Daniel R. Dimick, Roseburg, and Ringo & Walton, Corvallis.

Avery W. Thompson, Dist. Atty., and George F. Weigum, Deputy Dist. Atty., Roseburg, filed a brief for respondent.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN, and LUSK, JJ.

GOODWIN, Justice.

The defendant appeals from a judgment following a plea of guilty to a charge of contributing to the delinquency of a minor. He assigns error to the denial by the circuit court of a timely motion for leave to withdraw his plea of guilty under ORS 135.850.

The transcript reveals that prior to any proceedings in the circuit court the trial judge instructed the defendant with painstaking care concerning all of his rights. The defendant insisted in open court that he understood the charge, that he was guilty, and that he did not want an attorney. He also stated that he had a college education which included two years of law. He then proceeded to waive all his rights and entered a plea of guilty to an information charging him with a violation of ORS 167.210.

Since the charge involved sexual molestation of a child, the court decided to send the defendant to the state hospital for examination pursuant to ORS 137.116. It was the day after he learned that he was to be sent to the hospital that the defendant made his motion for leave to change his plea.

The motion was addressed to the sound discretion of the trial court. ORS 135.850. Therefore, the only question before this court is whether the trial court abused its discretion. State v. Bloor, Or., 365 P.2d 103.

In support of his motion, the defendant filed an affidavit in which he stated that he was not guilty of the crime but that he had pleaded guilty in order to avoid publicity and to protect his job. He further alleged that the district attorney, in an interview with him at the jail, had given him reason to 'assume' that the court would treat the case as a misdemeanor.

If the allegations of the defendant's affidavit were true, then any such promise by the district attorney would be a sufficient reason to vacate the judgment and set the case for trial. Ward v. United States, 6 Cir., 1940, 116 F.2d 135. We adopt the view of the Oklahoma Court of Criminal Appeals:

'The general rule of law as stated by numerous decisions of this and other courts is that an application to withdraw a plea of guilty is addressed to the sound discretion of the trial court; that the law favors the trial of criminal cases on the merits and where it reasonably appears a plea of guilty was influenced by persons in authority or apparent authority * * * [who] led a defendant to believe that by entering a plea of guilty his punishment [would] be thereby mitigated he should be permitted to withdraw the plea of guilty and to enter a plea of not guilty and the refusal to permit him to do so is an abuse of discretion. [Citing cases.]' Sloan v. State, 54 Okl.Cr. 324, 326, 20 P.2d 917.

In the above-mentioned state and federal cases, the law enforcement officers admitted that they had talked the defendants into pleading guilty. In the case at bar, such conduct is denied. The trial court ordered a hearing and went into the matter fully. At this hearing, and at all times thereafter, the defendant was ably represented by counsel. The trial court found as a matter of fact that the defendant was not pressured into pleading guilty, nor was anything said to him which could cause a reasonable person to believe that he would receive a lighter penalty if he pleaded guilty than if he stood trial. Upon a review of the entire record, we are impressed with the fairness with which the court inquired into the defendant's motion to change his plea. Ordinarily, any doubt should be resolved in favor of permitting the plea to be withdrawn. In the case at bar, the trial court had the opportunity to evaluate the defendant's story. He did not believe it. We can not say as a matter of law that the trial judge abused his discretion.

In the final analysis, there is nothing in the record to indicate that the defendant did not fully understand what the was doing when he pleaded guilty. We quote from the transcript at the time of the taking of the plea:

'Q. [The Court] Very well then. Having waived the one-day waiting period you will be required to do one of the following things: You may move to set the information aside, you may demur to the information, you may plead not guilty, you may plead guilty or, if you stand without response whatsoever, a plea of not guilty will be entered in your behalf. Which do you wish to do? A. Enter a plea of guilty, Your Honor.

'Q. Have there been any threats made against you, promises made to you or inducements offered to you of any nature whatsoever to induce you to plead guilty to this...