State v. Cole

• Decision Date: 06 May 1969
• Docket Number: No. 53369,53369
• Citation: 168 N.W.2d 37
• Parties: STATE of Iowa, Appellee, v. Roger COLE, Appellant.
• Court: Iowa Supreme Court

Page 37

168 N.W.2d 37

STATE of Iowa, Appellee, v. Roger COLE, Appellant.

No. 53369.

Supreme Court of Iowa.

May 6, 1969.

C. A. Frerichs of Waterloo, for appellant.

Richard C. Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., and Roger F. Peterson, County Atty., for appellee.

SNELL, Justice.

Defendant appealed from judgment and sentence for breaking and entering. He claims violation of his rights at time of sentence.

Defendant has had counsel at all times.

On May 31, 1968 defendant was charged by county attorney's Information with the crime of breaking and entering in violation of section 708.8, Code of Iowa.

On June 12 after preliminary formalities defendant pleaded guilty. Time for sentence was set and a pre-sentence investigation report was requested by the court. A report in writing was made and signed by the resident parole agent. Section 247.20, Code of Iowa, as amended by chapter 219, Laws of the 62nd General Assembly, authorizes such an investigation.

The report was comprehensive. It described defendant, named co-defendants (defendant's wife and another man were implicated), set forth the official version and defendant's version of the offense and noted defendant's prior arrests and convictions. It then set out in considerable detail the family history of his mother, father, brothers, sisters and defendant's personal history. Defendant's religion, health, habits, education, employment record, marital status and economic condition were stated.

Defendant at age of 24 had been married twice. His employment record was not good. During the eight years prior to the report he had for various periods of time had 11 different jobs, twice for periods as short as one and one-half weeks. He gave the following reasons for the termination of his several jobs: Suffered normal lay-off; left because of a better job offer; left because he did not like job; left because he did not agree with company policy and quit; company closed down; left because of seasonal lay-off; left because he was not satisfied with wages; left because plant closed down; left because of disagreement with foreman; was fired for unknown reason.

From the time of his last job in 1967 (he only worked three weeks in 1967) until the time of his arrest he had not worked. We quote:

'From that date until present subject has had not (sic) work. Lived off of family. Subject claims the reason he has not held a steady job down since that date is that he cannot find anything he likes.'

Sentencing originally set for July 3 was continued to July 8. At that time defendant appeared in open court with counsel.

This from the record:

'Upon inquiry from the court the defendant indicated that there was no reason he knew of, legal or otherwise, why the sentencing should not proceed at that time.

'The court then reviewed the pre-sentence report with defendant and counsel. The court noted corrections in the report to the effect that defendant had never served any time at Eldora and that upon his first felony conviction defendant had received a suspended sentence and had been placed on probation.

'After inquiry by defense counsel the court stated for the record that the author of the pre-sentence report had, in addition, to furnishing the written statement recommended orally to the court, in the absence of counsel, that defendant should receive a prison sentence and that defendant could not be successfully supervised if he were placed on probation. The author of the report was Richard M. Sorci, a parole agent of the Board of Control.

'Defense counsel then asked to call Mr. Sorci, who was present in court, as a witness for the purpose of examining the validity of Sorci's conclusion that defendant was not a fit subject for probation.

'Counsel for the state objected to such procedure on the basis that pre-trial reports are confidential and discretionary with the court and that it would be against public policy to allow defendant's counsel to examine a parole agent for the Board of Parole.

'Defendant stated that the court's failure to allow defendant's counsel to examine Sorci would be in violation of defendant's right to counsel under the 6th and 14th Amendments to the United States Constitution, and defendant's statutory right to counsel under Section 777.5 (sic) of the Iowa Code.

'The Court then denied defendant's request to examine Sorci and the defendant took the stand in his own behalf.'

Defendant testified as to his conversation with the parole agent and that he thought he could get a job.

The court sentenced defendant to imprisonment in the reformatory.

I. Defendant had a constitutional and statutory right to counsel. Amendment #6, Constitution of the United States, Article I, Section 10, Constitution of Iowa, Section 775.4, Code of Iowa.

The right to counsel extends to the sentencing proceeding. Losieau v. Sigler, Warden, 406 F.2d 795, United States Court of Appeals, Eighth Circuit, decided February 4, 1969 and cases cited therein.

II. What is commonly called a 'bench parole' is authorized by section 247.20, Code of Iowa. This section to the extent applicable here provides: 'The trial court * * * may * * * suspend the sentence and grant probation to said person during good behavior. * * *' Section 247.21 provides for the custody, care and supervision of the person to whom probation is granted by a parole agent or agency designated by the court.

Section 247.20 says the court 'may' suspend sentence. The granting of a suspended sentence and parole is a matter of grace, favor, or forbearance. It is not a matter of right. Pagano v. Bechly, Judge, 211 Iowa 1294, 232 N.W. 798; Lint v. Bennett, 251 Iowa 1193, 104 N.W.2d 564; Curtis v. Bennett, 256 Iowa 1164, 131 N.W.2d 1; State v. Ruth, 258 Iowa 568, 139 N.W.2d 468.

III. Trial courts have broad discretion in the granting or withholding of bench paroles and an appellate court will seldom interfere with their determination of such matters. There is, however, a duty to consider and determine an application for parole. State v. Boston, 233 Iowa 1249, 11 N.W.2d 407. See also second appeal in the same case, 234 Iowa 1047, 14 N.W.2d 676.

In that case defendant had been indicted for murder and convicted of manslaughter. We quote from the opinion on the first appeal, page 1256 of 233 Iowa, page 411 of 11 N.W.2d:

'After the verdict and before sentence defendant filed a verified application for parole by the court * * *. (D)efendant's counsel read the application for parole to the court who stated 'that he never allowed a parole; that in all his experience on the bench he had never allowed a parole and would not do so in this case, and that no evidence would be received or hearing had on that matter * * *."

Defendant produced witnesses and asked to be sworn to testify. The court declined all the offers and summarily denied the application. We held defendant was entitled to have his application considered on its merits and reversed and remanded, for that purpose only.

Following remand the trial court held a hearing, listened to arguments, filed a written ruling and again denied parole. Defendant again appealed. We held that the trial court had performed the duty required and affirmed. We said:

'The scope of the inquiry is and should be largely in the hands of that official. * * * No one convicted of a crime can demand a parole as a matter of right. * * * We are not prepared to hold that the court may take into consideration nothing other than the record of the trial * * *.' loc. cit. 1051--1052 of 234 Iowa, loc. cit. 679 of 14 N.W.2d.

From these pronouncements it is clear that a trial court has a duty to hear an application for parole but has wide discretion in what must be considered in granting or denying the application.

IV. In the case before us defendant concedes that sentencing procedures are governed by different evidentiary rules than the trial itself; that the sentencing judge should be 'in possession of the fullest information possible concerning the defendant's life and characteristics'; that 'a sentencing judge should not be denied an opportunity to obtain pertinent information by requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.'

Defendant cites Williams v. People, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 and State v. Delano, Iowa, 161 N.W.2d 66. These cases are of no help to defendant and in fact amply support the position of the state.

Here the trial court stated that he had received an oral recommendation against probation from the parole agent. Assuming, arguendo, that the court considered the recommendation, there is no indication that the court abdicated its responsibility to the parole agent.

Defendant was not denied the right to testify. He was not denied the right to call witnesses in his own behalf. He was not permitted to call the parole agent 'for the purpose of examining the validity of Sorci's conclusion that defendant was not a fit subject for probation.'

A trial in a criminal case is an inquiry as to facts; a search for the truth of the charge made against the defendant. Rigid rules of procedure and admissibility of testimony are followed. Opinions and conclusions of witnesses as to the guilt or innocence of the accused are not received. After guilt has been determined and the question of probation arises the same rigid rules do not apply. The sentence judge may then resort to such sources of information as he thinks might be helpful to his judgment as to what should be done with defendant. As said in Boston, supra, the scope of the inquiry is in his hands. The responsibility and decision is the court's. Defendant may not successfully challenge the soundness of the trial court's discretion even though involved therein were conclusions or matters not ordinarily admissible. As said at the end of the second Boston opinion, supra, 'Whether the decision was as some other court would have decided is beside the...